New eDiscovery Statute Takes Immediate Effect

Litigators take note: As of June 29, there is now a new electronic discovery statute in California with the signing of AB 5 by Assembly Member Noreen Evans. As an urgency measure, the bill took effect immediately upon the Governor's signature.

In a rare (and probably unintentional) symmetry, AB 5 was enacted as Chapter 5, Statutes of 2009.

The changes made by the bill should have taken effect last January 1, but were delayed when last year's bill (AB 926 of 2008) received one of Governor Schwarzenegger's hundreds of generic "there's a budget crisis and this bill isn't important enough to spend time on" veto messages (Note: that's a paraphrase, not a quote).

The new provisions were developed by the Judicial Council's Civil and Small Claims Advisory Committee, working closely with the plaintiffs' (Consumer Attorneys of California) and defense (California Defense Counsel) bars, all of which are listed as co-sponsors of both bills.

Among other things, AB 5:

1. Adds new definitions to the Civil Discovery Act
2. Specifically provides that the scope of discovery includes electronically stored information (ESI);
3. Allows propounding parties to specify the form of production for ESI;
4. Enacts new provisions governing responses to demands for ESI;
5. Enacts provisions governing protective orders against the discovery of ESI and motions to compel production;
6. Enacts specific provisions regarding claims of work product or privilege;
7. Adds a "safe harbor" provisions against sanctions to selected statutes;
8. Does not include a "meet and confer" requirement regarding the propounding of electronic discovery.