SB 235: Civil discovery.
- Session Year: 2023-2024
- House: Senate
- Latest Version Date: 2023-09-30
Current Status:
Passed
(2023-09-30: Chaptered by Secretary of State. Chapter 284, Statutes of 2023.)
Introduced
In Committee
First Chamber
In Committee
Second Chamber
Enacted
What does this bill do?
The bill requires parties in most civil lawsuits to provide broader initial disclosures to other parties after any party requests them, including names of people with relevant information, copies or descriptions of relevant records, and insurance policies or contracts that could pay or cover a judgment. It allows limited supplemental disclosure requests, lets disclosures be verified by the party’s written declaration or the party’s attorney’s signature, and exempts people without lawyers and certain case types (for example, unlawful detainer, small claims, family, and probate). The bill also raises the court sanction for failing to respond in good faith to a document request from $250 to $1,000.
The summary is provided by generative AI which can make mistakes. For original language, please view the details in the table below.
The Civil Discovery Act authorizes the court, with the stipulation of the parties to a civil action other than an unlawful detainer or small claims action, to order the parties to provide initial disclosures to the other parties to the action within 45 days of the courts order. Existing law requires a party providing initial disclosures to provide information regarding persons who have information, or records containing information, supporting the partys claims and defenses, and information regarding agreements which would make a person or an insurance company liable to satisfy a judgment in the action through reimbursement or indemnification. Existing law requires a party to supplement or correct such a disclosure or response, as specified. Existing law requires initial disclosures to be verified by the party under penalty of perjury. Under existing law, these provisions do not apply to unlawful detainer actions or actions brought in the small claims division of a court, as specified.
This bill would instead require each party that has appeared in a civil action to provide initial disclosures, as specified, to the other parties to the action within 60 days of a demand by any party to the action unless modified by the stipulation of the parties. The bill would require a party making initial disclosures of persons or records to additionally disclose persons or records that are relevant to the subject matter of the action, except as specified, and to disclose information and records regarding insurance policies or contracts that would make a person or insurance company liable to satisfy a judgment. The bill would allow a party who has made, or responded to, a demand for initial disclosures to propound supplemental demands, as specified. The bill would instead require initial disclosures to be verified via the written declaration of the party or the partys authorized representative, or signed by the partys counsel. The bill would exempt any party not represented by counsel from these requirements. In addition to the exemptions described above, the bill would specify that its provisions do not apply to actions or proceedings commenced in whole or in part under the Family Code or Probate Code, or to an action in which a party has been granted preference, as specified. The bill would repeal these provisions on January 1, 2027.
Existing law requires a court to impose a $250 sanction against a party, person, or attorney upon findings that the party, person, or attorney (1) failed to respond in good faith to a document request, (2) produced the requested documents within 7 days of a motion to compel that is filed by the requesting party as a result of the other party, person, or attorneys failure to respond in good faith, or (3) failed to meet and confer in person, by telephone, by letter, or other means of communication in writing, to resolve any dispute regarding the request.
This bill would increase the amount of the sanction to $1,000.
The Civil Discovery Act authorizes the court, with the stipulation of the parties to a civil action other than an unlawful detainer or small claims action, to order the parties to provide initial disclosures to the other parties to the action within 45 days of the courts order. Existing law requires a party providing initial disclosures to provide information regarding persons who have information, or records containing information, supporting the partys claims and defenses, and information regarding agreements which would make a person or an insurance company liable to satisfy a judgment in the action through reimbursement or indemnification. Existing law requires a party to supplement or correct such a disclosure or response, as specified. Existing law requires initial disclosures to be verified by the party under penalty of perjury. Under existing law, these provisions do not apply to unlawful detainer actions or actions brought in the small claims division of a court, as specified.
This bill would instead require each party that has appeared in a civil action to provide initial disclosures, as specified, to the other parties to the action within 60 days of a demand by any party to the action unless modified by the stipulation of the parties. The bill would require a party making initial disclosures of persons or records to additionally disclose persons or records that are relevant to the subject matter of the action, except as specified, and to disclose information and records regarding insurance policies or contracts that would make a person or insurance company liable to satisfy a judgment. The bill would allow a party who has made, or responded to, a demand for initial disclosures to propound supplemental demands, as specified. The bill would instead require initial disclosures to be verified via the written declaration of the party or the partys authorized representative, or signed by the partys counsel. The bill would exempt any party not represented by counsel from these requirements. In addition to the exemptions described above, the bill would specify that its provisions do not apply to actions or proceedings commenced in whole or in part under the Family Code or Probate Code, or to an action in which a party has been granted preference, as specified. The bill would repeal these provisions on January 1, 2027.
Existing law requires a court to impose a $250 sanction against a party, person, or attorney upon findings that the party, person, or attorney (1) failed to respond in good faith to a document request, (2) produced the requested documents within 7 days of a motion to compel that is filed by the requesting party as a result of the other party, person, or attorneys failure to respond in good faith, or (3) failed to meet and confer in person, by telephone, by letter, or other means of communication in writing, to resolve any dispute regarding the request.
This bill would increase the amount of the sanction to $1,000.
The Civil Discovery Act authorizes the court, with the stipulation of the parties to a civil action other than an unlawful detainer or small claims action, to order the parties to provide initial disclosures to the other parties to the action within 45 days of the courts order. Existing law requires a party providing initial disclosures to provide information regarding persons who have information, or records containing information, supporting the partys claims and defenses, and information regarding agreements which would make a person or an insurance company liable to satisfy a judgment in the action through reimbursement or indemnification. Existing law requires a party to supplement or correct such a disclosure or response, as specified. Existing law requires initial disclosures to be verified by the party under penalty of perjury. Under existing law, these provisions do not apply to unlawful detainer actions or actions brought in the small claims division of a court, as specified.
This bill would instead require each party that has appeared in a civil action to provide initial disclosures, as specified, to the other parties to the action within 60 days of a demand by any party to the action unless modified by the stipulation of the parties. The bill would require a party making initial disclosures of persons or records to additionally disclose persons or records that are relevant to the subject matter of the action, except as specified, and to disclose information and records regarding insurance policies that would make a person or insurance company liable to satisfy a judgment. The bill would allow a party who has made made, or responded to, a demand for initial disclosures to propound supplemental demands, as specified. The bill would instead require initial disclosures to be verified via the written declaration of the party or the partys authorized representative, or signed by the partys counsel. The bill would exempt any party not represented by counsel from these requirements. In addition to the exemptions described above, the bill would specify that its provisions do not apply to actions or proceedings commenced in whole or in part under the Family Code or Probate Code, or to an action in which a party has been granted preference, as specified. The bill would repeal these provisions on January 1, 2027.
Existing law requires a court to impose a $250 sanction against a party, person, or attorney upon findings that the party, person, or attorney (1) failed to respond in good faith to a document request, (2) produced the requested documents within 7 days of a motion to compel that is filed by the requesting party as a result of the other party, person, or attorneys failure to respond in good faith, or (3) failed to meet and confer in person, by telephone, by letter, or other means of communication in writing, to resolve any dispute regarding the request.
This bill would increase the amount of the sanction to $1,000.
The Civil Discovery Act authorizes the court, with the stipulation of the parties to a civil action other than an unlawful detainer or small claims action, to order the parties to provide initial disclosures to the other parties to the action within 45 days of the courts order. Existing law requires a party providing initial disclosures to provide information regarding persons who have information, or records containing information, supporting the partys claims and defenses, and information regarding agreements which would make a person or an insurance company liable to satisfy a judgment in the action through reimbursement or indemnification. Existing law requires a party to supplement or correct such a disclosure or response, as specified. Existing law requires initial disclosures to be verified by the party under penalty of perjury. Under existing law, these provisions do not apply to unlawful detainer actions or actions brought in the small claims division of a court, as specified.
This bill would instead require each party that has appeared in a civil action to provide initial disclosures, as specified, to the other parties to the action within 60 days of a demand by any party to the action unless modified by the stipulation of the parties. The bill would require a party making initial disclosures of persons or records to additionally disclose persons or records that are relevant to the subject matter of the action, except as specified, and to disclose information and records regarding insurance policies that would make a person or insurance company liable to satisfy a judgment. The bill would allow a party who has made a demand for initial disclosures to propound supplemental demands, as specified. The bill would instead require initial disclosures to be verified via the written declaration of the partys counsel. The bill would exempt any party not represented by counsel from these requirements. In addition to the exemptions described above, the bill would specify that its provisions do not apply to actions or proceedings commenced in whole or in part under the Family Code or Probate Code, or to an action in which a party has been granted preference, as specified. The bill would repeal these provisions on January 1, 2027.
Existing law requires a court to impose a $250 sanction against a party, person, or attorney upon findings that the party, person, or attorney (1) failed to respond in good faith to a document request, (2) produced the requested documents within 7 days of a motion to compel that is filed by the requesting party as a result of the other party, person, or attorneys failure to respond in good faith, or (3) failed to meet and confer in person, by telephone, by letter, or other means of communication in writing, to resolve any dispute regarding the request.
This bill would increase the amount of the sanction to $1,000.
The Civil Discovery Act authorizes the court, with the stipulation of the parties to a civil action other than an unlawful detainer or small claims action, to order the parties to provide initial disclosures to the other parties to the action within 45 days of the courts order. Existing law requires a party providing initial disclosures to provide information regarding persons who have information, or records containing information, supporting the partys claims and defenses, and information regarding agreements which would make a person or an insurance company liable to satisfy a judgment in the action through reimbursement or indemnification. Existing law requires a party to supplement or correct such a disclosure or response, as specified. Existing law requires initial disclosures to be verified by the party under penalty of perjury. Under existing law, these provisions do not apply to unlawful detainer actions or actions brought in the small claims division of a court, as specified.
