Alextronic Discovery
Alextronic Discovery
An Electronic Discovery Blog covering News, Articles
and Thoughts for the Legal and Corporate Community Author: Alexander H. Lubarsky, LL.M., Esq. - - Tel. (415) 533-4166 OR 800-375-4222 THIS BLAWG IS NOT AFFILIATED WITH THE WEB SITES WWW.DISCOVERYRESOURCES.ORG OR WWW.DISCOVERYRESOURCES.COM

Sunday, February 08, 2004

You've Been Served  

You've Been Served

Just back from NYC Legal Tech and then an immediate vacation in balmy Palm Springs with the wife and sans the little one to unwind from trade show booth burnout. I apologize for the large gab in substantive discourse fellow bloggerheads...

Now as the pretzel vendors on Broadway and 42nd fade into the oblivion along with the shooting stars over the Palm Springs desert, I reenter the atmosphere as I once again maintain the controls of the USS Alextronic.

Stardate February 9th, 2004.

One question that came up quite a bit at Legal Tech NYC (and thankfully did not ever arise as I sipped margaritas in La Quinta, California below swaying palm trees) was whether or not the requesting party really had "teeth" to force an IT person or some other such source of adversarial secrets into a deposition so that the screws can be tightened and the spotlight positioned right into the IT interrogee's eyes:

"So, Mr. Network Manager.... let me reposition these matchsticks between your pinkie toes ... ahhhh, now are you a bit more inclined to reveal where the CFO's PST's are backed up to... or do we really need to get serious and bring in the Clay Aiken CD?"

Well, in many States the Clay Aiken method clearly falls into the cruel and unusual punishment category, but in California, if Clay fails we have Code of Civil Procedure Section 2025(e)(2).

Yep, this nifty code section which arose out of the recently refurbished Discovery Act calls for the mandatory appearance for deposition of "the person most knowledgeable" of a party's electronic data storage methods (both live and archival) who can "thoroughly explain" how and where information is organized so that it may "be gathered for discovery purposes." This code can require such a fountain of wisdom to appear "within seventy-five miles of the company's principal California business office OR within the county where the action is pending."

This is the effective State counterpart to the well known Federal Rule 30(b)(6) however this State statute is a bit more flushed out and directed when it comes to the pursuit of the source of electronic evidence.

So call off the German shepherds, extinguish them cigarettes and yank out the ceiling fan, we in California have the teeth to get at that elusive electronic data.

Those of you in New York, Pennsylvania, Ohio, Florida and Texas will find that you have similar state statutes. I have yet to survey the other 45 states, but I am willing to bet that those who do not yet have such legislation in face will soon find such in place soon.... Until then there is always the reliable iron maiden and stretch rack.

posted by Alexander | 8:02 PM


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