BILL ANALYSIS
AB 5
Page 1
Date of Hearing: March 3, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 5 (Evans) - As Introduced: December 1, 2008
PROPOSED CONSENT
SUBJECT : Civil Discovery: Electronic Discovery Act
KEY ISSUE : Should the Civil Discovery Act be updated to better
provide for obtaining the growing volume of electronically
stored information?
SYNOPSIS
This non-controversial but critically needed bill updates the
Civil Discovery Act in order to take account of the growing
volume of information stored in electronic form. Existing law
permits a party to obtain paper documents and other "tangible"
things from the opposing party. However, the increasing use of
electronically and digitally stored documents and information
has many implications for the discovery process, affecting not
only the volume but the form of discoverable material. This
bill expressly authorizes the discovery of electronically stored
information and amends procedures in existing law so as to
better address issues unique to the format of such information.
Many of the bill's specific provisions are drawn from recently
enacted federal rules and from recommendations of the National
Conference of Commissioners on Uniform State Laws. The bill is
co-sponsored by the Judicial Council, the Civil Defense Counsel,
and the Consumer Attorneys of California. Except for a few
non-substantive technical changes and the addition of an urgency
clause, the bill is identical to last year's AB 926 by the same
author. That bill passed out of this Committee on consent and
passed out of all other Committees and off the floors of both
houses without a single dissenting vote. AB 926 was vetoed, but
only as one of the many bills that the Governor vetoed without
regard to merit because of his stated concerns about not having
sufficient time to review much of that year's legislation due to
the budget crisis. There is no known opposition to this bill.
SUMMARY : Establishes procedures in the Civil Discovery Act for
a person to obtain discovery of electronically stored
information, as defined, in addition to documents, tangible
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things, and land or other property, in the possession of any
other party to the action. Specifically, this bill :
1)Permits 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.
2)Permits the parties to agree to extend the date for
inspection, copying, testing, or sampling beyond those
provided in specified provisions.
3)Provides that 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 so objecting and providing the
identifying information, the responding party would preserve
any objections it may have relating to such electronically
stored information.
4)Applies to electronic records produced in response to a demand
for copying, testing, or sampling the provisions of existing
law requiring 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.
5)Provides 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
electronically stored information. 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.
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6)Provides 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 so
demonstrating. 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.
7)Provides that 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, including the allocation of the expense of
discovery.
8)Provides that 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 specified conditions exist.
9)Generally provides that, notwithstanding the power of a court
may impose a monetary sanction against any party or any
attorney of a party for specified violations, 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.
10)Establishes procedures for obtaining the production of
electronically stored information through the use of a
subpoena.
11)Declares that the bill is to take effect immediately as an
urgency measure.
EXISTING LAW provides, pursuant to the Civil Discovery Act, that
a party to a civil action may obtain discovery, as specified, by
inspecting documents, tangible things, and land or other
property in the possession of any other party to the action,
requires the party to whom an inspection demand has been
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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 and
any related activities. Further permits the party demanding
inspection and the responding party to agree to extend the time
for service to a date beyond that provided in a specified
provision, and 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. (Code of Civil Procedure
Section 2016.010 et seq.)
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
COMMENTS : This non-controversial but critically needed bill
updates the Civil Discovery Act in order to take account of the
growing volume of information stored in electronic form.
Existing law permits a party to obtain paper documents and other
"tangible" things from the opposing party. However, the
increasing use of electronically and digitally stored documents
and information has many implications for the discovery process,
affecting not only the volume but the form of discoverable
material. This bill expressly authorizes the discovery of
electronically stored information and amends procedures in
existing law so as to better address issues unique to the format
of such information. Many of the bill's specific provisions are
drawn from recently enacted federal rules and from
recommendations of the National Conference of Commissioners on
Uniform State Laws. The bill is co-sponsored by the Judicial
Council, the Civil Defense Counsel, and the Consumer Attorneys
of California. Except for a few non-substantive technical
changes and the addition of an urgency clause, the bill is
identical to last year's AB 926 by the same author. That bill
passed out of this Committee on consent and passed out of all
other Committees and off the floors of both houses without a
single dissenting vote. AB 926 was vetoed, but only as one of
the many bills that the Governor vetoed without regard to merit
because of his stated concerns about not having sufficient time
to review much of that year's legislation due to the budget
crisis.
Author's Statement: "The transformation of information from
primarily being in the form of paper documents to primarily
being stored electronically has significantly affected the civil
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discovery process. Today most information is in digital rather
than paper form. Information is created, stored, and used with
computer technology, such as word processing, databases, and
spreadsheets. Information may also be created, stored, and used
in devices attached to or peripheral to computers, such as
printers, fax machines, and pagers; in Internet applications,
such as e-mail and the World Wide Web; in electronic devices,
such as cell phones; and in media used to store computer data,
such as disks, tapes, and CDs. The change from paper to
electronically stored information has affected discovery in many
ways. The volume and number of locations of electronically
stored documents is much greater than for conventional paper
documents. There may be hundreds of copies or versions of a
single document located in various locations in a computer
network or on servers. There are also significant differences
in kind between paper documents and documents in electronic
form. For instance, once paper documents are destroyed, they
are permanently lost; however, 'deleted' data generally can be
retrieved and so may be discoverable. In addition, the advent
of electronically stored information affects the costs of
discovery. The large volume of electronically stored
information sometimes can significantly increase the amount of
time and the cost of searching for information. But when
electronic discovery is properly managed, it can also greatly
reduce the cost of discovery."
ARGUMENTS IN SUPPORT : According to the author, "AB 5 would
modernize the Code of Civil Procedure to reflect the growing
importance of, and the need for guidance in, the handling of
electronically stored information . . . By promoting the proper
handling of electronic discovery, this bill will reduce the cost
of discovery, thereby benefiting courts and litigants alike."
The sponsors of the bill - the Judicial Council, California
Defense Counsel, and the Consumer Attorneys of California - add
that these provisions were collaboratively and carefully crafted
to properly and fairly balance the needs and interests of
plaintiffs and defendants, requestors and responding parties,
and lawyers and litigants.
The Civil Justice Association of California writes that this is
a "fair and balanced" bill that will bring California law "into
the 21st century by addressing issues related to discovery of
electronically stored information."
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Prior Legislation : With the exception of the urgency clause
and minor technical changes, this bill is virtually identical to
the author's AB 926 of last year. That bill passed out of this
Committee on consent and was eventually enrolled without a
single dissenting vote. AB 926 was one of several bills that
the Governor vetoed without comment on the merits of the bill
because of the budget crisis.
REGISTERED SUPPORT / OPPOSITION :
Support
California Defense Counsel (co-sponsor)
Consumer Attorneys (co-sponsor)
Judicial Council of California (so-sponsor)
American Federation of State, County and Municipal Employees
Civil Justice Association of California
Opposition
None on file
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334