The Electronic Discovery Act
Governor Arnold Schwarzenegger has signed into law Californiaâ??s first set of electronic discovery regulations, the Electronic Discovery Act effective 6/29/09. The new law largely follows federal regulations establishing procedures for litigants who seek electronically-stored information.

Under the new law, a party seeking electronic information may specify the form in which documents are to be produced. If the request does not specify the form for production, the party producing the information should produce it in a form in which it was ordinarily maintained or in a form that is reasonably usable. The party seeking the information must take reasonable steps to avoid imposing undue burden or expense on the producing party.

A party who objects or seeks a protective order on the grounds the requested data is not reasonably accessible because of undue burden or expense bears the burden of demonstrating this. However, even if the electronically-stored data is from a source that is not reasonably accessible, a court may nonetheless order discovery if the requesting party shows good cause. In this case, the court also may set conditions for the discovery, including allocation of expenses.

The Act provides some safe harbor protections to responding parties. It shields a respondent from sanctions â??for failure to provide electronically-stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system.â?

How the California ESA Differs from the Fed
The one area where the California EDA differs from the federal approach concerns the discovery of electronically stored information from sources that a party identifies as not reasonably accessible.

The California EDA does not contain explicit language that states a party does not have to provide discovery of inaccessible ESI. Just as important, unlike the Federal Rules, which put the burden on the requesting party to file a motion to compel to obtain discovery from sources of ESI that are identified as not reasonably accessible, the California EDA appears to place the burden on the producing party to file a Protective Order to claim that specified data sources are inaccessible due to undue burden or expense, and thus do not have to be searched.

Conclusion
Given the new California EDA, it is more important than ever for California employers to become intimately familiar with their own IT systems, policies and practices. In order to identify sources of information that are not accessible due to undue burden or cost, you must understand your IT systems, where relevant data resides, and how difficult and/or burdensome it is to extract the information for discovery. Further, detailed knowledge of your IT systems is critical for determining the form of production for ESI, which now needs to be addressed at the time discovery requests are served or responded to. Without such knowledge, you may agree to produce ESI in a manner that your IT systems will simply not allow and may fail to identify opportunities to take advantage of the cost-shifting provisions discussed above.

From a practical standpoint, the California variation on the treatment of inaccessible ESI is not that much different than the Federal Rules. In either case, responding parties have to be proactive if they intend to not search or produce electronic data from inaccessible sources by:
o Promptly identifying sources of ESI that are not reasonably accessible by lodging a timely objection to a discovery request; and
o Providing sufficient details about the burdens and costs of providing the discovery from and the likelihood of finding responsive information on the sources identified.

Therefore, given the cost-shifting provisions of the EDA that are unique to California, employers need to be aggressive about seeking mandatory cost-shifting when dealing with a discovery request that calls for the production of ESI contained on any type of back-up media.