San Diego, Calif. (April 10, 2024)– California legislators have changed the rules of discovery in civil cases through the passage of amendments to Code of Civil Procedure sections 2016.090 and 2023.050, effective January 1, 2024.

Section 2016.090 creates a new set of rules for civil litigators in cases filed on or after January 1, 2024, which permits any party to the litigation to demand initial disclosures be provided within 60-days. Such a demand can be made any time after a party has filed a responsive pleading, including a demurrer or motion to strike.

Notably, this rule requires production of all information relevant to any causes of action that are pled at the time of the demand, meaning the parties may be required to disclose information related to claims that are being challenged on demurrer or a motion to strike, such as claims for punitive damages. This statute is only implicated when one of the parties to the action makes a demand and may be modified by stipulation of the parties.

The new disclosure rules require parties to disclose any information or documents the disclosing party may use to support its claims or defenses; relevant to the subject matter of the action; or relevant to the order on any motion made in that action. These include:

“Identification and contact information of all persons likely to have “discoverable information.”

  • Does not include information that is going to be used solely for impeachment.

Production of 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.

  • Does not include documentation or other tangible thing that will be used solely for impeachment.

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.

  • Includes contacts and policies obligating indemnification or reimbursement for payments made to satisfy the judgment.

Any and all contractual agreements and any and all insurance policies under which a person may be liable to satisfy, in whole or in part, a judgment entered in the action.

  • Includes contacts and policies obligating indemnification or reimbursement for payments made to satisfy the judgment.
  • Only requires production of the provisions that are material to the terms of the insurance, indemnification, or reimbursement and 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.

Importantly, the rule specifies that parties are not excused from making these initial disclosures for failure to fully investigate the claim or because it takes issue with the disclosures (or lack thereof) made by another party.

Another change that was enacted in this matter is to allow the parties to make two supplemental demands prior to the setting of a trial date, and again after the initial setting of a trial date, increasing the number of supplemental demands permitted by statute from one to three.

While Section 2016.090 applies in most civil cases, there are exceptions. This change does not apply in: cases granted preference under Code of Civil Procedure section 36; small claims actions; probate actions; family law matters, and cases involving pro per litigants.

Section 2016.090 is also accompanied by changes to Section 2023.050. Section 2023.050 now requires mandatory sanctions and permits a court to refer an attorney sanctioned under this section to the state bar. Specifically, this section imposes a mandatory $1,000 sanction if the court finds a party has:

Failed to respond in good faith to a request for production of documents or inspection demand;

Refused to produce responsive documents until seven days prior to a scheduled hearing on a motion to compel production;

Failed to meet and confer in good faith to resolve the outstanding discovery issues.

While the sanction is mandatory, a court is permitted to excuse the sanction if the court finds the person subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

Criticisms of these statutes have been lodged by both sides of the civil bar, with plaintiff’s counsel arguing that the disclosure requirements will be overly obstructive and restricting on their ability to fully investigate their cases prior to filing; and defense counsel arguing the rules will require overly burdensome disclosure of information that is not relevant to the ultimate claims that will be litigated. The criticisms are not limited to attorneys. Judges, too, have expressed some concerns, including: impacts to their dockets caused by parties’ motion for protective order; motions for expedited hearings on motions to strike or demurrer motions; and some parties to a proceeding stipulating around the rule while other parties to the proceeding refuse to stipulate around it.

We anticipate some of these issues will eventually end up in California appellate courts in the coming years and will await new law and further guidance as it comes.