This bill would instead require each party that has appeared in a civil action to provide initial disclosures, as specified, to the other parties to the action within 60 days of a demand by any party to the action unless modified by the stipulation of the parties. The bill would require a party making initial disclosures of persons or records to additionally disclose persons or records that are relevant to the subject matter of the action, except as specified, and to disclose information and records regarding insurance policies that would make a person or insurance company liable to satisfy a judgment. The bill would allow a party who has made a demand for initial disclosures to propound supplemental demands, as specified. The bill would instead require initial disclosures to be verified via the written declaration of the partys counsel. The bill would exempt any party not represented by counsel from these requirements. In addition to the exemptions described above, the bill would specify that its provisions do not apply to actions or proceedings commenced in whole or in part under the Family Code or Probate Code. The bill would repeal these provisions on January 1, 2029. 2027.
Existing law requires a court to impose a $250 sanction against a party, person, or attorney upon findings that the party, person, or attorney (1) failed to respond in good faith to a document request, (2) produced the requested documents within 7 days of a motion to compel that is filed by the requesting party as a result of the other party, person, or attorneys failure to respond in good faith, or (3) failed to meet and confer in person, by telephone, by letter, or other means of communication in writing, to resolve any dispute regarding the request.
This bill would increase the amount of the sanction to $1,000.
The Civil Discovery Act authorizes the court, with the stipulation of the parties to a civil action other than an unlawful detainer or small claims action, to order the parties to provide initial disclosures of specified information to the other parties to the action within 45 days of the courts order. Existing law requires a party providing initial disclosures to provide information regarding persons who have information, or records containing information, supporting the partys claims and defenses, and information regarding agreements which would make a person or an insurance company liable to satisfy a judgment in the action through reimbursement or indemnification. Existing law requires a party to supplement or correct such a disclosure or response, as specified. Existing law requires initial disclosures to be verified by the party under penalty of perjury.
This bill would instead make require each party that has appeared in a civil action to provide initial disclosures mandatory in a civil action disclosures, as specified, to the other parties to the action within 60 days of a demand by any party to the action unless modified by a court order upon the stipulation of the parties. The bill would require a party making initial disclosures of persons or records to additionally disclose persons or records that are relevant to the subject matter of the action, except as specified, and to disclose information and records regarding insurance policies that would make a person or insurance company liable to satisfy a judgment. The bill would allow a party who has made a demand for initial disclosures to propound supplemental demands, as specified. The bill would instead require initial disclosures to be verified via the written declaration of the partys counsel. The bill would exempt any party not represented by counsel from these requirements. The bill would repeal these provisions on January 1, 2029.
Existing law requires a court to impose a $250 sanction against a party, person, or attorney upon findings that the party, person, or attorney (1) failed to respond in good faith to a document request, (2) produced the requested documents within 7 days of a motion to compel that is filed by the requesting party as a result of the other party, person, or attorneys failure to respond in good faith, or (3) failed to meet and confer in person, by telephone, by letter, or other means of communication in writing, to resolve any dispute regarding the request.
This bill would increase the amount of the sanction to $1000. $1,000.
The Civil Discovery Act authorizes the court, with the stipulation of the parties to a civil action other than an unlawful detainer or small claims action, to order the parties to provide initial disclosures of specified information to the other parties to the action within 45 days of the courts order. Existing law requires a party to supplement or correct such a disclosure or response, as specified.
This bill would instead make initial disclosures mandatory in a civil action unless modified by a court order upon the stipulation of the parties.
Existing law requires a court to impose a $250 sanction against a party, person, or attorney upon findings that the party, person, or attorney (1) failed to respond in good faith to a document request, (2) produced the requested documents within 7 days of a motion to compel that is filed by the requesting party as a result of the other party, person, or attorneys failure to respond in good faith, or (3) failed to meet and confer in person, by telephone, by letter, or other means of communication in writing, to resolve any dispute regarding the request. For the purposes of this provision existing law establishes a rebuttable presumption that a natural person acted in good faith if that person was not represented by an attorney in the action at the time sanctionable conduct occurred.
This bill would delete the requirement to impose a $250 sanction as specified above, and instead require a court to impose a $1000 sanction against a party, person, or attorney upon findings that the party, person, or attorney (1) failed to timely respond to a document request, (2) intended to cause unnecessary delay by producing the requested documents within 7 days before the court was scheduled to a hear a motion to compel filed by the requesting party, and (3) failed to meet and confer in person, by telephone, by letter, or by other means of communication in writing, to resolve any dispute regarding the request. The bill would delete the provision establishing the rebuttable presumption described above. increase the amount of the sanction to $1000.
Existing law requires a court to impose a $250 sanction against a party, person, or attorney upon findings that the party, person, or attorney (1) failed to respond in good faith to a document request, (2) produced the requested documents within 7 days of a motion to compel that is filed by the requesting party as a result of the other party, person, or attorneys failure to respond in good faith, or (3) failed to meet and confer in person, by telephone, by letter, or other means of communication in writing, to resolve any dispute regarding the request. For the purposes of this provision existing law establishes a rebuttable presumption that a natural person acted in good faith if that person was not represented by an attorney in the action at the time sanctionable conduct occurred.
This bill would delete the requirement to impose a $250 sanction as specified above, and instead require a court to impose a $1000 sanction against a party, person, or attorney upon findings that the party, person, or attorney (1) failed to timely respond to a document request, (2) intended to cause unnecessary delay by producing the requested documents within 7 days before the court was scheduled to a hear a motion to compel filed by the requesting party, and (3) failed to meet and confer in person, by telephone, by letter, or by other means of communication in writing, to resolve any dispute regarding the request. The bill would delete the provision establishing the rebuttable presumption described above.
(a)The following shall apply in a civil action unless modified by stipulation by all parties to the action:
(1)Within 60 days of a demand by any party to the action, each party that has appeared in the action, including the party that made the demand, shall provide to the other parties an initial disclosure that includes all of the following information:
(A)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. The disclosure required by this subparagraph is not required to include persons who are expert trial witnesses or are retained as consultants who may later be designated as expert trial witnesses, as that term is described in Chapter 18 (commencing with Section 2034.010) of Title 4 of Part 4.
(B)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.
(C)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.
(D)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. Only those provisions of an agreement that are material to the terms of the insurance, indemnification, or reimbursement are required to be included in the initial disclosure. Material provisions 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 agreements or policys coverage of the claim involved in the action.
(2)A party shall make its initial disclosures based on the information then reasonably available to it. 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 partys disclosures, or because another party has not made its disclosures.
(3)(A)A party that has made, or responded to, a demand for an initial disclosure pursuant to paragraph (1) may propound a supplemental demand on any other party to elicit any later-acquired information bearing on all disclosures previously made by any party.
(B)A party may propound a supplemental demand twice before the initial setting of a trial date, and, subject to the time limits on discovery proceedings and motions provided in Chapter 8 (commencing with Section 2024.010) of Title 4 of Part 4, once after the initial setting of a trial date.
(C)Notwithstanding subparagraphs (A) and (B), on motion, for good cause shown, the court may grant leave to a party to propound one additional supplemental demand.
(4)A partys obligations under this section may be enforced by a court on its own motion or the motion of a party to compel disclosure.
(5)A partys disclosures under this section shall be verified either in a written declaration by the party or the partys authorized representative, or signed by the partys counsel.
(b)Notwithstanding subdivision (a), this section does not apply to the following actions:
(1)An unlawful detainer action, as defined in Section 1161.
(2)An action in the small claims division of a court, as defined in Section 116.210.
(3)An action or proceeding commenced in whole or in part under the Family Code.
(4)An action or proceeding commenced in whole or in part under the Probate Code.
(5)An action in which a party has been granted preference pursuant to Section 36.
(c)This section does not apply to any party in the action who is not represented by counsel.
(d)The changes made to this section by the act adding this subdivision apply only to civil actions filed on or after January 1, 2024.
(e)This section shall remain in effect until January 1, 2027, and as of that date is repealed.
SEC. 2.Section 2016.090 is added to the Code of Civil Procedure, to read:2016.090.(a)The following shall apply only to a civil action upon an order of the court following stipulation by all parties to the action:
(1)Within 45 days of the order of the court, a party shall, without awaiting a discovery request, provide to the other parties an initial disclosure that includes all of the following information:
(A)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, unless the use would be solely for impeachment.
(B)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, unless the use would be solely for impeachment.
(C)Any agreement 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.
(D)Any agreement 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. Only those provisions of an agreement that are material to the terms of the insurance, indemnification, or reimbursement are required to be included in the initial disclosure. Material provisions include, but are not limited to, the identities of parties to the agreement and the nature and limits of the coverage.
(2)A party shall make its initial disclosures based on the information then reasonably available to it. 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 partys disclosures, or because another party has not made its disclosures.
(3)A party that has made its initial disclosures, as described in paragraph (1), or that has responded to another partys discovery request, shall supplement or correct a disclosure or response in the following situations:
(A)In a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect and the additional or corrective information has not otherwise been made known to the other parties during the disclosure or discovery process.
(B)As ordered by the court.
(4)A partys obligations under this section may be enforced by a court on its own motion or the motion of a party to compel disclosure.
(5)A partys disclosures under this section shall be verified under penalty of perjury as being true and correct to the best of the partys knowledge.
