Governor Vetoes E-Discovery Amendments to California’s Civil Discovery Act

On September 27, 2008, Governor Arnold Schwarzenegger vetoed Assembly Bill 926 (Evans), which contained e-discovery amendments to California’s Civil Discovery Act .  In his veto message, the Governor explained:

The historic delay in passing the 2008-2009 State Budget has forced me to prioritize the bills sent to my desk at the end of the year’s legislative session.  Given the delay, I am only signing bills that are the highest priority for California.  This bill does not meet that standard and I cannot sign it at this time.

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

• Established 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.
• Provided 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.
• Provided 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 provided 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.

 For more history on AB 926, click here.