Apparently taking a break from figuring out where the money will come from to run California, The Governator signed into law the Electronic Discovery Act (“EDA”) on June 29th, joining the ranks of approximately twenty other states in adopting specific rules designed to manage e-discovery. Like most of these other states, California’s EDA is substantially based on the 2006 amendments to the Federal Rules of Civil Procedure.
According to Eric Sinrod, writing in The FindLaw Technology Blog, “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 too burdensome and costly to produce.”
A significant difference between the Federal Rules and the EDA is the inclusion in the EDA of a safe harbor that does not sanction a party or attorney who fails to produce electronically stored information that has been lost, damaged, altered or overwritten, if it was done as a result of the routine, good faith operation of an electronic system.
Additionally, according to Sinrod, the Act directs that “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.”
Based upon the current legislative trend, it should be anticipated that eventually all of the states will soon have similar laws in place to address the evolving issues associated with electronically stored information.