Back in early 2008, when the California Judicial Counsel’s proposed rules were nearing the end of their public comment period, the blogosphere generally panned the proposal as an unwise deviation from the procedure set out in the Federal Rules. For example, noted commentator Ralph Losey wrote in his article of January 21, 2008:

“California is on the brink of enacting what appears to me, and many others, to be blatantly unfair e-discovery rules. In fact, I know of no other rules anywhere in the country that are potentially as oppressive to business and large organizations as the new rules in California.”

Other’s concurred that the proposed rules created “a potential quagmire.”

As we explained here, the issue was that the 1998 proposal would have put the initial burden on a party resisting discovery due to undue burden or cost to file a motion for a protective order. Conversely, under the Federal Rules, the resisting party initially need only identify sources as being not reasonably accessible. If the requesting party is serious about obtaining discovery from these sources it must spend the money to bring a motion to compel and risk incurring further expense if cost shifting is eventually awarded.

The problem with the reversed procedure under the California rules is that a motion is theoretically going to be needed every time a large corporation is served with a discovery request. Especially in litigation between parties that are not equally burdened by reams and reams of digital data, say for example, in an employment dispute, there seems little to deter a requesting party from kicking off their law suit with costly discovery requests. One could see how a plaintiff’s firm could use this provision as a club, especially as part of an overall litigation strategy designed to extract a quick settlement. Send those requests fast and furious, that’ll make ‘em take our offer seriously!

Thankfully, the Govenator vetoed the 2008 package. Whew! And, little ink has been spilled over his decision to sign the 2009 version on July 10, other than to report the fact of its passage with the ho-hum gloss that the new California Rules closely track the Federal Rules. One might infer from the above that Californians must have seen the error of their ways and fixed the rules this time around.

One would be wrong. Meet the newly enacted rules; same as the 2008 proposed rules. In particular, Section 2031.060 continues to maintain the same “gunslinger” procedure for handling discovery disputes.

With a historic budget crisis still brewing and the death of the King of Pop (not to mention all the other celebrities that have been dropping like flies lately), it is understandable that the once widely bemoaned California E-Discovery package appears to have slipped by without so much as a blip on the radar. That said, cost cutting has likely never been more in vogue and the new rules seem badly out of style.

Let’s hope California state judges apply the new rules with an eye towards limiting discovery to that which is reasonable and commensurate with the issues at stake. Let’s also hope they act quickly to stamp out tactics that seek to exploit the wrinkle apparently left open by the state rules. If not, ballot issue anyone?