Linked: California Enacts Statutes Which Will Make Discovery More Costly

Ah California, making things difficult for us poor Litigation Support folks. SB 370 changes the rules in California, and could, potentially be quite messy and expensive, depending on how the rules get clarified in the Courts. In a nutshell, it’s going to change how we produce documents:

“Going forward, the producing party is required to organize and label the documents, including both physical documents and Electronically Stored Information (ESI), to correspond with specific requests. The bill does not identify how this is to be accomplished, creating an ambiguous procedural question that will have to be hammered out by the courts in the future. “

Again, depending on how this gets interpreted, this could be as simple as including a field in a load file with the request each document is responsive to, or it could be as difficult as having to organize everything in separate folders by request, with the on-going question of what to do when a document is responsive to multiple requests.

Back in today’s world, I have run into this requirement before in certain cases and those really are the salient points. When going from one review platform to the opposing parties review platform, simply including that field should be enough. (We’ll see if the California Courts agree). But when you’re dealing with an opposing party that is not using a review platform, and requests PDFs, this turns into a huge time-suck.

Part of that is because there’s no way to get any review tool to produce and export PDFs into folders based on anything other than size or number of files. I do wonder if this will become a feature request from California law firms and legal companies though?

So, the Litigation Support person is left with running the production and export, and then moving files around into corresponding folders, and again that question of what to do when documents are responsive to multiple requests, or running each request as a separate production. It also requires the reviewers to actually make those decisions as well, which I’ll be added review time for those who haven’t been doing that.

You can bet that is going to add a whole lot of time, and money, to the eDiscovery process in California now, and other places later, should they follow suit.

Let’s hope the courts decide that something like an index of the documents and what they are in response to is enough, the wording of the statute is vague enough to allow for that, but I have my doubts about whether that is a realistic hope or not.

Any lawyers in California want to add insight to this?

Any software companies working on tools to allow for sorting production exports into different folders based on a field?

Or are we all just waiting to see what happens in California?

https://lewisbrisbois.com/newsroom/legal-alerts/california-enacts-statutes-which-will-make-discovery-more-costly

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