(b)Notwithstanding subdivision (a), this section does not apply to the following actions:
(1)An unlawful detainer action, as defined in Section 1161.
(2)An action in the small claims division of a court, as defined in Section 116.210.
(c)This section shall become operative on January 1, 2027.
SEC. 3.Section 2023.050 of the Code of Civil Procedure is amended to read:2023.050.(a)Notwithstanding any other law, and in addition to any other sanctions imposed pursuant to this chapter, a court shall impose a one-thousand-dollar ($1,000) sanction, payable to the requesting party, upon a party, person, or attorney if, upon reviewing a request for a sanction made pursuant to Section 2023.040, the court finds any of the following:
(1)The party, person, or attorney did not respond in good faith to a request for the production of documents made pursuant to Section 2020.010, 2020.410, 2020.510, or 2025.210, or to an inspection demand made pursuant to Section 2031.010.
(2)The party, person, or attorney produced requested documents within seven days before the court was scheduled to hear a motion to compel production of the records pursuant to Section 2025.450, 2025.480, or 2031.320 that is filed by the requesting party as a result of the other partys, persons, or attorneys failure to respond in good faith.
(3)The party, person, or attorney failed to confer in person, by telephone, letter, or other means of communication in writing, as defined in Section 250 of the Evidence Code, with the party or attorney requesting the documents in a reasonable and good faith attempt to resolve informally any dispute concerning the request.
(b)Notwithstanding paragraph (3) of subdivision (o) of Section 6068 of the Business and Professions Code, the court may, in its discretion, require an attorney who is sanctioned pursuant to subdivision (a) to report the sanction, in writing, to the State Bar within 30 days of the imposition of the sanction.
(c)The court may excuse the imposition of the sanction required by subdivision (a) if the court makes written findings that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
(d)Sanctions pursuant to this section shall be imposed only after notice to the party, person, or attorney against whom the sanction is proposed to be imposed and opportunity for that party, person, or attorney to be heard.
(e)For purposes of this section, there is a rebuttable presumption that a natural person acted in good faith if that person was not represented by an attorney in the action at the time the conduct that is sanctionable under subdivision (a) occurred. This presumption may only be overcome by clear and convincing evidence.
(a)The following shall apply in a civil action unless modified by stipulation by all parties to the action:
(1)Within 60 days of a demand by any party to the action, each party that has appeared in the action, including the party that made the demand, shall provide to the other parties an initial disclosure that includes all of the following information:
(A)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. The disclosure required by this subparagraph is not required to include persons who are expert trial witnesses or are retained as consultants who may later be designated as expert trial witnesses, as that term is described in Chapter 18 (commencing with Section 2034.010) of Title 4 of Part 4.
(B)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.
(C)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.
(D)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. Only those provisions of an agreement that are material to the terms of the insurance, indemnification, or reimbursement are required to be included in the initial disclosure. Material provisions 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 agreements or policys coverage of the claim involved in the action.
(2)A party shall make its initial disclosures based on the information then reasonably available to it. 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 partys disclosures, or because another party has not made its disclosures.
(3)(A)A party that has made, or responded to, a demand for an initial disclosure pursuant to paragraph (1) may propound a supplemental demand on any other party to elicit any later-acquired information bearing on all disclosures previously made by any party.
(B)A party may propound a supplemental demand twice before the initial setting of a trial date, and, subject to the time limits on discovery proceedings and motions provided in Chapter 8 (commencing with Section 2024.010) of Title 4 of Part 4, once after the initial setting of a trial date.
(C)Notwithstanding subparagraphs (A) and (B), on motion, for good cause shown, the court may grant leave to a party to propound one additional supplemental demand.
(4)A partys obligations under this section may be enforced by a court on its own motion or the motion of a party to compel disclosure.
(5)A partys disclosures under this section shall be verified either in a written declaration by the party or the partys authorized representative, or signed by the partys counsel.
(b)Notwithstanding subdivision (a), this section does not apply to the following actions:
(1)An unlawful detainer action, as defined in Section 1161.
(2)An action in the small claims division of a court, as defined in Section 116.210.
(3)An action or proceeding commenced in whole or in part under the Family Code.
(4)An action or proceeding commenced in whole or in part under the Probate Code.
(5)An action in which a party has been granted preference pursuant to Section 36.
(c)This section does not apply to any party in the action who is not represented by counsel.
(d)The changes made to this section by the act adding this subdivision apply only to civil actions filed on or after January 1, 2024.
(e)This section shall remain in effect until January 1, 2027, and as of that date is repealed.
SEC. 2.Section 2016.090 is added to the Code of Civil Procedure, to read:2016.090.(a)The following shall apply only to a civil action upon an order of the court following stipulation by all parties to the action:
(1)Within 45 days of the order of the court, a party shall, without awaiting a discovery request, provide to the other parties an initial disclosure that includes all of the following information:
(A)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, unless the use would be solely for impeachment.
(B)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, unless the use would be solely for impeachment.
(C)Any agreement 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.
(D)Any agreement 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. Only those provisions of an agreement that are material to the terms of the insurance, indemnification, or reimbursement are required to be included in the initial disclosure. Material provisions include, but are not limited to, the identities of parties to the agreement and the nature and limits of the coverage.
(2)A party shall make its initial disclosures based on the information then reasonably available to it. 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 partys disclosures, or because another party has not made its disclosures.
(3)A party that has made its initial disclosures, as described in paragraph (1), or that has responded to another partys discovery request, shall supplement or correct a disclosure or response in the following situations:
(A)In a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect and the additional or corrective information has not otherwise been made known to the other parties during the disclosure or discovery process.
(B)As ordered by the court.
(4)A partys obligations under this section may be enforced by a court on its own motion or the motion of a party to compel disclosure.
(5)A partys disclosures under this section shall be verified under penalty of perjury as being true and correct to the best of the partys knowledge.
(b)Notwithstanding subdivision (a), this section does not apply to the following actions:
(1)An unlawful detainer action, as defined in Section 1161.
(2)An action in the small claims division of a court, as defined in Section 116.210.
(c)This section shall become operative on January 1, 2027.
SEC. 3.Section 2023.050 of the Code of Civil Procedure is amended to read:2023.050.(a)Notwithstanding any other law, and in addition to any other sanctions imposed pursuant to this chapter, a court shall impose a one-thousand-dollar ($1,000) sanction, payable to the requesting party, upon a party, person, or attorney if, upon reviewing a request for a sanction made pursuant to Section 2023.040, the court finds any of the following:
(1)The party, person, or attorney did not respond in good faith to a request for the production of documents made pursuant to Section 2020.010, 2020.410, 2020.510, or 2025.210, or to an inspection demand made pursuant to Section 2031.010.
(2)The party, person, or attorney produced requested documents within seven days before the court was scheduled to hear a motion to compel production of the records pursuant to Section 2025.450, 2025.480, or 2031.320 that is filed by the requesting party as a result of the other partys, persons, or attorneys failure to respond in good faith.
(3)The party, person, or attorney failed to confer in person, by telephone, letter, or other means of communication in writing, as defined in Section 250 of the Evidence Code, with the party or attorney requesting the documents in a reasonable and good faith attempt to resolve informally any dispute concerning the request.
(b)Notwithstanding paragraph (3) of subdivision (o) of Section 6068 of the Business and Professions Code, the court may, in its discretion, require an attorney who is sanctioned pursuant to subdivision (a) to report the sanction, in writing, to the State Bar within 30 days of the imposition of the sanction.
(c)The court may excuse the imposition of the sanction required by subdivision (a) if the court makes written findings that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
(d)Sanctions pursuant to this section shall be imposed only after notice to the party, person, or attorney against whom the sanction is proposed to be imposed and opportunity for that party, person, or attorney to be heard.
(e)For purposes of this section, there is a rebuttable presumption that a natural person acted in good faith if that person was not represented by an attorney in the action at the time the conduct that is sanctionable under subdivision (a) occurred. This presumption may only be overcome by clear and convincing evidence.
(a)The following shall apply in a civil action unless modified by stipulation by all parties to the action:
(1)Within 60 days of a demand by any party to the action, each party that has appeared in the action, including the party that made the demand, shall provide to the other parties an initial disclosure that includes all of the following information:
(A)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. The disclosure required by this subparagraph is not required to include persons who are expert trial witnesses or are retained as consultants who may later be designated as expert trial witnesses, as that term is described in Chapter 18 (commencing with Section 2034.010) of Title 4 of Part 4.
(B)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.
(C)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.
(D)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. Only those provisions of an agreement that are material to the terms of the insurance, indemnification, or reimbursement are required to be included in the initial disclosure. Material provisions 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 agreements or policys coverage of the claim involved in the action.
(2)A party shall make its initial disclosures based on the information then reasonably available to it. 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 partys disclosures, or because another party has not made its disclosures.
(3)(A)A party that has made made, or responded to, a demand for an initial disclosure pursuant to paragraph (1) may propound a supplemental demand on any other party to elicit any later-acquired information bearing on all disclosures previously made by any party.
(B)A party may propound a supplemental demand twice before the initial setting of a trial date, and, subject to the time limits on discovery proceedings and motions provided in Chapter 8 (commencing with Section 2024.010) of Title 4 of Part 4, once after the initial setting of a trial date.
(C)Notwithstanding subparagraphs (A) and (B), on motion, for good cause shown, the court may grant leave to a party to propound one additional supplemental demand.
(4)A partys obligations under this section may be enforced by a court on its own motion or the motion of a party to compel disclosure.
