BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 1574 (Committee on Judiciary)
As Amended April 19, 2012
Hearing Date: May 1, 2012
Fiscal: No
Urgency: No
TW
SUBJECT
Discovery: Electronically Stored Information
DESCRIPTION
This bill would make changes to the Civil Discovery Act relating
to electronically stored information in order to address several
inconsistencies.
BACKGROUND
In 2009, the Electronic Discovery Act (EDA) was enacted by AB 5
(Evans, Ch. 5, Stats. 2009) in order to improve the practices
and procedures for handling the discovery of electronically
stored information (ESI). The EDA provides electronic discovery
statutes within the Civil Discovery Act (CDA) for obtaining
discovery of ESI.
Subsequently, the Judicial Council of California's Policy
Coordination and Liaison Committee and Civil and Small Claims
Advisory Committee (JC Committees) reviewed the CDA and
discovered several inconsistencies in the discovery statutes
that should be modified to properly address the discovery of
ESI. Accordingly, the JC Committees issued a Report, which
included a legislative proposal to address these gaps and
omissions in the CDA. (See Policy Coordination and Liaison
Committee and Civil and Small Claims Advisory Committee,
Judicial Council-Sponsored Legislation (Civil Law): Cleanup
Legislation on the Discovery of Electronically Stored
Information (Dec. 13, 2011) Ưas of Apr. 22, 2012].)
(more)
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This bill, sponsored by the Judicial Council of California,
would implement the proposed revisions to the CDA described in
the Report.
CHANGES TO EXISTING LAW
1. Existing law , the Electronic Discovery Act (EDA), establishes
procedures for obtaining the production of electronically
stored information (ESI) through the use of a subpoena. (Code
Civ. Proc. Sec. 1985.8.)
Existing law provides that "electronically stored information"
means information that is stored in an electronic medium.
(Code Civ. Proc. Sec. 2016.020.)
Existing law , the Civil Discovery Act (CDA), establishes
procedures for obtaining records through subpoenas. (Code Civ.
Proc. Secs. 1985, 1985.3, 1985.6, 1987, 1987.1, 2017.010,
2020.020, 2020.220.)
This bill would include in these statutes the provisions in
the EDA for ESI among the things under a witness's control
that the witness would be bound by law to produce pursuant to
a subpoena.
This bill would provide procedures under the EDA for objecting
to the specified form or forms of producing the ESI requested
by the subpoena.
2. Existing law authorizes the court to impose monetary
sanctions, as specified, against any party or any attorney of
a party for specified discovery violations. (Code Civ. Proc.
Secs. 1987.2, 2017.020, 2023.030, 2025.410, 2025.420,
2025.450, 2025.480.)
This bill would generally provide that, notwithstanding the
above provisions, the court is not required to impose
sanctions on a party or any attorney of a party for failure to
provide ESI that has been lost, damaged, altered, or
overwritten as the result of the routine, good faith operation
of an electronic information system.
3. Existing law , under the CDA, authorizes the use of certain
types of technology, as defined, in conducting discovery in a
complex case. (Code Civ. Proc. Secs. 2017.710 et seq.)
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This bill would repeal those provisions, and instead generally
provide that when any method of discovery permits, compels,
prevents, or limits the production, inspection, copying,
testing, or sampling of documents or tangible things, the same
method would also apply to ESI.
4. Existing law , the CDA, authorizes 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.
2017.010.)
This bill would expand the scope of discovery described above
to include ESI.
5. Existing law provides for discovery propounded on nonparty
witnesses and deponents appearing outside of California.
(Code Civ. Proc. Secs. 2019.040, 2026.010, 2027.010,
2029.200.)
Existing law permits discovery, as specified, by the means of
copying, testing, or sampling, in addition to inspection of
documents, tangible things, land or other property, or ESI.
(Code Civ. Proc. Sec. 2031.010.)
This bill would conform the provisions for the means of
discovery propounded to nonparty witnesses and witnesses
appearing at depositions outside of California to the above
provision.
