BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 5|
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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
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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.)
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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
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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.)
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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,
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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
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NO VOTE RECORDED: De La Torre, Hernandez, Lieu, Price,
Ruskin, Torlakson
RJG:do 6/10/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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