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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