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SB 1034 Writings: electronic media.
BILL NUMBER: SB 1034                                      AMENDED
   05/09/95
                               BILL TEXT

                      AMENDED IN SENATE   MAY 9, 1995
                      AMENDED IN SENATE   APRIL 27, 1995

INTRODUCED BY  Senator Calderon

                        FEBRUARY 24, 1995

   An act to amend Section 2031 of the Code of Civil Procedure,
and to amend Section 250 of the Evidence Code, relating to
evidence.

                      LEGISLATIVE COUNSEL'S DIGEST

   SB 1034, as amended, Calderon.   Evidence:  electronic media.

   (1) Existing law provides that parties to a civil action may
obtain discovery by the inspection of documents, tangible
things, or land or other property in the possession, custody, or
control of any other party to the action, as specified.
Existing law specifies how demanded documents are to be produced
to the demanding party.  Existing law requires, if necessary,
the responding party at the reasonable expense of the demanding
party to, through reasonable detection devices, translate any
data compilations included in the demand into reasonably usable
form.
   This bill would revise and recast this later provision to
delete the requirement that the translation occur at the
reasonable expense of the demanding party and to require the
responding party to provide any and all information necessary to
understand and utilize the data compilations, as specified.  {+
The bill would authorize the court to allocate between the
parties the cost of translation and providing information
necessary to understand the data compilations, as specified. +}
This bill would also provide that, to the extent proprietary
information is ordered produced under this provision, the court
shall issue a strict protective order, as specified.
   (2) Existing provisions of the Evidence Code define "writing"
for its purposes to mean handwriting, typewriting, printing,
photostating, photographing, and every other means of recording
upon any tangible thing any form of communication or
representation, as specified.
   This bill would specify that a data compilation is included
within this definition of "writing."
   This bill would also make a legislative finding and
declaration that this act is declarative of existing law.
   Vote:  majority.  Appropriation:  no.  Fiscal committee:  no.
State-mandated local program:  no.






  SECTION 1.  The Legislature hereby finds and declares all of
the following:
   (a) That computerized recordkeeping has replaced less
accurate and more burdensome manual recordkeeping systems to the
point where businesses and individuals rely primarily, if not
exclusively, on computer information in conducting their
commercial and personal affairs.
   (b) That from the largest corporations to the smallest
families, people are using computers to cut costs, improve
production, enhance communication, store countless data, and
improve capabilities in every aspect of human and technological
development.
   (c) That computers have become so commonplace that most
lawsuits involve discovery of some type of computer-stored
information.
   (d) That the development of new technologies for using,
storing, and transmitting information allows parties to test the
rules of disclosure or discovery by using these new
technologies as a basis for withholding information otherwise
falling within the scope of subdivision (a) of Section 2017 of
the Code of Civil Procedure.
   (e) That it would be a dangerous development in the law if
new techniques for easing the use of information become a
hindrance to discovery or disclosure in litigation.
   (f) That the principle embodied in California's discovery
statutes is that information which is stored, used, or
transmitted in new forms, including computer data, should be
available through discovery with the same openness as
traditional forms.
   (g) That case law interpreting applicable provisions of the
federal Rules of Civil Procedure relating to computer discovery
amply illustrate this point.
   (h) That the new developments in computer technology require
greater clarity in California's discovery statutes to keep pace
with these advances.
  SEC. 2.  Section 2031 of the Code of Civil Procedure is
amended to read:
   2031.  (a) Any party may obtain discovery within the scope
delimited by Section 2017, and subject to the restrictions set
forth in Section 2019, by inspecting documents, tangible things,
and land or other property that are in the possession, custody,
or control of any other party to the action.
   (1) A party may demand that any other party produce and
permit the party making the demand, or someone acting on that
party's behalf, to inspect and to copy a document that is in the
possession, custody, or control of the party on whom the demand
is made.
   (2) A party may demand that any other party produce and
permit the party making the demand, or someone acting on that
party's behalf, to inspect and to photograph, test, or sample
any tangible things that are in the possession, custody, or
control of the party on whom the demand is made.
   (3) A party may demand that any other party allow the party
making the demand, or someone acting on that party's behalf, to
enter on any land or other property that is in the possession,
custody, or control of the party on whom the demand is made, and
to inspect and to measure, survey, photograph, test, or sample
the land or other property, or any designated object or
operation on it.
   (b) A defendant may make a demand for inspection without
leave of court at any time.  A plaintiff may make a demand for
inspection without leave of court at any time that is 10 days
after the service of the summons on, or in unlawful detainer
actions within five days after service of the summons on or
appearance by, the party to whom the demand is directed,
whichever occurs first.  However, on motion with or without
notice, the court, for good cause shown, may grant leave to a
plaintiff to make an inspection demand at an earlier time.
   (c) A party demanding an inspection shall number each set of
demands consecutively.  In the first paragraph immediately below
the title of the case, there shall appear the identity of the
demanding party, the set number, and the identity of the
responding party.  Each demand in a set shall be separately set
forth, identified by number or letter, and shall do all of the
following:
   (1) Designate the documents, tangible things, or land or
other property to be inspected either by specifically describing
each individual item or by reasonably particularizing each
category of item.
   (2) Specify a reasonable time for the inspection that is at
least 30 days after service of the demand, or in unlawful
detainer actions at least five days after service of the demand,
unless the court for good cause shown has granted leave to
specify an earlier date.
   (3) Specify a reasonable place for making the inspection,
copying, and performing any related activity.
   (4) Specify any related activity that is being demanded in
addition to an inspection and copying, as well as the manner in
which that related activity will be performed, and whether that
activity will permanently alter or destroy the item involved.

