BILL NUMBER: AB 5 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Evans
(Coauthors: Assembly Members Feuer and Tran)
(Coauthors: Senators Corbett and Harman)
DECEMBER 1, 2008
An act to amend Sections 2016.020, 2031.010, 2031.020, 2031.030,
2031.040, 2031.050, 2031.060, 2031.210, 2031.220, 2031.230, 2031.240,
2031.250, 2031.260, 2031.270, 2031.280, 2031.290, 2031.300,
2031.310, and 2031.320 of, and to add Sections 1985.8 and 2031.285
to, the Code of Civil Procedure, relating to civil discovery, and
declaring the urgency thereof, to take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
AB 5, as introduced, Evans. Civil discovery: Electronic Discovery
Act.
The Civil Discovery Act permits a party to a civil action to
obtain discovery, as specified, by inspecting documents, tangible
things, and land or other property in the possession of any other
party to the action. Existing law requires the party to whom an
inspection demand has been directed to respond separately to each
item or category of item by any of certain responses, including a
statement that the party will comply with the particular demand for
inspection by the date set for inspection pursuant to a specified
provision.
This bill would establish procedures for a person to obtain
discovery of electronically stored information, as defined, in
addition to documents, tangible things, and land or other property,
in the possession of any other party to the action. This bill would
permit discovery by the means of copying, testing, or sampling, in
addition to inspection, of documents, tangible things, land or other
property, or electronically stored information.
The Civil Discovery Act permits the party demanding inspection and
the responding party to agree to extend the time for service of a
response to a set of inspection demands, or to particular items or
categories of items in a set, to a date beyond that provided in a
specified provision.
This bill would permit the parties to agree to extend the date for
inspection, copying, testing, or sampling beyond those provided in
specified provisions.
The Civil Discovery Act requires any documents produced in
response to an inspection demand to be produced as they are kept in
the usual course of business, or be organized and labeled to
correspond with the categories in the demand. The documents are to be
produced on the date described above or as agreed to by the parties
pursuant to an extension.
This bill would make this provision applicable, in addition, to
documents produced in response to a demand for copying, testing, or
sampling. The bill would furthermore provide that if a party
responding to a demand for production of electronically stored
information objects to a specified form for producing the
information, or if no form is specified in the demand, the responding
party shall state in its response the form in which it intends to
produce each type of information. In general if a demand for
production does not specify a form or forms for producing a type of
electronically stored information, the responding party would be
required to produce the information in the form or forms in which it
is ordinarily maintained or in a form that is reasonably usable, but
need not produce the same electronically stored information in more
than one form.
The bill would also provide that a party seeking a protective
order regarding, or a party objecting to or opposing a demand for,
production, inspection, copying, testing, or sampling of
electronically stored information, on the basis that the information
is from a source that is not reasonably accessible because of the
undue burden or expense shall bear the burden of demonstrating that
the information is from a source that is not reasonably accessible
because of undue burden or expense. If it is established that the
electronically stored information is from a source that is not
reasonably accessible because of undue burden or expense, the court
may nonetheless order discovery if the demanding party shows good
cause, subject to specified restrictions in specified circumstances.
Existing law requires the court to impose a monetary sanction, as
specified, against any party or any attorney of a party for specified
violations.
This bill would generally provide that, notwithstanding the above
provision, the court shall not impose sanctions on a party or any
attorney of a party for failure to provide electronically stored
information that has been lost, damaged, altered, or overwritten as
the result of the routine, good faith operation of an electronic
information system.
This bill would declare that it is to take effect immediately as
an urgency statute.
Vote: 2/3. Appropriation: no. Fiscal committee: no. State-mandated
local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. This act shall be known as the Electronic Discovery
Act.
SEC. 2. Section 1985.8 is added to the Code of Civil Procedure, to
read:
1985.8. (a) (1) A subpoena in a civil proceeding may require that
electronically stored information, as defined in Section 2016.020,
be produced and that the party serving the subpoena, or someone
acting on the party's request, be permitted to inspect, copy, test,
or sample the information.
