It has been about five months since California Senate Bill 235 went into effect. The bill amended California Code of Civil Procedure section 2016.090, requiring parties to exchange initial disclosures within 60 days of a demand from any party.
As a recap, the changes made to section 2016.090 apply only to civil actions filed on or after January 1, 2024. The initial disclosures under this rule must include the following:
- “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.” Cal. Code Civ. Proc. § 2016.090(a)(1)(A).
- “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.” Cal. Code Civ. Proc. § 2016.090(a)(1)(B).
- “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.” Cal. Code Civ. Proc. § 2016.090(a)(1)(C).
- “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.” Cal. Code Civ. Proc. § 2016.09(a)(1)(D).
It remains to be seen how these changes to the California discovery rules will play out on a case-by-case basis.
The new law has the potential to streamline litigation, promote transparency and encourage good-faith conduct in the discovery process. It could also potentially encourage early resolution by reducing the need for lengthy traditional discovery processes.
However, it can also bring challenges to parties as it requires vigilance and efficiency in the initial investigation and evidence-gathering phase of the discovery process. This may prove to be even more arduous in large, complex actions where evidence may not be readily available. Moreover, a party “is not excused from making its initial disclosures because it has not fully investigated the case, because it challenges the sufficiency of another party’s disclosures, or because another party has not made its disclosures.” Cal. Code Civ. Proc. § 2016.090(a)(2).
Additionally, section 2016.090 includes requirements that go beyond Federal Rule of Civil Procedure 26 in that the parties must disclose witnesses and documents that are “relevant to the subject matter of the case.” Not only does this broaden the scope of information required to be disclosed, but it also extends the breadth of the parties’ initial fact investigation process. The parties may also be required to supplement their initial disclosures once they become aware of additional “relevant” information.
In all, the new initial disclosure rule necessitates considerable effort and preparation from the parties at the outset of the discovery phase—the full impact of which is yet to be realized. The January 1, 2027 sunset provision of section 2016.090 suggests that these changes may be reevaluated by the legislature at that time. Until then, we will continue to observe how this reform will influence California’s discovery process.
For more information on SB235 and its implications, please contact Raena Ohiri, Esq. at raena@annagueymccann.com.
