Governor Approves California AB 5

[Skates]

e-Discovery Insights: e-Discovery California: AB 5: End of Chapter!

[David Jordan]

This is great news for California. The new ESI rules will eliminate much of the uncertainty the existed before the new electronic discovery rules were enacted into law. Thanks for the update, Skates.

[mike.shine]

"The Secretary of State assigns an Assembly or Senate bill (bill) a number known as the chapter number; when the Governor approves, signs, dates, and deposits the bill with the Secretary of State. This copy is the official record and law of the State."

Here's the official roll. So, AB 5 is now officially known as "Chapter 5, Statutes of 2009".

We will be able to see good improvement.

[David Jordan]

The California bill has become law. Here are some important differences between California's rules and the federal rules: Is All ESI Accessible in California?

Excerpt:

There are two other major ways in which the California rules do not mirror the federal rules. First, although the California rules set forth certain conditions for limiting the scope of electronic discovery in a fashion similar to the federal rules, a key variation among the rules is that California’s start with the presumption that all ESI is accessible. Where FRCP 26(b)(2)(B) explicitly limits discovery seeking inaccessible ESI, the California rule shifts the burden to the responding party. After receiving a request for production of ESI, the responding party must specifically object to the production of ESI on grounds that the information is inaccessible. Further, if the requesting party moves to compel production, it is the responding party who bears the burden of proving that the requested ESI is in fact, inaccessible.
Second, and perhaps more importantly, the California rules require parties to identify and detail their inaccessibility objections in their responses to discovery requests, regardless of whether they intend to move for a protective order. Failing to adhere to this rule could result in the responding party’s waiver of inaccessibility as a basis not to produce ESI. Because the California rules require a detailed response as to why certain information is inaccessible, it is important for attorneys to have a comprehensive understanding of the client’s information technology systems. The earlier an attorney can familiarize his or her self with the client’s IT systems, the better prepared he or she will be to explain what information is inaccessible when served a request to produce documents.

[David Jordan]

The California bill has become law. Here are some important differences between California's rules and the federal rules: Is All ESI Accessible in California?

Excerpt:

There are two other major ways in which the California rules do not mirror the federal rules. First, although the California rules set forth certain conditions for limiting the scope of electronic discovery in a fashion similar to the federal rules, a key variation among the rules is that California’s start with the presumption that all ESI is accessible. Where FRCP 26(b)(2)(B) explicitly limits discovery seeking inaccessible ESI, the California rule shifts the burden to the responding party. After receiving a request for production of ESI, the responding party must specifically object to the production of ESI on grounds that the information is inaccessible. Further, if the requesting party moves to compel production, it is the responding party who bears the burden of proving that the requested ESI is in fact, inaccessible.

Second, and perhaps more importantly, the California rules require parties to identify and detail their inaccessibility objections in their responses to discovery requests, regardless of whether they intend to move for a protective order. Failing to adhere to this rule could result in the responding party’s waiver of inaccessibility as a basis not to produce ESI. Because the California rules require a detailed response as to why certain information is inaccessible, it is important for attorneys to have a comprehensive understanding of the client’s information technology systems. The earlier an attorney can familiarize his or her self with the client’s IT systems, the better prepared he or she will be to explain what information is inaccessible when served a request to produce documents.