§ 1985.8.Electronically stored information; form of production; objection

Title 3. Of the Production of Evidence · Chapter 2. Means of Production · Last amended 2012 · Last verified July 29, 2026

In one sentenceSection 1985.8 governs subpoenas seeking electronically stored information, letting the requesting party specify a production form, allowing the responding person to object and propose another form, limiting discovery from sources that are not reasonably accessible absent good cause, and protecting good-faith routine data loss from sanctions.

Full Text of § 1985.8

Text sizeJump to: (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) (l) (m)

(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 apply:

(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 subdivision (i).

(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 duplicative.

(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 subpoena.

(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 from compliance.

(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 information system.

(2) This subdivision shall not be construed to alter any obligation to preserve discoverable information.

End

Plain-English Summary

Modern discovery reaches far beyond paper, and this section builds a framework specifically for subpoenas seeking electronically stored information, letting a party specify the form or forms in which each type of data should be produced. A person served with such a subpoena can object to the specified form and propose a different one, and absent agreement or a court order, unspecified data gets produced in the form it is ordinarily kept in or another reasonably usable form, with no obligation to produce the same information twice in different formats.

The section then addresses the recurring fight over hard-to-reach data. A person resisting production on the ground that a source is not reasonably accessible because of undue burden or expense carries the burden of proving that. Even then, a court can still order discovery if the requesting party shows good cause, and if it does, the court can set conditions, including who pays for what. The court also must rein in discovery, even from accessible sources, when a cheaper or more convenient alternative source exists, when the request is needlessly duplicative, when the requesting party already had ample chance to get the information, or when the burden or expense plainly outweighs the likely benefit.

Practical obligations round out the section: a subpoenaed person must translate data compilations into usable form at the requesting party's expense when necessary, the requesting party must take reasonable steps to avoid imposing undue burden, and any court order enforcing the subpoena must protect a nonparty from undue burden or expense. Claims of privilege or work-product protection over produced data follow the separate procedure in Section 2031.285. Finally, absent exceptional circumstances, a court will not sanction a subpoenaed person or that person's attorney for data lost, damaged, altered, or overwritten through the routine, good-faith operation of an electronic system, though that safe harbor does not excuse an existing duty to preserve information.

Frequently Asked Questions

Can the party issuing a subpoena for electronic data specify the format it wants?

Yes, a party may specify the form or forms in which each type of electronically stored information is to be produced.

What happens if the subpoenaed person objects to the specified format?

The person may state, in an objection, the form or forms it intends to use instead, and absent agreement or a court order, unspecified data is produced in the form ordinarily maintained or another reasonably usable form.

Who has the burden of showing that data is not reasonably accessible?

The person opposing production on that ground bears the burden of demonstrating the source is not reasonably accessible because of undue burden or expense.

Can a court still order production even if a source is not reasonably accessible?

Yes, if the subpoenaing party shows good cause, and the court can then set conditions on that discovery, including allocating its expense.

Can a subpoenaed person be sanctioned for electronic data lost through normal system operation?

Absent exceptional circumstances, no, so long as the loss resulted from the routine, good-faith operation of an electronic information system, though the duty to preserve discoverable information still applies.

Amendment History

(Added by Stats.2009, c. 5 (A.B.5), § 2, eff. June 29, 2009. Amended by Stats.2012, c. 72 (S.B.1574), § 4.)

Source & verification. Section text is reproduced verbatim from the West's Annotated California Codes / Thomson Reuters. Enacted by the California Legislature. Last verified July 29, 2026. · Official source

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