Previously, California did not require initial disclosures unless stipulated to by the parties or ordered by the court.

Governor Gavin Newsom recently signed Senate Bill 235 into law, significantly altering the civil discovery process in California. The new law amends California Code of Civil Procedure Sections 2016.090 and 2023.050. The new requirements apply to cases filed on or after January 1, 2024.

The new law introduces several major changes to the California Discovery Act, which now mandates parties to provide initial disclosures similar to (but broader than) those required under Rule 26(a) of the Federal Rules of Civil Procedure. Parties served with a demand for disclosure must respond within 60 days. The act now also imposes more serious monetary sanctions for bad faith discovery conduct, increasing the fine from $250 to $1,000, with potential mandatory reporting to the State Bar of California.

Initial Disclosure Procedure

Previously, California did not require initial disclosures unless stipulated to by the parties or ordered by the court. Parties had 45 days to respond. The California Discovery Act now requires that all parties provide initial disclosures “within 60 days of a demand by any party to the action” or by court order. The parties can modify the disclosures by stipulation or choose not to make a demand.

Information Required to Be Disclosed

As in Rule 26(a)(1), parties must disclose four categories of information. However, Senate Bill 235 broadens the scope to include information “that is relevant to the subject matter.” But parties are not required to disclose information solely to be used for impeachment of persons retained as experts.

Upon demand, a party must provide:

1. 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.
2. 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.
3. Any contractual agreement or insurance policy under which an insurance company may be liable to satisfy or reimburse a judgment.
4. Any material contractual provisions or terms under which a person may be liable to satisfy a judgment or to indemnify or reimburse for payments made to satisfy the judgment.

A party is not excused from making initial disclosures because it has not fully investigated the case, challenges the sufficiency of the other party’s disclosures, or another party has not made its disclosures.

The bill also allows for parties to propound supplemental demands. A party can propound supplemental demands twice before the setting of an initial trial date and once after an initial trial date is set. The court can also grant leave of a party to propound one additional demand where good cause is shown.

Verification Requirements

Previously, the initial disclosures had to be verified by the party under penalty of perjury. The California Discovery Act now requires initial disclosures to be verified by written declaration of the party, the party’s authorized representative or signed by the party’s counsel.

Sanctions

Senate Bill 235 also increases the current $250 fine amount for sanctions imposed on parties or attorneys who do not respond to discovery in good faith. The California Discovery Act now has a $1,000 minimum fine. The court can also require a sanctioned attorney to report the sanction to the State Bar of California within 30 days.

Exceptions

The new procedure does not apply to any party not represented by counsel or in actions commencing in probate or family court.

Conclusion

The new law will likely significantly impact discovery practice in California state courts. The Legislature has attempted to align the initial discovery process with the federal rules. However, it is unclear how California courts will enforce the new rules. The bill will sunset on January 1, 2027, giving time for courts and the Legislature to experiment and adopt additional changes in the near future.

The California Legislature is attempting to streamline the discovery process and make it more efficient and less costly. Senate Bill 235’s ultimate goal is to eliminate gamesmanship during discovery, but that remains to be seen. It may become more beneficial for parties to stipulate and limit the scope of disclosures to avoid potential sanctions. Likely, the shift to mandatory disclosures is here to stay, and parties should be aware of how the new rules will impact early evaluations of their case.

For More Information

If you have any questions about this Alert, please contact Stephen H. Sutro, Courtney L. Baird, Dillon Denio, Ayad Mathews, any of the attorneys in our Trial Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.