(5)A partys disclosures under this section shall be verified either in a written declaration by the party or the partys authorized representative, or signed by the partys counsel.
(b)Notwithstanding subdivision (a), this section does not apply to the following actions:
(1)An unlawful detainer action, as defined in Section 1161.
(2)An action in the small claims division of a court, as defined in Section 116.210.
(3)An action or proceeding commenced in whole or in part under the Family Code.
(4)An action or proceeding commenced in whole or in part under the Probate Code.
(5)An action in which a party has been granted preference pursuant to Section 36.
(c)This section does not apply to any party in the action who is not represented by counsel.
(d)The changes made to this section by the act adding this subdivision apply only to civil actions filed on or after January 1, 2024.
(e)This section shall remain in effect until January 1, 2027, and as of that date is repealed.
SEC. 2.Section 2016.090 is added to the Code of Civil Procedure, to read:2016.090.(a)The following shall apply only to a civil action upon an order of the court following stipulation by all parties to the action:
(1)Within 45 days of the order of the court, a party shall, without awaiting a discovery request, provide to the other parties an initial disclosure that includes all of the following information:
(A)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, unless the use would be solely for impeachment.
(B)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, unless the use would be solely for impeachment.
(C)Any agreement 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.
(D)Any agreement 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. Only those provisions of an agreement that are material to the terms of the insurance, indemnification, or reimbursement are required to be included in the initial disclosure. Material provisions include, but are not limited to, the identities of parties to the agreement and the nature and limits of the coverage.
(2)A party shall make its initial disclosures based on the information then reasonably available to it. 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 partys disclosures, or because another party has not made its disclosures.
(3)A party that has made its initial disclosures, as described in paragraph (1), or that has responded to another partys discovery request, shall supplement or correct a disclosure or response in the following situations:
(A)In a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect and the additional or corrective information has not otherwise been made known to the other parties during the disclosure or discovery process.
(B)As ordered by the court.
(4)A partys obligations under this section may be enforced by a court on its own motion or the motion of a party to compel disclosure.
(5)A partys disclosures under this section shall be verified under penalty of perjury as being true and correct to the best of the partys knowledge.
(b)Notwithstanding subdivision (a), this section does not apply to the following actions:
(1)An unlawful detainer action, as defined in Section 1161.
(2)An action in the small claims division of a court, as defined in Section 116.210.
(c)This section shall become operative on January 1, 2027.
SEC. 3.Section 2023.050 of the Code of Civil Procedure is amended to read:2023.050.(a)Notwithstanding any other law, and in addition to any other sanctions imposed pursuant to this chapter, a court shall impose a one-thousand-dollar ($1,000) sanction, payable to the requesting party, upon a party, person, or attorney if, upon reviewing a request for a sanction made pursuant to Section 2023.040, the court finds any of the following:
(1)The party, person, or attorney did not respond in good faith to a request for the production of documents made pursuant to Section 2020.010, 2020.410, 2020.510, or 2025.210, or to an inspection demand made pursuant to Section 2031.010.
(2)The party, person, or attorney produced requested documents within seven days before the court was scheduled to hear a motion to compel production of the records pursuant to Section 2025.450, 2025.480, or 2031.320 that is filed by the requesting party as a result of the other partys, persons, or attorneys failure to respond in good faith.
(3)The party, person, or attorney failed to confer in person, by telephone, letter, or other means of communication in writing, as defined in Section 250 of the Evidence Code, with the party or attorney requesting the documents in a reasonable and good faith attempt to resolve informally any dispute concerning the request.
(b)Notwithstanding paragraph (3) of subdivision (o) of Section 6068 of the Business and Professions Code, the court may, in its discretion, require an attorney who is sanctioned pursuant to subdivision (a) to report the sanction, in writing, to the State Bar within 30 days of the imposition of the sanction.
(c)The court may excuse the imposition of the sanction required by subdivision (a) if the court makes written findings that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
(d)Sanctions pursuant to this section shall be imposed only after notice to the party, person, or attorney against whom the sanction is proposed to be imposed and opportunity for that party, person, or attorney to be heard.
(e)For purposes of this section, there is a rebuttable presumption that a natural person acted in good faith if that person was not represented by an attorney in the action at the time the conduct that is sanctionable under subdivision (a) occurred. This presumption may only be overcome by clear and convincing evidence.
(a)The following shall apply in a civil action unless modified by stipulation by all parties to the action:
(1)Within 60 days of a demand by any party to the action, each party that has appeared in the action, including the party that made the demand, shall provide to the other parties an initial disclosure that includes all of the following information:
(A)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. The disclosure required by this subparagraph is not required to include persons who are expert trial witnesses or are retained as consultants who may later be designated as expert trial witnesses, as that term is described in Chapter 18 (commencing with Section 2034.010) of Title 4 of Part 4.
(B)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.
(C)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.
(D)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. Only those provisions of an agreement that are material to the terms of the insurance, indemnification, or reimbursement are required to be included in the initial disclosure. Material provisions 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 agreements or policys coverage of the claim involved in the action.
(2)A party shall make its initial disclosures based on the information then reasonably available to it. 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 partys disclosures, or because another party has not made its disclosures.
(3)(A)A party that has made a demand for an initial disclosure pursuant to paragraph (1) may propound a supplemental demand on any other party to elicit any later-acquired information bearing on all disclosures previously made by any party.
(B)A party may propound a supplemental demand twice before the initial setting of a trial date, and, subject to the time limits on discovery proceedings and motions provided in Chapter 8 (commencing with Section 2024.010) of Title 4 of Part 4, once after the initial setting of a trial date.
(C)Notwithstanding subparagraphs (A) and (B), on motion, for good cause shown, the court may grant leave to a party to propound one additional supplemental demand.
(4)A partys obligations under this section may be enforced by a court on its own motion or the motion of a party to compel disclosure.
(5)A partys disclosures under this section shall be verified in a written declaration by the partys counsel.
(b)Notwithstanding subdivision (a), this section does not apply to the following actions:
(1)An unlawful detainer action, as defined in Section 1161.
(2)An action in the small claims division of a court, as defined in Section 116.210.
(3)An action or proceeding commenced in whole or in part under the Family Code.
(4)An action or proceeding commenced in whole or in part under the Probate Code.
(5)An action in which a party has been granted preference pursuant to Section 36.
(c)This section does not apply to any party in the action who is not represented by counsel.
(d)The changes made to this section by the act adding this subdivision apply only to civil actions filed on or after January 1, 2024.
(e)This section shall remain in effect until January 1, 2027, and as of that date is repealed.
SEC. 2.Section 2016.090 is added to the Code of Civil Procedure, to read:2016.090.(a)The following shall apply only to a civil action upon an order of the court following stipulation by all parties to the action:
(1)Within 45 days of the order of the court, a party shall, without awaiting a discovery request, provide to the other parties an initial disclosure that includes all of the following information:
(A)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, unless the use would be solely for impeachment.
(B)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, unless the use would be solely for impeachment.
(C)Any agreement 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.
(D)Any agreement 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. Only those provisions of an agreement that are material to the terms of the insurance, indemnification, or reimbursement are required to be included in the initial disclosure. Material provisions include, but are not limited to, the identities of parties to the agreement and the nature and limits of the coverage.
(2)A party shall make its initial disclosures based on the information then reasonably available to it. 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 partys disclosures, or because another party has not made its disclosures.
(3)A party that has made its initial disclosures, as described in paragraph (1), or that has responded to another partys discovery request, shall supplement or correct a disclosure or response in the following situations:
(A)In a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect and the additional or corrective information has not otherwise been made known to the other parties during the disclosure or discovery process.
(B)As ordered by the court.
(4)A partys obligations under this section may be enforced by a court on its own motion or the motion of a party to compel disclosure.
(5)A partys disclosures under this section shall be verified under penalty of perjury as being true and correct to the best of the partys knowledge.
(b)Notwithstanding subdivision (a), this section does not apply to the following actions:
(1)An unlawful detainer action, as defined in Section 1161.
(2)An action in the small claims division of a court, as defined in Section 116.210.
(c)This section shall become operative on January 1, 2027.
SEC. 3.Section 2023.050 of the Code of Civil Procedure is amended to read:2023.050.(a)Notwithstanding any other law, and in addition to any other sanctions imposed pursuant to this chapter, a court shall impose a one-thousand-dollar ($1,000) sanction, payable to the requesting party, upon a party, person, or attorney if, upon reviewing a request for a sanction made pursuant to Section 2023.040, the court finds any of the following:
(1)The party, person, or attorney did not respond in good faith to a request for the production of documents made pursuant to Section 2020.010, 2020.410, 2020.510, or 2025.210, or to an inspection demand made pursuant to Section 2031.010.
(2)The party, person, or attorney produced requested documents within seven days before the court was scheduled to hear a motion to compel production of the records pursuant to Section 2025.450, 2025.480, or 2031.320 that is filed by the requesting party as a result of the other partys, persons, or attorneys failure to respond in good faith.
(3)The party, person, or attorney failed to confer in person, by telephone, letter, or other means of communication in writing, as defined in Section 250 of the Evidence Code, with the party or attorney requesting the documents in a reasonable and good faith attempt to resolve informally any dispute concerning the request.
(b)Notwithstanding paragraph (3) of subdivision (o) of Section 6068 of the Business and Professions Code, the court may, in its discretion, require an attorney who is sanctioned pursuant to subdivision (a) to report the sanction, in writing, to the State Bar within 30 days of the imposition of the sanction.
