Judicial Council Endorses Electronic Discovery Legislation

Monday, April 28, 2008

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Judicial Council Endorses Electronic Discovery Legislation

By STEVEN M. ELLIS, Staff Writer

The Judicial Council of California on Friday approved proposed legislation to modernize civil discovery law and improve the procedures for handling the discovery of electronically stored information in California civil cases.

At its meeting in San Francisco, the council unanimously approved proposed amendments to the Civil Discovery Act, set forth in Code of Civil Procedure Secs. 2016.010 et seq., to reflect the growing importance of discovery of electronically stored information by incorporating many of the provisions set forth in the Uniform Rules Relating to Discovery of Electronically Stored Information.

In a release announcing the action, the council said it will cosponsor the legislation with the Consumer Attorneys of California and the California Defense Counsel. It said that Assemblywoman Noreen Evans, D-Santa Rosa, has agreed to author the legislation and that AB 926, which is currently pending in the Senate Judiciary Committee, will be used for this purpose.

If adopted by the Legislature, the proposed legislation would do the following:

•Amend the Civil Discovery Act to include definitions of “electronic” and “electronically stored information,” and to expressly state that a party may obtain discovery of the latter.

•Provide that parties may undertake discovery not only by “inspecting,” but also by “copying, testing, or sampling,” making the rules consistent with federal rules and and the Uniform Rules.

•Apply the same timeframes generally used for civil discovery to electronic discovery.

•Allow a party to specify the form in which electronically stored information is to be produced, and provide a responding party an opportunity to object. A responding party would not need to produce the same electronically stored information in more than one form.

•Provide that a requesting party seeking a protective order regarding information that is not reasonably accessible because of undue burden or expense bear the burden of so showing. A court could still order discovery of information over a responding party’s objection that it is not reasonably accessible if the requesting party shows good cause, and a court that finds good cause for the protection of such information could set conditions for discovery.

Courts would also have authority to limit the frequency or extent of discovery of electronically stored information, even from a source that is reasonably accessible.

•Provide that a responding party state the form or forms in which it intends to produce each type of information if the requesting party fails to request a specific form, or if the responding party objects to the form requested.

Unless the parties otherwise agree or the court otherwise orders, the proposal would also require a responding party to produce information in the form in which it is ordinarily maintained or in a form that is reasonably usable if no form of production is specified. It would retain existing law with respect to the expense of translating any data compilations into a reasonably usable form.

•Provide that a party claiming that information produced is subject to a claim of privilege or protection as attorney work product so notify the requesting party, who would then be required to immediately return the information or present it to the court conditionally under seal. A party that received information subject to a claim of privilege or protection would be prohibited from disclosing it until the claim is resolved.

•Authorize a party to bring a motion to compel where there is an objection to producing information from a source that is not reasonably accessible—an alternative to the procedure under which a responding party may seek a protective order—and add provisions to the statute on motions to compel similar to the new provisions in the protective order statute.

•Add “safe harbor” provisions providing that a court may not impose sanctions for failure to provide “electronically stored information lost, damaged, altered, or overwritten as a result of the routine, good-faith operation of an electronic information system” absent “exceptional circumstances.” Courts would be prohibited from construing this provision to “alter any obligation to preserve discoverable information.”

•Provide that a party serving a subpoena requiring the production of electronically stored information may specify the form in which each type of information is to be produced, and the consequences of failing to do so. The proposal would also add provisions similar to those in the new protective order and motion to compel statutes; provide that the person subpoenaed translate any data compilations into a reasonably usable form, if necessary, at the reasonable expense of the subpoenaing party; and add protections for persons who receive subpoenas requiring production of electronically stored information from undue burden or expense, including a “safe-harbor” provision.

In other news, the council also accepted a two-year study conducted by the Administrative Office of the Courts’ Center for Families, Children & the Courts urging major reforms in the state’s juvenile delinquency courts.

The first comprehensive research study of its kind in California, the Juvenile Delinquency Court Assessment 2008 found that workloads are too high for judicial officers and other professionals, particularly for probation officers and defense attorneys; that more high-quality, affordable, and appropriate services are needed for youth, especially drug rehabilitation, mental health, and services for females; and that available court space and personnel at court facilities are needed to adequately address the questions of court users, who often have difficulty following and understanding court proceedings.

The study also found that delinquency courts are often relying on old, outdated technology systems that hinder sharing of case information, and that turnover is high among judicial delinquency professionals, who are often rotated to other duties just at the time when their experience and effectiveness is high.

In response to the findings, the Judicial Council’s Family and Juvenile Advisory Committee made a series of 58 recommendations for improving case-level performance, comprehensible hearings, youth services and sanctions, court management, and professionalism.

The council also took the following actions at its meeting:

•Adopted a revised three-year operational plan to establish high-priority objectives and desired outcomes for achieving the six overarching goals and 53 policies of “Justice in Focus: The Strategic Plan for California’s Judicial Branch,” adopted by the council in December 2006.

•Approved a report by the Court Interpreters Advisory Panel recommending the adoption of specific knowledge, skills, and abilities as the essential standards for court interpreter certification and registration; the approval of oral bilingual proficiency screening for interpreter candidates in designated languages and in non-designated languages whenever possible; and prioritization of the development of any new exams according to language use in the court and need.

•Approved a recommendation by the Court Interpreters Advisory Panel to modify the Feb. 1, 2009 grace period for registered interpreters of Eastern and Western Armenian, Mandarin, and Russian to become certified by allowing a one-year exemption for interpreters who meet certain conditions, including participation in test preparation training and sitting for the certification exam.

•Approved the adoption of an updated Trial Court Capital-Outlay Plan with based on various changes in court construction projects throughout the state. The updated plan will be incorporated into the Judicial Branch AB 1473 Five-Year Infrastructure Plan for FY 2009–2010.