(2) Any subpoena seeking electronically stored information shall
comply with the requirements of this chapter.
(b) A party serving a subpoena requiring production of
electronically stored information may specify the form or forms in
which each type of information is to be produced.
(c) Unless the subpoenaing party and the subpoenaed party
otherwise agree or the court otherwise orders, the following shall
apply:
(1) If a subpoena requiring production of electronically stored
information does not specify a form or forms for producing a type of
electronically stored information, the person subpoenaed shall
produce the information in the form or forms in which it is
ordinarily maintained or in a form that is reasonably usable.
(2) A subpoenaed person need not produce the same electronically
stored information in more than one form.
(d) The subpoenaed person opposing the production, inspection,
copying, testing, or sampling of electronically stored information on
the basis that information is from a source that is not reasonably
accessible because of undue burden or expense shall bear the burden
of demonstrating that the information is from a source that is not
reasonably accessible because of undue burden or expense.
(e) If the person from whom discovery of electronically stored
information is subpoenaed establishes that the information is from a
source that is not reasonably accessible because of undue burden or
expense, the court may nonetheless order discovery if the subpoenaing
party shows good cause, subject to any limitations imposed under
subdivision (h).
(f) If the court finds good cause for the production of
electronically stored information from a source that is not
reasonably accessible, the court may set conditions for the discovery
of the electronically stored information, including allocation of
the expense of discovery.
(g) If necessary, the subpoenaed person, at the reasonable expense
of the subpoenaing party, shall, through detection devices,
translate any data compilations included in the subpoena into a
reasonably usable form.
(h) The court shall limit the frequency or extent of discovery of
electronically stored information, even from a source that is
reasonably accessible, if the court determines that any of the
following conditions exists:
(1) It is possible to obtain the information from some other
source that is more convenient, less burdensome, or less expensive.
(2) The discovery sought is unreasonably cumulative or
duplicative.
(3) The party seeking discovery has had ample opportunity by
discovery in the action to obtain the information sought.
(4) The likely burden or expense of the proposed discovery
outweighs the likely benefit, taking into account the amount in
controversy, the resources of the parties, the importance of the
issues in the litigation, and the importance of the requested
discovery in resolving the issues.
(i) If a subpoenaed person notifies the subpoenaing party that
electronically stored information produced pursuant to a subpoena is
subject to a claim of privilege or of protection as attorney work
product, as described in Section 2031.285, the provisions of Section
2031.285 shall apply.
(j) A party serving a subpoena requiring the production of
electronically stored information shall take reasonable steps to
avoid imposing undue burden or expense on a person subject to the
subpoena.
(k) An order of the court requiring compliance with a subpoena
issued under this section shall protect a person who is neither a
party nor a party's officer from undue burden or expense resulting
from compliance.
(l) (1) Absent exceptional circumstances, the court shall not
impose sanctions on a subpoenaed person or any attorney of a
subpoenaed person for failure to provide electronically stored
information that has been lost, damaged, altered, or overwritten as
the result of the routine, good faith operation of an electronic
information system.
(2) This subdivision shall not be construed to alter any
obligation to preserve discoverable information.
SEC. 3. Section 2016.020 of the Code of Civil Procedure is amended
to read:
2016.020. As used in this title:
(a) "Action" includes a civil action and a special proceeding of a
civil nature.
(b) "Court" means the trial court in which the action is pending,
unless otherwise specified.
(c) "Document" and "writing" mean a writing, as defined in Section
250 of the Evidence Code.
(d) "Electronic" means relating to technology having electrical,
digital, magnetic, wireless, optical, electromagnetic, or similar
capabilities.
(e) "Electronically stored information" means information that is
stored in an electronic medium.
SEC. 4. Section 2031.010 of the Code of Civil Procedure is amended
to read:
2031.010. (a) Any party may obtain discovery within the scope
delimited by Chapters 2 (commencing with Section 2017.010) and 3
(commencing with Section 2017.710), and subject to the restrictions
set forth in Chapter 5 (commencing with Section 2019.010), by
inspecting , copying, testing, or sampling documents,
tangible things, and land or other property
that are , and electronically stored
information in the possession, custody, or control of any other
party to the action.
