2009 CHANGES IN CALIFORNIA DISCOVERY RULES The California Electronic Discovery Act Batya Swenson E-discovery Task Force

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

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.

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

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

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

PARTIES MUST ACT EARLY TO 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

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”

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)

NEW - THE STANDARD WHAT 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

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

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

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