eDiscovery Navigator

Judicial Council Endorses Electronic Discovery Legislation

Judicial Council Endorses Electronic Discovery Legislation

"The Judicial Council of California on Friday approved proposed legislation to modernize civil discovery law and improve the procedures for handling the discovery of electronically stored information in California civil cases.

At its meeting in San Francisco, the council unanimously approved proposed amendments to the Civil Discovery Act, set forth in Code of Civil Procedure Secs. 2016.010 et seq., to reflect the growing importance of discovery of electronically stored information by incorporating many of the provisions set forth in the Uniform Rules Relating to Discovery of Electronically Stored Information.

In a release announcing the action, the council said it will cosponsor the legislation with the Consumer Attorneys of California and the California Defense Counsel. It said that Assemblywoman Noreen Evans, D-Santa Rosa, has agreed to author the legislation and that AB 926, which is currently pending in the Senate Judiciary Committee, will be used for this purpose."

Calif. Judicial Council to Weigh New E-Discovery Rules

Calif. Judicial Council to Weigh New E-Discovery Rules

"The Judicial Council will consider new rules for electronic discovery in California, a long-awaited package that's been received warily by the high-tech industry.

The proposed state rules, in their latest form, largely mirror federal regulations enacted in December 2006 that spell out how and when records from fax machines, computer databases, e-mails and even cell phones can be exchanged in civil litigation. The rules define what constitutes electronic information, and they allow "inspecting, copying, testing or sampling" by parties.

The new state e-discovery rules spell out what format the information should be provided in and add new "safe harbor" provisions to protect parties who lose e-materials due to "routine, good-faith operation" of their electronic systems."

Losing the way over e-discovery?

Losing the way over e-discovery?

"At the end of 2006, the Federal Rules of Civil Procedure got amended to address the question of electronic discovery in lawsuits. Not to be outdone, the Judicial Council of California has now proposed its own set of amendments.

*      *      *

While the amended federal rules steered clear of providing a precise definition of what constitutes electronically stored information, it does cover information "stored in any medium" so far as it can be "retrieved and examined." In this way, the amended text avoids any specific definition that later could be outstripped by advances in technology.

The proposed California amendments take a different tack, referencing information that is stored in an electronic medium and relating to technology having "electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities." While this comes across as quite broad, the federal definition might be better, as it later may be less capable of evasion by a new technology."

Here's the California proposed ediscovery rules.

Minnesota Follows FRCP Rules for Discovery of Electronically Stored Information

Minnesota recently amended its Rules of Civil Procedure, providing for, among other things, procedures for discovery of electronically stored information.  The amended ediscovery rules mirror those found in the Federal Rules of Civil Procedure.  The Minnesota Rules became effective on July 1, 2007.

Northern California District Court Expands Information Retention Requirements

The U.S. District Court for the Northern District of California recently issued a Standing Order (effective March 1, 2007), revising Civil Local Rule 16-9, my good friend Robert Brownstone and his colleagues wrote in their firm's Litigation Alert.  The revision addresses preservation of evidence issues, particularly important is the requirement of preserving voice mails and other "electronically-recorded material."

The requirement that routine record retention programs be suspended when litigation is reasonably anticipated or pending (commonly referred to as a "litigation hold") has been in place for some time. The express expansion of this requirement to include voice mails and other  "electronically-recorded material," however, represents an important development -- particularly for corporate litigants that may encounter substantial technological and monetary challenges and limitations in stopping the erasure of voice mails. Indeed, for companies operating on older and/or proprietary voice mail systems, targeted stoppage of voice mail erasure may be impossible as a practical matter.  Coupled with the December 1, 2006 expansion of Federal Rule of Civil Procedure 34(a) to cover "sound recordings ... and other data or data compilations stored in any medium from which information can be obtained," the Northern District's new rules may present significant electronic information management challenges to companies.

(Source: Brownstone, Bob; Fenwick, Bill; Sands, Mike, "Northern California District Court Expands Information Retention Requirements.")

Amendments to Federal Rules of Civil Procedure (Effective December 1, 2006)

In case anyone needs a link to the amendments to the Federal Rules of Civil Procedure, which became effective on December 1, 2006, click here.

Also, here's a great resource for all the current Federal Rules of Civil Procedure.