Key differences under the California Act include: (i) the right of a party to request production in a specific format; (ii) a responding party bears the burden of proving that data are inaccessible; and (iii) an explicit right to inspect, copy, test, and or sample ESI in the possession or control of a third party.
Limits on ESI Discovery can be appropriate where: (i) the information can be produced from a less-burdensome source, (ii) the discovery sought is unreasonably cumulative or duplicative, or (ii) the burden of producing the ESI outweighs the benefit.
ESI that “is from a source that is not reasonably accessible because of undue burden or expense” shall not be produced, provided the responding party provides written responses identifying data classified as inaccessible and the responding party takes affirmative action to seek a protective order and bear the burden of demonstrating that the ESI is in 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 nevertheless order discovery if the opposing party shows good cause.
A party that inadvertently produces ESI that is subject to a claim of privilege or attorney work product protection may seek the return of the ESI by notifying the receiving party. Upon notice, the opposing party must sequester or return (and not use) the ESI until the claim of privilege is resolved. The opposing party, where appropriate, may file a motion within 30 days to contest the producing party’s claim of privilege.
