As a new year of litigation begins, here are a few significant changes to the discovery statutes that you should be aware of:
THE SEVEN-HOUR DEPOSITION
Code of Civil Procedure §2025.290 (pdf) titled “Appropriate time limit for depositions; additional time; Exclusion and Construction” now limits depositions of a witness by all counsel other than the witness’ counsel of record to seven hours of total testimony. However, the section is NOT applicable under the following circumstances:
(1) If parties have stipulated that the section does not apply;
(2) Expert Witnesses;
(3) Complex cases;
(4) Employment cases;
(5) Person most qualified depositions; and
(6) New parties appearing after the deposition had been concluded.
DEPOSITION SUBPOENAS REQUESTING E-DISCOVERY
Code of Civil Procedure §2020.410 (pdf) titled “What deposition subpoena commanding only production of business records to contain; Description of Records; Records pertaining to Consumer” added the language
“…shall specify the form in which any electronically stored information is to be produced, if a particular form is desired.”
MOTIONS COMPELLING COMPLIANCE WITH DEPOSITION NOTICE AND PRODUCTION
Code of Civil Procedure §2025.450 (pdf) titled “Failure to comply with deposition notice; Motion for order compelling compliance; Requirements; Discovery of electronically stored information; Monetary and other sanctions“ added the following language:
(c) In a motion under subdivision (a) relating to the production of electronically stored information, the party or party-affiliated deponent objecting to or opposing the production, inspection, copying, testing, or sampling of electronically stored information on the basis that the information is from a source that is not reasonably accessible because of the undue burden or expense shall bear the burden of demonstrating that the information is from a source that is not reasonably accessible because of undue burden or expense.
(d) If the party or party-affiliated deponent from whom discovery of electronically stored information is sought establishes that the information is from a source that is not reasonably accessible because of the undue burden or expense, the court may nonetheless order discovery if the demanding party shows good cause, subject to any limitations imposed under subdivision (f).
(e) If the court finds good cause for the production of electronically stored information from a source that is not reasonably accessible, the court may set conditions for the discovery of the electronically stored information, including allocation of the expense of discovery.
(f) The court shall limit the frequency or extent of discovery of electronically stored information, even from a source that is reasonably accessible, if the court determines that any of the following conditions exists:
(1) It is possible to obtain the information from some other source that is more convenient, less burdensome, or less expensive.
(2) The discovery sought is unreasonably cumulative or duplicative.
(3) The party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought.
(4) The likely burden or expense of the proposed discovery outweighs the likely benefit, taking into account the amount in controversy, the resources of the parties, the importance of the issues in the litigation, and the importance of the requested discovery in resolving the issues.
Code of Civil Procedure §2025.480 (pdf) “Motion for Order compelling answer or production; Time for motion; Notice; Discovery of electronically stored information; Certified copy of relevant parts of transcript; Monetary and other sanctions” inserted the same langauge in paragraphs (d) – (g)
E-DISCOVERY THAT IS PRIVILEGED AND PROTECTED
Code of Civil Procedure §2025.460 (pdf) titled “Privileged and protected information; Waiver absent objection; Objection to errors and irregularities; Certain matters not waived by failure to object” added two paragraphs:
(d) If a deponent objects to the production of electronically stored information on the grounds that it is from a source that is not reasonably accessible because of undue burden or expense and that the deponent will not search the source in the absence of an agreement with the deposing party or court order, the deponent shall identify in its objection the types or categories of sources of electronically stored information that it asserts are not reasonably accessible. By objecting and identifying information of a type or category of source or sources that are not reasonably accessible, the deponent preserves any objections it may have relating to that electronically stored information.
(f) Notwithstanding subdivision (a), if a deponent notifies the party that took a deposition that electronically stored information produced pursuant to the deposition notice or subpoena is subject to a claim of privilege or of protection as attorney work product, as described in Section 2031.285, the provisions of Section 2031.285 shall apply.
MONETARY SACTIONS IN E-DISCOVERY
Code of Civil Procedure §§2017.020, 2023.030, 2023.030, 2025.420, 2025.450 and 2025.480 (pdfs) the following language has been added:
(1) Notwithstanding subdivision (____), or any other section of this title, absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure 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.
(2) This subdivision shall not be construed to alter any obligation to preserve discoverable information.
Hope this helps…