BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 5
Assemblymember Evans
As Introduced
Hearing Date: June 9, 2009
Code of Civil Procedure
KB
SUBJECT
Civil Discovery: Electronically Stored Information
DESCRIPTION
This bill would, among other things, establish procedures in the
Civil Discovery Act for a person to obtain discovery of
electronically stored information in addition to documents,
tangible things, and land or other property, in the possession
of any other party to the action.
This bill would take effect immediately as an urgency measure.
BACKGROUND
AB 5 largely implements the legislative proposal developed by
the Judicial Council's Discovery Subcommittee of the Civil and
Small Claims Advisory Committee, working closely with members of
attorney organizations.
This bill seeks to improve the practices and procedures for
handling the discovery of electronically stored information by
enacting new electronic discovery provisions that will be
integrated into the framework of California's civil discovery
law.
CHANGES TO EXISTING LAW
1.Existing law 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. (Code Civ. Proc. Sec. 2016.010 et
(more)
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seq.)
This bill would also establish procedures for a person to
obtain discovery of electronically stored information, as
defined, in the possession of any other party to the action.
This bill would provide that "electronically stored
information" means information that is stored in an electronic
medium.
This bill would provide that "electronic" means relating to
technology having electrical, digital, magnetic, wireless,
optical, electromagnetic, or similar capabilities.
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.
2. Existing law 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 specified provisions. (Code Civ. Proc. Sec.
2024.060.)
This bill would permit the parties to agree to extend the date
for inspection, copying, testing, or sampling beyond those
provided in specified provisions.
3. Existing law requires the party to whom an inspection demand
has been directed to respond separately to each item or
category of items by any of certain responses, including a
statement that the party will comply, lacks the ability to
comply, or objects to the particular demand for inspection by
the date set for inspection. (Code Civ. Proc. Sec. 2031.210.)
This bill would provide 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
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objecting and providing the identifying information, the
responding party would preserve any objections it may have
relating to such electronically stored information.
4. Existing law 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 Civ. Proc. Sec.
2031.280.)
This bill would make this provision applicable, in addition,
to documents produced in response to a demand for copying,
testing, or sampling.
This bill would further 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 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.
5.Existing law provides that when an inspection for documents,
tangible things, or places 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. 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.
(Code Civ. Proc. Sec. 2031.060.)
Existing law provides that on receipt of a response to an
inspection demand, the propounding party may move for an order
compelling further response to the demand if the party deems
that any of the following apply: (1) a statement of compliance
is incomplete; (2) a representation of inability to comply is
inadequate, incomplete, or evasive; or (3) an objection is
without merit or too general. (Code Civ. Proc. Sec.
2031.310.)
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This bill would provide that a party seeking a protective
order, or a party objecting to or opposing a demand for, 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 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.
This bill would also provide 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.
This bill would further provide that the court shall limit the
frequency or extent of discovery of electronically stored
information, even from a source that is reasonably accessible,
it the court determines that specified conditions exist.
6. Existing law provides that the court may impose a monetary
sanction against any party or any attorney of a party for
specified violations. (Code Civ. Proc. Sec. 2031.310.)
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.
7.Existing law generally establishes procedures for obtaining
records and requiring the attendance of witnesses through
subpoenas. (Code Civ. Proc. Sec. 1985 et seq.)
This bill would establish procedures for obtaining the
production of electronically stored information through the
use of a subpoena.
COMMENT
1. Stated need for the bill
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The author states:
Recognizing that most information is now stored in electronic
rather than paper form, AB 5 would modernize California's
discovery law to reflect the growing importance of, and need
for guidance in the handling of the discovery of
electronically stored information. The bill provides explicit
procedures and standards for courts and litigants to use in
addressing electronic discovery issues. By promoting the
proper handling of electronic discovery, this bill will reduce
the cost of discovery, thereby benefiting courts and litigants
alike.
The transformation of information from primarily being in the
form of paper documents to primarily being stored
electronically has significantly affected the civil discovery
process. Today, information is created, stored and used with
computer technology. 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 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. 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.
2. This bill would add new definitions to the Civil
Discovery Act
This bill would amend the Civil Discovery Act (CDA) to include
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definitions of "electronic" and "electronically stored
information." Specifically, "electronic" would be defined as
"relating to technology having electrical, digital, magnetic,
wireless, optical, electromagnetic, or similar capabilities."
"Electronically stored information," would be defined as
"information that is stored in an electronic medium."
