The Second Appellate District of California recently held that a third party must comply with a subpoena requesting data in a format different than the manner in which the data was maintained where the requesting party offered to pay the reasonable cost of translating the data into the requested form.  In Daniel Vasquez v. California School of Culinary Arts, Inc., the appeal was between plaintiffs in a putative class action, and third party, Sallie Mae, Inc.  Sallie Mae was previously involved in the litigation, but had been dismissed from the action at the time of the subpoena in question.  The case involved a putative class action of culinary students who sought records of their student loans from Sallie Mae.

Plaintiffs served two subpoenas to Sallie Mae.  The first subpoena was for paper records in August 2012; Sallie Mae agreed to comply so long as plaintiffs paid the cost of reproducing the records, which reportedly cost more than $60,000 based on costs authorized by Evidence Code section 1563(b), including $.10 per page for photocopies and $24 per hour for clerical time.  Plaintiffs withdrew the first subpoena because of the cost.  In September 2012, plaintiffs’ second subpoena sought specific data fields from records of 786 putative class members from Sallie Mae’s student loan database.  Sallie Mae did not provide a cost estimate for production, despite repeated requests from plaintiffs’ counsel.

Sallie Mae filed a motion to quash the subpoena, arguing inter alia, it was not required to produce records in a form that was different than the manner in which the data was stored, in part because it would be necessary to write new computer code to extract the data into the format plaintiffs requested.  Plaintiffs opposed the motion arguing Code of Civil Procedure section 1985.8 entitled them to obtain the electronically stored data in a digital format that they requested.  Plaintiffs also argued Sallie Mae did not have substantial justification for filing the motion to quash, and requested attorneys’ fees of $11,487 for opposing Sallie Mae’s motion.  The trial court denied Sallie Mae’s motion to quash, and awarded plaintiffs their requested attorneys’ fees.

Two years later on appeal, the appellate court upheld the trial court’s ruling denying the motion to quash and awarding plaintiffs their attorney fees.  At the time the second subpoena was served, Code of Civil Procedure section 1985.8 provided that the requesting party could specify the form in which it wanted the data produced.  In an amendment effective January 1, 2013, Section 1985.8 was changed to allow the subpoenaed party to object to the form of production requested and to identify the form it intended to produce the data.  In this case, the appellate court applied the Pre-2013 version of the statute because it was in effect at the time the second subpoena was served.

While no California authority existed on the subject, the appellate court relied on federal case law because of the similarities between California and federal discovery law.  The appellate court looked to a 2006 decision in the Northern District of California where the Attorney General sought records from Google.  (See, Gonzales v. Google, Inc. (N.D.Cal. 2006) 234 F.R.D. 674.)   In that case, Google argued it was an undue burden to produce records because it did not maintain the records sought in the ordinary course of business in the format requested by the government; Google, however, was required to produce the electronic records in the requested format because the government was willing to pay the reasonable costs to put the electronic records in the requested format.

The appellate court distinguished the authorities Sallie Mae relied upon because in those cases the subpoenas requested data that the party did not already maintain; Sallie Mae already maintained the requested data, just not in the format requested by plaintiffs.

Prior to the amendment of Section 1985.8 in 2013, the statute did not provide a basis for a subpoenaed party to object if the subpoenaing party requested data in a format different than the manner in which the data was stored in the regular course of business.  The current version of Section 1985.8 permits this type of objection; however, under the Gonzalez v. Google, the subpoenaing party may still be able to dictate the manner in which electronic records are produced provided that party is willing to pay for the reasonable costs of producing the records in format requested.

For further information or questions, please contact Cary G. Palmer at or Nathan W. Austin at in our Sacramento office at (916) 341-0404, or the Jackson Lewis attorney with whom you regularly work.