.....................................................................................ELECTRONICALLY
STORED INFORMATION (ESI)
Prof's Note:
On December 1, 2006, FRCP 34 on Production of Documents, and
some other FRCP, were amended (Rule 34, for the first time in
several decades). The recent federal changes emphasize the importance
of ESI, and how to react when litigation is pending. This change
also means that lawyers will have to dig deeper, and earlier,
to comply with the new ESI disclosures–that many courts
had ordered over the last decade, via local rule or case order.
.....This
webpage briefly summarizes the primary features of ESI, in both
California and federal courts. Graduates taking the bar exam
in states still testing exclusively on federal procedure can
expect that
this will be a hot-button topic for bar testing purposes. That
is likely to be the case in California, as well, now that Cal
Civ Pro is testable (Summer 2007).
.....I
would suggest that fed civ pro students first peruse the previously
enacted state rules below–for definitions & comparative
comprehensiveness. .................................................ast rev: 01/08/07 |
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.........................................................................................................................FEDERAL
...............................................................................................(2006
Supp., p. 445+/effective date: 12/01/06)
Federal Rules of Civil Procedure
.....Rules
16(b)(5) Re initial 26(f) conf, parties must discuss
ESI discovery issues at/before the pretrial conference. They
will include any resulting agreements in the scheduling order.
.....Rule 26(a)(1)(B): Exchange
of initial core discovery must provide "a copy of, or a
description by category and location of, all documents, electronically
stored information * * *
...................................in
the possession, custody or control * * * that the disclosing
party may use * * * .
.....Rule 26(b)(2)(B): A
party need not provide discovery of ESI which is not reasonably
accessible due to undue burden or cost. On motion to compel/protective
order,
..................................party
asked may show info sought "not reasonably accessible because
of undue burden or cost."
.....Rule 26(b)(5)(B): Note:
no specific reference to ESI; however, so-called "claw back"
procedures are available in the event of inadvertent production
of privileged documents.
..................................[CCP
class: see, e.g., casebook, p. 398, nn.1-4.] Expect a
deluge of caselaw on this new fed waiver-avoider, especially
for counsel who cough up, up front, ..................................without
due regard for proper (but arguably prohibitively expensive)
ESI cataloging/indexing procedures.
.....Rule 33(d): Parties
may sufficiently answer an interrogatory by producing business
records, which now expressly includes ESI.
.....Rule 34: Any party may
serve on any other party a request to produce ESI. The request
may specify the form or forms in which ESI is to be produced.
.....Rule 37(f): Absent exceptional
circumstances, a court may not impose sanctions on a party for
failing to provide ESI, when it is lost as a result of the routine,
good faith operation
.......................of an electronic
information system.
.....Rule 45: ESI now expressly
included in doc's subject to subpoena. The person commanded to
produce need not appear in person. When responding to a subpoena,
custodian
....................shall produce
as kept/form that's "reasonably usable." The custodian
need not provide the requested ESI, however, if there would be
"undue burden or cost" to
....................produce. The
court may nevertheless order the production of ESI, on motion
to compel, when good cause is shown by requesting party.
Leading federal ESI case: Zubulake, 217 F.R.D. 309
(casebook, p.778). |
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........................................................................................................................CALIFORNIA
......................................................................................................(K
& L Statutory Supplement, p. 426)
California Code Civil Procedure
.....§2017.710:
"Technology" Defined Technology includes telephone,
e-mail, CD-ROM, Internet Web sites, electronic documents, electronic
document depositories, Internet depositions and storage, videoconferencing,
and other electronic technology that may be used to improve communication
and the discovery process.
.....§2017.730: Order authorizing
the use of technology; notice and motion; criteria for granting
order; stipulated order; rules and regulations [verbatim
from this point]
(a) Pursuant to a noticed motion, a court may enter an
order authorizing the use of technology in conducting discovery
in any of the following:
.....(1) A case designated as complex
under Section 19 of the Judicial Administration Standards
......................................................................*
* *
.....(3) An exceptional case exempt
from case disposition time goals under * * * the Government Code.
......................................................................*
* *
.....(4) A case assigned to Plan
3 under paragraph (3) of subdivision (b) of Section 2105 of the
California Rules of Court [casebook, p.517 & Nutshell
chart, p.45] .
(b) In a case other than one listed in subdivision (a),
the parties may stipulate to the entry of an order authorizing
the use of technology in conducting discovery.
(c) An order authorizing the use of technology
in conducting discovery may be made only upon the express findings
of the court or stipulation of the parties that the procedures
adopted in the order meet all of the following criteria:
.....(1)
They promote cost-effective and efficient discovery or motions
relating thereto.
.....(2)
They do not impose or require an undue expenditure of time or
money.
.....(3)
They do not create an undue economic burden or hardship on any
person.
.....(4)
They promote open competition among vendors and providers of
services in order to
.......... facilitate the highest
quality service at the lowest reasonable cost to the litigants.
.....(5)
They do not require the parties or counsel to purchase exceptional
or unnecessary services, hardware, or software.
(d) Pursuant to an order authorizing the use of technology
in conducting discovery, discovery may be conducted and maintained
in electronic media and by electronic communication. The court
may enter orders prescribing procedures relating to the use of
electronic technology in conducting discovery, including orders
for service of discovery requests and responses, service and
presentation of motions, conduct of discovery in electronic media,
and production, storage, and access to information in electronic
form.
......................................................................*
* *
.....§2017.740: Contracts
with service providers; appointment or agreement between parties;
rem [paraphrased] If a service provider is to be used, the
court appoints the person/organization agreed on by the parties
& approves the contract agreed on by the parties and the
service provider. If the parties do not agree on selection of
a service provider, each party shall submit nominees to the court
& a contract acceptable to the nominee. The court shall appoint
a service provider from among the nominees. If no nominations
are received from any of the parties, the court shall appoint
one or more service providers.
.....The court may also order the
removal of the service provider, and/or vacate any agreement
between the parties and the service provider. Disputes about
the contract, related rights and duties, and any obligations
may be resolved via noticed motion.
Leading California ESI case: Dodge, Warren, 105 Cal.App.4th
1414 (casebook, p.395) |