The term "electronically stored information" is derived from the
Federal Rules of Civil Procedure, Rule 34, and is intended to be
expansive and encompass any type of information that is stored
electronically. This would specifically provide for the
discovery of non-traditional writings, documents, and papers.
3.This bill would specifically provide that the scope of discovery
includes electronically stored information
This bill would amend Section 2031.010, the statute which
governs the scope of discovery, to expressly state that a party
may obtain discovery of electronically stored information (ESI).
Further, this bill would provide that discovery may be
undertaken, not only through inspection, but also by "copying,
testing, or sampling." The addition of "copying, testing, or
sampling" would make the rules consistent with the Federal Rules
of Civil Procedure and with the Uniform Rules relating to
Discovery of Electronically Stored Information developed by the
National Conference of Commissioners on Uniform State Laws.
While testing or sampling may sometimes be used to make the
discovery of ESI more cost-efficient, it also raises issues with
respect to confidentiality and privacy of a responding party's
electronic information system. Thus, it is important to note
that the addition of sampling and testing is not intended to
create a routine right of direct access to a party's electronic
information system, although such access may be justified under
some circumstances. Courts should accordingly guard against
undue intrusiveness resulting from inspecting or testing
electronic information systems.
4. The timing of discovery would remain the same
This bill would provide that the same timeframes that are used
for civil discovery in general will apply to electronic
discovery. As under existing law, parties to an action would
have the ability to stipulate to different times. (Code Civ.
Proc. Sec. 2031.020.)
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5.This bill would allow propounding parties to specify the form of
production for ESI
Due to its nature, the form of production is more important to
the exchange of electronically stored information than it is to
the exchange of paper documents. This bill would recognize that
ESI may exist in multiple forms, and that different forms of
production may be appropriate in certain circumstances.
Specifically, this bill would provide that a propounding party
may specify the form or forms in which each type of
electronically stored information is to be produced. If a
responding party objects to a specified form for producing the
ESI, or if no form is specified in the demand, the responding
party would be required to state in its response the form in
which it intends to produce each type of ESI. Requiring the
responding party to state the intended form of production would
permit the parties to identify and seek to resolve disputes
before the expense and work of the production occurs.
In addition, if a demand for production does not specify a form
or forms for producing a type of ESI, 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. The responding party would not be required
to produce the same electronically stored information in more
than one form.
Current law requires that documents produced in response to an
inspection demand be produced as they are kept in the usual
course of business. (Code Civ. Proc. Sec. 2031.280.) This bill
would subject the production of ESI to comparable requirements
in that a 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. This requirement would protect
against deliberate or inadvertent production that raises
unnecessary obstacles for the requesting party. In addition,
this bill recognizes that in some circumstances, the responding
party may need to provide a reasonable amount of assistance or
technical support to enable the requesting party to use the ESI.
6.This bill would enact new provisions governing responses to
demands for inspection of ESI
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Under current law, a party responding to a demand for inspection
is required to include one of the following in each of its
responses: (1) a statement of compliance; (2) a representation
that the party lacks the ability to comply with the demand; or
(3) an objection to the particular demand. (Code Civ. Proc.
Sec. 2031.210.)
Concerns were expressed that current law does not adequately
specify how a party may respond when they are objecting on the
grounds that the requested ESI is from a source that is not
reasonably accessible because of undue burden or expense. For
example, in some situations a party would be able to search
disaster recovery backup tapes for relevant information only
after incurring considerable burden or cost, or certain storage
media may not be easily accessed because the hardware required
to read the media is lost, broken, or not compatible with their
current computer system. These problems are distinct from those
that traditionally arise when producing documents.
This bill would address these concerns by enacting new
provisions that govern responses to demands for the inspection
of ESI. Essentially, a responding party would have to permit
discovery of ESI that is relevant, not privileged and reasonably
accessible. In addition, the responding party would be required
to identify, by category or type, the sources containing
potentially responsive information that the responding party is
not searching on the ground it is not reasonably accessible. By
objecting and identifying this information, the responding party
would preserve any objections it may have relating to that ESI.
Current law requires a motion for a protective order, or a
motion to compel production to be accompanied by a meet and
confer declaration. (Code Civ. Proc. Secs. 2031.060, 2031.310.)
The meet and confer declaration must state facts showing a
reasonable and good faith attempt at an informal resolution of
each issue presented by the motion. (Code Civ. Proc. Sec.
2016.040.) The early identification of the sources which the
responding party deems to not be reasonably accessible would
provide enough detail to enable the parties to initiate the meet
and confer process, and possibly come to a resolution with
respect to the identified sources without resorting to court
intervention.
