On June 29, 2009, Gov. Schwarzenegger signed the Electronic Discovery Act ("the Act") into law, which establishes procedures for a litigant to obtain discovery of electronically stored information in California. The Act amends the California Code of Civil Procedure, effective immediately, by adding provisions specifically related to electronic discovery.

The Act permits any party to a lawsuit to inspect, copy, test, or sample electronically stored information in the possession, custody, or control of another party. "Electronically stored information" ("ESI") as defined by the Act means "means information that is stored in an electronic medium," and the Act broadly defines "electronic" as "relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities."

Modeled after similar electronic discovery rules in the Federal Rules of Civil Procedure, the Act strives to strike a balance between making ESI available to a requesting party, without over-burdening a responding party who utilizes mass quantities of ESI in its normal course of business.

For example, like the Federal Rules of Civil Procedure, the Act requires that the responding party usually need only produce ESI from reasonably accessible sources. ESI that is not reasonably accessible because of the burden or expense associated with its production may be discoverable only if the requesting party shows good cause. However, if a party objects to the discovery of ESI on the grounds that it is not reasonably accessible, the responding party must specifically identify that ESI by type and/or category. If the court finds good cause, the court may set limitations or conditions for the discovery of the less accessible ESI, such as cost-sharing between parties.

Likewise, a responding party need not produce ESI that has been lost, damaged, altered, or overwritten as a result of routine, good-faith operation of its electronic information system. Companies, therefore, do not need to store ESI indefinitely, so long as any changes to the data are made pursuant to its standard operating procedures (such as existing document retention or destruction policies).

While the Act does not institute a formal meet-and-confer requirement like the Federal Rules, courts are increasingly ordering parties to do so at the Initial Status Conference or in response to e-discovery issues as they arise throughout the course of the litigation. Data mapping, a visual representation of the locations of a company's electronic data, can be very helpful when planning for status conferences or in responding to discovery requests.

With the enactment of the Act, companies should be aware of and prepared for the potentially expanded scope of discovery in California cases. If you have any questions about how to best position your company for drafting or responding to potential ESI requests, please contact your local Reed Smith attorney, who will be happy to put you in touch with the firm's dedicated electronic discovery team, comprised of attorneys and practice support staff dedicated to the analysis of electronic discovery in today's legal environment.

Client Alert 2009-205