   (d) The party demanding an inspection shall serve a copy of
the inspection demand on the party to whom it is directed and on
all other parties who have appeared in the action.
   (e) When an inspection of documents, tangible things or
places has been demanded, the party to whom the demand has been
directed, and any other party or affected person or
organization, may promptly move for a protective order. This
motion shall be accompanied by a declaration stating facts
showing a reasonable and good faith attempt at an informal
resolution of each issue presented by the motion.
   The court, for good cause shown, may make any order that
justice requires to protect any party or other natural person or
organization from unwarranted annoyance, embarrassment, or
oppression, or undue burden and expense.  This protective order
may include, but is not limited to, one or more of the following
directions:
   (1) That all or some of the items or categories of items in
the inspection demand need not be produced or made available at
all.
   (2) That the time specified in subdivision (h) to respond to
the set of inspection demands, or to a particular item or
category in the set, be extended.
   (3) That the place of production be other than that specified
in the inspection demand.
   (4) That the inspection be made only on specified terms and
conditions.
   (5) That a trade secret or other confidential research,
development, or commercial information not be disclosed, or be
disclosed only to specified persons or only in a specified way.

   (6) That the items produced be sealed and thereafter opened
only on order of the court.
   If the motion for a protective order is denied in whole or in
part, the court may order that the party to whom the demand was
directed provide or permit the discovery against which
protection was sought on terms and conditions that are just.
   The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes
or opposes a motion for a protective order, unless it finds
that the one subject to the sanction acted with substantial
justification or that other circumstances make the imposition of
the sanction unjust.
   (f) The party to whom an inspection demand has been directed
shall respond separately to each item or category of item by a
statement that the party will comply with the particular demand
for inspection and any related activities, a representation that
the party lacks the ability to comply with the demand for
inspection of a particular item or category of item, or an
objection to the particular demand.
   In the first paragraph of the response immediately below the
title of the case, there shall appear the identity of the
responding party, the set number, and the identity of the
demanding party.  Each statement of compliance, each
representation, and each objection in the response shall bear
the same number and be in the same sequence as the corresponding
item or category in the demand, but the text of that item or
category need not be repeated.
   (1) A statement that the party to whom an inspection demand
has been directed will comply with the particular demand shall
state that the production, inspection, and related activity
demanded will be allowed either in whole or in part, and that
all documents or things in the demanded category that are in the
possession, custody, or control of that party and to which no
objection is being made will be included in the production.
   Any documents demanded shall either be produced as they are
kept in the usual course of business, or be organized and
labeled to correspond with the categories in the demand.  If
necessary, the responding party shall, through detection
devices, translate any data compilations included in the demand
into reasonably usable form and produce any and all information
necessary to understand and utilize these data compilations
including, but not limited to, material relating to the
recordholder's computer hardware, custom or proprietary software
programs, the computer programming techniques employed in
connection with the relevant data, the principles governing the
structure of the stored data, and the operation of the data
processing system, the underlying data used to compose
statistical analyses, the methods used to select, categorize,
and evaluate the data, and all of the computer outputs.  To the
extent proprietary information is ordered produced under this
paragraph, the court shall do so through the issuance of a
strict protective order restricting the use of this information
exclusively to the subject matter of the litigation that is the
basis of the order.  {+ The court may, in its discretion,
allocate between the parties the expense of translating data
compilations and of producing information necessary to
understand and utilize data compilations, as justice requires.
+}
   (2) A representation of inability to comply with the
particular demand for inspection shall affirm that a diligent
search and a reasonable inquiry has been made in an effort to
comply with that demand.  This statement shall also specify
whether the inability to comply is because the particular item
or category has never existed, has been destroyed, has been
lost, misplaced, or stolen, or has never been, or is no longer,
in the possession, custody, or control of the responding party.
The statement shall set forth the name and address of any
natural person or organization known or believed by that party
to have possession, custody, or control of that item or category
of item.
   (3) If only part of an item or category of item in an
