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New Electronic Discovery Bill signed by Governor Schwarzenegger June 29, 2009

June 01, 2009

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The California Electronic Discovery Act (Assembly Bill 5) was signed by Governor Schwarzenegger on June 29, 2009. This Act adds to and amends the Code of Civil Procedure to establish procedures for the discovery of electronically stored information ("ESI").

For example, amended section 2031.010(e) states: "A party may demand that any other party produce and permit the party making the demand, or someone acting on that party's behalf, to inspect, copy, test, or sample electronically stored information in the possession, custody, or control of the party on whom demand is made."

"Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities. Section 2016.020(d).

"Electronically stored information" means information that is stored in an electronic medium. Section 2016.020(e).

"A party demanding inspection, copying, testing, or sampling of electronically stored information may specify the form or forms in which each type of electronically stored information is to be produced." Section 2031.030(a)(2).

In response to a demand, under Section 2031.280(c), "[i]f a party responding to a demand for production of electronically stored information objects to a specified form for producing the information, or if no form is specified in the demand, the responding party shall state in its response the form in which it intends to produce each type of information."

Subsection 2031.280(d) provides: "Unless the parties otherwise agree or the court otherwise orders, the following shall apply:

  • (1) If a demand for production does not specify a form or forms for producing a type of electronically stored information, the responding party shall produce the information in the form or forms in which it is ordinarily maintained or in a form that is reasonably usable.
  • (2) A party need not produce the same electronically stored information in more than one form."

And, subsection (e) provides that "if necessary, the responding party at the reasonable expense of the demanding party shall, through detection devices, translate any data compilations included in the demand into reasonably usable form."

Here are a few of the key questions that have been raised about the Act:

  • When is it effective? Due to the urgency clause, this bill (E-Discovery Act, "EDA") is effective now. The practical implications for existing cases remain to be seen, but parties in active legislation should expect to see and make ESI requests under the EDA and be prepared to respond accordingly.
  • What does it require? The EDA's provisions set out the manner for requesting, responding to and producing ESI, including subpoenas for ESI. An important provision of the EDA requires counsel to be familiar enough with the client's ESI to detail, specifically, the types and sources of ESI it considers "not reasonable accessible to respond to discovery requests."
  • What form of production is required? The requesting party may specify the form of production. If not specified, or if the request is unreasonable, the responding party must produce the ESI in the manner in which it is ordinarily maintained or in a form that is reasonably usable.
  • What are the limits on production? The court may set limits if the discovery is unreasonably cumulative or duplicative, if the burden or expense outweighs the likely benefit, if the data is not reasonably accessible, or if the information can be produced from a less-burdensome source.
  • Do the parties need to meet and confer? Technically, there is no early meet and confer requirement under the EDA like there is under FRCP 26. However, parties must meet and confer before engaging in motion practice (i.e., protective orders or motions to compel). Other provisions all but mandate that the parties discuss, at some point, how and when ESI will be produced. For example, a party issuing a subpoena for ESI must take steps to avoid imposing undue burdens or expenses on the person subject to the subpoena. (section 1985.8(j)). For all intents and purposes, given the level of detail required to facilitate efficient and defensible ESI discovery for both sides, it is advisable that the parties meet and confer prior to the production of ESI.
  • How does it differ from the FRCP? The EDA and the FRCP were designed for the same purpose, to facilitate ESI discovery. However, there are differences between the two that counsel should be aware of. The most significant is that under the EDA, unlike the FRCP, the burden is on the producing party to seek relief (by way of protective order) should it not want to produce certain ESI. (e.g., ESI considered by responding party as inaccessible due to undue burden or cost, Section 2031.060 and 2031.210(d)).

For more information, please contact:

Batya Forsyth

415-995-5827 Direct Phone
415-995-3479 Fax

Email Attorney


Garner Weng

415-995-5081 Direct Phone
415-995-3468 Fax

Email Attorney


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