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The Right to Subpoena Electronically Stored Information

In many cases that our office has handled, a client will explain that another person took a video of a crime or posted a video on YouTube or Facebook that exonerates our client.  The client may also explain that the victim in a domestic violence case sent a text apologizing for telling lies to the police that resulted in his arrest for domestic violence.  It may also be suspected that police conspired together to make an arrest for a fabricated crime and our client believes texts between the officers will reveal this improper conduct.

Our office will then seek to subpoena such electronically stored information (ESI) from Facebook, YouTube or a phone company.  

This can prove difficult, as the owner of the ESI can object to the demand on grounds of it being an undue burden or expense.  Cal. Civ. Proc. Code § 1985.8(e).  This can arise due to the “technical challenge of extracting information from older computer or storage media” or due to the “sheer volume of information potentially responsive to a subpoena.”  Park v. Law Offices of Tracey Buck-Walsh (1st Dist., 2021) 73 Cal. App. 5th 179, 288 Cal. Rptr. 3d 202. 
The Gist of this Article: Requesting, responding to and objecting to electronically stored information can be complicated and consequently, is tightly regulated with a multitude of rules and procedures.  To read more about this topic, please read this article to avoid common mistakes.         
The party receiving the subpoena then may file a motion to quash based on undue burden with a court.  See Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal. App. 4th 216, 223 (holding that six pages of “definitions” and “instructions” was grossly excessive and made business-records subpoena unduly burdensome).  

A motion to quash may also be based upon a subpoena that seeks to invade or violate a consumer or employee’s right to privacy.  Edmon & Karrow, “Cal. Prac. Guide: Civ. Proc. Before Trial, “ Section 8.580(d); Cal. Civ. Proc. Code § 2020.030; see also Fett v. Medical Bd. (2016) (petitions to quash subpoenas to nonparties’ doctor because of privacy rights).

First, however, the party must assert the objection.  To assert such an objection, the nonparty must identify in its objection the categories of sources that it asserts are not reasonably accessible.  Cal. Civ. Proc. Code § 2031.210(d).

Even when undue burden or expense is established, a court may still require compliance with the subpoena with limiting conditions, including allocating the expense of production.  Park (“The [CA] DOJ’s inability to prove that this burden excused it from having to respond at all to the subpoena did not preclude the [CA] DOJ from “seeking reimbursement for ‘undue expense’ incurred in responding to the subpoena.”).

Reasonable costs for the producing party incurred in production in response to the subpoena are covered in Cal. Evid. Code § 1563(d).  Some costs include clerical expenses in locating records and reproducing them, copying costs, and actual postage charges.  Cal. Evid. Code § 1563(b)(1).  If the subpoenaing party merely inspects or makes copies of the documents at the nonparty’s place of business, recoverable fees cannot exceed $15, plus any actual costs.  Cal. Evid. Code § 1563(b)(6).d

A consequence of such a voluminous response increases the likelihood of inadvertent production of unresponsive documents, videos or information.  Fortunately, California has procedures that allow a nonparty to “claw back” inadvertently produced ESI that is subject to a claim of privilege (i.e., privacy, financial, doctor-patient, attorney-client) or attorney work product.

Upon discovering the inadvertent production of privileged information, the nonparty must promptly notify the receiving party and the receiving party must immediately sequester the materials, and either return the materials (including any copies) or present the materials to the court under seal pending a ruling on the claim of privilege.  Cal. Civ. Proc. Code § 2031.285(b).  

The claim of a privilege must be accompanied by a privilege log.  Cal. Civ. Proc. Code § 2031.240(c)(1); see also Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal. App. 4th 110, 129 (“The information in the privilege log must be sufficiently specific to allow a determination of whether each withheld document is or in not in fact privileged”).

The party in possession of inadvertently produced materials is precluded from using or disclosing the information until a claim of privilege is resolved by a judge.  Cal. Civ. Proc. Code §§ 2031.285(c)(1), (d)(2).

These procedures, it should be noted, do not resolve whether such inadvertent production waived the asserted claim of privilege.  Therefore, it can be prudent to enter into a clawback agreement with the producing party before any ESI is produced.

For more information about a subpoena for electronically stored information, please click on the following articles:
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