inspection demand is objectionable, the response shall contain a
statement of compliance, or a representation of inability to
comply with respect to the remainder of that item or category.
If the responding party objects to the demand for inspection of
an item or category of item, the  response shall (A) identify
with particularity any document, tangible thing, or land falling
within any category of item in the demand to which an objection
is being made, and (B) set forth clearly the extent of, and the
specific ground for, the objection.  If an objection is based
on a claim of privilege, the particular privilege invoked shall
be stated.  If an objection is based on a claim that the
information sought is protected work product  under Section
2018, that claim shall be expressly asserted.
   (g) The party to whom the demand for inspection is directed
shall sign the response under oath unless the response contains
only objections.  If that party is a public or private
corporation or a partnership or association or governmental
agency, one of its officers or agents shall  sign the response
under oath on behalf of that party.  If the officer or agent
signing the response on behalf of that party is an attorney
acting in that capacity for a party, that party waives any
lawyer-client privilege and any protection for work product
under Section 2018 during any subsequent discovery from that
attorney concerning the identity of the sources of the
information contained in the response.  The attorney for the
responding party shall sign any responses that contain an
objection.
   (h) Within 20 days after service of an inspection demand, or
in unlawful detainer actions within five days of an inspection
demand, the party to whom the demand is directed shall serve the
original of the response to it on the party making the demand,
and a copy of the response on all other parties who have
appeared in the action, unless on motion of the party making the
demand the court has shortened the time for response, or unless
on motion of the party to whom the demand has been directed,
the court has extended the time for response.  In unlawful
detainer actions, the party to whom the demand is directed shall
have at least five days from the date of service of the demand
to respond unless on motion of the party making the demand the
court has shortened the time for the response.
   (i) The party demanding an inspection and the responding
party may agree to extend the time for service of a response to
a set of inspection demands, or to particular items or
categories of items in a set, to a date beyond that provided in
subdivision (h).  This agreement may be informal, but it shall
be confirmed in a writing that specifies the extended date for
service of a response.  Unless this agreement expressly states
otherwise, it is effective to preserve to the responding party
the right to respond to any item or category of item in the
demand to which the agreement applies in any manner specified in
subdivision (f).
   (j) The inspection demand and the response to it shall not be
filed with the court.  The party demanding an inspection shall
retain both the original of the inspection demand, with the
original proof of service affixed to it, and the original of the
sworn response until six months after final disposition of the
action.  At that time, both originals may be destroyed, unless
the court, on motion of any party and for good cause shown,
orders that the originals be preserved for a longer period.
   (k) If a party to whom an inspection demand has been directed
fails to serve a timely response to it, that party waives any
objection to the demand, including one based on privilege or on
the protection for work product under Section 2018.  However,
the court, on motion, may relieve that party from this waiver on
its determination that (1) the party has subsequently served a
response that is in substantial compliance with subdivision (f),
and (2) the party's failure to serve a timely response was the
result of mistake, inadvertence, or excusable neglect.
   The party making the demand may move for an order compelling
response  to the inspection demand.  The court shall impose a
monetary sanction under Section 2023 against any party, person,
or attorney who unsuccessfully makes or opposes a motion to
compel a response to an inspection demand, unless it finds that
the one subject to the sanction acted with substantial
justification or that other circumstances make the imposition of
the sanction unjust.  If a party then fails to obey the order
compelling a response, the court may make those orders that are
just, including the imposition of an issue sanction, an evidence
sanction, or a terminating sanction under Section 2023.  In
lieu of or in addition to that sanction, the court may impose a
monetary sanction under Section 2023.
   (l) If the party demanding an inspection, on receipt of a
response to an inspection demand, deems that (1) a statement of
compliance with the demand is incomplete, (2) a representation
of inability to comply is inadequate, incomplete, or evasive, or
(3) an objection in the response is without merit or too
general, that party may move for an order compelling further
response to the demand.  This motion (1) shall set forth
specific facts showing good cause justifying the discovery
sought by the inspection demand, and (2) shall be accompanied by
a declaration stating facts showing a reasonable and good faith
attempt at an informal resolution of any issue presented by it.

