BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 5| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ CONSENT Bill No: AB 5 Author: Evans (D) Amended: As introduced Vote: 27 - Urgency SENATE JUDICIARY COMMITTEE : 5-0, 6/9/09 AYES: Corbett, Harman, Florez, Leno, Walters ASSEMBLY FLOOR : 74-0, 3/12/09 (Consent) - See last page for vote SUBJECT : Civil discovery: electronically stored information SOURCE : California Defense Counsel Consumer Attorneys of California Judicial Council DIGEST : This bill establishes 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. ANALYSIS : This bill 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 CONTINUED AB 5 Page 2 stored information by enacting new electronic discovery provisions that will be integrated into the framework of California's civil discovery law. 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 of Civil Procedure Section 2016.010 et seq.) This bill establishes 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 provides that "electronically stored information" means information that is stored in an electronic medium. This bill provides that "electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities. This bill 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. 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 of Civil Procedure Section 2024.060.) This bill permits the parties to agree to extend the date for inspection, copying, testing, or sampling beyond those provided in specified provisions. 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 of Civil Procedure Section 2031.210.) CONTINUED AB 5 Page 3 This bill 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. 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 of Civil Procedure Section 2031.280.) This bill makes this provision applicable, in addition, to documents produced in response to a demand for copying, testing, or sampling. This bill furthers 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. 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 CONTINUED AB 5 Page 4 protect any party or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. (Code of Civil Procedure Section 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 of Civil Procedure Section 2031.310.) This bill provides that a party is 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 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. This bill provides 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. Existing law provides that the court may impose a monetary sanction against any party or any attorney of a party for specified violations. (Code of Civil Procedure Section 2031.310.) CONTINUED AB 5 Page 5 This bill generally provides 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. Existing law generally establishes procedures for obtaining records and requiring the attendance of witnesses through subpoenas. (Code Civil Procedure Section 1985 et seq.) This bill establishes procedures for obtaining the production of electronically stored information through the use of a subpoena. Prior Legislation AB 926 (Evans), of the 2008 , is virtually identical to this bill. 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. FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local: No SUPPORT : (Verified 6/10/09) California Defense Counsel (co-source) Consumer Attorneys of California (co-source) Judicial Council (co-source) Association of California Insurance Companies California Chamber of Commerce Civil Justice Association of California ARGUMENTS IN SUPPORT : The author's office states, recognizing that most information is now stored in electronic rather than paper form, this bill modernizes 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, CONTINUED AB 5 Page 6 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. ASSEMBLY FLOOR : AYES: Adams, Ammiano, Anderson, Arambula, Beall, Bill Berryhill, Tom Berryhill, Blakeslee, Block, Blumenfield, Brownley, Buchanan, Caballero, Charles Calderon, Carter, Chesbro, Conway, Cook, Coto, Davis, De Leon, DeVore, Duvall, Emmerson, Eng, Evans, Feuer, Fletcher, Fong, Fuentes, Fuller, Furutani, Gaines, Galgiani, Garrick, Gilmore, Hagman, Hall, Harkey, Hayashi, Hill, Huber, Huffman, Jeffries, Jones, Knight, Krekorian, Logue, Bonnie Lowenthal, Ma, Mendoza, Miller, Monning, Nava, Nestande, Niello, Nielsen, John A. Perez, V. Manuel Perez, Portantino, Salas, Saldana, Silva, Skinner, Smyth, Solorio, Audra Strickland, Swanson, Torres, Torrico, Tran, Villines, Yamada, Bass CONTINUED AB 5 Page 7 NO VOTE RECORDED: De La Torre, Hernandez, Lieu, Price, Ruskin, Torlakson RJG:do 6/10/09 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED