Federal Rule

California Act

Comments

Production/ Limitation

Rule 34(b)(1), (2) "Electronically stored information" is a separate category. Requests may specify data formats. Otherwise, "ordinary" or "reasonably useable" file format is the default for production. Response must specify format. A party need not produce the same ESI in more than one form.

Section 2031.030(a)(2), 2031.270(c), (d)(1) essentially tracks federal Rule 34.

Unlike the Federal Rules, however, there is no meet and confer requirement before propounding discovery (see infra). Without an opportunity to meet and confer with counsel on an acceptable approach to
e-discovery, the California Act may increase the need to seek a protective order.

Objections and Waiver

Rule 26(b)(2), 34(b) Party need not produce ESI from sources party "identifies" as "not reasonably accessible because of undue burden or cost"; not specifically treated as an objection but rules suggest that such an objection must be specific or else waived.

Section 2031.210(d) Objection on basis of "undue burden or expense" must be specific; no boilerplate objections. Party must identify in response the types or categories of sources of ESI that are not reasonably accessible; otherwise waives "any objections…relating to that electronically stored information."

Delay in objecting is no longer the only concern as far as waiver of the objection.

This amendment means the responding party will have to become familiar with the client’s internal data storage before responding to written discovery so as to provide the appropriate categories of information.

Meet and Confer

Rules 16(b), 26(f) Pre-trial conference, with counsel to meet beforehand, to discuss discovery issues including document preservation, production format, and privilege protection for inadvertent disclosure.

No similar requirement.

In light of the danger of waiver and the costs associated with e-discovery, counsel would be wise to self-impose the federal meet & confer requirement. At least one judge, Carl West, presiding in the Los Angeles Superior Court, already requires all parties to "meet and confer in person" e-discovery related issues and orders counsel to "be prepared to discuss these issues with the Court at the Initial Status Conference." (See Judge West’s Initial Status Conference Order (Complex Litigation Program).)

Access to Documents & Cost Shifting

Rule 26(b)(2), (c)(1)(B) Party need not produce data it reasonably identifies as inaccessible, though court may order production on "good cause" and may shift cost to demanding party. Burden on responding party to demonstrate inaccessibility.

Section 2031.060(c), (d), (e); 2031.310(d), (e), (f) Tracks federal rule where party can demonstrate that data is not reasonably accessible because of undue burden or expense.

Requesting Party should consider demanding only "accessible" file formats or very specific requests for certain inaccessible data

Safe Harbor/ Destruction of ESI

Rule 37 No sanctions for inadvertent electronic data "loss" if based on "routine, good faith operation" of IT Systems.

Section 2031.060 (i)(1), 2031.300(d)(1) No sanctions for "lost, damaged, altered, or overwritten" data as the result of "routine, good faith operation of an electronic information system."

Does not alter any obligation to preserve discoverable information.

Duty to preserve arises when on notice of pending or threatened litigation. Duty may extend to other data if information is not readily accessible. Safe harbor applies only to discovery sanctions (not statutory sanctions).

Ambiguity as to whether there is an obligation, once on notice, to shut off automatic deletion software.