Saturday, November 1, 2014

The ESI Dream of the '90s Is Alive in State Court

Vasquez v. Cal. Sch. of Culinary Arts, No. B250600 (D2d2 Sept. 26, 2014)

In responding to a business records subpoena for student loan files, Sallie Mae jerked around some plaintiff lawyers and was cagey about the cost and burden of compliance. After Sallie Mae
s motion to quash was denied, the trial court awarded about $20k in sanctions because its resistance was not substantially justified.  In an opinion that addresses Code of Civil Procedure § 1985.8—rarely cited in any opinionthe court affirms.

The court first notes that the fact that a subpoena seeks ESI from a third party does not automatically make it unduly burdensome.  (Because it’s not, like, 1990!)  It also rejects Sallie Mae’s argument that “documents” didn’t exist because the information was contained in an electronic database and producing what plaintiffs wanted would entail the creation of “new” documents. That the court's reasoning is based on a 2006 federal district court case—there is no California authority on point—is itself telling on the discouraging state of the state of the art on ESI discovery law in California state court.

So the rule is that if you want database information from a third party, you can get it, so long as it is maintained in a way that, even with some work, it can be extracted from the database.  You do, however, have to pay the costs of extraction.  On the other hand, the third party is obliged to provide a reasonable estimate of the costs of compilation. And if the third refuses to do so and acts unreasonably, it will subject to sanctions for a lack of substantial justification.


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