7.This bill would enact provisions governing protective orders
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against the discovery of ESI and motions to compel production
This bill would amend the CDA provisions governing protective
orders to specifically address the discovery of ESI.
Specifically, this bill would provide that a party or person
seeking a protective order regarding the discovery of ESI on the
basis that such information is from a source that is not
reasonably accessible because of undue burden or expense bears
the burden of so demonstrating.
Concerns were expressed that this bill would require the
responding party to bring a motion for a protective order in
every case. However, this is not the intent of the bill, nor
would it create such a requirement in practice. Rather,
responding parties would be able to object to overbroad
discovery requests, just as they do under current law, which may
or may not prompt the propounding party to file a motion to
compel production.
Even if a party is successful in establishing that the
information is not reasonably accessible because of undue burden
or expense, the court would still retain discretion to order
discovery if the demanding party shows good cause. If the court
finds that there is good cause for the production of ESI under
these circumstances, the court would be able to set conditions
for the discovery of the information, including allocation of
the expense of discovery.
Further, courts would have the authority to limit the frequency,
or extent of discovery of ESI, even from a source that is
reasonably accessible, provided that the court determines that:
(1it is possible to obtain the information from some other
source that is more convenient, less burdensome, or less
expensive;
(2the discovery sought is unreasonably cumulative or
duplicative;
(3the party seeking discovery has had ample opportunity by
discovery in the action to obtain the information sought; or
(4the 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, and the importance of the requested discovery
in resolving the issues.
Concerns were expressed that including the "resources of a
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party" as a factor in determining whether the likely burden or
expense outweighs the likely benefit of discovery would make it
difficult, if not nearly impossible, for a wealthy party to ever
obtain a protective order. In other words, courts would always
conclude that because such parties have significant assets, the
cost of producing the ESI would never outweigh the likely
benefit of the discovery. However, the "resources of the party"
is only one factor that the court would utilize in engaging in a
balancing test, and this factor is not intended to provide a
"green light" for courts to automatically order large companies
to produce without regard to other relevant factors. In fact,
in some cases, the "resources of the party" factor may be more
relevant, not because of the responding party's wealth, but
because of its limited resources. This bill would enable a
court to thus consider all relevant factors in determining
whether and in which circumstances a protective order should be
issued.
8.This bill would enact provisions governing motions to compel the
production of ESI
This bill would amend statutes governing motions to compel to
address the discovery of ESI from a source that is not
reasonably accessible due to undue burden or expense. Where
there is an objection to producing such information, this bill
would authorize a propounding party to bring a motion to compel.
This bill would also add provisions identical to those under
the section pertaining to motions for a protective order.
Specifically, the party or affected person objecting to or
opposing the production, inspection, copying, testing, or
sampling of ESI, 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.
9.This bill would not affect the standard articulated in Toshiba v.
Superior Court regarding the allocation of costs for
recovering ESI from back-up media
Concerns have been expressed about the need to clarify the
potential impact of this bill on the rule articulated by the
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Court of Appeal in Toshiba v. Superior Court (2004) 124
Cal.App.4th 762. In Toshiba, the demanding party sought ESI
that could only be obtained from the responding party's back-up
tapes. The trial court allocated these costs to the responding
party; the appellate court reversed, concluding that recovery of
the demanded ESI would require the responding party to
"translate ? data compilations," so the burden of paying the
"reasonable expense" of reconstituting the tapes fell on the
"demanding party" under Code of Civil Procedure Section
2031.280(c). In its decision, the appellate court noted that
the cost of recovering ESI from the back-up media could be as
much as $1.9 million.
Given the costs of recovering ESI from back-up media, the
allocation of financial burden was a focus of the Judicial
Council, the sponsor of this bill. As noted in the detailed
report of the Policy Coordination and Liaison Committee (Report)
to the Judicial Council, there is no intent to diminish the rule
of Toshiba. (See Report at 112-114, 123-126.) In fact, the
specific section that was the basis for the Toshiba decision is
retained in this bill, although renumbered by Section 17 of the
bill as Code of Civil Procedure Section 2031.280(e). Moreover,
Section 2 of this bill would create a new Code of Civil
Procedure Section 1985.8(g) relating to subpoenas, which
provides that, "[i]f 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 useful form." (emphasis added.)
