Extracted from Law360
This article provides guidance to employers’ attorneys who need to produce e-discovery in single-plaintiff employment discrimination cases brought under California’s Fair Employment and Housing Act.
The Electronic Discovery Act became law in California on June 29, 2009. Its purpose was to eliminate uncertainty and confusion regarding the discovery of electronically stored information. ESI is broadly defined as information that is stored in an electronic medium. Common examples of ESI include emails, computer files, Microsoft Word and Excel documents, and electronic images.
Any party may obtain ESI discovery by "inspecting, copying, testing, or sampling" ESI that is in the possession, custody or control of any other party to the action.
In practice, employers are most often on the receiving end of requests for ESI since they control the servers on which most ESI resides. When plaintiff employees in FEHA cases request emails and other computer files relating to the plaintiff and other key custodians in the case, the employer must understand and comply with its obligations under California law in preserving and producing its ESI. This article discusses those obligations.
ESI Preservation and Spoliation
As with physical records, employers must retain certain ESI to be used as evidence in litigation. Failure to do so is known as spoliation.
In California, "spoliation occurs when evidence is destroyed or significantly altered or when there is a failure to preserve property for another's use as evidence in current or future litigation."
The exact time at which employers must begin to preserve evidence in California is not yet clear. However, destroying evidence in response to or in anticipation of a discovery request after litigation has commenced "would surely be a misuse of discovery."
In FEHA cases where an employee worked for the company for a long period of time, some relevant information may no longer exist. When plaintiffs discover that the employer no longer has responsive ESI, they may petition the court for relief, claiming the employer knew that the documents might be used but nevertheless destroyed them.
The remedies in California for spoliation of evidence can be severe, and include:
- A discretionary jury inference against the party who destroyed the evidence or rendered it unavailable;
- Various discovery sanctions ranging from monetary and contempt sanctions, to issue, evidentiary and even terminating sanctions;
- Injunctive relief;
- An obstruction of justice charge and criminal penalties; and
- State bar discipline against any attorney involved in spoliation of evidence.
California courts may also draw adverse evidentiary inferences and impose other orders against a litigant who benefited from a third party's spoliation when a sufficient relationship existed between the litigant and third party.
To avoid sanctions and adverse inferences resulting from spoliation claims, consider whether the information was intentionally destroyed. For instance, California trial courts only instruct juries with a spoliation inference where a litigant is found to have willfully destroyed or concealed evidence during the underlying litigation.
Specifically, the party seeking the benefit of an inference from spoliation "must demonstrate first that the records were destroyed with a culpable state of mind (i.e., where, for example, the records were destroyed knowingly, even if without intent to violate [a] regulation [requiring their retention], or negligently)."
In practice, plaintiffs often lack evidence of any willful spoliation and courts do not seem eager to impose sanctions without some egregious behavior. California law also provides a safe harbor for employers that destroy ESI as part of their routine operations. Be sure to marshal these defenses when faced with spoliation allegations.
ESI Meet-and-Confer Requirement
Unless the court orders another time period, no later than 30 calendar days before the date set for the initial case management conference, the parties must meet and confer, in person or by telephone, to consider a number of ESI-related issues, including:
- Issues relating to the preservation of discoverable ESI;
- The form or forms in which information will be produced;
- The time within which the information will be produced;
- The scope of discovery of the information;
- The method for asserting or preserving claims of privilege or attorney work product, including whether such claims may be asserted after production;
- The method for asserting or preserving the confidentiality, privacy, trade secrets or proprietary status of information relating to a party or person not a party to the civil proceedings;
- How the cost of production of ESI is to be allocated among the parties; and
- Any other issues relating to the discovery of ESI, including developing a proposed plan relating to the discovery of the information.
Responding to Requests for ESI
Employers must follow general California discovery rules when responding to requests for ESI, but you should be aware of certain requirements that pertain specifically to the production of electronic information.
If the plaintiff requests ESI from a source that is not reasonably accessible because of undue burden or expense, the employer may object. The employer must identify in its response the types or categories of sources of ESI that it asserts are not reasonably accessible to preserve the objections.
The employer may also seek a protective order. Whether a source is reasonably accessible is a factual question for the court to decide, but factors can include:
- The media on which the ESI is stored;
- The volume of the ESI;
- The time and cost required to restore, search and review the ESI;
- The amount at issue in the case;
- Whether the ESI is cumulative and/or available from other sources; and
- The relevance of the ESI to key issues in the case.
While not required, most plaintiffs specify in their demands the form in which they want the employer to produce ESI (e.g., native format or TIFF images). If the employer objects to that form, or if no form is specified, the employer must state in its response the form in which it intends to produce each type of information.
