Discovery: electronically stored information.

Existing law provides procedures for the production of evidence by subpoena. Existing law provides that a subpoena may require a witness to bring any books, documents, or other things under the witness's control that he or she is bound by law to produce in evidence. This bill would include electronically stored information among the things under a witness's control that the witness would be bound by law to produce pursuant to a subpoena. The bill would provide procedures for objecting to the specified form or forms of producing the electronically stored information requested by the subpoena. The Civil Discovery Act authorizes 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. The act defines "electronically stored information" as information that is stored in an electronic medium. This bill would expand the scope of discovery described above to include electronically stored information. The bill would establish procedures for a person to obtain discovery of electronically stored information, in addition to documents, tangible things, and land or other property in the possession of any other party to the action. The bill would also 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 authorizes the use of certain types of technology, as defined, in conducting discovery in a complex case. This bill would delete those provisions, and instead generally provide that when any method of discovery permits, compels, prevents, or limits the production, inspection, copying, testing, or sampling of documents or tangible things, the same method would also apply to electronically stored information. 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. This bill would additionally make this provision applicable to the production of electronically stored information. The bill would also 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 Civil Discovery Act provides that a party or other persons and entities, as specified, may move for an order to protect or compel the production of any document or tangible thing under the deponent's control described in the deposition notice or deposition subpoena. Existing law authorizes the court, for good cause shown, to make any order, that justice requires, to protect any party or other persons or entities, as specified. This bill would provide that a party that moves for an order to protect or compel the production of electronically stored information on the basis that it is from a source that is not reasonably accessible because of the undue burden or expense also bears the burden of demonstrating that the information is from a source that is not reasonably accessible. 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 is not required to 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.