e-Discovery California Rules Making a Comeback

[Skates]

Assembly Bill AB 5 has been introduced that would resurrect e-Discovery California rules.

The 'Electronic Discovery Act' is virtually identical to AB 926, which was vetoed by Gov. Schwarzenegger, except the new bill contains an urgency clause.

More details here:

e-Discovery Insights: e-Discovery California: AB 5 - Electronic Discovery Act

e-Discovery Insights

[David Jordan]

Skates, thanks for keeping us in touch with the progress on this important legislation.

[Skates]

Originally Posted by David Jordan

Skates, thanks for keeping us in touch with the progress on this important legislation.

My pleasure, David. It seems like this one slipped under the radar almost undetected, but for those of us with any "business" in California state courts, this is very important.

I'll be sure to keep everyone posted.

[Nicholas Jordan]

So what is the prevelance of legal jurisdiction (s) in both the Unted States and as a parallel, the Free World, that have in place - or on a short pipeline - realistic e-Discovery frameworks set upon the backdrop of electronic information machines? In paticualar, do any of the words of Judge Grimm find stable footing for a look to the future?

Based on a once over of your link, the appearance to me is that rules were suspended after already being in place. I write a lot of computer code, not that I know what I am doing but for sure: There is no way to expose the nature of the controls I might write unless there is some stable standards. Electronic keys can be subject to everthing from routine curiosity seekers to very accomplished masters using drop targets that are not actually the perpatrator.

You can code for both situations, you just need some stautory levels of proof so that "He made me do that." does not bring the matters discussed in Lorraine v. Markel to the problem. Most people do not use passwords in an informed manner. That alone makes it impossible to "prove" anything. Further, routine chatter between persons without authority should not be subject to powerful discovery tools. On the counter-side, where the $20,000 deposit went could be addressed by statute as to strength of audit standards.

[David Jordan]

Nicholas:

I believe Judge Grimm is on the forefront of e-discovery legal thought. His opinions are well respected and based on a strong understanding of the law and technology. In my opinion, Judge Grimm's opinions will be the prevailing view as legal jurisprudence catches up with technology.

You stated that

routine chatter between persons without authority should not be subject to powerful discovery tools.

I disagree. Any relevant evidence should be subject to discovery. However, the credibility and persuasive weight of such evidence would also be considered.

[Skates]

Originally Posted by Nicholas Jordan

the appearance to me is that rules were suspended after already being in place

Assuming facts not in evidence.

AB 926 was vetoed by Gov. Schwarzenegger, therefore, rules were not in place.

We now await the disposition of AB 5.

[Nicholas Jordan]

@Skates: I was in a hurry that day, point of my observation being that emplacement of rules, regs, standards and practices ... we can really get into some cat-chasing-tail -> how do we write standards and practices except with bulky technical manuals in known discipline(s)? Example: Checking to see if I had spelt discipline correctly, I end up with a drop-down menu ( a right-click ) over the Wiki page for that entry. The click occured on another page.

I find it below the level of reliability needed to have clicks shifting across domain boundaires in a world where "Criminal Minds" comes on in prime time seemingly every night. Reminds me of when I had to dawdle 15-20 minutes after elementary school to evade beatings by **** ******* four houses away. One day, consequent to an incident .....

Just does not add up for me, how do we write standards and practices if 80+% spend 90% of their effort trying to do an end-run around them?

@Jordan: I replaced my signature on my email with a quoting from the last few lines of the decision. Spectacular movement in The Glacial Pace of Law, and for what it is worth: I got into a conversation with an individual who was trying to market a new, rather innovative magazine on retail racks. The person stated that Attorneys were the easiest to work with of all the people he had to conduct business with. I place that in contradistinction to an email that was just forwarded to me by my supervisor. It is from Counsel directing our firm to put a stop service on a case.

Given the way that email runs, nothing in the emial will ever be credible to me, be though it may a valid order from staff of a Licensed firm. When I said powerful, I am talking about a differing grade of controls than what someone not double degreed in Law and Computer Science would grasp. Here are three control codes:

-79081bc8055a58031ea2e22346151515c8899848
550d1bd51db0508ef5dc14a148e9eeef962634c1
319e9e39450d4600827c8de5078e99567df39f3

The first one is on the letter "a" - all by it's self.
The second one is the entire text of your response.
The third one is a confidential, internal email from my supervisor concerning a critical issue of Law.

I'm gonna turn the machine off, go home, sleep a few hours - soundly because I am not worried about you ( or anyone else for that matter ) gaining any idea what ( supervisor ) told me, and they do work for some 1,500 licensed Counsel.

It is my opinion that Counsel does get it right the first time, it's their clients I am worried about.