There is a very important reality to remember when it comes to discovery: documents do not mean electronically stored information. It is time to get used to that distinction and stop saying, “document” when a lawyer means, “electronically stored information.” The reason is simple: the new California Code of Civil Procedure Rule 2031.280(a) states that documents produced in discovery must be identified with the specific request number to which the documents responds.
The good news is the days of document dumps are over. Attorneys must label what a document is responsive to in a production. Here is the new rule in full:
(a) Any documents or category of documents produced in response to a demand for inspection, copying, testing, or sampling shall be identified with the specific request number to which the documents respond.
(b) The documents shall be produced on the date specified in the demand pursuant to paragraph (2) of subdivision (c) of Section 2031.030, unless an objection has been made to that date. If the date for inspection has been extended pursuant to Section 2031.270, the documents shall be produced on the date agreed to pursuant to that section.
(c) If a party responding to a demand for production of electronically stored information objects to a specified form for producing the information, or if no form is specified in the demand, the responding party shall state in its response the form in which it intends to produce each type of information.
(d) Unless the parties otherwise agree or the court otherwise orders, the following shall apply:
(1) If a demand for production does not specify a form or forms for producing a type of electronically stored information, the responding party shall produce the information in the form or forms in which it is ordinarily maintained or in a form that is reasonably usable.
(2) A party need not produce the same electronically stored information in more than one form.
(e) If necessary, the responding party at the reasonable expense of the demanding party shall, through detection devices, translate any data compilations included in the demand into reasonably usable form.
California Code of Civil Procedure Rule 2031.280, emphases added.
The Rule does not state electronically stored information shall be identified with the specific request number to which the ESI responds. Moreover, 2031.280(d)(1) still includes the requirement that if no form of production is stated in a request, then the producing party must produced the ESI in the form it is ordinarily maintained or in a reasonably usable form. The fact this language exists is important, because the Senate Rules Committee, Office of Senate Floor Analyses, on page 5 of analysis of Senate Bill No. 370 (the legislation that amended the Code), notes that for documents, “The ability to produce documents as they are kept in the usual course of business, which is being eliminated by this bill, arguably eases the burden of extensive discovery requests on responding parties in certain circumstances.” ESI productions had no such change in language eliminating “ordinarily maintained,” so if labeling requirements were to be added to ESI, it would be nonsensical to still have 2031.280(d)(1).
The issue now is, what comes next? It is entirely possible for a Court to order a party to identify the specific request number to which the ESI responds to in discovery under 2031.280(d). This has happened in Federal cases analyzing Federal Rule of Civil Procedure Rule 34(b)(E)(i) and (ii) on whether “electronically stored information” is included in the term “documents,” and labeling requirements for paper documents version electronically stored information. See, City of Colton v. Am. Promotional Events, Inc., 2011 U.S. Dist. LEXIS 126848, 47-48 (C.D. Cal. Oct. 13, 2011); TetraVue, Inc. v. St. Paul Fire & Marine Ins. Co., 2017 WL 1008788, at *7 (S.D. Cal. Mar. 15, 2017) (quoting Anderson Living Trust v. WPX Energy Prod., LLC, 298 F.R.D. 514, 527 (D.N.M. 2014)); and Solarcity Corp. v. Doria, 2018 U.S. Dist. LEXIS 8286 (S.D. Cal. Jan. 18, 2018).
As creating a production index could get wildly expensive with ESI, this should be a topic for a meet and confer in California cases, and whatever agreement is reached by the parties, then codified in an ESI order by the court.
If a party has to identify the corresponding request for production for ESI as documents, the same review strategy could work for ESI, provided the documents have been scanned and uploaded into a review application. Issue coding can be created for each request for review attorneys to select while reviewing discovery to identify the corresponding responsive request or requests for production. The issue codes can be included as a produced field with a load file or exported out as a CSV or Excel in most review applications, in order to comply with the new Rule 2031.280(a) for documents produced in discovery.
The lesson here, don’t say “documents” when you mean “electronically stored information.” The California Code of Civil Procedure treats them separately and it is a good idea for lawyers to do the same. Unless you really like labeling responsive discovery.