(c)The court may excuse the imposition of the sanction required by subdivision (a) if the court makes written findings that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
(d)Sanctions pursuant to this section shall be imposed only after notice to the party, person, or attorney against whom the sanction is proposed to be imposed and opportunity for that party, person, or attorney to be heard.
(e)For purposes of this section, there is a rebuttable presumption that a natural person acted in good faith if that person was not represented by an attorney in the action at the time the conduct that is sanctionable under subdivision (a) occurred. This presumption may only be overcome by clear and convincing evidence.
(a)The following shall apply in a civil action unless modified by stipulation by all parties to the action:
(1)Within 60 days of a demand by any party to the action, each party that has appeared in the action, including the party that made the demand, shall provide to the other parties an initial disclosure that includes all of the following information:
(A)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. The disclosure required by this subparagraph is not required to include persons who are expert trial witnesses or are retained as consultants who may later be designated as expert trial witnesses, as that term is described in Chapter 18 (commencing with Section 2034.010) of Title 4 of Part 4.
(B)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.
(C)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.
(D)Any contractual agreement and any insurance policy 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. Only those provisions of an agreement that are material to the terms of the insurance, indemnification, or reimbursement are required to be included in the initial disclosure. Material provisions 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 agreements or policys coverage of the claim involved in the action.
(2)A party shall make its initial disclosures based on the information then reasonably available to it. 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 partys disclosures, or because another party has not made its disclosures.
(3)(A)A party that has made a demand for an initial disclosure pursuant to paragraph (1) may propound a supplemental demand on any other party to elicit any later-acquired information bearing on all disclosures previously made by any party.
(B)A party may propound a supplemental demand twice before the initial setting of a trial date, and, subject to the time limits on discovery proceedings and motions provided in Chapter 8 (commencing with Section 2024.010) of Title 4 of Part 4, once after the initial setting of a trial date.
(C)Notwithstanding subparagraphs (A) and (B), on motion, for good cause shown, the court may grant leave to a party to propound one additional supplemental demand.
(4)A partys obligations under this section may be enforced by a court on its own motion or the motion of a party to compel disclosure.
(5)A partys disclosures under this section shall be verified in a written declaration by the partys counsel.
(b)Notwithstanding subdivision (a), this section does not apply to the following actions:
(1)An unlawful detainer action, as defined in Section 1161.
(2)An action in the small claims division of a court, as defined in Section 116.210.
(3)An action or proceeding commenced in whole or in part under the Family Code.
(4)An action or proceeding commenced in whole or in part under the Probate Code.
(c)This section does not apply to any party in the action who is not represented by counsel.
(d)The changes made to this section by the act adding this subdivision apply only to civil actions filed on or after January 1, 2024.
(e)This section shall remain in effect until January 1, 2029, 2027, and as of that date is repealed.
SEC. 2.Section 2016.090 is added to the Code of Civil Procedure, to read:2016.090.(a)The following shall apply only to a civil action upon an order of the court following stipulation by all parties to the action:
(1)Within 45 days of the order of the court, a party shall, without awaiting a discovery request, provide to the other parties an initial disclosure that includes all of the following information:
(A)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, unless the use would be solely for impeachment.
(B)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, unless the use would be solely for impeachment.
(C)Any agreement 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.
(D)Any agreement 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. Only those provisions of an agreement that are material to the terms of the insurance, indemnification, or reimbursement are required to be included in the initial disclosure. Material provisions include, but are not limited to, the identities of parties to the agreement and the nature and limits of the coverage.
(2)A party shall make its initial disclosures based on the information then reasonably available to it. 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 partys disclosures, or because another party has not made its disclosures.
(3)A party that has made its initial disclosures, as described in paragraph (1), or that has responded to another partys discovery request, shall supplement or correct a disclosure or response in the following situations:
(A)In a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect and the additional or corrective information has not otherwise been made known to the other parties during the disclosure or discovery process.
(B)As ordered by the court.
(4)A partys obligations under this section may be enforced by a court on its own motion or the motion of a party to compel disclosure.
(5)A partys disclosures under this section shall be verified under penalty of perjury as being true and correct to the best of the partys knowledge.
(b)Notwithstanding subdivision (a), this section does not apply to the following actions:
(1)An unlawful detainer action, as defined in Section 1161.
(2)An action in the small claims division of a court, as defined in Section 116.210.
(c)This section shall become operative on January 1, 2029. 2027.
SEC. 3.Section 2023.050 of the Code of Civil Procedure is amended to read:2023.050.(a)Notwithstanding any other law, and in addition to any other sanctions imposed pursuant to this chapter, a court shall impose a one-thousand-dollar ($1,000) sanction, payable to the requesting party, upon a party, person, or attorney if, upon reviewing a request for a sanction made pursuant to Section 2023.040, the court finds any of the following:
(1)The party, person, or attorney did not respond in good faith to a request for the production of documents made pursuant to Section 2020.010, 2020.410, 2020.510, or 2025.210, or to an inspection demand made pursuant to Section 2031.010.
(2)The party, person, or attorney produced requested documents within seven days before the court was scheduled to hear a motion to compel production of the records pursuant to Section 2025.450, 2025.480, or 2031.320 that is filed by the requesting party as a result of the other partys, persons, or attorneys failure to respond in good faith.
(3)The party, person, or attorney failed to confer in person, by telephone, letter, or other means of communication in writing, as defined in Section 250 of the Evidence Code, with the party or attorney requesting the documents in a reasonable and good faith attempt to resolve informally any dispute concerning the request.
(b)Notwithstanding paragraph (3) of subdivision (o) of Section 6068 of the Business and Professions Code, the court may, in its discretion, require an attorney who is sanctioned pursuant to subdivision (a) to report the sanction, in writing, to the State Bar within 30 days of the imposition of the sanction.
(c)The court may excuse the imposition of the sanction required by subdivision (a) if the court makes written findings that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
(d)Sanctions pursuant to this section shall be imposed only after notice to the party, person, or attorney against whom the sanction is proposed to be imposed and opportunity for that party, person, or attorney to be heard.
(e)For purposes of this section, there is a rebuttable presumption that a natural person acted in good faith if that person was not represented by an attorney in the action at the time the conduct that is sanctionable under subdivision (a) occurred. This presumption may only be overcome by clear and convincing evidence.
(a)The following shall apply in a civil action unless modified by an order of the court following stipulation by all parties to the action:
(1)Within 45 60 days of the order of the court, a party shall, without awaiting a discovery request, a demand by any party to the action, each party that has appeared in the action, including the party that made the demand, shall provide to the other parties an initial disclosure that includes all of the following information:
(A)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. The disclosure required by this subparagraph is not required to include persons who are expert trial witnesses or are retained as consultants who may later be designated as expert trial witnesses, as that term is described in Chapter 18 (commencing with Section 2034.010) of Title 4 of Part 4.
(B)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.
(C)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.
(D)Any contractual agreement and any insurance policy 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. Only those provisions of an agreement that are material to the terms of the insurance, indemnification, or reimbursement are required to be included in the initial disclosure. Material provisions include, but are not limited to, the identities of parties to the agreement and agreement, the nature and limits of the coverage. coverage, and whether any insurance carrier is disputing the agreements or policys coverage of the claim involved in the action.
(2)A party shall make its initial disclosures based on the information then reasonably available to it. 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 partys disclosures, or because another party has not made its disclosures.
(3)A party that has made its initial disclosures, as described in paragraph (1), or that has responded to another partys discovery request, shall supplement or correct a disclosure or response in the following situations:(A)In a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect and the additional or corrective information has not otherwise been made known to the other parties during the disclosure or discovery process.(B)As ordered by the court.(3)(A)A party that has made a demand for an initial disclosure pursuant to paragraph (1) may propound a supplemental demand on any other party to elicit any later-acquired information bearing on all disclosures previously made by any party.
(B)A party may propound a supplemental demand twice before the initial setting of a trial date, and, subject to the time limits on discovery proceedings and motions provided in Chapter 8 (commencing with Section 2024.010) of Title 4 of Part 4, once after the initial setting of a trial date.
(C)Notwithstanding subparagraphs (A) and (B), on motion, for good cause shown, the court may grant leave to a party to propound one additional supplemental demand.
(4)A partys obligations under this section may be enforced by a court on its own motion or the motion of a party to compel disclosure.
(5)A partys disclosures under this section shall be verified under penalty of perjury as being true and correct to the best of the partys knowledge. in a written declaration by the partys counsel.
(b)Notwithstanding subdivision (a), this section does not apply to the following actions:
(1)An unlawful detainer action, as defined in Section 1161.
(2)An action in the small claims division of a court, as defined in Section 116.210.
(c)This section does not apply to any party in the action who is not represented by counsel.
(d)The changes made to this section by the act adding this subdivision apply only to civil actions filed on or after January 1, 2024.
(e)This section shall remain in effect until January 1, 2029, and as of that date is repealed.
SEC. 2.Section 2016.090 is added to the Code of Civil Procedure, to read:2016.090.(a)The following shall apply only to a civil action upon an order of the court following stipulation by all parties to the action:
(1)Within 45 days of the order of the court, a party shall, without awaiting a discovery request, provide to the other parties an initial disclosure that includes all of the following information:
(A)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, unless the use would be solely for impeachment.
(B)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, unless the use would be solely for impeachment.
(C)Any agreement 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.
(D)Any agreement 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. Only those provisions of an agreement that are material to the terms of the insurance, indemnification, or reimbursement are required to be included in the initial disclosure. Material provisions include, but are not limited to, the identities of parties to the agreement and the nature and limits of the coverage.
