California, home to one-eighth of the nation's population and a pioneer in legal innovation, has implemented two substantial changes to its Civil Discovery Act (Code of Civil Procedure Sections 2016-2036) effective in 2024. These revisions focus on Initial Disclosures (C.C.P. § 2016.090) and Mandatory Sanctions for Document Production Requests (C.C.P. § 2023.050).
Under C.C.P. § 2016.090, the statute regarding Initial Disclosures provides:
(1) Within 60 days of a demand [for Initial Disclosure] by any party to the action, each party that has appeared in the action, including the party that made the demand, shall provide to the other parties an initial disclosure that includes all of the following information:
(A) The names, addresses, telephone numbers, and email addresses of all persons likely to have discoverable information, along with the subjects of that information, that the disclosing party may use to support its claims or defenses, or that is relevant to the subject matter of the action or the order on any motion made in that action, unless the use would be solely for impeachment. The disclosure required by this subparagraph is not required to include persons who are expert trial witnesses or are retained as consultants who may later be designated as expert trial witnesses, as that term is described in Chapter 18 (commencing with Section 2034.010) of Title 4 of Part 4.
(B) A copy, or a description by category and location, of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, or that is relevant to the subject matter of the action or the order on any motion made in that action, unless the use would be solely for impeachment.
(C) Any contractual agreement and any insurance policy under which an insurance company may be liable to satisfy, in whole or in part, a judgment entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.
(D) Any and all contractual agreements and any and all insurance policies under which a person, as defined in Section 175 of the Evidence Code, may be liable to satisfy, in whole or in part, a judgment entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Only those provisions of an agreement that are material to the terms of the insurance, indemnification, or reimbursement are required to be included in the initial disclosure. Material provisions include, but are not limited to, the identities of parties to the agreement, the nature and limits of the coverage, and any and all documents regarding whether any insurance carrier is disputing the agreement’s or policy’s coverage of the claim involved in the action. (C.C.P. §2016.090(a)(1))
A party is obligated to make its initial disclosures based on the information then reasonably available to it. (C.C.P. §2016.090(a)(2))
A party’s disclosures must be verified either in a written declaration by the party or the party’s authorized representative or signed by the party’s counsel. (C.C.P. §2016.090(a)(5))
A party that has made, or responded to, a demand for an initial disclosure may propound a supplemental demand twice before the initial setting of a trial date, and once after the initial setting of a trial date. A party may also be granted a fourth disclosure upon the showing of good cause. (C.C.P. §2016.090(a)(3))
A party’s obligations under this section may be enforced by a court on its own motion or the motion of a party to compel disclosure. (C.C.P. §2016.090(a)(4))
This statute does not apply to cases involving unlawful detainers, small claims, family law, probate, or cases granted preference. (C.C.P. §2016.090(b)) It also does not apply to cases where a party is not represented by counsel. (C.C.P. §2016.090(c))
Going through the statute and comparing it to the existing laws pertaining to interrogatories and requests for production of documents, it appears that the author wanted to create the impression of similarity to the federal initial disclosure statute (Federal Rules of Civil Procedure Rule 26). On closer inspection, however, there are some weaknesses in California’s law.
First, instead of the 30-day period for providing responses to interrogatories and requests for production, the statute allows for 60 days.
Second, for parties not providing responses under the statute, motions to compel responses may be difficult to enforce, primarily because of the lack of clear standards for what is discoverable.It would be best for your attorney to have you propound interrogatories and reasonably particularized requests for production of documents. Those means of discovery are unquestionably enforceable.
As for document productions, on January 1, 2020, C.C.P. § 2023.050 became effective. That act required the court to impose $250.00 mandatory sanctions on motions involving requests for production of documents. This was the foundation for a party to bring issue, evidence, and terminating sanctions due to the prior mandatory monetary sanction. Effective January 1, 2024, Code of Civil Procedure §2023.050 now reads that the mandatory sanctions are $1000.00.Although the Court retains the power to reduce or waive the monetary sanction, the statute nonetheless reveals a much more punitive approach in the face of discovery abuse. As a result, the tone of meet and confer letters can be much stronger in light of this legislative amendment.
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