When comparing the recently amended FRCP with California’s proposed electronically stored evidence (“ESI”) amendment two differences come to mind.

The first distinction has to do with defining what constitutes ESI. The FRCP avoids providing a precise definition of what constitutes electronically stored information. Rather, the FRCP focuses on information "stored in any medium" that can be "retrieved and examined." As a result, the Federal rules avoid any specific definition that later could be outdated as technology advances. On the other hand, the proposed California amendments take a different approach. They actually do refer to electronically stored information as having "electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities."

The second distinction relates to what amount of ESI may be obtained. Under the new FRCP a party can only obtain discovery of ESI that is "reasonably accessible." While there is no clear definition of reasonable legislative history/committee notes suggest that it includes any information that is routinely accessed and not data that has been destroyed, deleted, is legacy or data that would require significant cost, effort or burden to produce. As the exception a party can access ESI that is not "reasonably accessible" if there is good cause. Good cause tests typically weigh need versus burden. On the other hand, the proposed California ESI amendments are geared towards having everything discoverable, whether readily accessible or not. Instead of statutorily restricting what can be sought California seeks the usage of court protective orders and motions to keep the playing field in check.