(b) A party may demand that any other party produce and permit the
party making the demand, or someone acting on that party's behalf,
to inspect and to copy a document that is in the possession, custody,
or control of the party on whom the demand is made.
(c) A party may demand that any other party produce and permit the
party making the demand, or someone acting on that party's behalf,
to inspect and to photograph, test, or sample any tangible things
that are in the possession, custody, or control of the party on whom
the demand is made.
(d) A party may demand that any other party allow the party making
the demand, or someone acting on that party's behalf, to enter on
any land or other property that is in the possession, custody, or
control of the party on whom the demand is made, and to inspect and
to measure, survey, photograph, test, or sample the land or other
property, or any designated object or operation on it.
(e) A party may demand that any other party produce and permit the
party making the demand, or someone acting on that party's behalf,
to inspect, copy, test, or sample electronically stored information
in the possession, custody, or control of the party on whom demand is
made.
SEC. 5. Section 2031.020 of the Code of Civil Procedure is amended
to read:
2031.020. (a) A defendant may make a demand for inspection ,
copying, testing, or sampling without leave of court at any
time.
(b) A plaintiff may make a demand for inspection , copying,
testing, or sampling without leave of court at any time that is
10 days after the service of the summons on, or appearance by, the
party to whom the demand is directed, whichever occurs first.
(c) Notwithstanding subdivision (b), in an unlawful detainer
action or other proceeding under Chapter 4 (commencing with Section
1159) of Title 3 of Part 3, a plaintiff may make a demand for
inspection , copying, testing, or sampling without leave
of court at any time that is five days after service of the summons
on, or appearance by, the party to whom the demand is directed,
whichever occurs first.
(d) Notwithstanding subdivisions (b) and (c), on motion with or
without notice, the court, for good cause shown, may grant leave to a
plaintiff to make an inspection a
demand for inspection, copying, testing, or sampling at an
earlier time.
SEC. 6. Section 2031.030 of the Code of Civil Procedure is amended
to read:
2031.030. (a) (1) A party demanding
an inspection , copying, testing, or sampling
shall number each set of demands consecutively.
(2) A party demanding inspection, copying, testing, or sampling of
electronically stored information may specify the form or forms in
which each type of electronically stored information is to be
produced.
(b) In the first paragraph immediately below the title of the
case, there shall appear the identity of the demanding party, the set
number, and the identity of the responding party.
(c) Each demand in a set shall be separately set forth, identified
by number or letter, and shall do all of the following:
(1) Designate the documents, tangible things, or
land or other property , or electronically stored
information to be inspected , copied, tested,
or sampled either by specifically describing each individual
item or by reasonably particularizing each category of item.
(2) Specify a reasonable time for the inspection , copying,
testing, or sampling that is at least 30 days after service of
the demand, unless the court for good cause shown has granted leave
to specify an earlier date. In an unlawful detainer action or other
proceeding under Chapter 4 (commencing with Section 1159) of Title 3
of Part 3, the demand shall specify a reasonable time for the
inspection , copying, testing, or sampling that is at
least five days after service of the demand, unless the court, for
good cause shown, has granted leave to specify an earlier date.
(3) Specify a reasonable place for making the inspection, copying,
testing, or sampling, and performing any related
activity.
(4) Specify any inspection, copying, testing, sampling, or
related activity that is being demanded in addition to
an inspection and copying , as well as the manner in which
that related activity will be performed, and
whether that activity will permanently alter or destroy the item
involved.
SEC. 7. Section 2031.040 of the Code of Civil Procedure is amended
to read:
2031.040. The party demanding an making a
demand for inspection , copying, testing, or sampling
shall serve a copy of the inspection demand
on the party to whom it is directed and on all other parties who have
appeared in the action.
