California Rules - Good cause - accessibility
Tom Allman sent me a note regarding production of not reasonably accessible (§2031.060(b)) ESI for good cause (§2031.060(e)) in the California proposed amendments for electronic discovery. As posted earlier today, Ralph Losey thinks otherwise.
Ralph’s concerns are around a fear that good cause is not defined well in California law and that the producing party needs to seek the protective order rather than the having the requesting party seek a motion to compel.
Here’s Tom’s take:
Actually, the good cause requirement is right out of Rule 26(b)(2)(B). What California did was reject the Uniform Rules approach - which mimics the Chief Justice Guidelines (and, candidly, Sedona).My reasons for being sanquine are best expressed in this excerpt from my new article where I analyze the post-Amendment decisions on the two-tier:
“Good Cause For Discovery
Rule 26(b)(2)(B) admonishes a court to permit discovery from inaccessible sources only if the requesting party meets its evidentiary burden of showing good cause [for the discovery], subject to the limitations of Rule 26(b)(2)(C). [1] The Rule means that a party is not required to respond to [requests for inaccessible electronic information] and produce at any cost. [2]
This formulation is a deliberate invocation of the pre-existing proportionality principle, which requires the court to ascertain if [the] burdens and costs can be justified in the circumstances of the case. [3] While the Committee Note to the Rule invokes a laundry list of considerations, [4] Sedona Principle 8 best sets the tone for interpreting the good cause requirement for second tier production. [5] It requires proof of a need and relevance that outweighs the costs and burden of both retrieving and processing the information is required, taking into account the disruption of business and information management activities. [6]
In assessing this balance through application of the proportionality principle, Sedona Principle 2 recommends that a court consider both the technological feasibility and the realistic costs involved. [7]
The fact that this balancing process involves some of the same considerations that go into labeling information as inaccessible did not go unnoticed during the drafting process [8] and has engendered some pointed comments. [9]
The reported decisions to date have shown a variety of results. Good cause has been found in response to requests to create a mirror image of business and home computers, [10] to secure production from a complex database, [11] to order restoration and search of backup media, [12]to enforce compliance with a subpoena, [13] and to produce information stored temporarily in RAM. [14]
One very clear trend has emerged from these decisions. Further discovery will not be ordered where the information already obtained or obtainable from accessible sources is deemed to be sufficient. [15] In Palgut v. City of Colorado Springs, [16] for example, the court held that legacy backup tapes did not need to be searched because an adequate and full search had already occurred. Courts have also refused to find good cause where the party seeking discovery did not establish that the information could not be found elsewhere. [17] In Heartland Surgical Specialty Hospital, supra, [18] the existence of a prior search of the email accounts maintained by the employers from which relevant communications would have likely been sent justified a refusal to compel further searches.
If discovery of inaccessible information is ordered, Rule 26(b)(2)(B) provides that t]he court may specify conditions for the discovery. This presents an important and often unique - opportunity for the court to encourage parties to tailor their demands to the most cost effective approach consistent with the discovery needed, as dictated by the practical constraints of the case. A court could, for example, limit the scope and extent of the discovery sought; [19]stagger the discovery by requiring resort to the most accessible sources; order sampling of the source subject to discovery to assess further the likely burdens and costs; [20] order discovery into the availability of other sources or utilize cost shifting or allocation to mitigate some of the costs or burdens involved. [21]
Change is never easy. It’s great to see the online collaboration to supplement Tom’s shuttle diplomacy toward a coherent framework of Rules within which to work.
Filed under Sound Evidence, State Rules.