More and more, information is saved on hard drives rather than hard copies. Thus, it is not surprising that now the heart of discovery efforts in civil litigation more often focuses on the discovery of electronically stored information.
In 2006, the Federal Rules of Civil Procedure were amended in an attempt to address and grapple with issues that arise in the e-discovery context in federal cases. And now state legislatures are getting into the act to deal with such issues in state court cases.
Indeed, last week Governor Arnold Schwarzenegger signed into law California's Electronic Discovery Act. The Governor had vetoed similar legislation last year, and this is the first time that California's discovery rules have been revised in a significant way in a couple of decades.
Fortunately, California's new e-discovery rules are in harmony with the 2006 federal e-discovery amendments. This is a definite benefit of the new legislation since any significant discrepancies between the sets of rules could prove potentially problematic for repeat litigants. For example, companies located in California that want to keep their e-discovery houses in order on an ongoing basis would not want to face differing federal and state requirements.
The new California rules, which represent the culmination of several years of negotiations, appear to work a compromise between plaintiff trial attorneys who sought in depth access to electronic records and corporate defense counsel who desired safeguards for data that they believe is to burdensome and costly to produce.
Probably to the great relief of producing parties, the California Electronic Discovery Act provides that a party or an attorney who, as a result of the routine, good faith operation of an electronic system, fails to produce electronically stored information that has been lost, damaged altered or overwritten, shall not be sanctioned.
Other features of the Act include: electronically stored information should be provided in the form ordinarily maintained or in a reasonably usable form; a party may object to the production of electronically stored information on burden or inaccessibility grounds, but that party bears the burden of proving that objection, and a court still may require production upon a showing of good cause by the demanding party; and the Act is applicable to third parties pursuant to subpoenas, although one can expect potentially less e-discovery burdens being placed on third parties as opposed to parties in a case.
E-discovery really can be the name of the game in civil litigation. Cases are won and lost based on incriminating emails, for example.
It makes abundant sense that federal and state rules of civil procedure are being updated to address the discovery of electronically stored information. It also is important that these rules be in harmony with one and other so that parties do not have differing obligations in federal court as in state court, or in one state court versus another. Parties are entitled to know in advance how best to maintain, harvest and then produce their electronic data in the event of litigation.
Biography
Eric Sinrod is a partner in the San Francisco office of Duane Morris. His focus includes information technology and intellectual property disputes. To receive his weekly columns, send an e-mail to with the word "Subscribe" in the subject line.
Disclaimer: This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.
Reprinted with permission of Findlaw.com