SEC. 8. Section 2031.050 of the Code of Civil Procedure is amended
to read:
2031.050. (a) In addition to the inspection
demands for inspection, copying, testing, or sampling
permitted by this chapter, a party may propound a supplemental demand
to inspect , copy, test, or sample any later acquired or
discovered documents, tangible things, or land or
other property that are , or
electronically stored information in the possession, custody,
or control of the party on whom the demand is made.
(b) A party may propound a supplemental inspection
demand for inspection, copying, testing, or sampling
twice before the initial setting of a trial date, and, subject
to the time limits on discovery proceedings and motions provided in
Chapter 8 (commencing with Section 2024.010), once after the initial
setting of a trial date.
(c) Notwithstanding subdivisions (a) and (b), on motion, for good
cause shown, the court may grant leave to a party to propound an
additional number of supplemental demands for inspection ,
copying, testing, or sampling .
SEC. 9. Section 2031.060 of the Code of Civil Procedure is amended
to read:
2031.060. (a) When an inspection , copying, testing, or
sampling of documents, tangible things or
, places , or electronically stored information
has been demanded, the party to whom the demand has been directed,
and any other party or affected person or organization
, may promptly move for a protective order. This motion
shall be accompanied by a meet and confer declaration under Section
2016.040.
(b) The court, for good cause shown, may make any order that
justice requires to protect any party or other natural
person or organization from unwarranted
annoyance, embarrassment, or oppression, or undue burden and expense.
This protective order may include, but is not limited to, one or
more of the following directions:
(1) That all or some of the items or categories of items in the
inspection demand need not be produced or made
available at all.
(2) That the time specified in Section 2030.260 to respond to the
set of inspection demands, or to a particular item
or category in the set, be extended.
(3) That the place of production be other than that specified in
the inspection demand.
(4) That the inspection , copying, testing, or sampling
be made only on specified terms and conditions.
(5) That a trade secret or other confidential research,
development, or commercial information not be disclosed, or be
disclosed only to specified persons or only in a specified way.
(6) That the items produced be sealed and thereafter opened only
on order of the court.
(c) The party or affected person who seeks a protective order
regarding the production, inspection, copying, testing, or sampling
of electronically stored information on the basis that the
information is from a source that is not reasonably accessible
because of undue burden or expense shall bear the burden of
demonstrating that the information is from a source that is not
reasonably accessible because of undue burden or expense.
(d) If the party or affected person from whom discovery of
electronically stored information is sought establishes that the
information is from a source that is not reasonably accessible
because of undue burden or expense, the court may nonetheless order
discovery if the demanding party shows good cause, subject to any
limitations imposed under subdivision (f).
(e) If the court finds good cause for the production of
electronically stored information from a source that is not
reasonably accessible, the court may set conditions for the discovery
of the electronically stored information, including allocation of
the expense of discovery.
(f) The court shall limit the frequency or extent of discovery of
electronically stored information, even from a source that is
reasonably accessible, if the court determines that any of the
following conditions exist:
(1) It is possible to obtain the information from some other
source that is more convenient, less burdensome, or less expensive.
(2) The discovery sought is unreasonably cumulative or
duplicative.
(3) The party seeking discovery has had ample opportunity by
discovery in the action to obtain the information sought.
(4) The likely burden or expense of the proposed discovery
outweighs the likely benefit, taking into account the amount in
controversy, the resources of the parties, the importance of the
issues in the litigation, and the importance of the requested
discovery in resolving the issues.
(c)
(g) If the motion for a protective order is denied in
whole or in part, the court may order that the party to whom the
demand was directed provide or permit the discovery against which
protection was sought on terms and conditions that are just.
(d) The
(h) Except as provided in subdivision
(i), the court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion for a
protective order, unless it finds that the one subject to the
sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.
(i) (1) Notwithstanding subdivision (h), absent exceptional
circumstances, the court shall not impose sanctions on a party or any
attorney of a party for failure to provide electronically stored
information that has been lost, damaged, altered, or overwritten as
the result of the routine, good faith operation of an electronic
information system.
(2) This subdivision shall not be construed to alter any
obligation to preserve discoverable information.
