Inside the SFL - Electronic Discovery Edition, July 2009
AB 5 – IT’S THE LAW!
 California Assembly Bill AB 5 recently went into effect, adding two new laws to the California Code of Civil Procedures while amending nineteen others. Are you ready to comply with this new set of statutes? Basically, AB 5 amends California's Civil Discovery Act to address electronic discovery issues and explain the process for exchanging eDiscovery in litigation. Sounds simple, but this new law gives everyone responsible for eDiscovery a lot to absorb fast.
NEW DIRECTION FOR EDISCOVERY AND ESI
AB 5 offers long-awaited regulations for litigation (many states have already adopted similar laws). It also provides direction for organizing eDiscovery in California courtrooms and sets standards for the production and preservation of Electronically Stored Information (ESI). In a nutshell, the new law:
- States that ESI relevant to the case shall be automatically subject to discovery
- Allows party requesting ESI to specify its desired form of production
- Establishes framework for discovery of ESI that is not “reasonably accessible”
- Provides protection from sanctions for good faith loss or alteration of ESI
- Affects privilege considerations related to ESI
30 DAYS TO CONSIDER AND PREPARE
In addition to AB 5’s requirements, if Rules 3.724 and 3.728 of the California Rules of Court are also passed into law, then parties must meet and confer to consider and prepare for eDiscovery issues no later than 30 calendar days prior to the initial case management conference (CMC) date. These issues can include scope of discovery, methods, cost, time limitations, and more.
E-DISCOVERY SOLUTIONS SAVE TIME AND MONEY
Complying with AB 5 can be challenging. Now more than ever, you need SF Legal’s electronic discovery solutions. SF Legal consistently provides its clients with custom-tailored solutions that are 30 percent more efficient than competing alternatives. Our consultative, responsive approach helps you understand and control the process, saving you both time and money and minimizing your client’s risk. SF Legal’s end-to-end services support you throughout the entire eDiscovery cycle, starting with your defensible preservation plan all the way to meeting your production deadlines. And your personal project manager will make sure you remain “plugged in” every step of the way. Call us at (415) 392-2900 or email Christian, Andy or Jeff.
SIX WAYS AB 5 AFFECTS EDISCOVERY AND ESI
- Discovery requests for ESI under AB5 can specify that the information be produced in a certain form (native files, TIFF images, etc.). The new legal framework also sets defaults where form of production is not specified by the requesting party.
- Places the burden on the responding party regarding discovery of ESI from sources that are not “reasonably accessible” (such as backup tapes or legacy systems), where the responding party claims such discovery would constitute “undue burden or expense.”
- Empowers courts, upon a finding of “good cause,” to set conditions or allocate costs related to the discovery of ESI that is not “reasonably accessible.”
- Under the new CCP 1985.8, courts are instructed to consider numerous factors in deciding whether requests for ESI should proceed, even when the data being sought resides on a source that is “reasonably accessible.”
- Limits the imposition of sanctions on parties, non-parties or attorneys for failure to produce ESI where such ESI has been lost or altered due to the routine, good faith operation of an electronic information system.
- Establishes “clawback” procedures for situations where parties assert attorney-client privilege or work-product doctrine protection over information that has been unintentionally produced. Limits distribution of potentially privileged data until resolved by the court.
HOW WILL AB 5 AFFECT YOU?
 According to Andy Crain, SF Legal’s Director of Forensics and Collections, “The new framework established under AB5 gives savvy litigators the chance to get a leg up on their adversaries and to minimize their client’s risks. For example, one notable new provision places the burden squarely on the responding party to demonstrate that collection and processing of data on disaster recovery media constitutes ‘undue burden.’ Stated more simply, you now have to prove it, rather than just say it.” Here’s more industry buzz from the legal blogosphere:
AB 5 IS EFFECTIVE IMMEDIATELY
“On Sept. 27, 2008, Governor Arnold Schwarzenegger vetoed Assembly Bill 926 that would have amended California's Civil Discovery Act to address e-discovery issues. The amendments [were] reintroduced to the Assembly as Assembly Bill 5, unchanged except for the addition of a statement regarding the urgency of its passage, which [made] the bill effective immediately once signed.” – Legal Technology
NEW PROCEDURES
“This bill establish[es] procedures for a person to obtain discovery of electronically stored information, as defined, in addition to documents, tangible things, and land or other property, in the possession of any party to the action…[AB 5] permits discovery by the means of copying, testing, or sampling, in addition to inspection of documents, tangible things, land or other property, or electronically stored information.” – Electronic Discovery Law
EXCHANGING RECORDS
“As before, the new rules track closely with the federal rules and spell out how and when records from fax machines, computer databases, e-mails and cell phones should be exchanged in litigation. They also set up procedures for settling disputes over data that one party contends are trade secrets or privileged attorney work-product.” – The Complex Litigator
SPECIFYING FORMATS
“The new California rules also provide that if a discovery demand or subpoena “does not specify a form or forms for producing a type of electronically stored information,” then the recipient “shall produce the information in the form or forms in which it is ordinarily maintained or in a form that is reasonably usable…This very standard was adopted by the Federal Rules of Civil Procedure approximately three years ago, and the vagaries of it have tripped up many federal litigants during that time. Care must be taken at the outset of a lawsuit to assess the most beneficial ways to exchange ESI and to memorialize format specifications in an early stipulation.” – Fenwick & West LLP EIM and Litigation Alert
THE DATA YOU NEED, IN THE FORMAT YOU REQUIRE, IN TOOLS THAT WORK
 No matter whether you’re doing a native review, or working with TIFF images, or have the data on a web-hosted platform, we’ll get the data ready for eDiscovery. Our distributed software enables us to process data quickly and accurately. We’ll de-dupe to eliminate multiple copies, extract all available metadata and text so that you get a fully-searchable database, and preserve the file structure of the original data so that you don’t lose anything in translation. During Review, our web hosted review tool is designed to get you and your team up and running fast. It’s rich with features such as enhanced work flow capabilities, near duplication, email threading and analytics to help you find what you need and quickly review it one time. Check out the 18 eDiscovery case studies on our website. Or give Christian, Andy or Jeff a call at (415) 392-2900 for more cost-saving, AB 5-compliant measures.
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