   Unless notice of this motion is given within 45 days of the
service of the response, or any supplemental response, or on or
before any specific later date to which the demanding party and
the responding party have agreed in writing, the demanding party
waives any right to compel a further response to the inspection
demand.
   The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes
or opposes a motion to compel further response to an inspection
demand, unless it finds that the one subject to the sanction
acted with substantial justification or that other circumstances
make the imposition of the sanction unjust.
   If a party fails to obey an order compelling further
response, the court may make those orders that are just,
including the imposition of an issue sanction, an evidence
sanction, or a terminating sanction under Section 2023.  In lieu
of or in addition to that sanction, the court may impose a
monetary sanction under Section 2023.
   (m) If a party filing a response to a demand for inspection
under subdivision (f) thereafter fails to permit the inspection
in accordance with that party's statement of compliance, the
party demanding the inspection may move for an order compelling
compliance.
   The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes
or opposes a motion to compel compliance with an inspection
demand, unless it finds that the one subject to the sanction
acted with substantial justification or that other circumstances
make the imposition of the sanction unjust.
   If a party then fails to obey an order compelling inspection,
the court may make those orders that are just, including the
imposition of an issue sanction, an evidence sanction, or a
terminating sanction under Section 2023.  In lieu of or in
addition to that sanction, the court may impose a monetary
sanction under Section 2023.
  SEC. 3.  Section 250 of the Evidence Code is amended to read:

   250.  "Writing" means handwriting, typewriting, printing,
photostating, photographing, and every other means of recording
upon any tangible thing any form of communication or
representation, including letters, words, pictures, sounds,
symbols, or data compilations, or combinations thereof.   {-
  SEC. 2. -} {+
  SEC. 4.  +} The Legislature finds and declares that the
provisions of this act are declarative of existing law.

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