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The new California Electronic Discovery Act was signed into law on June 29, 2009 by Governor Schwarzenegger. Although the new law generally tracks the 2006 e-discovery amendments to the Federal Rules of Civil Procedure (FRCP), we want to focus on electronically stored information (ESI) that is not “reasonably accessible.”
The amended California Code of Civil Procedure (CCP) assumes that ESI is accessible. It places the burden on the responding party to object in writing that specific requested ESI is not reasonably accessible. The objections are strengthened if valid technical justifications are asserted. For example, if the responding party provides sufficient technical detail that identifies the type, category of source, and form of the data sought, this helps build confidence in the argument presented to the court, be it Federal or State.
The amended California CCP explicitly rewards the responding party that provides such detail in their objection. See CCP §2031.210(d) (as amended): “…By objecting and identifying information of a type or category of source or sources that are not reasonably accessible, the responding party preserves any objections it may have relating to that electronically stored information.”
The amended FRCP and CCP affirm the value of lawyers being familiar not just with the legal issues, but with the technical underpinnings of the information that is in question. Both the Federal and California rules reward attorneys that possess a thorough understanding of the relevant data stores and systems that process and maintain the data at issue. The CCP makes evident that a lawyer that does not possess this knowledge can jeopardize the ability to preserve objections to e-discovery requests in the state of California.
In California, even if the e-discovery request is for information that is reasonably accessible, a court may impose limits if certain conditions exist. See CCP §2031.060(f) (as amended). Here is one example of the four conditions: “The discovery sought is unreasonably cumulative or duplicative.” To assert this argument effectively requires a solid knowledge of the respondent’s data architecture. Again, the attorney’s ability to articulate a legal argument hinges not only on their mastery of the law but technology as well.
The clear imperative is not that the responding party must make a substantial investment in techno-legal experts. Rather, lawyers and in-house counsel must work to establish an ongoing collaborative relationship with the IT staff that enables counsel to properly assess an e-discovery request and chart a course of action.
Often a key work product of this collaboration is the creation of an organizational data map by using a range of tools, including Microsoft Office. After the data map is completed, a third-party independent verification might be appropriate, depending on the size and complexity of the organization. The establishment of the data map is critical, but equally important is the implementation of a maintenance plan for the data map. This will help ensure that the return on the initial investment is maximized. In most cases, the data map should be maintained by the client and not outside counsel.
Over time, the legal/IT collaborative effort – utilizing assets like the data map – will lower legal costs, enable more effective and efficient interaction with outside counsel when needed, allow clients to more confidently assess e-discovery requests as to reasonableness, and deliver potentially valuable insights on how the client can exploit its information assets for business needs.
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