California Code of Civil Procedure Section 1985.8
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California Laws > Code of Civil Procedure > California Code of Civil Procedure Section 1985.8
1985.8. (a) (1) A subpoena in a civil proceeding may require that
electronically stored information, as defined in Section 2016.020, be
produced and that the party serving the subpoena, or someone acting
on the party's request, be permitted to inspect, copy, test, or
sample the information.
(2) Any subpoena seeking electronically stored information shall
comply with the requirements of this chapter.
(b) A party serving a subpoena requiring production of
electronically stored information may specify the form or forms in
which each type of information is to be produced.
(c) If a person responding to a subpoena for production of
electronically stored information objects to the specified form or
forms for producing the information, the subpoenaed person may
provide an objection stating the form or forms in which it intends to
produce each type of information.
(d) Unless the subpoenaing party and the subpoenaed person
otherwise agree or the court otherwise orders, the following shall
(1) If a subpoena requiring production of electronically stored
information does not specify a form or forms for producing a type of
electronically stored information, the person subpoenaed shall
produce the information in the form or forms in which it is
ordinarily maintained or in a form that is reasonably usable.
(2) A subpoenaed person need not produce the same electronically
stored information in more than one form.
(e) The subpoenaed person opposing the production, inspection,
copying, testing, or sampling of electronically stored information on
the basis that information is from a source that is not reasonably
accessible because of undue burden or expense shall bear the burden
of demonstrating that the information is from a source that is not
reasonably accessible because of undue burden or expense.
(f) If the person from whom discovery of electronically stored
information is subpoenaed establishes that the information is from a
source that is not reasonably accessible because of undue burden or
expense, the court may nonetheless order discovery if the subpoenaing
party shows good cause, subject to any limitations imposed under
(g) If the court finds good cause for the production of
electronically stored information from a source that is not
reasonably accessible, the court may set conditions for the discovery
of the electronically stored information, including allocation of
the expense of discovery.
(h) If necessary, the subpoenaed person, at the reasonable expense
of the subpoenaing party, shall, through detection devices,
translate any data compilations included in the subpoena into a
reasonably usable form.
(i) The court shall limit the frequency or extent of discovery of
electronically stored information, even from a source that is
reasonably accessible, if the court determines that any of the
following conditions exists:
(1) It is possible to obtain the information from some other
source that is more convenient, less burdensome, or less expensive.
(2) The discovery sought is unreasonably cumulative or
(3) The party seeking discovery has had ample opportunity by
discovery in the action to obtain the information sought.
(4) The likely burden or expense of the proposed discovery
outweighs the likely benefit, taking into account the amount in
controversy, the resources of the parties, the importance of the
issues in the litigation, and the importance of the requested
discovery in resolving the issues.
(j) If a subpoenaed person notifies the subpoenaing party that
electronically stored information produced pursuant to a subpoena is
subject to a claim of privilege or of protection as attorney work
product, as described in Section 2031.285, the provisions of Section
2031.285 shall apply.
(k) A party serving a subpoena requiring the production of
electronically stored information shall take reasonable steps to
avoid imposing undue burden or expense on a person subject to the
(l) An order of the court requiring compliance with a subpoena
issued under this section shall protect a person who is neither a
party nor a party's officer from undue burden or expense resulting
(m) (1) Absent exceptional circumstances, the court shall not
impose sanctions on a subpoenaed person or any attorney of a
subpoenaed person for failure to provide electronically stored
information that has been lost, damaged, altered, or overwritten as
the result of the routine, good faith operation of an electronic
(2) This subdivision shall not be construed to alter any
obligation to preserve discoverable information.
Last modified: February 22, 2013