I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, Lexar Media, Inc. (Lexar) sued Toshiba America Electronic Components, Inc. (TAEC) and TAEC's parent company Toshiba, Inc. for misappropriation of trade secrets, breach of fiduciary duty, and unfair competition. Lexar served TAEC with a request for production and inspection of documents (§ 2031) by which Lexar sought 60 categories of documents. Lexar defined documents to include “electronic mail” and “other forms of electronically or magnetically maintained information.” TAEC responded, subject to assorted objections, that it would produce copies of documents responsive to many of the 60 categories. After TAEC produced more than 20,000 pages of documents, which TAEC described as all of the “readily available” responsive documents, a dispute arose about who should pay for recovery of additional responsive material (specifically, email correspondence) stored on TAEC's computer backup tapes.
TAEC had more than 800 backup tapes for the pertinent time period—1994 through October 2002. TAEC hired an electronic discovery specialist to examine the tapes. According to this specialist the data contained on the tapes had to be manipulated in various ways in order to search the tapes to find out *766 what was contained in them. Complete processing of all the tapes, which would include analyzing the data contained on the tapes, identifying and restoring the files, searching the restored files for responsive items, and producing the specified data, would cost between $1.5 and $1.9 million. Processing a selection of 130 tapes surrounding 15 key dates would cost at least $211,250. TAEC gave this information to Lexar and asked Lexar to shoulder some or all of the cost depending upon how **536 many tapes Lexar wanted processed. Lexar refused.
Lexar filed a motion to compel production of all responsive documents contained on the backup tapes. (§ 2031, subd. (n).) Anticipating TAEC's argument that Lexar should bear part of the cost, Lexar argued that cost-shifting in this case would be unfair. TAEC had admitted that the tapes were “not in the best condition for discovery.” Some of the software that TAEC was using when the tapes were made had become obsolete, requiring the development of specialized conversion tools to access the information. Some of the tapes had deteriorated from age. Still others were incorrectly labeled. Lexar cited three federal district court cases that held, in effect, that a demanding party ought not to be penalized when a producing party has chosen to keep records in a manner that makes them difficult to retrieve. (In re Brand Name Prescription Drugs Antitrust Litigation, (N.D.Ill.1995) 1995 WL 360526; Rhone–Poulenc Rorer, Inc. v. Home Indem. Co., (E.D.Penn.1991) 1991 WL 111040; Kozlowski v. Sears, Roebuck & Co. (D.Mass.1976) 73 F.R.D. 73, 76.) In the alternative, Lexar argued that the cost-shifting analysis used in federal court did not warrant cost shifting in this case. (Zubulake v. UBS Warburg LLC (S.D.N.Y.2003) 217 F.R.D. 309, 322(Zubulake ).) TAEC responded that restoring its electronic backup tapes was an undue burden and that the federal analysis favored shifting the cost to Lexar. Neither party referred to the pertinent California statute, section 2031(g)(1).
The trial court granted Lexar's motion without comment or explanation. The court did not order Lexar to bear any of the cost, nor did it limit the production request to a representative sampling as Lexar had suggested as an alternative. The court simply ordered TAEC to produce all nonprivileged emails from its backup tapes within 60 days.
TAEC petitioned for a writ of mandate and requested a stay of the trial court's order. In its writ petition, TAEC argued that the trial court abused its discretion in failing to require Lexar to pay all or part of the cost of restoring and searching its backup tapes. TAEC relied upon a line of federal cases in which the courts had shifted the expense of restoring or retrieving inaccessible data from the responding party to the demanding party. TAEC also cited section 2031(g)(1) and argued that it was an automatic cost-shifting provision that should apply to the instant matter. We issued the temporary stay and *767 solicited preliminary opposition asking the parties to address the application of section 2031(g)(1). Following receipt of preliminary briefing, we issued an order to show cause why a peremptory writ should not issue as requested.
