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From mutual to mandatory – how Section 2016.090 changes the landscape for discovery 

5/30/24

By: Thomas Livingston

On January 1, 2024, an amendment to California Code of Civil Procedure section 2016.090 (“Section 2016.090”) came into effect that significantly changes how discovery is conducted. In the previous iteration of Section 2016.090, the parties to an action were required to provide initial disclosures of specified information within 45 days but only upon a court order and a stipulation by the parties to provide such disclosures. With the passage of Senate Bill 235 (“SB 235”), parties can now demand initial disclosures without court order unless the parties stipulate or the court orders otherwise. Even further, SB 235 increased the sanctions from $250 to $1,000 for failure to timely respond to a document request, causing unnecessary delay, or failing to meet and confer in good faith. 

SB 235 was proposed and adopted to prevent abuse of the discovery process by increasing mandatory sanctions, expediting discovery, and promoting settlement. SB 235’s author noted that despite the previous iteration of Section 2016.090 imposing a mandatory $250 sanction for various discovery failures, the discovery process continued to be abused, leading to an increase in disputes that were expensive, time consuming, and ultimately delayed litigation. The author argued that a stronger message needed to be sent to litigators that abuse of the discovery process will not be tolerated. As a result, SB 235 aims to better mirror Federal Rules of Civil Procedure, Rule 26, which requires specific advance disclosures without awaiting a discovery request.  

With the adoption of SB 235, Practitioners must be aware of the following under Section 2016.090: 

• Either party can demand initial disclosures within 60 days of entering a case appearance; 
• A demanding party must provide the same disclosures requested within the 60 day period; 
• Initial disclosures include: 
  • The identity of all persons likely to have discoverable information that the disclosing party may use to support its claims or defenses, or that is relevant to the subject matter of the action other expert witnesses or retained consultants; 
  • 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; 
  • 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; and 
  • 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 or to indemnify or reimburse for payments made to satisfy the judgment, although only material provisions may be disclosed that include 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

• The parties must make the initial disclosures based on information reasonably available to the party at the time of disclosure and are not excused from making initial disclosures for: 
  • Not having fully investigated the case; 
  • Challenging the sufficiency of another party’s disclosures; or 
  • Because another party has not made their disclosures

• The initial disclosures must be verified either by written declaration by the party or the party’s authorized representative, or signed by the party’s counsel
• This provision only applies to civil actions filed on or after January 1, 2024, and will only be in effect until January 1, 2027, when it will be automatically repealed 

In addition, practitioners must also be aware that the court must impose a $1,000 sanction under Code of Civil Procedure section 2023.050 if it finds that: 

• The party, person, or attorney did not respond in good faith to a request for the production of documents; 
• The party, person, or attorney produced requested documents within seven days before a motion to compel hearing; or 
• The party, person, or attorney failed to confer with the party requesting the documents in a reasonable and good faith attempt resolve informally any dispute concerning the request 

Even further, the corresponding amendment to Code of Civil Procedure section 2023.050 provides that the court may, in its discretion, require a sanctioned attorney to report the sanction, in writing, to the California State Bar within 30 days of the imposition of the sanction. 

Beyond these new statutory requirements, practitioners must also think about the practical implications that Section 2016.090 imposes on attorneys and their clients. First, if any party makes a demand for these disclosures, that demanding party must also provide these disclosures within the same 60-day period. Second, practitioners should advise their clients to conduct investigations into claims as soon as possible to be prepared to respond to these disclosures within 60 days upon demand. There is no provision that permits parties to mutually agree to provide disclosures beyond the 60 day period, so parties should be ready as soon as possible. Lastly, practitioners must be aware that these disclosures apply to their claims and defenses. In demanding these disclosures, practitioners may also be disclosing the identity of witnesses before fully developing their theories of the case, or determining whether the witnesses support their claims and defenses.  

In sum, while the amendment to Section 2016.090 is a powerful discovery tool, practitioners should carefully consider whether to utilize Section 2016.090 or whether other methods would be more beneficial.  

For more information, please contact Thomas Livingston at thomas.livingston@fmglaw.com or your local FMG attorney.