CALIFORNIA
CIVIL DISCOVERY LAW
©Richard E. Best, 2000 All Rights Reserved
CALIFORNIA CIVIL DISCOVERY LAW
ELECTRONIC DISCOVERY WEB SITES
FEEDBACK
CALIFORNIA ELECTRONIC
DISCOVERY STATUTES
New laws text:
CCP §2017(e) procedural variations to use technology
CCP §2025(h)(3) appear at deposition by remote electronic meansForm of production of electronic data
CCP §2031(f)(1) 2nd ¶ "If necessary, the responding party at the reasonable expense of the demanding party shall, through detection devices, translate any data compilations...into reasonably usable form."
Conducting discovery in electronic media [enacted 2001 see description and text below ]
Depositions by telephone and other remote electronic media CCP §2025(h)
Adopting procedures for conducting discovery: CCP §2017(e)Video and audio taping of depositions: CCP §2025
GENERAL RULES RELATED TO ELECTRONIC DISCOVERY
CALIFORNIA CODE OF CIVIL PROCEDURE §2031Production of documents, etc. pursuant to written request to party and written response
See Document Production Case Outline for procedure and case outlines
See Discovery Act & Outline for text
Subject matter of CCP §2031(a) "tangible things...or other property"
(a)(2) "produce and permit...to inspect...any tangible things"
(a)(3) "to enter on ...property to inspect...or sample..any designated object ...on it
CCP §2016(a)(3) "document" and "writing" refers to Evid.Code §250 - see belowProcedures for conducting electronic discovery [enacted 2001, see description and text ]
CCP §2017(e) discovery of electronic data or in electronic media
CCP §2025(h)(3) depositions by telephone or other remote electronic means
CALIFORNIA EVIDENCE CODE definition sections supporting discovery of electronic dataEvid.Code §250 "other means of recording upon any tangible thing any form of communication...including symbols"
Evid.Code §255 "Original" re "data ...stored in a computer or similar device" is "any printout or other output readable by sight"See also CIVIL DISCOVERY PRACTICE (3d Ed.1998 CEB),§8.23, p.710 et. seq.
CONDUCTING DISCOVERY IN ELECTRONIC MEDIA
IMPLEMENTING TECHNOLOGY IN DISCOVERY
The challenge to the bench and bar is to use technology to achieve cost effective discovery and litigation. In January, California lawyers will have new statutory powers to realize that objective. Those who fully exploit these powers can realize the financial and other benefits of technology and electronic discovery. In addition, they may revolutionize the practice in their cases, pioneer for their colleagues by sharing their experiences, and provide the basis for wider application of such techniques and the development of rules of court for their implementation.
In September, California enacted broad, enabling legislation to provide for the use of technology in conducting discovery. Code of Civil Procedure Section 2025(h)(3) was added to provide for appearances at deposition by telephone or other remote electronic means such as internet, video conference or whatever else may be available now or developed in the future. Code of Civil Procedure Section 2017(e) was added to authorize orders adopting procedures for conducting discovery "in electronic media and by electronic communication." Pursuant to this section "the court may enter orders prescribing procedures relating to the use of electronic technology in conducting discovery, including orders for the service of requests for discovery and responses, service and presentation of motions, production, storage, and access to information in electronic form, and the conduct of discovery in electronic media."
A simple application of Section 2017(e) would be the entry of an order authorizing service by e-mail. A more complex order might provide for the conduct of discovery in a web centric environment wherein all documents, deposition transcripts as well as audio and video records, formal discovery requests and responses, calendars, motions, court orders, communications etc. would be accessible via a common web site. On the case web site, a party could select the desired form interrogatories, complete appropriate fields, inter alia for propounding and responding parties, check the boxes of desired interrogatories, and click "serve". The form interrogatories would be served and a proof of service maintained on the web site. The due date might be noted on the web site calendar. Although service of the form interrogatories, like other communications, would be made to the party's mail box on the web site, an email notice might be sent to a designated off site location. Integration of the questions and answers in a seriatim format might be adopted for the convenience of all concerned. The interrogatories and responses would be available to all parties on the web site and any party could download or print hard copy. In essence, all discovery and motions could be conducted on a case web site.
Although the specific software to conduct fully web centric discovery may not be available at this time, the elements exist and are available to be integrated into a comprehensive program. For years, telephonic and video conferenced depositions have occurred and the costs are declining while the technology improves. Today, court reporting firms offer depositions over the internet with audio, video, real time transcripts, private chat rooms, and web site depositories of transcripts. Corporations have long used extranets to share litigation resources and coordinate national litigation. Document depositories for specific cases or mass litigation have been used, first for hard copy but now for electronic documents. California Rule of Court 1830 allows for service of documents by filing "electronically in a central electronic depository." Of course, for many years courts have offered tentative rulings, decisions and opinions over the web. Increasingly, discovery is being conducted in electronic media and searched using key words and text analysis. Data and information that is discovered can be integrated into case management software for case preparation and, ultimately, for electronic presentations in the courtroom.