SEC. 10. Section 2031.210 of the Code of Civil Procedure is
amended to read:
2031.210. (a) The party to whom an inspection
a demand for inspection, copying, testing, or
sampling has been directed shall respond separately to each
item or category of item by any of the following:
(1) A statement that the party will comply with the particular
demand for inspection , copying, testing, or sampling by
the date set for the inspection , copying, testing,
or sampling pursuant to paragraph (2) of subdivision (c) of
Section 2031.030 and any related activities.
(2) A representation that the party lacks the ability to comply
with the demand for inspection , copying, testing, or sampling
of a particular item or category of item.
(3) An objection to the particular demand for inspection,
copying, testing, or sampling .
(b) In the first paragraph of the response immediately below the
title of the case, there shall appear the identity of the responding
party, the set number, and the identity of the demanding party.
(c) Each statement of compliance, each representation, and each
objection in the response shall bear the same number and be in the
same sequence as the corresponding item or category in the demand,
but the text of that item or category need not be repeated.
(d) If a party objects to the discovery of electronically stored
information on the grounds that it is from a source that is not
reasonably accessible because of undue burden or expense and that the
responding party will not search the source in the absence of an
agreement with the demanding party or court order, the responding
party shall identify in its response the types or categories of
sources of electronically stored information that it asserts are not
reasonably accessible. By objecting and identifying information of a
type or category of source or sources that are not reasonably
accessible, the responding party preserves any objections it may have
relating to that electronically stored information.
SEC. 11. Section 2031.220 of the Code of Civil Procedure is
amended to read:
2031.220. A statement that the party to whom an
inspection a demand for inspection,
copying, testing, or sampling has been directed will comply
with the particular demand shall state that the production,
inspection, copying, testing, or sampling, and related
activity demanded , will be allowed either in whole or in
part, and that all documents or things in the demanded category that
are in the possession, custody, or control of that party and to which
no objection is being made will be included in the production.
SEC. 12. Section 2031.230 of the Code of Civil Procedure is
amended to read:
2031.230. A representation of inability to comply with the
particular demand for inspection , copying, testing, or sampling
shall affirm that a diligent search and a reasonable inquiry
has been made in an effort to comply with that demand. This statement
shall also specify whether the inability to comply is because the
particular item or category has never existed, has been destroyed,
has been lost, misplaced, or stolen, or has never been, or is no
longer, in the possession, custody, or control of the responding
party. The statement shall set forth the name and address of any
natural person or organization known or believed by that party to
have possession, custody, or control of that item or category of
item.
SEC. 13. Section 2031.240 of the Code of Civil Procedure is
amended to read:
2031.240. (a) If only part of an item or category of item in
an inspection a demand for
inspection, copying, testing, or sampling is objectionable, the
response shall contain a statement of compliance, or a
representation of inability to comply with respect to the remainder
of that item or category.
(b) If the responding party objects to the demand for inspection
, copying, testing, or sampling of an item or
category of item, the response shall do both of the following:
(1) Identify with particularity any document, tangible thing,
or land , or electronically stored
information falling within any category of item in the demand
to which an objection is being made.
(2) Set forth clearly the extent of, and the specific ground for,
the objection. If an objection is based on a claim of privilege, the
particular privilege invoked shall be stated. If an objection is
based on a claim that the information sought is protected work
product under Chapter 4 (commencing with Section 2018.010), that
claim shall be expressly asserted.
SEC. 14. Section 2031.250 of the Code of Civil Procedure is
amended to read:
2031.250. (a) The party to whom the demand for inspection ,
copying, testing, or sampling is directed shall sign the
response under oath unless the response contains only objections.
(b) If that party is a public or private corporation or a
partnership or association or governmental agency, one of its
officers or agents shall sign the response under oath on behalf of
that party. If the officer or agent signing the response on behalf of
that party is an attorney acting in that capacity for a party, that
party waives any lawyer-client privilege and any protection for work
product under Chapter 4 (commencing with Section 2018.010) during any
subsequent discovery from that attorney concerning the identity of
the sources of the information contained in the response.
