## Facts

- Lexar Media, Inc. sued Toshiba America Electronic Components, Inc. (TAEC) for misappropriation of trade secrets, breach of fiduciary duty, and unfair competition.
- Lexar served a request for production that defined “documents” to include electronic mail and other electronically or magnetically stored information.
- TAEC produced more than 20,000 pages of “readily available” responsive documents.
- Additional potentially responsive emails existed only on more than 800 backup tapes covering 1994 through October 2002.
- TAEC retained an e-discovery specialist who estimated that restoring, searching, and producing data from all tapes would cost approximately $1.5 to $1.9 million; a narrowed set of about 130 tapes would still cost at least $211,250.
- TAEC requested that Lexar pay some or all of the backup-tape processing expense; Lexar refused and moved to compel production at TAEC’s expense.
- The trial court ordered TAEC to search the backup tapes and produce nonprivileged email without shifting any costs to Lexar.
- TAEC sought writ relief, arguing the trial court failed to apply the cost-allocation rule in former California Code of Civil Procedure § 2031(g)(1).

## Issues

1. Under former California Code of Civil Procedure § 2031(g)(1), when responsive information exists on backup tapes requiring restoration and processing, must the requesting party pay the reasonable expense of “translating” electronic data compilations into a usable form in a proper case?

## Decision

- The Court of Appeal granted writ relief in part.
- It held that, in a proper case, § 2031(g)(1) requires the demanding party to pay the reasonable expense of translating electronic data compilations into a usable form.
- It concluded the trial court erred by compelling TAEC to bear all backup-tape restoration and search costs without applying § 2031(g)(1).
- It directed the trial court to vacate the cost allocation aspect of its order and reconsider cost shifting and reasonableness under the statute.

## Legal Principles

- Former Code of Civil Procedure § 2031(g)(1) provides a specific cost-allocation rule for “data compilations” that require extraordinary retrieval and translation steps; in a proper case, the requesting party must pay the reasonable expense of that translation.
- Restoring and processing backup tapes to locate responsive email can constitute “translation” of electronic data compilations when specialized, burdensome steps are required to make the information reasonably usable.
- Whether a matter is a “proper case” for shifting translation expenses, and what expenses are “reasonable,” are factual determinations committed to the trial court’s discretion and must reflect the statutory standard.
- Federal e-discovery cost-shifting decisions are not controlling where California law contains an express statutory provision governing translation costs.

## Conclusion

The court required trial courts to apply former § 2031(g)(1) when discovery demands require costly restoration and processing of backup tapes, holding that reasonable translation expenses may be shifted to the requesting party in a proper case and remanding for a fact-based discretionary determination of cost allocation.


Toshiba Am. Elec. Components, Inc. v. Superior Ct., 124 Cal. App. 4th 762, 21 Cal. Rptr. 3d 532 (Ct. App. 2004)