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On June 29, 2009, California signed into law the Electronic Discovery Act (EDA), urgency legislation which became effective immediately. The EDA integrates procedures for discovery of electronically-stored information (ESI) into the existing framework of the Civil Discovery Act. The EDA permits discovery by inspection, copying, testing, or sampling of ESI, and includes procedures for requiring production of ESI by subpoena.
Under the EDA, if a demand for production does not specify a form for producing a type of ESI, the responding party is required to produce the information in the form in which it is ordinarily maintained or in a form that is reasonably usable. The party does not need to produce the same ESI in more than one form. If a party responding to a demand for production of ESI objects to a specified form of production, or no form is specified, the responding party must state in which form it intends to produce the ESI.
The EDA adds a statutory claw-back provision for privileged or protected ESI that is inadvertently produced in discovery. The claw-back provision does not address whether the privilege or protection that is claimed after production was waived by the production. In addition, the EDA includes safe harbor provisions for sanctions relating to ESI. Absent exceptional circumstances, sanctions may not be imposed for failure to provide ESI that has been "lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system."
For guidance from CEB:
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