(2)A party shall make its initial disclosures based on the information then reasonably available to it. 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 partys disclosures, or because another party has not made its disclosures.
(3)A party that has made its initial disclosures, as described in paragraph (1), or that has responded to another partys discovery request, shall supplement or correct a disclosure or response in the following situations:
(A)In a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect and the additional or corrective information has not otherwise been made known to the other parties during the disclosure or discovery process.
(B)As ordered by the court.
(4)A partys obligations under this section may be enforced by a court on its own motion or the motion of a party to compel disclosure.
(5)A partys disclosures under this section shall be verified under penalty of perjury as being true and correct to the best of the partys knowledge.
(b)Notwithstanding subdivision (a), this section does not apply to the following actions:
(1)An unlawful detainer action, as defined in Section 1161.
(2)An action in the small claims division of a court, as defined in Section 116.210.
(c)This section shall become operative on January 1, 2029.
SEC. 2.SEC. 3.Section 2023.050 of the Code of Civil Procedure is amended to read:2023.050.(a)Notwithstanding any other law, and in addition to any other sanctions imposed pursuant to this chapter, a court shall impose a one thousand dollar ($1000) one-thousand-dollar ($1,000) sanction, payable to the requesting party, upon a party, person, or attorney if, upon reviewing a request for a sanction made pursuant to Section 2023.040, the court finds any of the following:
(1)The party, person, or attorney did not respond in good faith to a request for the production of documents made pursuant to Section 2020.010, 2020.410, 2020.510, or 2025.210, or to an inspection demand made pursuant to Section 2031.010.
(2)The party, person, or attorney produced requested documents within seven days before the court was scheduled to hear a motion to compel production of the records pursuant to Section 2025.450, 2025.480, or 2031.320 that is filed by the requesting party as a result of the other party, person, partys, persons, or attorneys failure to respond in good faith.
(3)The party, person, or attorney failed to confer in person, by telephone, letter, or other means of communication in writing, as defined in Section 250 of the Evidence Code, with the party or attorney requesting the documents in a reasonable and good faith attempt to resolve informally any dispute concerning the request.
(b)Notwithstanding paragraph (3) of subdivision (o) of Section 6068 of the Business and Professions Code, the court may, in its discretion, require an attorney who is sanctioned pursuant to subdivision (a) to report the sanction, in writing, to the State Bar within 30 days of the imposition of the sanction.
(c)The court may excuse the imposition of the sanction required by subdivision (a) if the court makes written findings that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
(d)Sanctions pursuant to this section shall be imposed only after notice to the party, person, or attorney against whom the sanction is proposed to be imposed and opportunity for that party, person, or attorney to be heard.
(e)For purposes of this section, there is a rebuttable presumption that a natural person acted in good faith if that person was not represented by an attorney in the action at the time the conduct that is sanctionable under subdivision (a) occurred. This presumption may only be overcome by clear and convincing evidence.
(a)The following shall apply only to in a civil action upon unless modified by an order of the court following stipulation by all parties to the action:
(1)Within 45 days of the order of the court, a party shall, without awaiting a discovery request, provide to the other parties an initial disclosure that includes all of the following information:
(A)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, unless the use would be solely for impeachment.
(B)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, unless the use would be solely for impeachment.
(C)Any agreement 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.
(D)Any agreement 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. Only those provisions of an agreement that are material to the terms of the insurance, indemnification, or reimbursement are required to be included in the initial disclosure. Material provisions include, but are not limited to, the identities of parties to the agreement and the nature and limits of the coverage.
(2)A party shall make its initial disclosures based on the information then reasonably available to it. 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 partys disclosures, or because another party has not made its disclosures.
(3)A party that has made its initial disclosures, as described in paragraph (1), or that has responded to another partys discovery request, shall supplement or correct a disclosure or response in the following situations:
(A)In a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect and the additional or corrective information has not otherwise been made known to the other parties during the disclosure or discovery process.
(B)As ordered by the court.
(4)A partys obligations under this section may be enforced by a court on its own motion or the motion of a party to compel disclosure.
(5)A partys disclosures under this section shall be verified under penalty of perjury as being true and correct to the best of the partys knowledge.
(b)Notwithstanding subdivision (a), this section does not apply to the following actions:
(1)An unlawful detainer action, as defined in Section 1161.
(2)An action in the small claims division of a court, as defined in Section 116.210.
SEC. 2.Section 2023.050 of the Code of Civil Procedure is amended to read:2023.050.(a)Notwithstanding any other law, and in addition to any other sanctions imposed pursuant to this chapter, a court shall impose a two hundred and fifty dollar ($250) one thousand dollar ($1000) sanction, payable to the requesting party, upon a party, person, or attorney if, upon reviewing a request for a sanction made pursuant to Section 2023.040, the court finds any of the following:
(1)The party, person, or attorney did not respond in good faith to a request for the production of documents made pursuant to Section 2020.010, 2020.410, 2020.510, or 2025.210, or to an inspection demand made pursuant to Section 2031.010.
(2)The party, person, or attorney produced requested documents within seven days before the court was scheduled to hear a motion to compel production of the records pursuant to Section 2025.450, 2025.480, or 2031.320 that is filed by the requesting party as a result of the other party, person, or attorneys failure to respond in good faith.
(3)The party, person, or attorney failed to confer in person, by telephone, letter, or other means of communication in writing, as defined in Section 250 of the Evidence Code, with the party or attorney requesting the documents in a reasonable and good faith attempt to resolve informally any dispute concerning the request.
(b)Notwithstanding paragraph (3) of subdivision (o) of Section 6068 of the Business and Professions Code, the court may, in its discretion, require an attorney who is sanctioned pursuant to subdivision (a) to report the sanction, in writing, to the State Bar within 30 days of the imposition of the sanction.
(c)The court may excuse the imposition of the sanction required by subdivision (a) if the court makes written findings that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
(d)Sanctions pursuant to this section shall be imposed only after notice to the party, person, or attorney against whom the sanction is proposed to be imposed and opportunity for that party, person, or attorney to be heard.
(e)For purposes of this section, there is a rebuttable presumption that a natural person acted in good faith if that person was not represented by an attorney in the action at the time the conduct that is sanctionable under subdivision (a) occurred. This presumption may only be overcome by clear and convincing evidence.
SECTION 1.Section 2023.050 of the Code of Civil Procedure is amended to read:2023.050.(a)Notwithstanding any other law, a court shall impose a one thousand dollar ($1000) sanction, payable to the requesting party, upon a party, person, or attorney if, upon reviewing a request for a sanction made pursuant to Section 2023.040, the court finds all of the following:(1)The party, person, or attorney did not timely respond to a request for the production of documents made pursuant to Section 2020.010, 2020.410, or 2020.510.(2)The party, person, or attorneys failure to timely respond was intended by the party, person, or attorney to cause unnecessary delay by producing the requested documents within seven days before the court was scheduled to hear a motion to compel production of the records pursuant to Section 2025.450 or 2025.480.(3)The party, person, or attorney failed to confer in person, by telephone, letter, or other means of communication in writing, as defined in Section 250 of the Evidence Code, with the party or attorney requesting the documents in a reasonable and good faith attempt to resolve informally any dispute concerning the request.(b)Notwithstanding paragraph (3) of subdivision (o) of Section 6068 of the Business and Professions Code, the court may, in its discretion, require an attorney who is sanctioned pursuant to subdivision (a) to report the sanction, in writing, to the State Bar within 30 days of the imposition of the sanction.(c)The court may excuse the imposition of the sanction required by subdivision (a) if the court makes written findings that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.(d)Sanctions pursuant to this section shall be imposed only after notice to the party, person, or attorney against whom the sanction is proposed to be imposed and opportunity for that party, person, or attorney to be heard.(a)Notwithstanding any other law, and in addition to any other sanctions imposed pursuant to this chapter, a court shall impose a two hundred and fifty dollar ($250) one thousand dollar ($1000) sanction, payable to the requesting party, upon a party, person, or attorney if, upon reviewing a request for a sanction made pursuant to Section 2023.040, the court finds any all of the following:
(1)The party, person, or attorney did not timely respond in good faith to a request for the production of documents made pursuant to Section 2020.010, 2020.410, 2020.510, or 2025.210, or to an inspection demand made pursuant to Section 2031.010. or 2020.510.
(2)The party, person, or attorney produced attorneys failure to timely respond was intended by the party, person, or attorney to cause unnecessary delay by producing the requested documents within seven days before the court was scheduled to hear a motion to compel production of the records pursuant to Section 2025.450, 2025.480, or 2031.320 that is filed by the requesting party as a result of the other party, person, or attorneys failure to respond in good faith. 2025.450 or 2025.480.
(3)The party, person, or attorney failed to confer in person, by telephone, letter, or other means of communication in writing, as defined in Section 250 of the Evidence Code, with the party or attorney requesting the documents in a reasonable and good faith attempt to resolve informally any dispute concerning the request.
(b)Notwithstanding paragraph (3) of subdivision (o) of Section 6068 of the Business and Professions Code, the court may, in its discretion, require an attorney who is sanctioned pursuant to subdivision (a) to report the sanction, in writing, to the State Bar within 30 days of the imposition of the sanction.
(c)The court may excuse the imposition of the sanction required by subdivision (a) if the court makes written findings that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
(d)Sanctions pursuant to this section shall be imposed only after notice to the party, person, or attorney against whom the sanction is proposed to be imposed and opportunity for that party, person, or attorney to be heard.
