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.

          

California Electronic Discovery Act Signed Into Law — Takes Effect Immediately originally appeared on Law Blog 2.0 on July 7, 2009.

The scenario is illustrated by a recent case in the Southern District of New York.  In Arista Records, LLC v. Usenet.com Inc., 2009 WL 185992 (S.D.N.Y. Jan. 26, 2009).  In Arista (at page 26-27) the Court found the evidence at issue (Usenet usage logs) to be “transitory in nature” and “not routinely created or maintained” in the regular course of business.  Nevertheless the Court found that while the:

Rule 37(f) of the Federal Rules of Procedure limits sanctions for the loss of ESI in certain cases.  Rule 37(f) provides that “Absent exceptional circumstances, sanctions cannot be imposed for loss of ESI resulting from a routine, good faith operation of an electronic information system.” This Rule responds to a distinctive and necessary feature of computer systems — the recycling, overwriting, and alteration of electronically stored information that attends normal use.  This Rule however is not intended to provide a shield for a party that intentionally destroys specific information because of its relationship to litigation, or for a party that allows such information to be destroyed in order to make it un-available in discovery by exploiting the routine operation of an information system.  Depending on the underlying circumstances (including notice), good faith may require that a party intervene to modify or suspend certain features of the routine operation of a computer system to prevent the loss of information, if that information is subject to a preservation obligation.

A recent case in the Northern District of California provides one example of the application of this safe harbor.  In this case a party without reasonable notice that a given class of documents was relevant to a pending litigation was protected under Rule 37(f) from sanctions when the information was purged as part of the defendant company’s document retention policy. In Gippetti v. UPS, Inc., 2008 WL 3264483 (N.D. Cal. Aug. 6, 2008)2, the plaintiff requested discovery of digital records, called “tachographs” showing the fleet vehicles’ speeds and the length of time they are moving or stationary, to support his claim that other drivers were not disciplined for the same alleged infractions. Most of this information had been purged pursuant to a document retention policy.  The plaintiff then moved for spoliation sanctions, claiming that the defendant knew or should have known that the tachographs would be relevant to the litigation

In this instance, however, the defendant company:

• Had a documented retention policy that provided tachgraphs were retained for only 37 days;
• The Company produced existing tachograph records covering the most recent two-month period of time (the only available records given the document retention policy; and
• The Company’s document retention policy dated back to 2002, a date prior to the litigation.

The Court found sanctions to be inappropriate because the defendant has no notice that tachographs were relevant to his claims, that they were not directly related to the defendant’s affirmative defense, and they were destroyed in accordance with a routine company policy.

In some instances courts have even failed to sanction a part even though relevant information may have been lost due to routine computer maintenance activities. See Maxpower Corp. v. Abraham, 2008 WL 1925138 (W.D. Wis. April 29, 2008). Former employees who went to work for a competitor, of the plaintiff obtained an order allowing it to inspect the former employees’ laptop hard drives.  However, the plaintiffs’ computer forensic expert determined that the defendants’ laptops found that the evidence of hard drive wiping.  The inspection established that the former employees had deleted information from the hard drives after the suit had been filed.  However, the defendants presented evidence that the wiping of their laptops was done for maintenance purposes.  The Court denied the plaintiffs’ motion for sanctions, finding insufficient evidence to support the argument that wiping the hard drive constituted deliberate spoliation.

          

Avoiding Rule 37(f) Safe Harbor Protection in Absence of Specific Electronic Discovery Requests originally appeared on Law Blog 2.0 on March 10, 2009.