101112The general rule in both state and federal court is that the responding party bears the expense typically involved in responding to discovery requests, such as the expense of producing documents. (See Barnhart, supra, 95 Cal.App.4th at p. 1404, 116 Cal.Rptr.2d 65, citing In re Puerto Rico Electric Power Authority (1st Cir.1982) 687 F.2d 501, 507.) In some circumstances, however, principles of fundamental fairness require the demanding party to pay any significant “ ‘special attendant’ costs beyond those typically involved in responding to routine discovery.” (Barnhart, supra, 95 Cal.App.4th at p. 1405, 116 Cal.Rptr.2d 65.) Often, the question is one that is addressed to the trial court when the responding party objects to a particular discovery request and seeks relief from the court by way of a protective order. (See, e.g. § 2031, subd. (f); Fed. Rules Civ. Proc., rule 26(c)(2), 28 U.S.C.)
But there are at least two California statutes that place the burden on the demanding party at the outset: section 2034, subdivision (i), which requires the deposing party to pay expert witness fees when deposing another party's expert, and section 2025, subdivision (p), which requires the party noticing any deposition to pay the costs of transcribing it. These statutes reflect the Legislature's determination that in the circumstances described by the statutes, principles of fairness call for placing the expense upon the demanding party. In our view, section 2031(g)(1) reflects a similar legislative determination.
13141516In reaching our conclusion, we apply well-settled rules of statutory construction. “[O]ur first task in construing a statute is to ascertain the intent of the Legislature so as to effectuate the purpose of the law. In determining such intent, a court must look first to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose. A construction making some words surplusage is to be avoided. The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible.” (Dyna–Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386–1387, 241 Cal.Rptr. 67, 743 P.2d 1323.)
Section 2031(g)(1) expressly provides that “[i]f necessary, the responding party at the reasonable expense of the demanding party shall, ... translate any data compilations ... into reasonably usable form.” The clause is unequivocal. We need not engage in protracted statutory **539 analysis because its plain language clearly states that if translation is necessary, the responding party must do it at the demanding party's reasonable expense.
1718*770 Lexar contends that the cost-shifting specified by section 2031(g)(1) may only be had upon a showing by the responding party that it will suffer undue burden or expense. This contention ignores the plain language of the statute. It is also based almost entirely upon federal law, which does not include a provision similar to the cost-shifting clause of section 2031(g)(1). Federal decisions are compelling where the California law is based upon a federal statute or the federal rules. (People v. Soto (1998) 64 Cal.App.4th 966, 987, 75 Cal.Rptr.2d 605.) But we cannot ignore the fact that California law governs in California cases. (International Ins. Co. v. Montrose Chemical Corp. (1991) 231 Cal.App.3d 1367, 1371, 282 Cal.Rptr. 783.) Given the patent difference between the state and federal schemes, Lexar's reliance upon federal decisions is misplaced. (Cf. J.R. Norton Co. v. General Teamsters, Warehousemen & Helpers Union (1989) 208 Cal.App.3d 430, 442, 256 Cal.Rptr. 246.) Furthermore, if we were to interpret the subdivision as Lexar contends, the cost-shifting provision would be surplusage. The trial court always has discretion to condition the production of documents upon “specified terms and conditions,” which would include the discretion to shift costs in an appropriate case. (§ 2031, subd. (f)(4).)
Lexar also argues that interpreting section 2031(g)(1) as an exception to the general rule would conflict with settled federal law. We agree that the cost-shifting provision of section 2031(g)(1) conflicts with the federal rule, but it appears to us that the Legislature intended it to be that way.
Section 2031 was modeled on rule 34 (28 U.S.C.). Rule 34(a) allows a party to serve a request to produce “any designated documents (including writings, drawings, graphs, charts, photographs, phonorecords, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form)....” Rule 34(b) specifies the manner in which a production is to be made. It states that the producing party shall make the production of documents “as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request.” No part of rule 34 requires the demanding party to pay the cost of translating data compilations.
The only reference in the legislative history to the cost-shifting provision of section 2031(g)(1) (former section 2031, subd. (f)(1), as amended by Stats.1987, ch. 86, § 13) is a reporter's note contained in the 1986 revisions to the Discovery Act: “The requirement that documents not be jumbled is taken from [rule] 34(b), as amended in 1970. Provision is made for translating data compilations by means of the responding party's equipment, but at the expense of the party seeking discovery.” (State Bar/Judicial Council J. Com. on Discovery, Proposed Cal. Civil Discovery Act of 1986, *771 and Reporter's Notes, notes on § 2031 reprinted in 2 Hogan & Weber, Cal. Civil Discovery (1997) appen. C, p. 430.) This note indicates to us that the revised statute was modeled on rule 34 and like that rule, required the responding party to translate data compilations if necessary; but unlike the federal rule, the revision imposed the expense of the translation upon the demanding party.
