California ESI format woes on the horizon?
After vetoing proposed ediscovery legislation in October 2008, Governor Arnold Schwarzenegger has finally passed into law California's Electronic Discovery Act, bringing it more in line with federal ediscovery standards. There's a catch though: Under California's new amendments to the laws of civil procedure, the party requesting production of electronically stored information (ESI) can specify the format in which it should be produced.
But, what if opposing councel requests ESI in a format your IT infrastructure doesn't natively support?
The concept of native format might mean different things for different circumstances in an enterprise information system. For example, the structure and metadata applicable to a given e-mail might be different depending on whether the email is collected from an electronic mail system like Microsoft’s Exchange or from an archive appliance like Symantec’s Enterprise Vault. It’s my job to help trial counsel understand the different possibilities, evaluate options, and then document/explain the format decisions and actions that are executed in ESI collection and production.
Sometimes disagreements about the format of ESI production must be resolved by the judge in a
lawsuit. I asked Ben Wright, noted eDiscovery blogger whether, in his experience, he finds that judges have a good grasp on the technology issues involved with eDiscovery.
Ben's reply: "The judicial system is quickly learning about electronic discovery and digital evidence. State and federal judges are indeed gaining practical experience with e-records. In their own courses for continuing professional education, judges are being trained to apply law in new technical environments, such as e-mail and Web 2.0. They are also learning how to seek help, such as input from special masters and magistrates who are better versed in technology issues. Still, technology is evolving at such a breath-taking pace that the court system struggles to keep up. Changes in technology are accelerating, as we see new developments like social networking and cloud computing arise virtually overnight."
– Greg Smith
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