BILL ANALYSIS Ó
SB 1574
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Date of Hearing: June 19, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 1574 (Committee on Judiciary) - As Amended: April 19, 2012
PROPOSED CONSENT
SENATE VOTE : 37-0
SUBJECT : Discovery: Electronically Stored Information
KEY ISSUE : Should various discovery statutes be amended to
conform to the Electronic Discovery Act of 2009?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This non-controversial bill is effectively a "clean up" measure
to the Electronic Discovery Act (EDA) of 2009. That
legislation, somewhat belatedly, took account of the fact that
many documents subject to discovery in civil litigation are
stored in electronic form. As such, the EDA expressly
authorized the discovery of electronically stored information
and set forth procedures by which a party could request,
subpoena, produce, or object to requests for such information.
Because statutes relating to discovery and the civil subpoena
process exist in multiple places in the Code of Civil Procedure,
the 2009 legislation committed errors of omission. A recent
report by the California Judicial Council enumerated these
various omissions and recommended corrections. This bill,
sponsored by the Judicial Council, implements those
recommendations. This bill passed out of the Senate Judiciary
Committee and off the Floor of the Senate without any negative
votes. There is no known opposition to this bill.
SUMMARY : Makes several changes to existing civil subpoena and
discovery statutes to provide for the discovery of
electronically stored information, in order to create
consistency with the Electronic Discovery Act of 2009.
EXISTING LAW :
SB 1574
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1)Sets forth the procedures for obtaining civil subpoenas for
the production of evidence and for obtaining discovery in a
civil proceeding. (Code of Civil Procedure Sections 1985 et
seq. and Sections 2016.010 et seq.)
2)Establishes, under the Electronic Discovery Act (EDA),
procedures for obtaining the production and discovery of
electronically stored information (ESI), as defined. (Code of
Civil Procedure Sections 1985.8 and 2016.020.)
3)Permits a court to impose monetary sanctions, as specified,
against any party or any attorney of a party for specified
discovery violations. (Code of Civil Procedure Sections
2023.010 et seq.)
4)Authorizes the use of certain technologies in conducting
discovery in complex litigation cases, as defined. (Code of
Civil Procedure Sections 2017.710 et seq.)
5)Defines "electronically stored information" to mean
information that is stored in an electronic form, and defines
"electronic" to include any technology having electrical,
digital, magnetic, wireless, optical, electromagnetic, or
similar capabilities. (Code of Civil Procedure Section
2016.020 (d) and (e).)
COMMENTS : In 2009 this Committee heard and unanimously passed
AB 5 (Evans, Chapter 5, Statutes of 2009), which enacted the
Electronic Discovery Act (EDA) of 2009. The EDA sought to bring
the California discovery process up to date by expressly
authorizing discovery of electronically stored information and
improving the practices and procedures for handling the civil
discovery of electronically stored information. However, a
recent report by the Judicial Council of California concluded
that amendments made by EDA "were extensive, Ýbut] they were not
comprehensive." Specifically, the Judicial Council report
identified several sections of the Code of Civil Procedure that
still only referenced paper documents and tangible items without
specifically authorizing the discovery of electronically stored
information. As the Judicial Council report conceded, the
failure to expressly reference "electronically stored
information" in all of these other statutes may not have
mattered, given that the later-enacted EDA provided generally
that civil subpoenas and discovery requests could require
production of electronically stored information. However, the
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Judicial Council concluded that "clean up legislation would
eliminate statutory inconsistencies in language Ýand] avoid
possible ambiguity and confusion." (See Judicial Council of
California. Judicial Council-Sponsored Legislation (Civil Law):
Cleanup Legislation on the Discovery of Electronically Stored
Information, October 28, 2011, p.1-2.) This bill implements the
specific recommendations of the Judicial Council's Policy
Coordination and Liaison Committee.
To enumerate all of the changes made by this 38-page bill would
be tedious and achieve little more than replication of the text
of the bill; therefore, suffice to say that the amendments fall
into the following categories:
Adding the phrase "electronically stored information" to
the various existing discovery and civil subpoena statutes
that presently only reference the discovery of documents
and other tangible items.
Specifying that any existing sanctions that apply to the
abuse of the discovery process, and any available safe
harbors against such sanctions, also apply to the discovery
of electronically stored information, subject to
appropriate qualifications.
Repealing provisions that authorized the use of certain
technology when conducting discovery in cases involving
complex litigation. By generally allowing for the
discovery of electronically stored information, this bill
makes those provisions superfluous.
ARGUMENTS IN SUPPORT : According to the sponsor, the Judicial
Council of California, "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
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clean-up legislation."
REGISTERED SUPPORT / OPPOSITION :
Support
Judicial Council of California (sponsor)
Opposition
None on file
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2