New Initial Disclosures under CCP §2016.090

  • Published on Mar 12, 2024
Written by: Philip Favro

Philip Favro is a leading expert on issues relating to electronically stored information. Phil serves as a court-appointed special master, expert witness, and trusted advisor to law firms and organizations on matters involving ESI and electronic discovery. He is a nationally recognized scholar on electronic discovery, with courts and academic journals citing his articles. Phil also regularly provides training to judges on electronic discovery and ESI. He is a licensed attorney who in private practice represented organizations and individuals in litigation across the spectrum of business disputes. In addition to handling a range of complex and other discovery issues, Phil has extensive experience in the courtroom including summary judgment, preliminary injunction, and discovery motion practice, together with trial and arbitration experience.

A new wave of discovery requirements has hit California and parties need to be prepared or risk having claims and defenses swept under and drowned. For cases filed after January 1, 2024, Code of Civil Procedure §2016.090 requires parties in most litigation matters to describe or disclose within 60 days a wide swath of information relevant to the subject matter of an action if any party so demands. Specifically, parties must provide:

(a) the names of, and contact information for, all witnesses likely to have discoverable information relevant to the subject matter of the litigation, and the subjects of the information for each,

(b) all documents, ESI, and tangible things relevant to the subject matter of the litigation, or a description by category and location of such, and

(c) documents and key details regarding pertinent insurance or indemnity coverage.

In this article, we review these changes and their impact on discovery practice. We also examine some procedural questions left unanswered, discuss the importance of discovery planning far earlier in litigation, and explore some key practice tips.

Background and Key Aspects of CCP §2016.090 Amendments

The changes to CCP §2016.090 originated in 2019 when California enacted legislation from State Senator Tom Umberg for an initial disclosure requirement similar to that of Federal Rule of Civil Procedure 26(a)(1). Senator Umberg, a practicing attorney from Orange County, asserted that this step could reduce gamesmanship in discovery. Effective 1/1/2020, CCP §2016.090 obligated parties to disclose witnesses, documents, ESI, and other tangible materials relevant to their claims or defenses, as well as certain insurance coverage information.

The impact of the 2020 changes was negligible because the provisions applied only upon a stipulation and court order. Understandably, few parties agreed to accelerate their discovery obligations.

The 2023 amendments now make CCP §2016.090 disclosure mandatory in most civil matters upon “a demand by any party to the action.” Once a demand is made, all parties must comply. Further, the disclosure response either needs to be verified by the client or signed by counsel, the latter being equivalent to a discovery response and subject to the reasonable inquiry obligation and enforcement provisions under CCP §128.7.

As for the contents of the disclosure, the parties’ obligations are broader than the 2020 version of CCP §2016.090. The law now requires disclosure of specified information “relevant to the subject matter of the action” rather than just information that may be used to support claims or defenses. Indeed, such an obligation exceeds FRCP 26(a)(1). In addition, the amendments augment the insurance disclosure provisions by requiring parties to divulge applicable contracts and policies, along with “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.”

Further, CCP §2016.090(a)(3) provides parties with the right to issue supplemental demands for disclosure. Parties may issue two demands before a court sets a trial date and potentially a third afterwards, depending on matter timelines.

There are some narrow exemptions from the disclosure requirements, including unlawful detainer, family law, probate, small claims, and pro se matters, along with actions where a party has been given preference. There is also a sunset provision, making the new requirements applicable for just three years, through 12/31/2026. Parties’ experiences with the new requirements will certainly play a part in potential renewal legislation in 2026.

A change was also made to CCP §2023.050, which now authorizes courts to impose sanctions for $1,000 (rather than $250) for discovery violations. As with the 2020 analog, a court may require counsel to report any sanctions to the State Bar, notwithstanding Business & Professions Code §6068(o).

Open Questions and Practice Tips

Should You Demand Initial Disclosures? Lawyers should carefully consider whether to serve a CCP §2016.090 demand. Even parties with relatively little information—such as plaintiffs in asymmetrical lawsuits—may be significantly impacted. While large business parties must expedite their inquiry into witness information and potentially myriad locations of documents and ESI, individuals and smaller businesses will have their own challenges with identifying, preserving, and collecting relevant ESI from social media accounts, messaging applications, and other outsourced information systems. In addition, parties may insist on early disclosure of witnesses and documents about damages as “things relevant to the subject matter of the litigation.” Reflexively requesting an early initial disclosure could be more problematic than prudent.

What are My Obligations Upon Receipt of a CCP §2016.090 demand? Parties should be ready for CCP §2016.090 demands at the outset of litigation. Unlike federal court, there is no initial discovery stay. What general steps should parties take to comply? CCP §2016.090(a)(2) states “[a] party shall make its initial disclosures based on the information then reasonably available to it,” implying that anything not “then reasonably available” could be addressed later. However, the section next indicates “[a] party is not excused from making its initial disclosures because it has not fully investigated the case ….” There is tension between these requirements that parties must address. Parties should be thorough in disclosing known witnesses, categories/locations of documents, and insurance information, particularly in response to a first demand, and should consider proactive supplements for any later-discovered information, A tardy disclosure may lead to satellite litigation regarding the reasonableness of a prior response. It could also elicit a motion in limine to exclude such information in motion practice or at trial, or a request for sanctions.

How Should Parties Prepare for Initial Disclosures?

What Information Should Be Shared? For the identification of witnesses, parties should be able to disclose general business contact information for employees. However, non-party witnesses present issues. For prior employees, must parties disclose confidential contact information (PII) or should they first seek to establish representation and indicate the witnesses can be reached through counsel? What about nonparty witnesses? For ESI, should parties simply produce documents or describe them by category and location, thereby obtaining additional time for production but inviting scrutiny and dialogue? The latter approach would accommodate timing for a protective order, ESI protocol, and/or entry of the state law equivalent of a Federal Rule of Evidence 502(d) non-waiver order.

Can Parties Serve Objections? CCP §2016.090 does not address asserting objections. Parties should serve objections to preserve their rights, as the failure to do so might later be construed as a waiver. Although parties may be tempted to assert broad, general objections, such objections may trigger time-consuming dialogue and requests for sanctions. Instead, parties should consider preserving with specificity key rights in the areas of privilege, work product, relevance (perhaps by stating what a party believes is in the “scope of information relevant to the subject matter” of the litigation and what is not), undue burden (either as grounds for an extension or for a protective order), the need to continue performing a reasonable investigation (again, with an explanation of what has been done and what remains, with a timeline for the latter), and the right to supplement.

May Parties Stipulate to Modify CCP §2016.090 Requirements? As with objections, nothing in CCP §2016.090 changes existing practices regarding the ability of parties to modify by stipulation any requirements or timelines. Parties may need more than 60 days to complete the investigation and disclosure process and counsel may consider requesting stipulated extensions and/or phasing of disclosures. Whether parties should enter into a stipulation will vary from case to case, but counsel should recognize that courts may not be pleased with failures to extend reasonable, professional courtesies. Further, nothing in CCP §2016.090 prevents a party from seeking a protective order in the face of unreasonable positions.

Beyond these questions are many more. Given the absence of any California authority on initial disclosure issues, parties should be willing to meet and confer and look for reasonable solutions. Parties who refuse to do so may find courts even less prepared (and less receptive) than counsel to address disputes. All of this suggests patience, along with proactive compliance, as clients and counsel collectively ride the new wave of discovery under CCP §2016.090.

The Recorder first published this as an article on its website on January 26, 2024.