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April 30, 2008

California EDD Rules - Richard Best

Court Richard Best, a California EDD Referee, offers his observations about the pending California EDD Rules:

At this point, legislation enacting e-discovery rules in California appears to be a political certainty and will likely have no opposition.

The comments on the proposal submitted to the AOC [Administrative Office of the Courts] and the response by its staff provide some insight to the understanding and intent of the advocates of the legislation.

At the Judicial Council meeting on April 25th, questions asked by a few members and responses of the proponents raised additional issues. The proposal and a spreadsheet summarizing all the comments and the committee's responses covers 147 pages and was posted on April 18, 2008. The spreadsheet, the agenda and the audiocast of the Judicial Council presentation and discussion may be found here.

The legislation has the strong support of the Consumer Attorneys of California and the California Defense Counsel as well as the Administrative Office of the Courts. Both played prominent roles in the drafting of the legislation, submitted lengthy comments to the AOC in support of it, and testified before the Judicial Council in support of it. Otherwise, less than .3 of 1% of lawyers affected by it submitted comments. The proposal was available on December 17, 2007 for comment for about a month.

What effect can be expected from these rules? Beyond the hype, what has been the effect of rules on discovery of electronic data and litigation in other jurisdictions? Texas enacted e-discovery legislation in the late '90s and the federal rules have been in effect for almost a year and half.

Although these rules and all other rules, guidelines and case law were considered by the AOC in developing the proposed rules, it does not appear that anyone has reviewed or analyzed the effect, if any, that those rules have had on litigation or on parties.

Has anyone surveyed or interviewed those with experience with e-discovery to determine the effect of the rules? Have those who actually handle e-discovery benefited from the guidance of the rules? Have issues been resolved or disputes been reduced? What has been the effect on litigation costs, have motions increased or decreased, has discovery been facilitated, is discovery more efficient and cost effective?

Someone should talk to the people in the know: lawyers in the trenches, paralegals, e-discovery vendors, corporate counsel, judges who are deciding these issues or conducting case management conferences, records management experts, computer forensic experts, experts in storage and retrieval of electronic data, etc. Is the Emperor wearing clothes?

Richard  Best

Click here for the California Discovery and Privilege Law  Findlaw page with links to resources. 

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