Civil discovery: Electronic Discovery Act.

The Civil Discovery Act permits a party to a civil action to obtain discovery, as specified, by inspecting documents, tangible things, and land or other property in the possession of any other party to the action. Existing law requires the party to whom an inspection demand has been directed to respond separately to each item or category of item by any of certain responses, including a statement that the party will comply with the particular demand for inspection by the date set for inspection pursuant to a specified provision. This bill would establish procedures for a person to obtain discovery of electronically stored information, as defined, in addition to documents, tangible things, and land or other property, in the possession of any other party to the action. This bill would permit discovery by the means of copying, testing, or sampling, in addition to inspection, of documents, tangible things, land or other property, or electronically stored information. The Civil Discovery Act permits the party demanding inspection and the responding party to agree to extend the time for service of a response to a set of inspection demands, or to particular items or categories of items in a set, to a date beyond that provided in a specified provision. This bill would permit the parties to agree to extend the date for inspection, copying, testing, or sampling beyond those provided in specified provisions. The Civil Discovery Act requires any documents produced in response to an inspection demand to be produced as they are kept in the usual course of business, or be organized and labeled to correspond with the categories in the demand. The documents are to be produced on the date described above or as agreed to by the parties pursuant to an extension. This bill would make this provision applicable, in addition, to documents produced in response to a demand for copying, testing, or sampling. The bill would furthermore provide that if a party responding to a demand for production of electronically stored information objects to a specified form for producing the information, or if no form is specified in the demand, the responding party shall state in its response the form in which it intends to produce each type of information. In general if a demand for production does not specify a form or forms for producing a type of electronically stored information, the responding party would be required to produce the information in the form or forms in which it is ordinarily maintained or in a form that is reasonably usable, but need not produce the same electronically stored information in more than one form. The bill would also provide that a party seeking a protective order regarding, or a party objecting to or opposing a demand for, production, inspection, copying, testing, or sampling of electronically stored information, on the basis that the information is from a source that is not reasonably accessible because of the undue burden or expense shall bear the burden of demonstrating that the information is from a source that is not reasonably accessible because of undue burden or expense. If it is established that the electronically stored information is from a source that is not reasonably accessible because of undue burden or expense, the court may nonetheless order discovery if the demanding party shows good cause, subject to specified restrictions in specified circumstances. Existing law requires the court to impose a monetary sanction, as specified, against any party or any attorney of a party for specified violations. This bill would generally provide that, notwithstanding the above provision, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system. This bill would declare that it is to take effect immediately as an urgency statute.