(c) The attorney for the responding party shall sign any responses
that contain an objection.
SEC. 15. Section 2031.260 of the Code of Civil Procedure is
amended to read:
2031.260. (a) Within 30 days after service of an
inspection a demand for inspection,
copying, testing, or sampling , the party to whom the demand is
directed shall serve the original of the response to it on the party
making the demand, and a copy of the response on all other parties
who have appeared in the action, unless on motion of the party making
the demand, the court has shortened the time for response, or unless
on motion of the party to whom the demand has been directed, the
court has extended the time for response.
(b) Notwithstanding subdivision (a), in an unlawful detainer
action or other proceeding under Chapter 4 (commencing with Section
1159) of Title 3 of Part 3, the party to whom an inspection
a demand for inspection, copying, testing,
or sampling is directed shall have at least five days from the
date of service of the demand to respond, unless on motion of the
party making the demand, the court has shortened the time for the
response, or unless on motion of the party to whom the demand has
been directed, the court has extended the time for response.
SEC. 16. Section 2031.270 of the Code of Civil Procedure is
amended to read:
2031.270. (a) The party demanding an
inspection , copying, testing, or sampling and the
responding party may agree to extend the date for the
inspection , copying, testing, or sampling or the time for
service of a response to a set of inspection
demands, or to particular items or categories of items in a set, to a
date or dates beyond those provided in Sections 2031.030, 2031.210,
2031.260, and 2031.280.
(b) This agreement may be informal, but it shall be confirmed in a
writing that specifies the extended date for inspection ,
copying, testing, or sampling, or for the service of
a response.
(c) Unless this agreement expressly states otherwise, it is
effective to preserve to the responding party the right to respond to
any item or category of item in the demand to which the agreement
applies in any manner specified in Sections 2031.210, 2031.220,
2031.230, 2031.240, and 2031.280.
SEC. 17. Section 2031.280 of the Code of Civil Procedure is
amended to read:
2031.280. (a) Any documents produced in response to an
inspection a demand for inspection,
copying, testing, or sampling shall either be produced as they
are kept in the usual course of business, or be organized and labeled
to correspond with the categories in the demand.
(b) The documents shall be produced on the date specified in the
inspection demand pursuant to paragraph (2) of
subdivision (c) of Section 2031.030, unless an objection has been
made to that date. If the date for inspection has been extended
pursuant to Section 2031.270, the documents shall be produced on the
date agreed to pursuant to that section.
(c) If a party responding to a demand for production of
electronically stored information objects to a specified form for
producing the information, or if no form is specified in the demand,
the responding party shall state in its response the form in which it
intends to produce each type of information.
(d) Unless the parties otherwise agree or the court otherwise
orders, the following shall apply:
(1) If a demand for production does not specify a form or forms
for producing a type of electronically stored information, the
responding party shall produce the information in the form or forms
in which it is ordinarily maintained or in a form that is reasonably
usable.
(2) A party need not produce the same electronically stored
information in more than one form.
(c)
(e) If necessary, the responding party at the
reasonable expense of the demanding party shall, through detection
devices, translate any data compilations included in the demand into
reasonably usable form.
SEC. 18. Section 2031.285 is added to the Code of Civil Procedure,
to read:
2031.285. (a) If electronically stored information produced in
discovery is subject to a claim of privilege or of protection
as attorney work product, the
party making the claim may notify any party that received the
information of the claim and the basis for the claim.
(b) After being notified of a claim of privilege or of protection
under subdivision (a), a party that received the information shall
immediately sequester the information and either return the specified
information and any copies that may exist or present the information
to the court conditionally under seal for a determination of the
claim.
(c) (1) Prior to the resolution of the motion brought under
subdivision (d), a party shall be precluded from using or disclosing
the specified information until the claim of privilege is resolved.
(2) A party who received and disclosed the information before
being notified of a claim of privilege or of protection under
subdivision (a) shall, after that notification, immediately take
reasonable steps to retrieve the information.
