AB 5 Amends The Civil Discovery Act to Establish a Process for Electronic Discovery in State Court
In urgency legislation effective immediately, the California Legislature has implemented federal-style procedural rules to permit the discovery of electronically stored information in state court cases. Electronically stored information is any information that is stored in an electronic medium including, e-mails, documents, spread sheets and any other information stored in computers and other electronic devices.
AB 5 was modeled after the federal rules pertaining to civil discovery. The implementation of AB 5 may produce a dramatic increase in electronic discovery in civil cases as well as an overall increase in the cost of litigating cases. Public agencies should therefore review their operating systems to ensure they understand how electronic information is currently stored and retained. In addition, public agencies should examine their data recovery systems and archival data to determine the type of information contained in these systems.
AB 5 specifically provides that a court shall not impose sanctions on a party for failing to provide electronically stored information that has been lost, damaged, altered or overwritten as the result of the routine, good faith operation of an electronic information system. Accordingly, public agencies should review how their document retention policies and practices are applied to electronically stored information to ensure it is retained or deleted in accordance with the adopted policy. They should also train employees to make sure the document retention policies are appropriately followed.
Further, once litigation is reasonably anticipated, public agencies have a duty to preserve relevant electronically stored information in the format in which it currently exists, notwithstanding the normal document retention policy that might otherwise permit destruction. In the event litigation is reasonably anticipated, public agencies should ensure that "litigation holds" are applied to electronically stored information potentially relevant to specific claims or litigation, so that it is not deleted, whether intentionally or by automatic computer processes.
published: July 2009
Sign up to receive e-ALERTS by email.