Old Civil Discovery Act Versus New e-Discovery Rules

I was admitted to practice in 1961. Using an IBM Selectric Typewriter was the big deal. So when the 1980's ushered in California's new Civil Discovery Act, one can only imagine the shock effect resulting from the realization that the law held unknown grief for those of us who had gone to law school believing that Perry Mason had the ideal law practice. Complying with the Civil Discovery Act definitely was not the "fun" part of being a lawyer.

Fast forward to June 29, 2009, when then-Gov. Arnold Schwarzenegger signed the California Electronic Discovery Act into law, amending the Code of Civil Procedure to reflect that technology has once again altered how we communicate and store information. The new act is an attempt through specification of new rules to clarify the e-discovery process, and in many respects follows the 2006 Federal Rules of Civil Procedure electronic discovery amendments. More headaches for lawyers who still see themselves as Perry Mason? You bet!

The new "buzz" term is "electronically stored information" (ESI), and being faced with legal issues emanating from ESI can be a nightmare for lawyers and judges who came late to the world of computer technology. Peter S. Vogel, trial partner in Gardere Wynne Sewell in Dallas, Texas, and chairman of the e-discovery group, recommends the use of e-mediation and appointment of special masters in ESI disputes.

Generally, use of mediation has been relegated to efforts to resolve the underlying dispute in cases. Using this process to deal with controversies over ESI is a relatively new phenomenon. However, when one thinks about it, mediation can be used to resolve any dispute whether before, during, or following any litigation. So why not mediate ESI disputes? This is no different than sitting down to resolve a specific dispute through mediation, and then finding in the course of the process that there are other issues that will lend themselves to the same approach so that a "global" resolution is possible.

Vogel suggests that a team approach is best: The presence of litigation counsel, in-house counsel, an information technology expert, and subject matter experts at the e-mediation conference is important. Additionally, I recommend that in advance of the conference, the team for each party participate in a "pre-e-mediation" telephone conference. At this stage, the teams can map the discussion and issues that will be considered at the e-mediation conference where they will meet and confer jointly with the e-mediator and in separate confidential caucuses, if necessary, to discuss with the e-mediator any special circumstances and problems concerning the ESI in question.

The goal of the e-mediation conference is to arrive at an agreement for an e-discovery plan, so that the number of discovery disputes submitted to the trial court will be minimal and exposure to sanctions can be diminished. Vogel suggests that this approach can greatly reduce expensive and time-consuming ESI motions and will avoid forcing trial court ESI decisions that may create unexpected problems as the litigation progresses. The flip-side of this is that the presence of the e-mediator can be resurrected in the event of future needs created by problems that could be resolved by modification of the e-discovery plan.

According to Vogel, failure to reach agreement at any point can be dealt with by requesting appointment of a e-special master who will represent the trial court in performing functions such as providing unique ESI technical assistance, holding dispute hearings that may result in the issuance of orders by the e-special master, interpreting complex ESI issues, and making various critical recommendations concerning discovery and the process so that the trial court's need to deal with motions will be greatly reduced. Generally, the trial court order for appointment of the e-special master will define the duties of that person and the allocation of costs and expenses for such services.

In California, the range of ESI issues governed by the new rules take into consideration that, because of the advanced technology available in the 21st century, most of the information necessary to thoroughly and properly conduct litigation is stored electronically somewhere. Lawyers need to be competent in recognizing, requesting, and dealing with ESI well beyond simple e-mail. The new rules have forever changed the Code of Civil Procedure, which will affect the practice of law today and for the foreseeable future in all areas of specialty. There are new duties imposed on lawyers regarding ESI preservation, and accompanying pitfalls that must be recognized and avoided.

The Electronic Discovery Act provides for dealing with the form of production, the impact of "accessibility" of relevant information, and protection against the imposition of sanctions for the loss of certain information in specific circumstances. There are also general protections for non-parties against undue burden and expenses in connection with the issuance of subpoenas seeking ESI.

A party requesting ESI has the option to specify the format in which the material shall be produced. In the absence of that specification, the responding party may choose its own, provided the format is either as the material is ordinarily kept or one that is reasonably accessible. Once the material has been produced in the form specified, the responding party is not required to produce the material again in any other format.

Responses to a demand for ESI inspection must be provided in writing and addressed separately to each individual demand, accompanied by a statement of compliance, inability to comply, or an objection. There are provisions for objection to production of ESI based on lack of reasonable access to the requested material. While in the case of an objection based on lack of reasonable accessibility, or a request for a protective order for that reason, the requesting party can move to compel further responses and production, but the burden is on the responding party to demonstrate that search and production of ESI would be unduly burdensome or costly.

No sanctions may be issued for lost, damaged, altered, or overwritten electronic data based on "routine, good faith operation" of ESI. And, while there is a requirement to meet and confer before filing discovery motions, attesting to their good faith efforts to resolve disputes, there is no such requirement concerning issues in connection with pre-trial conferences.

Finally, in considering a summary overview of important provisions of the Electronic Discovery Act, it should be kept in mind that the trial court retains substantial discretion to order e-discovery notwithstanding a showing of undue burden and cost by the responding party.