(d) (1) If the receiving party contests the legitimacy of a claim
of privilege or protection, he or she may seek a determination of the
claim from the court by making a motion within 30 days of receiving
the claim and presenting the information to the court conditionally
under seal.
(2) Until the legitimacy of the claim of privilege or protection
is resolved, the receiving party shall preserve the information and
keep it confidential and shall be precluded from using the
information in any manner.
SEC. 19. Section 2031.290 of the Code of Civil Procedure is
amended to read:
2031.290. (a) The inspection demand for
inspection, copying, testing, or sampling, and the response to
it , shall not be filed with the court.
(b) The party demanding an inspection , copying, testing, or
sampling shall retain both the original of the
inspection demand, with the original proof of service
affixed to it, and the original of the sworn response until six
months after final disposition of the action. At that time, both
originals may be destroyed, unless the court, on motion of any party
and for good cause shown, orders that the originals be preserved for
a longer period.
SEC. 20. Section 2031.300 of the Code of Civil Procedure is
amended to read:
2031.300. If a party to whom an inspection
a demand for inspection, copying, testing, or
sampling is directed fails to serve a timely response to it,
the following rules shall apply:
(a) The party to whom the inspection demand
for inspection, copying, testing, or sampling is directed
waives any objection to the demand, including one based on privilege
or on the protection for work product under Chapter 4 (commencing
with Section 2018.010). The court, on motion, may relieve that party
from this waiver on its determination that both of the following
conditions are satisfied:
(1) The party has subsequently served a response that is in
substantial compliance with Sections 2031.210, 2031.220, 2031.230,
2031.240, and 2031.280.
(2) The party's failure to serve a timely response was the result
of mistake, inadvertence, or excusable neglect.
(b) The party making the demand may move for an order compelling
response to the inspection demand.
(c) The Except as provided in subdivision
(d), the court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion to compel a
response to an inspection a demand
for inspection, copying, testing, or sampling , unless it finds
that the one subject to the sanction acted with substantial
justification or that other circumstances make the imposition of the
sanction unjust. If a party then fails to obey the order compelling a
response, the court may make those orders that are just, including
the imposition of an issue sanction, an evidence sanction, or a
terminating sanction under Chapter 7 (commencing with Section
2023.010). In lieu of or in addition to this sanction, the court may
impose a monetary sanction under Chapter 7 (commencing with Section
2023.010).
(d) (1) Notwithstanding subdivision (c), absent exceptional
circumstances, the court shall not impose sanctions on a party or any
attorney of a party for failure to provide electronically stored
information that has been lost, damaged, altered, or overwritten as a
result of the routine, good faith operation of an electronic
information system.
(2) This subdivision shall not be construed to alter any
obligation to preserve discoverable information.
SEC. 21. Section 2031.310 of the Code of Civil Procedure is
amended to read:
2031.310. (a) On receipt of a response to an inspection
a demand for inspection, copying, testing,
or sampling , the demanding party demanding
an inspection may move for an order compelling further
response to the demand if the demanding party deems that any of the
following apply:
(1) A statement of compliance with the demand is incomplete.
(2) A representation of inability to comply is inadequate,
incomplete, or evasive.
(3) An objection in the response is without merit or too general.
(b) A motion under subdivision (a) shall comply with both of the
following:
(1) The motion shall set forth specific facts showing good cause
justifying the discovery sought by the inspection
demand.
(2) The motion shall be accompanied by a meet and confer
declaration under Section 2016.040.
(c) Unless notice of this motion is given within 45 days of the
service of the response, or any supplemental response, or on or
before any specific later date to which the demanding party and the
responding party have agreed in writing, the demanding party waives
any right to compel a further response to the inspection
demand.
(d) In a motion under subdivision (a) relating to the production
of electronically stored information, the party or affected person
objecting to or opposing the production, inspection, copying,
testing, or sampling of electronically stored information on the
basis that the information is from a source that is not reasonably
accessible because of the undue burden or expense shall bear the
burden of demonstrating that the information is from a source that is
not reasonably accessible because of undue burden or expense.