This bill would provide that all procedures otherwise
available to compel, prevent, or limit the production,
inspection, copying, testing, or sampling of documents or
tangible things shall be available for nonwitness discovery.
6. Existing law establishes procedures for the production of
business records. (Code Civ. Proc. Sec. 2020.220.)
Existing law , under the EDA, provides that, unless the
subpoenaing party and the subpoenaed party otherwise agree or
the court otherwise orders, the following shall apply:
if a subpoena requiring production of ESI does not
specify a form or forms for producing a type of ESI, the
person subpoenaed shall produce the information in the form
or forms in which it is ordinarily maintained or in a form
that is reasonably usable; and
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a subpoenaed person is not required to produce the same
ESI in more than one form. (Code Civ. Proc. Sec.
1985.8(c).)
Existing law provides that a subpoenaed person 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 undue burden or expense shall
bear the burden of demonstrating that the information is from
a source that is not reasonably accessible because of undue
burden or expense. (Code Civ. Proc. Sec. 1985.8(d).)
Existing law provides that, if the person from whom discovery
of ESI is subpoenaed establishes that the information is from
a source that is not reasonably accessible because of undue
burden or expense, the court may nonetheless order discovery
if the subpoenaing party shows good cause, subject to any
limitations, as specified. (Code Civ. Proc. Sec. 1985.8(e).)
Existing law provides that, if the court finds good cause for
the production of ESI from a source that is not reasonably
accessible, the court may set conditions for the discovery of
the ESI, including allocation of the expense of discovery.
(Code Civ. Proc. Sec. 1985.8(f).)
Existing law provides that, if 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 usable
form. (Code Civ. Proc. Sec. 1985.8(g).)
Existing law requires a court to limit the frequency or extent
of discovery of ESI, even from a source that is reasonably
accessible, if the court determines that specified conditions
exist. (Code Civ. Proc. Sec. 1985.8(h).)
Existing law provides procedures for ESI claimed by the
subpoenaed party to be privileged or protected as attorney
work product. (Code Civ. Proc. Sec. 1985.8(i).)
Existing law provides that a party serving a subpoena
requiring the production of ESI shall take reasonable steps to
avoid imposing undue burden or expense on a person subject to
the subpoena. (Code Civ. Proc. Sec. 1985.8(j).)
Existing law provides that an order of the court requiring
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compliance with a subpoena issued under this section shall
protect a person who is neither a party nor a party's officer
from undue burden or expense resulting from compliance. (Code
Civ. Proc. Sec. 1985.8(k).)
Existing law provides that, absent exceptional circumstances,
the court shall not impose sanctions on a subpoenaed person or
any attorney of a subpoenaed person for failure to provide ESI
that has been lost, damaged, altered, or overwritten as the
result of the routine, good faith operation of an electronic
information system. (Code Civ. Proc. Sec. 1985.8(l).)
This bill would establish these provisions under the EDA for
the production of business records.
7. Existing law , under the EDA, provides that a party serving a
subpoena requiring production of ESI may specify the form or
forms in which each type of information is to be produced.
(Code Civ. Proc. Sec. 1985.8(b).)
This bill would require a deposition subpoena for the
production of business records or a deposition notice to
specify the form in which any ESI is to be produced, if a
particular form is desired.
8. Existing law requires a deponent to make a timely specific
objection to the disclosure of privileged documents in order
to protect privileged documents from discovery. (Code Civ.
Proc. Sec. 2025.460.)
Existing law , with respect to a document inspection demand,
provides that if a party objects to the discovery of ESI 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 ESI that it asserts are not
reasonably accessible. (Code Civ. Proc. Sec. 2031.210(e).)
This bill would provide to a deponent the same ESI privilege
objections available to a person responding to a document
inspection demand.
9. Existing law provides that a party seeking discovery may move
the court for an order compelling a deponent to respond to the
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party's request for production of documents. (Civ. Code Sec.
2025.480.)
Existing law provides that a party objecting to or opposing a
demand for 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.
(Code Civ. Proc. Sec. 2031.310(d).) If it is established that
the ESI 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.
(Code Civ. Proc. Sec. 2031.310(e).)
