Some things DON’T happen first in California

July 9, 2009
Yes, we're still broke, but at least we've solved forms of production of ESI

Yes, we're still broke, but at least we've solved forms of production of ESI

Governor Arnold Schwarzenegger signed California’s Electronic Discovery Act on June 29, 2009 to take effect immediately “due to urgency”.  Two and a half years after the federal rules amendments, and now they say it’s urgent?  Considering the condition of the state’s finances, you’d think California was going to win a pile of money if it got this done by the end of June.   

Here’s the link to Assembly Bill 5, the Electronic Discovery Act: http://www.leginfo.ca.gov/pub/09-10/bill/asm/ab_0001-0050/ab_5_bill_20090629_chaptered.pdf

The California Code of Civil Procedure is statutory, so amending it has to be by statute rather than a regulatory power delegated to the court. 

In substance, the California amendments are similar to the amendments to the Federal Rules that went into effect December 1, 2006.  In style, the California amendments don’t have any of the look and feel of the federal rules.  They go into greater detail about steps to be followed by the parties in certain situations, and they follow the numbering scheme of the California CCP, which bears no resemblance to the numbering in the federal rules.    

Other states, such as Arizona, vest the authority for their rules of civil procedure in the courts, as we do federally, subject to a theoretically-possible legislative reversal.  The Arizona rules amendments pertaining to electronic evidence went into effect January 1, 2008 by order of the Chief Justice of the Supreme Court of Arizona, and the numbering and language is almost identical to the Federal Rules.   Simpler that way.

Postscript:  The words “Governor Arnold Schwarzenegger” almost sound normal now, he’s been in that post for so long.  The novelty and patent improbability of those three words together has nearly worn off.  Just in the nick of time, we can now start getting used to “Senator Al Franken.”  America, what a country!