2009 CHANGES IN CALIFORNIA DISCOVERY RULES The California Electronic Discovery Act

1. 2009 CHANGES IN CALIFORNIA DISCOVERY RULESThe California Electronic Discovery Act Batya Swenson E-discovery Task Force bswenson@hansonbridgett.com

2. BACKGROUND • Federal courts and 20+ states have already codified discovery rules for electronically stored information (“ESI”) • ~95% of all business data • 100 billion

3. California’s E-Discovery Rules • Let’s just call it the EDA for now (Electronic Discovery Act) • The EDA modifies existing discovery provisions to specifically account for ESI discovery • EDA's provisions set out the manner for requesting, responding to and producing ESI, including subpoenas for ESI.

4. Been there…. • Since 2006, federal courts have specifically addressed the discovery of ESI • EDA is similar to the federal rules • EDA establishes ESI’s importance in state court litigation

5. THE EDA • Why is it important to you? • What key concepts may affect you? • What’s new and different?

6. WINNING CASE AND AVOIDING SANCTIONS • Attorney is often an outsider and needs your help • New client, New department, New type of case • Gathering evidence, imposing hold, responding to discovery • Sanctions mandatory as always for discovery abuses • No more excuses for failure to manage and preserve ESI • Monetary, Evidence, Issue Sanctions • NEW - Safe Harbor Rule • Does not avoid preservation obligation • Routine, good faith operations of IT systems • Retention policy/program • Discrepancy or consistency in implementation? • Corruption of data

7. PARTIES MUST ACT EARLYTO AVOID LOST ESI • Not a new concept in discovery but more developed and codified with respect to application to ESI • Where Records Managers are most likely very involved • Preservation Obligation • “Reasonable anticipation of litigation” • What does this mean? Claims; Demand letters; Complaint • Who decides if the obligation has been triggered? • Be proactive – no sanctions for too much care and attention • Litigation Holds • Initial Analysis (Relevant ESI/Custodians/Sources/BackUp/Retention Program) • Implementation – Who’s the point person • Communication and Buy In – Confirmation by staff • Oversight – Duration of litigation • Attorney’s Role – As required by courts

8. NEW - FORM OF PRODUCTION • Form of ESI identified in discovery • Result: requests more sophisticated requests in state court matters • RESPONSES • As requested OR • Ordinarily maintained & reasonably usable • OBJECTIONS: “must identify the types or categories of sources of ESI that it asserts are not reasonably accessible”

9. NEW - EARLY MEET AND CONFER REQUIREMENT • Pre-CMC Meet and Confer Conference Topics • Preservation • Form(s) • Timing • Scope • Privilege (Clawback Agreement) • Confidentiality (Protective Order) • Cost allocation • Catch-all; Discovery plan (Phased)

10. NEW - THE STANDARDWHAT COUNSEL WILL FACE IN A DISCOVERY MOTION • NOT REASONABLY ACCESSIBLE – BURDEN OF PROOF • “UNDUE BURDEN OR COST”: BALANCING TEST • Less expensive, more convenient source • Unreasonably cumulative or duplicative • Ample opportunity to obtain the information through discovery • Burden/expense v. benefit • amount in controversy • parties’ relative resources • importance of the issues in the litigation • importance of the requested discovery in resolving the issues • YOUR ROLE • Helping counsel gather the facts • Tracking investment of staff time and other hard expenses • Declaration under penalty of perjury • PMK Depositions • COURT CAN ORDER PRODUCTION BUT REALLOCATE COSTS

11. NEW - SUBPOENAS • Issuing party must take reasonable steps to avoid undue burden or expense on non-party • Similar rules in terms of form apply • Responses in requested form • Burden still on objecting party on issue of reasonable accessibility • Court can order production but reallocate costs • Track expenses

12. BEST PRACTICES FOR RECORDS MANAGERS • Will vary with size and type of organization • subpoenas, repeat litigation, other responsible staff and support • Implement retention policy if it exists • consult with counsel about the policy or writing one • Inform yourself of IT structure, data management and destruction processes • Educate and assist counsel • Act early and stay invested when a matter arises • Understand scope of matter, key players & potential exposures • Communicate with internal case contact, IT and/or attorney • Monitor implementation of hold internally

13. EXAMPLES • Back-up tape recycled and Inbox of former employee lost • Key employee laptop hard drive not searched • Text Messages not captured • Automatic email deletion program