California to adopt FRCP--with changes.

• Author: Swartz, Nikki
• Position: UP FRONT: News, Trends & Analysis

Since amendments to the U.S. Federal Rules of Civil Procedure (FRCP) regarding electronically stored information (ESI) became effective in December 2006, many states have amended their own evidence rules to reflect the FRCP's ESI provisions.

But some states are enacting subtle variations in their own evidence rules. California is but one example. In many respects, California's proposed legislation to make ESI part of civil discovery follows the same template as the FRCP. The proposed law specifies how ESI should be produced and how information that is considered privileged should be protected.

One of the things that make California different, however, is its proposed treatment of ESI that is not reasonably accessible. The federal rules require those responding to discovery requests to identify what is not easily accessible. For example, data on obsolete systems may not be readable without special techniques, and so it is not easily accessible. Under the FRCP, responders don't automatically have to produce such data because of the costs associated with doing so (though they may have to preserve it). If the requestor insists that the inaccessible information is important to the case, the court decides what should be produced and how the associated costs should be divided between the parties.

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In contrast, similarly hard-to-get ESI would not be considered exempt under the California law unless a protective order is filed. This difference raised the concern that every...