The new legislation not only authorizes such use of technology but signals to vendors that a market for such an integrated product exists. Many vendors currently provide at least some of the applications that are authorized by this legislation. For representative web sites link to VIRTUAL DISCOVERY from the California Civil Discovery Law web site found at http://CaliforniaDiscovery.findlaw.com. By expanding their services or partnering with other providers they will be able to offer comprehensive, integrated, user friendly applications that will enable lawyers and parties to benefit from the cost effective use of technology.
This is but one application. Lawyers, judges and vendors are challenged to find new and better ways to exploit technology to achieve cost effective discovery and litigation for the ultimate benefit of the public. Other applications might include the development of protocols for on site examination of personal computers and networks, special rules regarding the duties to preserve, search for and produce electronic documents and data, and the establishment of electronic depositories at the outset of litigation. Electronic key word and text searches might supplant the omnibus document request for each and every document that refers or relates to the case. See DISCOVERY OF ELECTRONIC & COMPUTER DATA at http://CaliforniaDiscovery.findlaw.com. Protection from inadvertent waiver of privilege is relatively clear in California but the issue might be addressed expressly in the context of electronic discovery. The new law is "enabling" legislation that does not prescribe a particular technology or procedure. The development of specific applications is left to the creative abilities of vendors, lawyers and judges to develop cost effective and user friendly applications and procedures.
The legislation allows for trial court implementation, modification and development of procedures and applications as technology and experience may direct on a case by case basis. The adversary system is ideal for this process and superior to the legislative or rule making process. The lawyers and their support staffs will demand something that works and provides practical and user friendly solutions from the outset. If some application does not perform up to expectations or creates unforeseen problems, corrections can be immediately implemented on noticed motion. If improvements or additions are desired they can be added as the case progresses. An application or procedure can be adopted in whole, in part or as modified to meet the needs or economics of the specific litigation or the parties. As a practical matter there is little danger that any procedures will be adopted contrary to the consensus of counsel that will use it in the specific case.
The benefits of individual trial court experience will inure to all. Code of Civil Procedure Section 2017(e)(3) expressly authorizes that "The Judicial Council may promulgate rules, standards, and guidelines relating to electronic discovery and the use of such discovery data and documents in court proceedings." The Judicial Council rule making power is available to provide overall guidance and standards without stifling initiative and creativity by micromanagement. It may decide to establish standards for such things as security or redundancy to assure minimal standards are met at the discovery phase and to assure the integrity of the electronic data for admission in court. In addition, the Council is authorized to adopt rules for the use of such data in court proceedings. Thus, the Judicial Council is provided broad authority to authorize the use of technology in the entire litigation process and to assure that minimum standards are maintained.
The legislation encourages competition and the development of cost effective discovery practices. While recognizing that some additional costs may be involved, subsection (2) requires express findings to avoid undue expenditures. In order to avoid the appearance of court favoritism of vendors, subsection (5) provides for the selection of service providers by the parties. It also provides for the periodic review and removal of service providers that fail to meet expectations and for the resolution of contractual disputes by noticed motion in the action.
To avoid the imposition of new technology or expenses on small firms, the new authority is limited to cases likely to be more complicated: Plan 3, exempt, coordinated and complex cases. Although not limited to "complex" litigation, those cases, and especially the complex litigation pilot projects, are natural laboratories for the use of technology. Judges involved in such cases and projects have the benefits of the Manual for Complex Litigation, existing special rules [e.g. CRC Rule 1830], and special funding for the pilot projects. In addition, Judicial Counsel reports on the complex litigation pilot projects should provide future guidance for all trial courts as to what has been tried and with what success. Some judges have already implemented procedures to use technology in complex litigation and this legislation will authorize such orders in the absence of stipulations of all parties. Based on the success of such procedures, all courts will be able to implement proven technology to achieve cost effective discovery. In smaller cases where the statute does not apply, lawyers would be expected to implement technology by stipulation.
By enacting CCP Section 2025(h)(3), California joins the federal courts and at least a dozen state courts in expressly authorizing depositions by telephone and other remote electronic means such as video conference or the internet. It allows any person other than the deponent to take or attend any deposition by remote electronic means. A party deponent must appear at the deposition in person and be deposed in the presence of the deposition officer. Pursuant to court order finding good cause and no prejudice to any party, a nonparty deponent may appear at deposition by remote electronic means.