Thus, under this bill, when a demanding party seeks ESI from
back-up media, the responding party may object that the demanded
material is covered by renumbered Code of Civil Procedure
Section 2031.280(e). In the event of a dispute, if the
responding party seeks a protective order under Section 2031.060
or the demanding party moves to compel under Section 2031.310,
the court shall consider the application of Section 2031.280(e),
as required by the court in Toshiba v. Superior Court. These
procedures preserve the rule articulated by Toshiba for the
allocation of the financial burden of producing ESI from back-up
media, and are consistent with the intent of the sponsor of this
bill.
10. Claims of Privilege or Work Product Protection
When producing ESI, the risk of waiver can increase
substantially because of the volume of ESI, and the difficulty
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of ensuring that all ESI produced has actually been reviewed.
This bill seeks to address situations where ESI that is subject
to a claim of privilege or protection is inadvertently produced.
Under this bill, a party would be able to notify the party that
received the privileged or protected information that they
received that information and the basis for the claim of
privilege. After being notified, the receiving party would be
required to either immediately return the specified information
and any copies, or present the information to the court
conditionally under seal for determination of the claim. A
receiving party would not be able to disclose that information
until the claim has been resolved.
11. "Safe Harbor" Provisions
In order to address circumstances where ESI has been lost
through no fault of the parties, this bill would add "safe
harbor" provisions to several statutes which authorize
sanctions. Specifically, the bill would provide that "absent
exceptional circumstances, the court shall not impose sanctions
on a party or its attorneys for failure to provide
electronically stored information lost, damaged, altered, or
overwritten as a result of routine, good-faith operation of an
electronic information system." These provisions respond to a
distinctive feature of electronic information systems, the
routine modification, overwriting, and deletion of information
which accompanies normal use.
However, this "safe harbor" would not otherwise relieve parties
of their obligations to preserve discoverable information.
When a party is under a duty to preserve information because of
pending or reasonably anticipated litigation, a party would
still be required to modify or suspend features of the routine
operation of a computer system to prevent loss of information.
12. Subpoena Requiring Production of Electronically Stored
Information
This bill would create a new section in the Code of Civil
Procedure governing the subpoenas for ESI. This new section
would incorporate all of the previously discussed provisions
regarding forms of production, claims of privilege, "safe
harbors," and those provisions governing the production of ESI
from sources that are not reasonably accessible because of undue
burden or expense. Essentially, the court would use the same
standards for determining whether to order production in
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response to a subpoena, a motion to compel, or to limit
production under a protective order.
This bill would also provide that an order of the court
requiring compliance with a subpoena issued shall protect a
non-party from undue burden or expense resulting from
compliance.
13. Concerns regarding lack of a "meet and confer"
requirement
The Orange County Bar Association (OCBA) has expressed concerns
that AB 5 does not include a "meet and confer" requirement in
connection with propounding electronic discovery. Specifically,
OCBA writes:
Without a meet and confer requirement, A.B. 5 may lead to more
disputes which will need to be resolved by the courts. In
addition, the lack of a meet and confer requirement may
increase the need for the responding party to seek a
protective order from the court. This could have the
undesirable effect increasing the cost of litigation and
burdening the courts.
The OCBA requests that AB be amended to include meet and confer
requirements in connection with propounding electronic
discovery.
Committee staff notes that this bill would not change existing
law requiring a motion for a protective order, or a motion to
compel production to be accompanied by a meet and confer
declaration. (Code Civ. Proc. Secs. 2031.060, 2031.310.) Thus,
parties seeking a protective order for or moving to compel the
production of ESI must make a reasonable and good faith attempt
at an informal resolution of each issue presented by the motion.
(Code Civ. Proc. Sec. 2016.040.)
In addition, according to the Judicial Council, the proposed
amendments to the California Rules of Court on electronic
discovery expressly provide that parties must meet and confer
about electronic discovery issues before the first case
management, which is essentially the equivalent of the meet and
confer provisions in federal rules. The proposed amendments
have been approved by the Judicial Council's Civil and Small
Claims Advisory Committee, and will be submitted to the Judicial
Council for approval following the anticipated enactment of AB
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5.
Support : California Chamber of Commerce; Association of
California Insurance Companies; Civil Justice Association of
California
Opposition :None Known
HISTORY
Source : Judicial Council; Consumer Attorneys of California;
California Defense Counsel
Related Pending Legislation : None Known
Prior Legislation : AB 926 (Evans) of the 2008 Legislative
Session was virtually identical to AB 5. AB 926 was one of the
bills vetoed by the Governor without comment as to its merits
due to the delayed passage of the 2007-2008 State Budget.
Prior Vote :
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Floor (Ayes 74, Noes 0)
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