California Rules to Amend Inaccessible ESI
"The only noteworthy difference between the federal amendments and the California amendments is their differing treatment of "inaccessible" ESI. When the California amendments were circulated for public comment last year, they included a presumption that all ESI was accessible. In sum, the proposed amendments required a responding party who deems ESI inaccessible (and is unable to resolve the issue during the meet and confer) to move for a protective order. In the version of the California rules that is currently awaiting enactment, responding parties may still move for a protective order; however, responding parties have the additional option of objecting to a request on the basis that the information is not accessible, at which point the requesting party may move to compel production. In essence, the previous version of California's e-discovery amendments appears to presume that all ESI is accessible by requiring the responding party to file a motion for a protective order. The current version of the amendments moves away from this slightly but still places the burden on the responding party to assert the inaccessibility of documents. Thus, the revision still implies an underlying notion that all ESI is accessible."
