California Subpoenas: Invitation to Comment on ESI

California’s Electronic Discovery Act changed the Rules of Civil Procedure in 2009 to include electronically stored information, in addition to provisions on the forms of production and issues with undue burden.

The California Judicial Council has an invitation to comment on a proposed modification to the subpoena forms to include electronically stored information, so the forms reflect the changes in the Code of Civil Procedure.

To see the proposal and draft subpoena forms, click here. Comments are due by June 20, 2011 and the proposed effective date is January 1, 2012.

California Code of Civil Procedure section 1985.8 governs requests to third-parties.  The proposed Civil Subpoena (Duces Tecum) forms contain the following updated language:

The witness has possession or control of the documents, electronically stored information, or other things listed below, and shall produce them at the time and place specified in the Civil Subpoena for Personal Appearance and Production of Records at Trial or Hearing on page one of this form (specify the exact documents or other things to be produced; if electronically stored information is demanded, the form or forms in which each type of information is to be produced may be specified):

A total of four forms are being updated to include electronically stored information, including the Deposition Subpoena for Production of Business Records; Subpoena for Production of Business Records in Action Pending Outside California; and Deposition Subpoena for Personal Appearance and Production of Records in Action Pending Outside of California.

I think these modifications are a very good proactive change to reflect the Electronic Discovery Act.  More importantly, the proposed changes reflect the real world that business records are most likely going to be electronically stored information. Simply put, the California forms need to reflect reality. However, I would make one addition to the language so the form states the following: “…if electronically stored information is demanded, the form or forms in which each type of information and associated metadata that is to be produced may be specified.”

My hope is by adding metadata to the form it will limit problems with third-party demands that state the form of production, but are silent on metadata. Whether a requesting party wants embedded metadata or specific email fields for their review platform, those issues should be considered long before a witness appears pursuant to a civil subpoena.

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg in 2013, 2014, and 2015, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.