Electronic Discovery & Information Governance - Tip of the Month: March 2020

Scenario

A manufacturing company was recently served with a product liability lawsuit filed in California state court. Although the in-house litigation counsel is familiar with the Federal Rules of Civil Procedure regarding document requests, she wants to ensure that she is in compliance with California procedural rules, which she has read have been revised. She asks her outside counsel how they are responding to requests for production in California court cases.

Responding to Requests

California’s amended rule is likely to shift the discovery burden from the requesting party to the producing party. SB 370, effective January 1, 2020, amended California Code of Civil Procedure Section 2031.280 by requiring parties producing documents to identify which requests for production the documents are responsive to. Before this amendment, parties could produce documents either (1) as they are kept in the usual course of business or (2) by organizing and labeling the production to correspond with the categories in the demand. Most parties chose option 1: to produce documents as they are kept in the usual course of business.

The amended rule requires that "[a]ny documents or category of documents produced in response to a demand for inspection, copying, testing, or sampling shall be identified with the specific request number to which the documents respond." And the amended rule most likely applies in all active cases subject to the Civil Discovery Act, not just newly filed cases as legislative changes in rules of procedure are applicable to pending actions without regard to whether the action accrued before or after the amendment. The amended rule also covers electronically stored information (ESI), even though its language appears to map better to physical documents. This leaves ambiguity that courts of appeal may need to address.

Although the amendment is still new, requesting parties now have an incentive to add specific (and potentially burdensome) instructions to requests. These instructions, many of which will purport to add obligations beyond those imposed by the rule, make ESI protocols even more important than they were before the amendment. With an ESI protocol in place, both parties can agree on the form and format of document production, thus avoiding at least some disputes over compliance with the Code of Civil Procedure.

Topics to address in the ESI protocol that relate to production formats include:

• Potentially opting out of or amending SB 370 obligations
• How the SB 370 disclosures will be made (e.g., in metadata, written responses or both)
• Treatment of documents (and families) responsive to more than one request
• Timing of the SB 370 disclosure
• Whether and how documents produced affirmatively (i.e., not produced in response to any request) will be treated
• Whether documents produced in response to contention interrogatories—i.e., documents that lawyers contend support claims and defenses—are subject to SB 370 disclosure

Even with an ESI protocol in place, the amendment still gives requesting parties an incentive to seek broader and more expensive discovery. As a result, much of the burden of review shifts from requesting to producing parties, and, thus, producing parties may seek to contest objections aggressively. Such a response could erase any cost and burden savings that the amendment might otherwise hope to achieve.