Existing law provides that, if the court finds good cause for
the production of ESI from a source that is not reasonably
accessible, the court may set conditions for the discovery,
including the allocation of the expense of discovery. (Code
Civ. Proc. Sec. 2031.310(f).)
Existing law provides that the court shall limit the frequency
or extent of discovery of ESI, even from a source that is
reasonably accessible, if the court determines that specified
conditions exist. (Code Civ. Proc. Sec. 2031.310(g).)
This bill would provide for deposition document requests these
motion procedures provided for inspection demands.
COMMENT
1. Stated need for the bill
The author writes:
This bill would address several inconsistencies in the Civil
Discovery Act relating to electronically stored information.
Specifically, this bill would:
conform civil subpoena statutes to provide for the
discovery of electronically stored information under the
Electronic Discovery Act;
provide that discovery methods may include the
production, inspection, copying, testing or sampling of
electronically stored information;
conform the business records discovery statutes to
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provide for electronically stored information;
conform deposition statutes to provide consistency with
the Electronic Discovery Act;
conform discovery sanctions statutes to include the safe
harbor provisions under the Electronic Discovery Act; and
repeal outdated provisions for the use of technology
under the Civil Discovery Act.
The Judicial Council of California, the sponsor of this bill,
writes:
SB 1574 continues the process of modernizing California's
statutes on civil discovery to reflect the fact that most
information today is created and stored in electronic form.
The modernization of the discovery statutes was begun a little
over two years ago with the passage of the Electronic
Discovery Act, and SB 1574 will further this important effort.
Although the amendments on civil discovery that were made
through AB 5 were extensive, they were not completely
comprehensive. Some sections of the Code of Civil Procedure
still only refer to paper documents or records and fail to
mention electronically stored information in appropriate
places. To be consistent with the Electronic Discovery Act,
these sections should be amended, which is the purpose of this
clean-up legislation.
2. This bill would repeal provisions for the use of technology
This bill would repeal the provisions of the Civil Discovery Act
(CDA) that provide for the use of technology in conducting
discovery in complex cases. (Code Civ. Proc. Secs.
2017.710-2017.740.) Existing law under the EDA already provides
for the discovery of electronically stored information (ESI).
In addition to the EDA, more recently enacted legislation
provides for e-discovery, e-service, and e-filing. Accordingly,
these statutes providing for the use of technology are unused,
unnecessary, and inconsistent in some respects with more
recently enacted legislation.
3. The bill would conform discovery procedures for business
records to the EDA
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This bill would update the discovery statutes relating to the
production of business records. Existing law provides that a
party or other witness may be compelled to produce business
records and the party may respond to such requests with
objections. (Code of Civ. Proc. Secs. 2020.020 et seq.,
2020.510.) The EDA provides court procedures to resolve
objections to the production of subpoenaed documents. (Code of
Civ. Proc. Sec. 1958.8(d)-(l).)
Pursuant to the provisions under the EDA, if a party is
successful in establishing that the information is not
reasonably accessible because of undue burden or expense, this
bill would provide that, with respect to business records, a
court would 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:
(1) it is possible to obtain the information from some other
source that is more convenient, less burdensome, or less
expensive;
(2) the discovery sought is unreasonably cumulative or
duplicative;
(3) the party seeking discovery has had ample opportunity by
discovery in the action to obtain the information sought; or
(4) the 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.
Thus, this bill would enable a court to consider all relevant
factors in resolving disputes regarding the production of
business records.
4. This bill would extend EDA methods and scope of discovery for
ESI
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Existing law provides that the scope of discovery requested from
a party in an inspection demand may include ESI, and that the
methods of discovery include "copying, testing, or sampling."
(Code of Civ. Proc. Sec. 2031.010.) The provisions for
"copying, testing, or sampling" are 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.
This bill would provide that, with respect to nonparty
discovery, when any method of discovery permits the production,
inspection, copying, testing or sampling of documents or
tangible things, those methods shall also permit the production,
inspection, copying, testing, or sampling of ESI.
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.
