A New Approach to Discovery: California Enacts Sweeping Changes to the Code of Civil Procedure.

  • Names and contact information of persons with discoverable information AND copies of documents that the disclosing party may use to support its defenses OR is relevant to the subject matter of the action
  • Any relevant insurance policies that are available to satisfy the judgment in whole or part.
  • Any contracts for indemnity under which a person or entity may be required to reimburse payments to satisfy the judgment.
  • Self represented parties are exempt, they cannot demand or respond to initial disclosures.
  • A party is not excused from making initial disclosures because it has not fully investigated the case or because the demanding party has not made full disclosures.
  • The new law allows a party to move to compel disclosure when there is no response or an inadequate response. A party that fails to comply can be sanctioned up to $1,000.
  • The criteria is all “relevant” information and documents, which may include unfavorable evidence as well.

The goal of the change in law is to eliminate gamesmanship, and make litigation more efficient and less costly. Indeed, given the up-front disclosures, there may be a reduction in the amount of written discovery. Parties will be required to evaluate their respective cases and positions sooner than they otherwise would have. However, there are drawbacks. The statutory time period to respond to initial disclosures is 60 days, which is twice that of written discovery (only 30 days). The initial disclosures are also generalized and not individually tailored to the facts and issues in a case.

There is also a concern that “relevant” is not defined by the statute, so the disclosing party can decide how narrow or broad to construe this term and do so strategically. This may have the opposite effect of the Legislature’s intent to address gamesmanship in discovery.

Litigants should anticipate that initial disclosures will streamline written discovery, but depending on the complexity of each case, it is unlikely to eliminate written discovery altogether. Rather, litigants should consider using initial disclosures effectively as part of a tailored discovery plan that includes written requests and subpoenas.

Elizabeth has litigated cases in many areas of law, including personal injury, products liability, premises liability, contract disputes, employment law, professional negligence, and insurance arbitration.