Category Archives: Civil Discovery

Discovery Changes in Legal Cases

Technology for AttorneysThere 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.

Finding Gold

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.

 

 

Federal Civil Cases and Electronically Stored Information

Electronically stored information (ESI) is essential today in civil cases and the Federal Rules of Civil Procedure that took effect on December 1, 2006 involving the use of Electronically Stored Information, or “ESI”. These rules are important to lawyers in California, since they preceded the states adoption of statutes and rules involving the discovery of ESI. The federal rules were in place about 30 to 36 months prior to California establishing rules and the federal laws are better involving this type of potentially relevant evidence in civil cases. These rules enacted in 2006 are worth understanding because statutes enacted in California are modeled after the federal rules. The important rules to read are 26 (a), 26 (f), and 16 (b) of the Federal Rules of Civil Procedure, which outline the steps in pre-discovery stage of civil cases.

Disclosures will be made per Rule 26 (a) and should take place as soon as possible after responsive pleadings are filed and should be no later than 21 days prior to the Scheduling Conferences that is set by the court. Under Rule 16 (b) (2), it states the parties must consider the nature and basis of their claims and then goes on to say the defense and possibilities for settling or resolving the case. The other possibility is to make a range the disclosures that are required in Rule 26 (a) (1) and this also provides time for discussion about serving discoverable information and to develop a discovery plan.

There are some instances where it will be important to write letters for certain types of evidence or disclosure, since the other legal representative often will not provide all of the potentially relevant information without these letters.

  • The opposing counsel may not identify the most important players in their case they are the custodians of the potentially relevant evidence that could support defenses or counterclaims and this is outlined as being required in Rule 26 (a) (1) (i).
  • In the event the opposing counsel will not provide a copy or description by category and location of the documents or electronically stored information they possess having custody or control that could be used to support their claims or defenses as outlined in Rule 26 (a) (1) (ii).
  • The opposing counsel will not turn over a copy of any insurance agreement in which a business may be responsible for all or part of the potential judgment, possible reimbursement for payments made to satisfy the judgment or to indemnify. 26(a) (1) (iv).
  • The plaintiff’s counsel will also be obligated to disclose each of the categories of damages claimed, supply supporting documents and materials having reference to the extent and nature of the injuries that were sustained. 26 (a) (1) (iii)

Failure to Comply

When the letters that are sent to the opposing counsel go un-reciprocated the next step that can be followed is outlined in Rule 30 (b) (6), which is “organization” depositions, this requires the organization to produce at least one or more witnesses to testify as to the information known or reasonably available to the organization. This will be based on topics described with reasonable distinctiveness. When using Rule 30 (b) (6) deposition will only indicate that it may be credibly argued the defendant failed to comply in good faith under Rule 26 (a) (1).

The other choice that may be an option is to seek leave of court for an “early disclosure” in Rule 30 (b) (6) deposition. This will not count toward the 10 “substantive” depositions that are permitted without leave of court under Rules 30 and 31. Cooperation with the opposing counsel is when the attorneys should be ready to prepare and file a discovery plan as outlined in Rule 26 (f) (2), since it will be due 14 days after the end of Rule 26 (f) (1) conferences or 7 days prior to the Scheduling Conference. This discovery, disclosure or discovery of electronic stored information will include forms including any issues about claims of privilege or protection as trial preparation materials.

Disclosure Rules

The initial disclosure will be under Rule 26 (a) (1) (C), which outlines that 14 days after the end of Rule 26 (f) (1) conferences or 7 days prior to the Scheduling Conference, under Rule 26 (g) (1) the disclosing party’s lawyer is required to sign a certification that the disclosure is complete and correct at the time it is made. This is why with electronic information it is the discovery plan should state the party’s views and proposals. If there is any disclosure or discovery electronic stored information that includes forms that should be produced, any issues about claims of privilege or protection as trial preparation materials they should be noted.

Sources:

California State Court Duces Tecum Subpoena: http://www.courts.ca.gov/documents/subp002.pdf

Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes: http://www.law.cornell.edu/rules/frcp/rule_34