Perspective: Losing the way over e-discovery?

At the end of 2006, the Federal Rules of Civil Procedure got amended to address the question of electronic discovery in lawsuits. Not to be outdone, the Judicial Council of California has now proposed its own set of amendments.

If the proposed changes to California civil code dealing with electronic discovery procedures ultimately become law, the new rules will mean new burdens for parties appearing in state courts.

While the amended federal rules steered clear of providing a precise definition of what constitutes electronically stored information, it does cover information "stored in any medium" so far as it can be "retrieved and examined." In this way, the amended text avoids any specific definition that later could be outstripped by advances in technology.

The proposed California amendments take a different tack, referencing information that is stored in an electronic medium and relating to technology having "electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities." While this comes across as quite broad, the federal definition might be better, as it later may be less capable of evasion by a new technology.

Lawyers and clients live in mortal fear of death-knell sanctions resulting from the failure to preserve and produce information.

The proposed amendments differ markedly when it comes to the question of inaccessible information. The federal approach takes the position that a party seeking discovery must seek leave of court to force another party to produce information that the latter deems inaccessible.

If the California changes take effect, a responding party would have to seek a protective order from a court to avoid producing information on the grounds that it is inaccessible or unreasonably burdensome. This approach increases risk for the responding parties.

Still, the proposed California amendments parallel the federal ones in allowing for cost-shifting if production proves burdensome and expensive. It also allows for relief from production if the information sought is available from less intrusive sources, or if its value is far outweighed by its burden.

Another similarity: California would allow a requesting party to specify the form in which it desires the electronically stored information to be produced.

California's proposed rule changes are clearer than the proposed federal amendments when it comes to providing an actual safe harbor for information that has been "lost, damaged, altered, or overwritten" because of the routine and good faith operation of an electronic information system. This is good news. Lawyers and clients live in mortal fear of death-knell sanctions resulting from the failure to preserve and produce information. The changes sought by California would seem to supply added protection on that front.

But California does not explicitly set forth a formal procedure when it comes to privileged information that has been inadvertently produced. Rather, the state law would require the producing party to notify the receiving party of the problem. At that point, then, the receiving party would need to immediately sequester the information--either for return or for court determination.

It is likely that at least some form of the proposed California amendments will become governing state law. There is no question that the world is becoming paperless, and discovery of evidence in lawsuits necessarily entails electronic discovery. Rules must be developed to deal with the subject of electronic discovery, and we need rules both for federal and state courts.

But while state rule changes may offer some advantages over previously developed federal rules, it would help if the two codes do not differ too much. When it comes to electronic discovery, all parties concerned benefit from relatively uniform legal obligations

Biography
Eric J. 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 [e-mail] with "Subscribe" in the subject line. This column is prepared and published for informational purposes only, and it 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.

More Perspectives

[sethhrow]

California E-Discovery Rules

One of the problems with the proposed rules is that lack of a definition of "good cause." Information that is not "reasonably accessible" (often information from backup tapes) may still be ordered to be produced (usually at considerable expense) if the judge finds that there is "good cause." The federal e-discovery rules and the model state rules both provide some guidance -- tailored to the realities of e-discovery -- about what factors should be considered before the court finds "good cause." The proposed California rules have no such guidance, and they should, so that parties in litigation can rely on case law from the federal courts and state courts interpreting similar rules when they argue to the judge about this issue. The Judicial Council specifically asked for comments on this issue, perhaps expecting some controversy. Comments on the proposed rules are due January 25.

[BenjaminWright]

Eric: In e-discovery cases, a new way to promote a good digital chain of custody is to authenticate records with a voice signature. A voice signature can help show who collected the e-evidence, when it was collected, and that it has not changed since collection. --Ben <a class="jive-link-external" href="http://hack-igations.blogspot.com/2008/04/text-message-investigations.html" target="_newWindow">http://hack-igations.blogspot.com/2008/04/text-message-investigations.html</a>