BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 1574|
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CONSENT
Bill No: SB 1574
Author: Senate Judiciary Committee
Amended: 4/19/12
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-0, 5/1/12
AYES: Evans, Harman, Blakeslee, Corbett, Leno
SUBJECT : Discovery: electronically stored information
SOURCE : Judicial Council of California
DIGEST : This bill makes changes to the Civil Discovery
Act relating to electronically stored information in order
to address several inconsistencies.
ANALYSIS : 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 of Civil Procedure (CCP) Section
1985.8)
Existing law provides that "electronically stored
information" means information that is stored in an
electronic medium. (CCP Section 2016.020)
Existing law, the Civil Discovery Act (CDA), establishes
procedures for obtaining records through subpoenas. (CCP
Sections 1985, 1985.3, 1985.6, 1987, 1987.1, 2017.010,
2020.020, and 2020.220)
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This bill includes 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 provides procedures under the EDA for objecting
to the specified form or forms of producing the ESI
requested by the subpoena.
Existing law authorizes the court to impose monetary
sanctions, as specified, against any party or any attorney
of a party for specified discovery violations. (CCP
Sections 1987.2, 2017.020, 2023.030, 2025.410, 2025.420,
2025.450, and 2025.480)
This bill generally provides 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.
Existing law, under the CDA, authorizes the use of certain
types of technology, as defined, in conducting discovery in
a complex case. (CCP Section 2017.710 et seq.)
This bill repeals those provisions, and instead generally
provides 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.
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. (CCP Section
2017.010)
This bill expands the scope of discovery described above to
include ESI.
Existing law provides for discovery propounded on nonparty
witnesses and deponents appearing outside of California.
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(CCP Sections 2019.040, 2026.010, 2027.010, and 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. (CCP Section 2031.010)
This bill conforms 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 provides 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.
Existing law establishes procedures for the production of
business records. (CCP Section 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
a subpoenaed person is not required to produce the same
ESI in more than one form. (CCP Section 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. (CCP
Section 1985.8(d))
Existing law provides that, if the person from whom
discovery of ESI is subpoenaed establishes that the
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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.
(CCP Section 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. (CCP Section 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. (CCP Section 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. (CCP Section 1985.8(h))
Existing law provides procedures for ESI claimed by the
subpoenaed party to be privileged or protected as attorney
work product. (CCP Section 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. (CCP Section 1985.8(j))
Existing law provides that an order of the court requiring
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. (CCP Section 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. (CCP
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Section 1985.8(l))
This bill establishes these provisions under the EDA for
the production of business records.
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. (CCP Section 1985.8(b))
This bill requires 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.
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. (CCP
Section 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. (CCP Section 2031.210(e))
This bill provides to a deponent the same ESI privilege
objections available to a person responding to a document
inspection demand.
Existing law provides that a party seeking discovery may
move the court for an order compelling a deponent to
respond to the party's request for production of documents.
(CCP Section 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
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demonstrating. (CCP Section 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. (CCP Section 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. (CCP Section 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. (CCP Section 2031.310(g))
This bill provides for deposition document requests these
motion procedures provided for inspection demands.
Background
In 2009, the Electronic Discovery Act (EDA) was enacted by
AB 5 (Evans, Chapter 5, Statutes of 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 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 (December
13, 2011) Ưas of April 22, 2012].)
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This bill, sponsored by the Judicial Council of California,
implements the proposed revisions to the CDA described in
the Report.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 5/2/12)
Judicial Council of California (source)
California Defense Counsel
ARGUMENTS IN SUPPORT : According to the author:
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
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 bill's sponsor,
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
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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."
RJG:mw 5/3/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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