There are many changes in the legal discovery of information in California civil cases, and these are mostly in the electronic discovery realm. These are things that are probably not going to change, and need to be clearly understood by litigators, in order to take full advantage. Today for attorneys there is no longer a difference distinguishing discovery and e-discovery, there is only discovery. Most documents and other information is saved, stored and transmitted electronically, which also means it is discovered electronically. The days of file drawers, staples and printed documents is much less common thanks to e-discovery.
The laws have caught up to include electronic transmission, saving and storing of documents and other tangible evidence with a new category “electronically stored information (ESI), under the amended Federal Rules of Civil Procedure. This expanded discovery law to include e-discovery was enacted December 1, 2006 and California would later follow with laws that are nearly the same as the federal laws, which were signed into law on June 29th by the governor. This was AB 5 an act that amended the Cal C.C. P. re electronic discovery laws of subsection 2016.020 with eighteen subsections in 2031 and new C.C.P subsections 1985.8 and 2031.285. AB 5 is better known under the California Code of Civil Procedure (CCP) as the Civil Discovery Act that addresses the discovery of electronically stored information.
This act would establish the procedures by the plaintiff or defense to obtain discovery by electronically stored information. Prior to this act the California Code of Civil Procedure only addressed the use of technology discovery in either large or complex cases.
ESI—How it is Different and the Same
The revised Code of Civil Procedure section 2016.020 outlines how electronically saved information is the same and how it is different for discovery in a legal case. This includes the types of electronic means:
- Electronically stored information is any information that is stored in an electronic medium.
- Electronic means of evidence related to technology including electrical, digital, wireless, optical, magnetic, electromagnetic and other similar capabilities.
Electronically Stored Information Versus Paper Documents
There is a large difference in the amount or size of electronically stored documents compared to paper documents. The difference in relative terms is one gigabyte of documents in Microsoft Word is equal to approximately 75,000 paper documents when it is printed out. While this sounds like a beneficial way to obtain discovery evidence, it also means that it will take man hours to ferret out the necessary information and any data the opposing attorney would rather keep from reaching the other lawyers hands. This time consumption creates a cost that may not have been found with paper documentation.
There are some real benefits, beside finding things the opposing counsel would prefer would not be found. The fact that MS word is searchable can make a real difference in finding exactly what is being looked for in large documents. This does not take any special tools or metadata knowledge, just the words that are being looked for placed in the search tab.
Electronically stored information can include methods of contact with other individuals that would not necessarily have been in the forefront before the use of ESI in discovery. This means that email, instant messaging and even voicemails may be a part of the discovery evidence and most people are not as cautious using these forms of communication as they may have been otherwise. When the client of the opposing counsel is using these methods of communication without regard for what they might share that could be used in a legal case.
The one difficulty with email files, portable media like cell phones, blackberry, thumb drive, external drives, CD’s or DVD’s, when reviewing them they are not organized by subject in most cases. Email alone is a type of electronically transferred document and while it can be easily copied or deleted from a computer there is a permanent record that can be retrieved from the server and in some cases there may be a backup on a local PC.
Servers are the ISP or internet server, such as AOL, Verizon and others and most people do not realize these backups of their communications exist on the server and can be retrieved even when they are no longer on their personal computer. This is the world of e-discovery and electronically saved information.