The California Civil Discovery Act, Cal Code Civ Proc § 2016.010 et seq., includes the applicable rules for eDiscovery of Electronically Stored Information (ESI). ESI can include any information stored in an electronic medium such as on a computer hard drive or other portable electronic storage device used for storing computer files, photographs, documents or any other electronic information. A party to a legal proceeding may obtain discovery of any “reasonably accessible” ESI “…by inspecting, copying, testing, or sampling documents…and electronically stored information in the possession, custody, or control of any other party to the action.” (Cal Code Civ Proc § 2031.010, 2031.280, 2031.280)
When requesting ESI the parties should specify the “form or forms” in which the ESI should be produced, “a party demanding inspection, copying, testing, or sampling of electronically stored information may specify the form or forms in which each type of electronically stored information is to be produced.” (Cal Code Civ Proc § 2031.030) Absent a request for a particular form of production the responding party will be required to produce the ESI as those records “are kept in the usual course of business, or be organized and labeled to correspond with the categories in the demand.” (Cal Code Civ Proc § 2031.280) Generally, an ESI discovery request will seek production of electronic files which may include emails, text messages and social media postings but any type of ESI that is relevant to the lawsuit can be requested. A party generally only is permitted to make one eDiscovery request throughout the conduct of the litigation and therefore should specify all type of ESI sought and further specify the form for production of the ESI. If the parties have a disagreement regarding the scope or form of production of ESI they will be required to Meet and Confer prior to filing any motion regarding discovery. (Cal Rules of Court, Rule 3.724)
With the production of mass information through eDiscovery there is a heightened possibility of inadvertent production of privileged information or attorney work product to the opposing party. The legislature provides some protection from these inadvertent disclosures in that if a party inadvertently produces privileged information they may provide notice to the opposing party and the opposing party is then required to sequester the privileged information and refrain from use of such information without a further court order. (Cal Code Civ Proc § 2031.285) The California Courts have also made it clear that inadvertent disclosures of privileged information even in the absence of a sufficient privilege log does not waive any claim of privilege if determined by the Court to be valid. (Catalina Island Yacht Club v. Superior Court, 242 Cal. App. 4th 1116 (Cal. App. 4th Dist. 2015)
The parties duties to maintain the integrity of their ESI may begin before the actual lawsuit is filed if the parties reasonably expected their dispute to proceed to litigation. Once the parties reasonably expect their dispute to proceed to litigation they may not alter, delete or swipe any ESI and can be sanctioned for doing so. It is crucial that you speak to any attorney immediately if you have a dispute which will likely require filing a lawsuit so that you may be advised on all your ESI duties to preserve evidence. Furthermore, the parties will generally send a “Legal Hold” letter to the opposing party where there is an actionable dispute which specifies the ESI retention and protection required.