The statute expressly provides for the Judicial Council to adopt rules and procedures to supplement the statute. Pending such adoption trial courts may be required to provide for implementation of the statute on a cases by case basis if the parties are unable to agree. Such issues may include: payment and apportionment of costs; notice requirements, responsibility for set up and for failure of communication; service of exhibits prior to the deposition.
The authority is available for lawyers and judges to make technology in the digital document age a valuable and productive tool in the litigation process. Vendors and service providers have and incentive to modify and adapt existing software to litigation. We have a choice as to the role technology will play in litigation.
(3) A person may take, and any person other than the deponent may
attend, a deposition by telephone or other remote electronic means.
The court may expressly provide that a nonparty deponent may appear
at his or her deposition by telephone if it finds there is good cause
and no prejudice to any party. A party deponent must appear at his
or her deposition in person and be in the presence of the deposition
officer. The procedures to implement this section shall be
established by court order in the specific action proceeding or by
the California Rules of Court.
(e)
(1) Pursuant to noticed motion, a court may enter orders for
the use of technology in conducting discovery in cases designated as
complex pursuant to Section 19 of the Judicial Administration
Standards, cases ordered to be coordinated pursuant to Chapter 3
(commencing with Section 404) of Title 4 of Part 2, or exceptional
cases exempt from case disposition time goals pursuant to Article 5
(commencing with Section 68600) of Chapter 2 of Title 8 of the
Government Code, or cases assigned to Plan 3 pursuant to paragraph
(3) of subdivision (b) of Section 2105 of the California Rules of
Court. In other cases, the parties may stipulate to the entry of
orders for the use of technology in conducting discovery.
(2) An order authorizing that discovery may be made only upon the
express findings of the court or stipulation of the parties that the
procedures adopted in the order meet all of the following criteria:
(A) They promote cost-effective and efficient discovery or motions
relating thereto.
(B) They do not impose or require undue expenditures of time or
money.
(C) They do not create an undue economic burden or hardship on any
person.
(D) They promote open competition among vendors and providers of
services in order to facilitate the highest quality service at the
lowest reasonable cost to the litigants.
(E) They do not require parties or counsel to purchase exceptional
or unnecessary services, hardware, or software.
(3) Pursuant to these orders, discovery may be conducted and
maintained in electronic media and by electronic communication. The
court may enter orders prescribing procedures relating to the use of
electronic technology in conducting discovery, including orders for
the service of requests for discovery and responses, service and
presentation of motions, production, storage, and access to
information in electronic form, and the conduct of discovery in
electronic media. The Judicial Council may promulgate rules,
standards, and guidelines relating to electronic discovery and the
use of such discovery data and documents in court proceedings.
(4) Nothing in this subdivision shall diminish the rights and
duties of the parties regarding discovery, privileges, procedural
rights, or substantive law.
(5) If a service provider is to be used and compensated by the
parties, the court shall appoint the person or organization agreed
upon by the parties and approve the contract agreed upon by the
parties and the service provider. If the parties do not agree on the
selection, each party shall submit to the court up to three nominees
for appointment together with a contract acceptable to the nominee
and the court shall appoint a service provider from among the
nominees. The court may condition this appointment on the acceptance
of modifications in the terms of the contract. If no nominations
are received from any of the parties, the court shall appoint one or
more service providers. Pursuant to noticed motion at any time and
upon a showing of good cause, the court may order the removal of the
service provider or vacate any agreement between the parties and the
service provider, or both, effective as of the date of the order.
The continued service of the service provider shall be subject to
review periodically, as agreed by the parties and the service
provider, or annually if they do not agree. Any disputes involving
the contract or the duties, rights, and obligations of the parties or
service providers may be determined on noticed motion in the action.
(6) Subject to these findings and the purpose of permitting and
encouraging cost-effective and efficient discovery, "technology," as
used in this section, includes, but is not limited to, telephone,
e-mail, CD-ROM, Internet web sites, electronic documents, electronic
document depositories, Internet depositions and storage,
videoconferencing, and other electronic technology that may be used
to improve communication and the discovery process.
(7) Nothing in this subdivision shall be construed to modify the
requirement for use of a stenographic court reporter as provided in
paragraph (1) of subdivision (l) of Section 2025. The rules,
standards, and guidelines adopted pursuant to this subdivision shall
be consistent with the requirement of paragraph (1) of subdivision (l)
of Section 2025 that deposition testimony be taken stenographically
unless the parties agree or the court orders otherwise.
(8) Nothing in this subdivision shall be construed to modify or
affect in any way the process used for the selection of a
stenographic court reporter.