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 ESI than it is to the exchange of paper
documents. Accordingly, the EDA recognizes that ESI may exist
in multiple forms, and that different forms of production may be
appropriate in certain circumstances.
This bill, with respect to deposition subpoenas and oral
deposition inspection demands, would provide that a propounding
party may specify the form or forms in which each type of ESI 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
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occurs.
In addition, if a subpoena for business records 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 ESI in more than one form.
6. This bill would extend EDA motion to compel procedures to
deposition production requests
Existing law provides that a party seeking discovery may move
the court for an order compelling a deponent to respond to a
production request. (Civ. Code Sec. 2025.480.) For demands for
production, existing law provides procedures regarding motions
to compel the production of documents pursuant to inspection
demands, which include the following:
authorizing the court to order discovery if the demanding
party shows good cause, subject to specified restrictions in
specified circumstances;
if the court finds good cause for the production of ESI from a
source that is not reasonably accessible, the court may set
conditions for the discovery, including the allocation of the
expense of discovery; and
the court shall limit the frequency or extent of discovery of
ESI, even from a source that is reasonably accessible, if the
court determines that specified conditions exist. (Code Civ.
Proc. Sec. 2031.310(g).)
This bill would amend statutes governing motions to compel the
production of documents at depositions 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 ESI is from a source that is not
reasonably accessible because of undue burden or expense, the
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court may nonetheless order discovery if the demanding party
shows good cause, subject to specified restrictions in specified
circumstances.
7.Claims of Privilege or Work Product Protection
Existing law requires a deponent to make a timely specific
objection to the disclosure of privileged documents in order to
protect privileged documents from discovery. (Code Civ. Proc.
Sec. 2025.460.)
Pursuant to the EDA, with respect to a document inspection
demand, existing law provides that if a party objects to the
discovery of ESI 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 ESI that it asserts are not reasonably
accessible. (Code Civ. Proc. Sec. 2031.210.) By so objecting
and providing the identifying information, the responding party
would preserve any objections it may have relating to such ESI.
This bill would provide for privileged documents requested from
a deponent the same ESI objections pertaining to a document
inspection demand. When producing ESI, the risk of waiver can
increase substantially because of the volume of ESI, and the
difficulty of ensuring that all ESI produced has actually been
reviewed. This bill would 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.
8. Prohibition on the imposition of sanctions in certain cases
In order to address circumstances where ESI has been lost
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through no fault of the parties, this bill would provide
protections in several statutes which authorize discovery
sanctions. The EDA prohibits the imposition of sanctions where
ESI has been lost through no fault of the parties.
Specifically, this bill would provide that "absent exceptional
circumstances, the court shall not impose sanctions on a party
or its attorneys for failure to provide ESI 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 provision 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.
9. Subpoena Requiring Production of ESI
This bill would update certain subpoena and deposition statutes
to provide for the subpoenaing of ESI as provided under the EDA.
Existing law, the EDA, provides that ESI may be subpoenaed.
(Code Civ. Proc. Sec. 1958.8.) Existing law defines
"electronically stored information" as information that is
stored in an electronic medium. (Code Civ. Proc. Sec.
2016.020.)
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 term provides for the discovery of
non-traditional writings, documents, and papers. The Judicial
Council of California states that, although the EDA provided for
the subpoenaing of ESI, some individual subpoena statutes
continue to refer only to documents. Accordingly, to avoid any
confusion or uncertainty, this bill would ensure that all the
subpoena statutes are consistent with the EDA.
Support : California Defense Counsel
Opposition : None Known
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HISTORY
Source : Judicial Council of California
Related Pending Legislation : AB 2337 (Dickinson, 2012), among
other things, would modify the definition of "personal records"
relating to subpoenas to include electronic data. AB 2337 is
currently in the Assembly Judiciary Committee.
Prior Legislation :
AB 5 (Evans, Ch. 5, Stats. 2009) See Background.
AB 926 (Evans, 2008) was virtually identical to AB 5 and was one
of the bills vetoed by Governor Schwarzenegger without comment
as to its merits due to the delayed passage of the 2007-2008
State Budget.
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