CA New rules-Inaccessible Protective Order gone
Contrary to popular belief, the new California rules for ediscovery do not mandate a protective order when dealing with not reasonably accessible data. The rules are similar to the Federal Rules of Civil Procedure in that the not reasonably accessible data needs to be identified, and then the burden shifts to the other side to press further. The earlier draft, vetoed by the governor last year, did not have this provision. This change will save California businesses millions in motion fees and courts substantial time in hearing them.
Some practitioners with experience crafted the provision. Categories and sources can be identified, removing the potential requirement of indexing tapes to determine with more particularity what might be on them.
The specific section is:
2031.210
(d) If a party objects to the discovery of electronically stored information on the grounds that it is from a source that is not reasonably accessible because of undue burden or expense and that the responding party will not search the source in the absence of an agreement with the demanding party or court order, the responding party shall identify in its response the types or categories of sources of electronically stored information that it asserts are not reasonably accessible. By objecting and identifying information of a type or category of source or sources that are not reasonably accessible, the responding party preserves any objections it may have relating to that electronically stored information.
As I found out from some very spirited dining companions, it pays to look again at the bill that passed. If you know people involved in the process, give them your thanks for making this area much more clear.
Filed under Case Law & Rules, Library, Sound Evidence, State Rules, Technology Counsel.