(e)For purposes of this section, there is a rebuttable presumption that a natural person acted in good faith if that person was not represented by an attorney in the action at the time the conduct that is sanctionable under subdivision (a) occurred. This presumption may only be overcome by clear and convincing evidence.|
Date
|
Status
|
|---|---|
| Sep 30, 2023 | Chaptered by Secretary of State. Chapter 284, Statutes of 2023. |
| Sep 30, 2023 | Approved by the Governor. |
| Sep 15, 2023 | Enrolled and presented to the Governor at 3 p.m. |
| Sep 11, 2023 | Assembly amendments concurred in. (Ayes 39. Noes 0. Page 2598.) Ordered to engrossing and enrolling. |
| Sep 7, 2023 | In Senate. Concurrence in Assembly amendments pending. |
| Sep 7, 2023 | Read third time. Passed. (Ayes 78. Noes 0. Page 3007.) Ordered to the Senate. |
| Sep 1, 2023 | Read third time and amended. |
| Sep 1, 2023 | Ordered to third reading. |
| Aug 24, 2023 | Ordered to third reading. |
| Aug 24, 2023 | From consent calendar on motion of Assembly Member Bryan. |
| Aug 17, 2023 | Read second time. Ordered to consent calendar. |
| Aug 16, 2023 | From committee: Do pass. Ordered to consent calendar. (Ayes 15. Noes 0.) (August 16). |
| Jul 10, 2023 | Read second time and amended. Re-referred to Com. on APPR. |
| Jul 6, 2023 | From committee: Do pass as amended and re-refer to Com. on APPR. with recommendation: To consent calendar. (Ayes 10. Noes 0.) (July 5). |
| Jun 27, 2023 | From committee with author's amendments. Read second time and amended. Re-referred to Com. on JUD. |
| Jun 19, 2023 | From committee with author's amendments. Read second time and amended. Re-referred to Com. on JUD. |
| May 26, 2023 | Referred to Com. on JUD. |
| May 15, 2023 | In Assembly. Read first time. Held at Desk. |
| May 15, 2023 | Read third time. Passed. (Ayes 38. Noes 0. Page 1074.) Ordered to the Assembly. |
| May 2, 2023 | Read second time. Ordered to third reading. |
| May 1, 2023 | From committee: Be ordered to second reading pursuant to Senate Rule 28.8. |
| Apr 21, 2023 | Set for hearing May 1. |
| Apr 19, 2023 | From committee: Do pass and re-refer to Com. on APPR. (Ayes 11. Noes 0. Page 798.) (April 18). Re-referred to Com. on APPR. |
| Apr 3, 2023 | Set for hearing April 18. |
| Mar 30, 2023 | April 11 set for first hearing canceled at the request of author. |
| Mar 28, 2023 | Set for hearing April 11. |
| Mar 14, 2023 | From committee with author's amendments. Read second time and amended. Re-referred to Com. on JUD. |
| Feb 1, 2023 | Referred to Com. on JUD. |
| Jan 25, 2023 | From printer. May be acted upon on or after February 24. |
| Jan 24, 2023 | Introduced. Read first time. To Com. on RLS. for assignment. To print. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Sep 11, 2023 | Unfinished Business SB235 Umberg Concurrence | Senate Floor |
Passed |
|
| Sep 7, 2023 | SB 235 Umberg Senate Third Reading By Papan | Assembly Floor |
Passed |
|
| Aug 16, 2023 | Do pass. To Consent Calendar. | Assembly Standing Committee on Appropriations |
Passed |
|
| Jul 5, 2023 | Do pass as amended, and be re-referred to the Committee on [Appropriations] with recommendation: To Consent Calendar | Assembly Standing Committee on Judiciary |
Passed |
|
| May 15, 2023 | Senate 3rd Reading SB235 Umberg | Senate Floor |
Passed |
|
| Apr 18, 2023 | Do pass, but first be re-referred to the Committee on [Appropriations] | Senate Standing Committee on Judiciary |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| California Defense Counsel | ** Against | |
| City of Woodland | * Support | Apr 18, 2023 |
| Civil Justice Association Of California | ** Support | |
| Consumer Attorneys Of California | ** Against |
SENATE RULES COMMITTEE Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | SB 235 |
UNFINISHED BUSINESS
Bill No: SB 235
Author: Umberg (D)
Amended: 9/1/23
Vote: 21
SENATE JUDICIARY COMMITTEE: 11-0, 4/18/23
AYES: Umberg, Wilk, Allen, Ashby, Caballero, Durazo, Laird, McGuire, Min, Niello, Wiener
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
SENATE FLOOR: 38-0, 5/15/23
AYES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Seyarto, Skinner, Stern, Umberg, Wahab, Wiener, Wilk
NO VOTE RECORDED: Rubio, Smallwood-Cuevas
ASSEMBLY FLOOR: 78-0, 9/7/23 - See last page for vote
SUBJECT: Civil discovery
SOURCE: Author
DIGEST:
This bill authorizes parties to demand certain initial disclosures to automatically be made in civil actions, except as specified, until January 1, 2027. This bill raises the sanction that courts must impose when it makes certain findings in relation to civil discovery abuses, as specified, to $1,000.
Assembly Amendments
alter the process and scope of the initial disclosures, including the addition of a number of additional exemptions, and place a sunset on the changes made by the bill.
ANALYSIS:
Existing law:
- Provides, through the Civil Discovery Act, procedures by which parties to a civil action conduct and obtain “discovery,” including by, among other things, oral depositions. (Code Civ. Proc. § 2016.010 et seq.)
- Provides that generally any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc. § 2017.010.)
- Provides for various forms of discovery, including interrogatories, requests for admission, depositions, requests for physical or mental examinations, and requests for production of documents. The propounding party is authorized, on receipt of a response to various forms of discovery, to move for an order compelling a further response if the propounding party deems the response inadequate or insufficient in some manner. (Code Civ. Proc. §§ 2025.010-2033.740.)
- Identifies various misuses of the discovery process. (Code Civ. Proc. § 2023.010.) Authorizes the court to impose various sanctions against anyone engaging in conduct that is a misuse of the discovery process. (Code Civ. Proc. § 2023.030.)
- Requires the court, in addition to the above and notwithstanding the outcome of the particular discovery motion, to impose a monetary sanction ordering that any party or attorney who fails to confer as required pay the reasonable expenses incurred by anyone as a result of that conduct. (Code Civ. Proc. § 2023.020.)
- Requires that a request for a sanction identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. (Code Civ. Proc. § 2023.040.)
- Requires a court, notwithstanding any other law, and in addition to any other sanctions imposed, to impose a $250 sanction, payable to the requesting party, upon a party, person, or attorney if, upon reviewing a request for a sanction made pursuant to Section 2023.040 of the Code of Civil Procedure, the court finds certain specified conduct occurred, including failure to respond to discovery requests in good faith, as provided. (Code Civ. Proc. § 2023.050(a).)
- Requires notice to the party, person, or attorney against whom the sanction is proposed to be imposed and opportunity for them to be heard before sanctions can be imposed. Allows a court to excuse the imposition of the sanction required if the court makes written findings that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc. § 2023.050(c), (d).)
- Authorizes a court, notwithstanding Business and Professions Code section 6068(o)(3), to require an attorney who is sanctioned to report the sanction, in writing, to the State Bar within 30 days of the imposition of the sanction. (Code Civ. Proc. § 2023.050(b).)
- Establishes a rebuttable presumption that a natural person acted in good faith if that person was not represented by an attorney in the action at the time the conduct that is sanctionable occurred. This presumption may only be overcome by clear and convincing evidence. (Code Civ. Proc. § 2023.050(e).)
- Provides that within 45 days of an order of the court following stipulation by all parties to the action, other than unlawful detainer actions or those in the small claims division of the court, the parties shall, without awaiting a discovery request, provide to the other parties an initial disclosure including specified information. (Code Civ. Proc. § 2016.090.)
- Requires a party to make the initial disclosures based on the information then reasonably available to it and to verify such disclosures under penalty of perjury. 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. (Code Civ. Proc. § 2016.090(a)(2).)
- Requires a party that has made its initial disclosures or responded to a discovery request, to supplement or correct a disclosure or response in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect and the additional or corrective information has not otherwise been made known to the other parties during the disclosure or discovery process, or as ordered by the court. (Code Civ. Proc. § 2016.090(a)(3).)
- Authorizes the above obligations to be enforced by a court on its own motion or the motion of a party to compel disclosure. (Code Civ. Proc. § 2016.090(a)(4).)
- Requires, under federal law, certain initial disclosures to be made by one party to the other parties without awaiting a discovery request in civil litigation in federal courts. (Fed. Rules Civ. Proc., rule 26(a)(1)(A).)
- Provides that it is the duty of an attorney to report to the State Bar, in writing, within 30 days of the time the attorney has knowledge of the imposition of judicial sanctions against the attorney, except for sanctions for failure to make discovery or monetary sanctions of less than $1,000. (Bus. & Prof. Code § 6068(o)(3).)
This bill:
- Provides that the early disclosures laid out in Code of Civil Procedure Section 2016.090 can be triggered by demand of any party unless modified by stipulation of the parties. The bill provides greater clarity as to what is to be provided and how supplemental demands may be propounded. The bill establishes a number of additional exemptions from these provisions.
- Sunsets the above changes on January 1, 2027.
- Raises the sanction in Code of Civil Procedure Section 2023.050 from $250 to $1,000.
