Last summer, California enacted the Electronic Discovery Act, which amended the Civil Discovery Act to include electronically-stored information ("ESI"). California's e-discovery system is similar to the federal e-discovery system, but it differs in small ways, such as imposing a cost-shifting scheme that limits discovery on accessible and inaccessible electronically stored information.

For production, the act allows parties to specify the form in which information should be produced, but a party may object to that request if the ESI is not reasonably accessible. In addition, the act provides a safe harbor from sanctions and protects parties and attorneys for lost data following "routine, good faith operation of an electronic information system." Cal. Civ. Proc. Code §2031.060(i).

California employers should be diligent about their electronic data usage and develop, if necessary, specific policies for document retention and deletion. In the event of litigation, employers should be mindful of cost-efficiency when producing ESI for the other party and be familiar with their own systems to ensure they are making appropriate objections to burdensome production requests while producing what should be provided in response to appropriate, reasonable requests.

Text of California's Electronic Discovery Act