E-Discovery Amendments to California’s Civil Discovery Act Now Awaiting Governor’s Signature

Assembly Bill 926 (Evans):  Passed the Senate July 10, 2008; Passed the Assembly August 7, 2008

The amendments included in AB 926 closely track several of the 2006 e-discovery amendments to the Federal Rules of Civil Procedure.  Among other things, the amendments:

— Establish procedures for a person to obtain discovery of electronically stored information, as defined, in addition to documents, tangible things, or land or other property, in the possession of any other party to the action. 

— Provide that if a party responding to a demand for production of ESI 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 information.  If a demand for production 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, but need not produce the same ESI in more than one form.

— Provide that a party seeking a protective order regarding, or a party objecting to or opposing a demand for, 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 demonstrating that the information is from a source that is not reasonably accessible because of undue burden or expense.  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.

— Generally provide that a court shall not 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.

The status of AB 926 may be followed on the California Courts’ web page devoted to court-related legislation, here.