There are two significant changes to the Discovery Act this year: C.C.P. §2016.090 and C.C.P. §2023.050. My California Civil Discovery: Chart for the Everyday Litigator has been updated to reflect these changes.
Code of Civil Procedure §2016.090—Initial Disclosures
Effective January 1, 2024, Code of Civil Procedure §2016.090 allows a party to serve a demand for Initial Disclosure. The statute reads:
(1) Within 60 days of a demand 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))
While the disclosure statute was an attempt to streamline the exchange of information, the new disclosure rules are inferior to the existing statutes regarding interrogatories and requests for production of documents. I predict that enforcement of the statute as well as any motion to exclude evidence due to the failure to provide the information in the disclosure will be difficult. This all will be discussed in a further blog. While the statute appears to be an easy way to seek preliminary information, I recommend that you serve the Judicial Council Form Interrogatories to obtain your opponent’s fact witness and their insurance information, and serve a standard request for production of documents that are “reasonably particularized.” Your discovery will be due in 30 days instead of 60 days and there will be no question that your discovery requests will be enforceable.
Mandatory Sanctions Regarding Requests for Production of Documents
On January 1, 2020, Code of Civil Procedure §2023.050 became effective, which required the court to impose $250.00 mandatory sanctions on motions involving requests for production of documents. This set up a party’s ability 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. Remember this statute. It will come in handy.