Proposed e-Discovery Rules for California Superior Court
The California Judicial Counsel is considering legislative amendments to the California Civil Discovery Act to adopt electronic discovery rules in civil proceedings. New court rules would also be added that integrate e-discovery into case management.
How different are the proposed California rules from the existing electronic discovery rules in federal court?
Overall, the proposed California rules are largely similar to the federal e-discovery rules embodied in the Federal Rules of Civil Procedure—with one noticeable exception: the way in which the responding party must respond to requests for documents that may be “not reasonably accessible.”
Under the proposed California rules, a responding party is expected to produce all requested (relevant) electronic information unless it seeks a protective order against production for reasons of undue cost or burden.
This basic framework is, of course, the way discovery has always been conducted.
The federal rules take a different approach.
Under FRCP Rule 26(b)(2), a responding party “need not provide" information “it identifies” as being "not reasonably accessible" because of undue burden or expense. But it must identify by category or type the sources containing potentially responsive information it is neither searching nor producing. If the requesting party disagrees with the designation of sources that are "not reasonably accessible" it must file a motion to compel to receive more information.
How different are these approaches?
In a perfect world there should be no difference. Should it really matter, after all, if legitimate discovery disputes reach the court through motions to compel or motions for protective order? No, not really.
But in our imperfect world, your preference of approach may depend a lot on the type of clients you represent.
Larger companies (and their attorneys) may favor the federal approach, since it provides more control over which information is produced and which is not--a less transparent system that slightly favors the producing party. Because of this, plaintiff's lawyers under the federal approach must often work harder to identify and gain access to discoverable information.
Smaller plaintiffs (and their attorneys) may favor the California approach, since it allows fewer opportunities for discovery gamesmanship--a more transparent system that slightly favors the requesting party. Because of this, responding parties under the proposed California approach may be more likely to produce relevant information unless they have solid and defensible reasons not to.
A reality of litigation under the federal "two-tier" approach is that responding parties sometimes provide vague or slanted summary information about their electronic data when responding to document productions, with the result that documents are not available for critical depositions or hearings. This seems an almost unavoidable consequence of allowing a party to define its own discovery scope in adversarial system that has become increasingly competitive and demanding.
The proposed California rules avoid the potential unfairness of this two-tier system, placing instead an inherent burden on the responding party to accurately account for its electronic data at the initial moment of its responses.
However, to be an effective discovery tool, the California rules will need to prevent undisciplined and over-reaching document requests from plaintiff's attorneys. The system will become burdened if hearings on protective orders become the norm rather than the exception.
Will the California rules work efficiently? I believe the answer is almost certainly “yes”—if courts require mandatory meet and confer obligations and strong case management orders.
Early meet and confer sessions can be used to mutually identify sources of electronic information, "litigation hold" procedures and basic discovery plans. Exchange of this information will provide proper context to all subsequent discovery requests and will provide a center of gravity at the beginning of the case to facilitate discovery and resolve disputes. Responding parties will have less power to unilaterally shape responses, while requesting parties will have less leeway to serve over-reaching or irresponsible requests. Arguments for and against discovery should be inherently constrained by the limitations of the case management order.
The substance of the federal rules and proposed California rules have many similarities. By requiring effective case management procedures to balance interests of requesting and producing parties, the proposed California rules promise to be workable and efficient.
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