Lexar cites two policy reasons in support of its argument that the cost-shifting provision of section 2031(g)(1) is permissive only. First, Lexar contends that statutory cost shifting will encourage gamesmanship **540 in litigation. In our view, the potential for discovery abuse is no greater when the demanding party is expected to bear the expense of translating a data compilation into usable form than it is when the responding party pays. If the respondent is expected to bear its own expense, the demanding party has no incentive to demand anything less than all electronic data in any form. (See McPeek v. Ashcroft (D.D.C.2001) 202 F.R.D. 31, 33–34.) As this case demonstrates, such an unlimited demand can result in astronomical costs to the responding party, which in turn inflates the settlement value of even meritless cases. If the demanding party were required to bear the expense, then presumably that party would only demand what it really needs. “There is certainly no controlling authority for the proposition that restoring all backup tapes is necessary in every case.” (Id. at p. 33.)
On the other hand, we recognize that even when the discovery demand is narrowly drawn, the cost of recovering data from backup tapes or other data compilations can be exorbitant. It has been suggested that shifting the expense to the demanding party could mean that parties with limited resources would be restrained from obtaining discovery and might avoid bringing meritorious claims in the first place. (Zubulake, supra, 217 F.R.D. at pp. 317–318.) Lexar also argues that if demanding parties are required to pay to translate information contained in relatively inaccessible formats, business will choose such formats for the purpose of burying data. Assuming there is some basis for these concerns, it is important to note that the statute requires that the demanding party bear only its reasonable
expense and then only when translation is necessary
to obtain usable data. The reasonableness and necessity qualifications incorporate a measure of fairness that should mitigate these policy concerns.
Lexar also argues that statutory cost shifting would divest the trial court of its traditional discretion in discovery matters and would always require a requesting party to pay all costs associated with any translation of a data compilation regardless of the particular circumstances of the case. This is simply not so. The Discovery Act authorizes the trial court to manage discovery and to prevent misuse of discovery procedures. (See People v. *772 Superior Court (Cheek) (2001) 94 Cal.App.4th 980, 987, 114 Cal.Rptr.2d 760.) Moreover, as we have explained, the statute restricts the costs shifted to those that are necessary and reasonable. Where a demanding party is asked to pay for translations that the party does not believe are necessary, or when the party disputes the reasonableness of the expenses alleged, the party may always seek a protective order or move to compel production and the trial court may then make whatever orders justice requires. (§ 2031, subd. (f)(n).)
19In any event, it is not our role to set policy here. “[A]side from constitutional policy, the Legislature, and not the courts, is vested with the responsibility to declare the public policy of the state.” (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 71, 78 Cal.Rptr.2d 16, 960 P.2d 1046.) By enacting the cost-shifting clause of section 2031(g)(1) our Legislature has identified the expense of translating data compilations into usable form as one that, in the public's interest, should be placed upon the demanding party. That is, section 2031(g)(1) is a legislatively determined exception to the general rule that the responding party should bear the cost of responding to discovery. When there is no dispute about the application of the statute, the statute automatically shifts the expense of translating a data compilation into usable form to the demanding party. **541 The trial court's decision, which was based upon the general rule that the responding party bears that expense, was based upon a faulty legal analysis and was, therefore, an abuse of discretion.
2021The trial court's order was an abuse of discretion not because section 2031(g)(1) necessarily requires Lexar to pay all of TAEC's expenses in recovering data from its backup tapes, but because the trial court was never asked to decide whether and to what extent that subdivision applies to the production in dispute.
An order compelling TAEC to produce all responsive documents contained in the tapes without also requiring Lexar to pay any of the expense involved in translating the tapes into usable form, is an abuse of discretion absent a finding that translation is not necessary or that section 2031(g)(1) does not apply for some other reason.