(e) If the party or affected person from whom discovery of
electronically stored information is sought establishes that the
information is from a source that is not reasonably accessible
because of the undue burden or expense, the court may nonetheless
order discovery if the demanding party shows good cause, subject to
any limitations imposed under subdivision (g).
(f) If the court finds good cause for the production of
electronically stored information from a source that is not
reasonably accessible, the court may set conditions for the discovery
of the electronically stored information, including allocation of
the expense of discovery.
(g) The court shall limit the frequency or extent of discovery of
electronically stored information, even from a source that is
reasonably accessible, if the court determines that any of the
following conditions exists:
(1) It is possible to obtain the information from some other
source that is more convenient, less burdensome, or less expensive.
(2) The discovery sought is unreasonably cumulative or
duplicative.
(3) The party seeking discovery has had ample opportunity by
discovery in the action to obtain the information sought.
(4) The likely burden or expense of the proposed discovery
outweighs the likely benefit, taking into account the amount in
controversy, the resources of the parties, the importance of the
issues in the litigation, and the importance of the requested
discovery in resolving the issues.
(d) The
(h) Except as provided in subdivision
(j), the court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion to compel
further response to an inspection a
demand, unless it finds that the one subject to the sanction acted
with substantial justification or that other circumstances make the
imposition of the sanction unjust.
(e) If
(i) Except as provided in subdivision
(j), if a party fails to obey an order compelling further
response, the court may make those orders that are just, including
the imposition of an issue sanction, an evidence sanction, or a
terminating sanction under Chapter 7 (commencing with Section
2023.010). In lieu of or in addition to that sanction, the court may
impose a monetary sanction under Chapter 7 (commencing with Section
2023.010).
(j) (1) Notwithstanding subdivisions (h) and (i), absent
exceptional circumstances, the court shall not impose sanctions on a
party or any attorney of a party for failure to provide
electronically stored information that has been lost, damaged,
altered, or overwritten as the result of the routine, good faith
operation of an electronic information system.
(2) This subdivision shall not be construed to alter any
obligation to preserve discoverable information.
SEC. 22. Section 2031.320 of the Code of Civil Procedure is
amended to read:
2031.320. (a) If a party filing a response to a demand for
inspection , copying, testing, or sampling under
Section Sections 2031.210, 2031.220, 2031.230,
2031.240, and 2031.280 thereafter fails to permit the inspection
, copying, testing, or sampling in accordance with that party'
s statement of compliance, the demanding party
demanding the inspection may move for an order compelling
compliance.
(b) The Except as provided in subdivision
(d), the court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion to compel
compliance with an inspection a demand,
unless it finds that the one subject to the sanction acted with
substantial justification or that other circumstances make the
imposition of the sanction unjust.
(c) If Except as provided in
subdivision (d), if a party then fails to obey an order
compelling inspection , copying, testing, or sampling ,
the court may make those orders that are just, including the
imposition of an issue sanction, an evidence sanction, or a
terminating sanction under Chapter 7 (commencing with Section
2023.010). In lieu of or in addition to that sanction, the court may
impose a monetary sanction under Chapter 7 (commencing with Section
2023.010).
(d) (1) Notwithstanding subdivisions (b) and (c), absent
exceptional circumstances, the court shall not impose sanctions on a
party or any attorney of a party for failure to provide
electronically stored information that has been lost, damaged,
altered, or overwritten as the result of the routine, good faith
operation of an electronic information system.
(2) This subdivision shall not be construed to alter any
obligation to preserve discoverable information.
SEC. 23. This act is an urgency statute necessary for the
immediate preservation of the public peace, health, or safety within
the meaning of Article IV of the Constitution and shall go into
immediate effect. The facts constituting the necessity are:
In order to eliminate uncertainty and confusion regarding the
discovery of electronically stored information, and thereby minimize
unnecessary and costly litigation that adversely impacts access to
the courts, it is necessary for this act to take effect immediately.