Litigation

Will California Finally Have An E-Discovery Law?

By Bruce Nye

    In a post almost two years ago --during the very first month of CalBizLit -- I posted here on the absence of any real e-discovery law in California.  So far, that hasn't changed.

    Earlier this year, both houses of the legislature approved AB 926, which would have added provisions to California's Code of Civil Procedure addressing this issue.  Unfortunately, Governor Ahnald, in a somewhat justifiable snit over the failure of the legislature to enact a budget, went on a bill-vetoing rampage, and this one, along with hundreds of others, went out to the Capitol dumpster.

    Now Legal Pad reports that Assemblywoman Noreen Evans, D ? Santa Rosa is introducing just about the same bill, now AB 5.  If approved and signed by the Guv, AB 5 would amend our procedures relating to "Inspection Demands" as follows:

• A party could demand to inspect, copy, test or sample electronically stored information;
• The demanding party could specify the form or forms in which electronically stored information was to be produced;
• The recipient of such a demand could object that the stored information is "not reasonably accessible because of undue burden or expense," or could move for a protective order on the same ground;
• The objecting or moving party has the burden of showing the information is "not reasonably accessible," and even if he, she or it does so, the court can still order its production "for good cause," but can set conditions and can allocate the cost;  and
• If an inspection demand does not specify a form for producing electronically stored information, the responding party can produce it either in "the form in which it is ordinarily maintained" or "in a form that is reasonably usable."

    California needs to deal with this, and AB 5 doesn't seem unreasonable.  The problem is this:  California has a $28 billion budget shortfall over the next two years.  The Governator has called an emergency session of the legislature to deal with it.  Said legislature seems likely to do zilch.  I detect more rampages of vetoes coming.

Full post as published by CalBizLit on December 04, 2008 (boomark / email).