California Judicial Council Proposes New Rules

The Judicial Council of California proposed amendments to the California Code of Civil Procedure and the California Rules of Court governing electronic discovery and solicited comments from the legal community regarding the proposals.  Attached is a copy of the Invitation to Comment containing the draft changes.  Comments are due by 5:00 p.m. today, so it's clearly late in the game to submit them, if you are reading them for the first time.  However, you at least can see what might be coming down the road for practitioners in state court.

I am pleased that the Judicial Council is approaching the statutory and rules changes in a comprehensive manner.  I believe the Council's decision in 2006 to take proposed amendments to CRC 212 off the table in order to look at the issues involving electronic discovery more broadly was the right decision to make at that time.

I know that as electronically stored information took a place at center stage in civil discovery several years ago, some practitioners opined that the existing discovery statutes and rules were sufficient to handle the new age of electronic information.  I believe discovery of electronic information is significantly different from discovery of paper-based information.  We all know that electronic information is easily altered or deleted and constantly changing technology provides new ways to create, store and retrieve information in the business setting.  Providing litigants and their counsel with a framework for conducting discovery that is aimed specifically at electronic information ultimately makes for more efficient litigation.

One specific change I find interesting is the "Safe Harbor" provision being considered for several CCP sections.  Unlike its counterpart in the Federal Rules of Civil Procedure, which provides safe harbor for information lost as a result of the routine, good-faith operation of an electronic information system, California's proposed safe harbor also includes information damaged, altered or overwritten as a result of the routine, good-faith operation of an electronic information system.  While the Committee Note to FRCP 37(f) explains that "routine operation" includes "alteration or overwriting", I believe the Judicial Council's proposed language makes even more clear what results may receive safe harbor treatment.

It will be interesting to see the final "product" as these proposals make their way through the process.

Download invitation_to_comment_on_proposed_ediscovery_rules.pdf