HOT ISSUES

New e-discovery cases of note are listed with the most recently reported cases first.
Only cases of significance are summarized. For selection criteria and more inclusive sources see below.
For an electronic data base see KL Gates htt'ps://extranet1.klgates.com/ediscovery/.

E-Discovery Bill enacted as AB 5 Bill text. It is designated as urgency legislation to take effect now. See Outline on Discovery Act at http://www.california-discovery-law.com/discovery_act_outline.htm.  By a unanimous vote on April 25, 2008, the Judicial Council of California approved proposed legislation regarding civil discovery of "electronically stored information." With minor exception, public comments and suggestions for improving the original version were rejected.  Highlights of the proposed legislation include the following:

New Terms, e.g. a definition of the subject: “ 'Electronically stored information' means information that is stored in an electronic medium.”
Burden Objection. While California courts have long recognized objections to discovery based upon undue burden or oppression, the legislation adds a new rule relating to “electronically stored information” that allows an objection or protective order to oppose discovery of such information if the objecting party shows that it is “from a source that is not reasonably accessible because of undue burden or expense”. As with existing law, the objecting party bears the burden of proof of demonstrating inaccessibility due to undue burden.    C.C.P. §2031.310(d)
Good Cause. In California, a party seeking to compel production of any document or thing must show “good cause”. C.C.P. §2031.310(b). The proposed legislation adds a new  "good cause" requirement that permits a court to order production of “electronically stored information” that is “from a source that is not reasonably accessible” “if the court finds good cause for the production”. Proposed C.C.P. §2031.310(e).
Cost Shifting. California (1) recognizes cost shifting for discovery in general in approppriate circumstances like other jurisdictions and (2) has provided in §2031.280(b) of the Discover Act for over 20 years for cost shifting for production of electronic data. In one appellate case, the court held cost shifting to be mandatory if within that California statute. The proposed legislation adds a new section 2031.310(f) that allows the court, in its discretion [“may”], to allocate discovery expenses for “electronically stored information” that it has found to be “from a source that is not reasonably accessible because of undue burden or expense” if “the court finds good cause for the production.” Proposed §§2031.310(d)-(f).
Form of Production. A benefit of the proposed legislation is that it clarifies that a requesting party may, but is not required to, specify the form of production of “electronically stored information”.  The responding party may also designate the form and only one form of production of ESI is required and the timing may give responding party's the power to determine form.

Generally, the new terms and provisions are based on the discovery rule amendments to the F.R.C.P. effective in 2007 some of which are the subject of comments to those rules and/or have been interpreted by federal trial courts.  The proposal and a spreadsheet “summarizing all the comments and the committee's responses” covers 147 pages and was posted on April 18, 2008 on the Judicial Council website  The audiocast and agenda of the Judcial Council presentation and discussion may be found at http://www.courtinfo.ca.gov/jc/meetings.htm.

7th CIRCUIT ELECTRONIC DISCOVERY PILOT PROGRAM link

STANDING ORDER N.D. CA.
"Commencing March 1, 2007, all judges of the Northern District of California will require the identical information in Joint Case Management Statements filed pursuant to Civil Local Rule 16-9. The parties must include the following information in their statement....
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6. Evidence Preservation: Steps taken to preserve evidence relevant to the issues reasonably evident in this action, including interdiction of any document-destruction program and any ongoing erasures of e-mails, voice mails, and other electronically-recorded material."

Forest Laboratories, Inc. v. Caraco Pharmaceutical Laboratories, Ltd. (E.D.Mich.,2009), Slip Copy, 2009 WL 998402
Duty to preserve internal e-mail on backup tapes
The court held that backup tapes at issue were “inaccessible” based on their disaster recovery purpose and function rather than ease or cost of access of information: the lack of any showing that “the backup tapes were used for primary storage or some purpose other than disaster recovery.” “FN3. Again, the rule is that the “litigation hold does not apply to inaccessible backup tapes ... which may continue to be recycled on the schedule set forth i