If no form is specified, the employer must produce the information in the form in which "it is ordinarily maintained" or in "a form that is reasonably usable." Parties need not produce the same ESI in more than one form. Additionally, the requesting party has to bear the reasonable expense of "[translating] any data compilations included in the demand into reasonably usable form."
Inadvertent Disclosures of ESI
One concern when producing ESI is the inadvertent production of privileged or work-product materials. In California, there are procedures in place to address the inadvertent production of ostensibly privileged information.
Specifically, if a responding party discovers the inadvertent production of privileged material and notifies a party who received the information, the receiving party must sequester the information immediately, and either return the information or present it to the court under seal for a ruling on the claim of privilege.
The party in possession is precluded from using or disclosing the information until the claim of privilege or protection is resolved by the court. Note, however, that these provisions govern only the procedure for dealing with inadvertently produced materials pending a determination of whether they are in fact privileged — they do not affect the actual analysis of whether such inadvertent production waived the asserted privilege.
To ensure the employer does not waive the privilege with respect to any privileged documents it inadvertently produces, be sure to enter into a clawback agreement with the plaintiff prior to producing ESI.
Differences Between California ESI Rules and the Federal Rules of Civil Procedure
While California's ESI rules closely follow the Federal Rules of Civil Procedure, there are a couple of notable differences:
- The federal rules do not require the production of ESI that is "not reasonably accessible because of the undue burden or cost," and the requesting party bears the burden of showing good cause before a claimed inaccessible data source has to be searched. As discussed above, California law presumes that all ESI is accessible and the burden of showing inaccessibility falls on the responding party.
- The federal rules expressly require discussion of e-discovery matters no later than 21 days prior to the first scheduling conference. California rules require specific topics relating to e-discovery be discussed no later than 30 days prior to the first case management conference.
California remains a highly litigious state with many employee-friendly laws that ensure a continuing stream of employment discrimination lawsuits. However, by adhering to this guidance, employers’ counsel should be better prepared to navigate the legal minefield that is e-discovery practice in California and avoid the harsh consequences that can result when employers fail to preserve and properly disclose ESI.
 Cal. Gov. Code § 12900 et seq.
 Cal. Code Civ. Proc. § 2016.020(e). Cal. Code Civ. Proc. § 2031.010.
 Strong v. State , 201 Cal. App. 4th 1439, 1458 (2011) (quoting Hernandez v. Garcetti, 68 Cal. App. 4th 675, 680 (1998)); see also Kearney v. Foley & Lardner, LLP , 590 F.3d 638 (9th Cir. 2009) (applying California law).
 See Cedars-Sinai Med. Ctr. v. Superior Court , 18 Cal. 4th 1, 12 (1998).
 See Cal. Evid. Code §§ 412,413;Walsh v. Caidin , 232 Cal. App. 3d 159, 164–65 (1991); Bihun v. AT & T Information Systems, Inc. , 13 Cal. App. 4th 976, 994–95 (1993).
 See Cal. Code Civ. Proc. § 2023; Puritan Ins. Co. v. Superior Court , 171 Cal. App. 3d 877 (1985).
 See Cal. Pen. Code § 135; Smith v. Superior Court , 151 Cal. App. 3d 491, 497–500 (1984).
 See Cedars-Sinai Med. Ctr. v. Superior Court , 18 Cal. 4th 1, 11–13 (1998).
 See Temple Community Hospital v. Superior Court , 20 Cal. 4th 464, 473–74, 476–77 (1999).
 See, e.g., Cedars-Sinai Med. Ctr., 18 Cal. 4th at 12.
 Reeves v. MV Transp., Inc. , 186 Cal. App. 4th 666, 681–82 (2010) (quoting Byrnie v. Town of Cromwell, Bd. of Educ. , 243 F.3d 93, 107, 109 (2d Cir. 2001)).
 See Cal. Code Civ. Proc. § 2031.320(d)(1) (“absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system.”).
 Cal. Rules of Court, Rule 3.724(8).
 Cal. Code Civ. Proc. § 2031.210(d).
 Cal. Code Civ. Proc. § 2031.060.
 See California Points & Authorities § 85A.07–.
 Cal. Code Civ. Proc. § 2031.280(c).
 Cal. Code Civ. Proc. § 2031.280(d)(1).
 Cal. Code Civ. Proc. § 2031.280(d)(2).
 See Cal. Code Civ. Proc. § 2031.280(e).
 Cal. Code Civ. Proc. § 2031.285(b).
 See Cal. Code Civ. Proc. § 2031.285(c)(1), (d)(2).
 Fed. R. Civ. P. 26(b)(2)(B).
 Cal. Code Civ. Proc. §§ 2031.060(c) and 2031.310.
 Fed. R. Civ. P. 26(f)(3).
 Cal. Rules of Court, Rule 3.724, 3.727.