E-discovery and Pra: First Cousins in Litigation

• Publication year: 2019
• Author: By Christine N. Wood

e-Discovery And PRA: First Cousins In Litigation

MCLE SELF-STUDY ARTICLE

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By Christine N. Wood

Christine N. Wood is the Director of PRA Services and e-Discovery Counsel at Best Best & Krieger, and a member of the Public Law Section Executive Committee.

In recent years, changes to the Public Records Act ("PRA" or the "Act") have expanded the scope of electronic records that must be disclosed in response to a request. In 2017, the California Supreme Court held that records on the personal devices and in the personal e-mailboxes of public employees and elected officials are in fact public.¹ Then, in January 2019, the California Legislature reversed well-established laws that protected police personnel records related to the use of force and officer involved shootings, including body camera and dash camera footage.² These changes call for public agencies to utilize electronic discovery, or e-discovery, principles to satisfy their duties under the Act.

BORROWING FROM E-DISCOVERY

e-Discovery is the process of identifying, collecting, reviewing, and analyzing electronic records for production in response to a request for records.³ e-Discovery principles are largely grounded in the Federal Rules of Civil Procedure ("FRCP"). In 2006, amendments to the FRCP first introduced electronic records as a new category of discoverable information, in turn solidifying e-discovery as a fundamental tool in federal litigation, followed by further clarifying rules in 2015.⁴ As amended, the FRCP emphasize the importance of e-discovery in making civil litigation speedier and more efficient.⁵ For example, key rules obligate the parties to cooperate in the discovery process, limit pre-trial delays, and require parties to develop discovery plans that address the preservation and inadvertent disclosure of electronic records.⁶

In California, the Electronic Discovery Act, codified in Code of Civil Procedure section 1985.8 et seq., governs e-discovery.⁷ Electronically stored information ("ESI") is defined as information that is stored in technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.⁸ The Electronic Discovery Act incorporates into the Code of Civil Procedure of the same e-discovery provisions as those set forth in the FRCP.⁹ As such, the many California e-discovery rules limit the discovery of electronic records, address the possibility of inadvertent production, set forth sanctions for failure to preserve documents, specifically define the electronic records to which the rules apply, and more.¹⁰

It is important for California attorneys to understand the e-discovery rules set forth in both the FRCP and the Code of Civil Procedure. In fact, the State Bar of California has expressly opined that "attorney competence related to litigation generally requires, among other things, and at a minimum, a basic understanding of, and facility with, issues relating to e-discovery."¹¹

As part of their professional duty of competence, attorneys handling a client's ESI should be able to perform (either by themselves or with competent co-counsel or expert consultants) the following tasks:

• Initially assess e-discovery needs and issues.
• Implement/cause to implement appropriate ESI preservation procedures.
• Analyze and understand a client's ESI systems and storage.
• Advise the client on available options for collection and preservation of ESI.
• Identify custodians of potentially relevant ESI.
• Engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan.
• Perform data searches.
• Collect responsive ESI in a manner that preserves the integrity of that ESI.
• Produce responsive non-privileged ESI in a recognized and appropriate manner.

Notably, these tasks focus on an attorney's ethical obligations relating to his/her own client's ESI, which means there are additional responsibilities related to obtaining an opposing party's ESI.

Typically, e-discovery is viewed solely as a function of civil litigation, but the e-discovery process is quite applicable to and can be just as cost-effective in the public records arena. Additionally, parties litigating against local agencies are allowed to and often use the Act to seek records that traditionally would be sought through formal discovery. When comparing the risks and costs of public records productions to civil litigation, the stakes are just as high.

WALKING THE STEPS OF DISCOVERY

The e-discovery Reference Model ("EDRM") is a framework that illustrates the e-discovery process. The EDRM has six stages:

1. Information Governance refers to how an organization manages its paper and electronic data. Even the smallest of public agencies create information in the course of daily operations. IT departments help manage the logistics, but two of the biggest challenges is preventing business units from excessively storing data while not destroying data that must be legally retained. Addressing this challenge takes the coordinated effort of all three groups—IT departments, business units, and legal teams—through the policies covered under the Information Governance stage of the EDRM.
2. Identification refers to the process of determining sources of relevant ESI and resources for executing a collection plan. This requires "identifying" key players (custodians, locations of data, and traceability of data to individuals and departments) as well as key resources that will assist in the discovery project management, such as...