Thursday, July 2, 2009
On June 29, 2009, Governor Arnold Schwarzenegger signed California’s Electronic Discovery Act into law. Because the Act contains an urgency provision, it is effective as of June 29, 2009.
Assembly Bill 5, which was signed by the governor Monday, immediately enacts new electronic discovery provisions into the state Code of Civil Procedure. The ultimate goal of the bill is to improve discovery practices for lawyers on both sides of a case.
The bill -- supported by the Civil Justice Association of California and Consumer Attorneys of California -- establishes procedures for a person to obtain discovery of electronically stored information.
The full text of the Act can be read here
All discovery propounded or responded to must now comply with the new law. These rules are very similar to the recent revisions to the Federal Rules of Civil Procedure, and bring California in line with the federal e-discovery standards and for the first time offer state litigants specific definitions of what constitutes electronically stored information.
Under the new Act, the party requesting production of electronically stored information (ESI) may specify the format in which it should be produced (e.g., native format, or TIFF, with or without certain metadata, etc.). If no format is specified, the responding party must produce the ESI in either the same format as it is ordinarily kept (likely in native format or an archived/compressed format) or in a "reasonably usable" form. The responding party need only produce the ESI in one form. If a requesting party fails to specify the format of production in its request, and the responding party produces the ESI in a "reasonably usable format," the requesting party cannot then compel a different form of production.
Lawmakers adopted almost identical legislation last year only to have the governor veto it during a bitter budget battle with the legislature.