Last week, Governor Schwarzenegger of California signed the state’s Electronic Discovery Act, which is effective immediately. An earlier version had been vetoed for what was said to be budgetary reasons. The Act lays out procedures for discovery of electronically stored information in California. As is the case with any piece of legislation, especially legislation from California, the actual text is quite lengthy, but it’s similar to the most recent revisions of the Federal Rules of Civil Procedure. For most data centers, there is no big cause for alarm, since the law doesn’t deviate much from the Federal e-discovery standard.

Under the new legislation, when somebody requests electronically stored information (ESI), they may specify the format they would like to receive it in. If the party doesn’t specify a format, then the data should be produced in the same format that it was originally created, or in another format that is “reasonably usable.” It’s only necessary to produce the documentation in a single format.

If the data is not what the Act terms “reasonably accessible,” it is possible to refuse the request if it causes undue burden or high cost. But it’s not enough to just say “I can’t get to it”–if you want to claim that the data is inaccessible, you have to state specifically why, and you have to identify the sources and types of data that can’t be accessed. The burden of proof that the data is not accessible falls on the party from which the data is being requested. This is of course a very subjective rule, and an email admin managing archives should be prepared to produce in any event. So long as the requesting party has a more expensive lawyer, the point of whether it is “reasonably accessible” could be debated endlessly, or until your company runs out of money, whichever comes first.