Background
Existing law provides for various methods of discovery to obtain evidence in connection with civil litigation, including requests for production of documents. If the party propounding such discovery requests believes that responses are inadequate or objections are without merit or are too general, it may file a motion to compel further responses and involve the court in facilitating the exchange of discovery. Generally, such motions must be preceded by a good faith attempt at an informal resolution of the dispute. Courts can impose sanctions for various misuses of the discovery process.
This bill raises the mandatory sanction for specified discovery abuses from $250 to $1,000. The court continues to have restricted discretion to excuse such sanctions.
The bill moves closer to the Federal Rules of Civil Procedure by requiring certain disclosures of information related to discoverable information to be made by parties in many civil cases upon demand by a party, absent stipulation by the parties. Currently such disclosures are only required when stipulated to by the parties and ordered by the court. These changes sunset on January 1, 2027.
This bill is author sponsored. This bill is supported by the Civil Justice Association of California.
Comments
According to the author:
Discovery is a very important pretrial stage of a trial. It is the process of collecting information in preparation for trial, when both sides engage to collect facts, identify witnesses, and evaluate a case. Unfortunately, the discovery process is often abused by parties, and especially those with more resources – irrespective of the merits of the matter. These abuses lead to disputes that have become increasingly common, expensive, and time consuming. Currently, California law does not condemn strongly enough that abuse of the discovery process will not be tolerated. SB 235 will reduce this discovery abuse by requiring certain initial disclosures to be mandatory and by changing the current suggested sanction to a mandatory $1,000 minimum sanction imposed on lawyers that: fail to timely respond to a documents request, intent to cause unnecessary delay, and fail to meet and confer to resolved any dispute regarding the request.
Misuse of the discovery process and sanctions. Civil litigation is rife with discovery abuses, and the discovery process is infamous for the deployment of various bad faith tactics. The Code of Civil Procedure specifically provides a non-exhaustive list of misuses of the discovery process. A court has the authority to impose a variety of sanctions in response to a party’s misuse of various discovery methods. (Code Civ. Proc. § 2023.030.) Courts have found that “[w]henever one party's improper actions—even if not ‘willful’—in seeking or resisting discovery necessitate the court's intervention in a dispute, the losing party presumptively should pay a sanction to the prevailing party.” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1286-1287, citations and quotations omitted.) “A court's decision to impose a particular sanction is subject to reversal only for manifest abuse exceeding the bounds of reason.” (Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th 853, 880, citations and quotations omitted.)
SB 17 (Umberg, Chapter 836, Statutes of 2019) was introduced in response to claims that discovery disputes had become increasingly more common, expensive and time consuming. The author argued that then-existing California law did not “send a strong message that abuse of the discovery process will not be tolerated.” To address those identified challenges, SB 17 allows a party to request and requires a court to impose a monetary sanction of $250 if the court finds any of the following:
- the party, person, or attorney did not respond in good faith to a request for the production of documents, as specified;
- the party, person, or attorney produced the requested documents within seven days before the court was scheduled to hear a motion to compel production of the records that is filed by the requesting party as a result of the other party, person, or attorney’s failure to respond in good faith; or
- the party, person, or attorney failed to confer in person, by telephone, or by letter with the party or attorney requesting the documents in a reasonable and good faith attempt to resolve informally any dispute concerning the request. (Code Civ. Proc. § 2023.050(a).)
The sanction in Section 2023.050 can only be imposed after notice and an opportunity to be heard is afforded to the liable party. The sanction is payable to the requesting party and is in addition to any other sanctions imposed pursuant to existing law. The court is further authorized to require the liable party to report the sanction to the State Bar within 30 days, notwithstanding the requirement under existing law that an attorney report sanctions “except for sanctions for failure to make discovery or monetary sanctions of less than one thousand dollars ($1,000).” (Bus. & Prof. Code § 6068(o)(3).)
This bill increases the near mandatory sanction in Section 2023.050 to $1,000. This further strengthens the hammer on discovery abuse in this context.
Initial disclosures. Rule 26 of the Federal Rules of Civil Procedure provides for certain required disclosures at the outset of civil litigation in federal courts. Pursuant to Rule 26, a party must provide certain information to the other parties of the action even before a discovery request is propounded.
Seeking to mirror this procedural rule, SB 17, discussed above, initially required each party, within 45 days after service of any answer in a civil action and without awaiting a discovery request, to provide to the other parties initial disclosures that include specified information, all of which would be required pursuant to Rule 26. However, the bill eventually only required such disclosures after the parties all stipulated to it and the court ordered it. The discretionary early disclosure statute is found in Section 2016.090 of the Code of Civil Procedure.
Similar to Rule 26, the party must make its initial disclosures pursuant to Section 2016.090 based on the information then reasonably available to it and is not excused from making the disclosures simply because it has not fully investigated the case, it challenges the sufficiency of another party’s disclosures, or another party has not made its disclosures. A party must verify the required disclosures as true and correct under penalty of perjury.
After making these initial disclosures or providing responses to discovery requests, a party must supplement or correct a disclosure or response if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and the additional or corrective information has not otherwise been made known to the other parties during the disclosure or discovery process. These provisions are also found in Rule 26.
This bill now authorizes a party to demand these early disclosures in certain civil actions, unless the parties agree otherwise. The author argues that the purpose of requiring initial disclosure is to expedite the discovery process, reduce the expense of litigation, and facilitate the early resolution of litigation.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No
According to the Assembly Appropriations Committee, likely minimal state costs, if any. The Judicial Council reports that it cannot precisely predict how these changes in discovery procedures will affect court workload but anticipates that the increased sanction will deter violations of discovery rules, minimizing court time needed to enforce them.
SUPPORT: (Verified 9/7/23)
Civil Justice Association of California
OPPOSITION: (Verified 9/7/23)
None received
ARGUMENTS IN SUPPORT: The Civil Justice Association of California argues: “Discovery is a cornerstone of civil litigation. Adherence to the process helps to ensure cases are resolved in a timely manner. Undue delays in the discovery process, particularly those that are intentional, should thus be met with stricter penalties.
Compliance with discovery rules promotes fairness to all parties to a dispute and makes the best use of the court’s valuable time.”
ASSEMBLY FLOOR: 78-0, 9/7/23
AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Connolly, Megan Dahle, Davies, Dixon, Flora, Mike Fong, Vince Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Luz Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas
NO VOTE RECORDED: Bains, Essayli
Prepared by: Christian Kurpiewski / JUD. / (916) 651-4113
9/8/23 10:20:25
**** END ****
SENATE THIRD READING
STR Bill Id:SB 235
Author:(Umberg)
As Amended Ver:September 1, 2023
Majority vote
SUMMARY
Provides a framework so that parties to a civil action may demand initial disclosures regarding information that is typically sought in discovery; and mandates a $1,000 sanction against persons, parties, or attorneys that engage in certain forms of discovery abuse related to the production of documents.
Major Provisions
- Establishes that within 60 days of a demand by any party to a civil action, each party that has appeared in the action, including the party that made the demand, must provide to the other parties an initial disclosure that includes the following information:
- The names, addresses, telephone numbers, and email addresses of all persons likely to have discoverable information.
- The subjects of 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 the action, excluding material for solely impeachment purposes.
- A copy, or 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 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 the action, excluding material for solely impeachment purposes.
- Any contractual agreement and insurance policy that an insurance company may be able to satisfy a judgment, or indemnify or reimburse for payments made to satisfy judgment in the action.
- Any contractual agreement and insurance policy that a person may be able to satisfy a judgment, or indemnify or reimburse for payments made to satisfy judgment in the action.
- For purposes of complying with e), above, a party making such disclosures need only disclose material provisions of an agreement, such as identities of the parties to the agreement, the nature and limits of the coverage, and any and all documents regarding whether any insurance carrier is disputing coverage of the claim.
- Requires a party to make its initial disclosures based on the information reasonably available to it.
- Allows a party that has made, or responded to, a demand for an initial disclosure as described in 1), above, to propound a supplemental demand on any other party to elicit any later-acquired information bearing on all disclosures previously made by any party.
- Permits a party to propound supplemental demands for initial disclosures twice before the initial setting of a trial date, subject to time limits imposed in Chapter 8 of the Code of Civil Procedure, and once after the initial setting of a trial date.
- Provides that in addition to the supplemental demand permitted in 3) and 4), above, for good cause shown, a court may grant leave to a party to propound one additional supplemental demand.
- Provides that a party's initial disclosures must be verified either in a written declaration of the party or the party's authorized representative, or signed by the party's counsel.
- Establishes that in addition to the exclusions present under existing law, the following categories of cases are excluded from 1), above:
- An action or proceeding commenced in whole or in part under the Family Code.
- An action or proceeding commenced in whole or in part under the Probate Code.
- An action in which a party is unrepresented by counsel.
- An action in which a party has been granted a preference pursuant to Section 36 of the Code of Civil Procedure.
- Excludes from the initial disclosure requirement in 1), above, any person who is an expert trial witness or is retained as a consultant and may be later designated as an expert trial witness.
- Establishes that changes made to Code of Civil Procedure Section 2016.090 will apply only to civil actions filed on or after January 1, 2024.
- Establishes a January 1, 2027 sunset for the provisions described above.
- Mandates a court to impose upon a party, person, or attorney a $1,000 sanction, payable to the party that moves for the sanction, if the court finds any of the following:
- That the party, person, or attorney did not respond in good faith to a request for production of documents;
- That the party, person, or attorney produced requested documents within seven days before the court was scheduled to hear a motion to compel production of those documents – but only if that motion had to be filed by the requesting party due to the party's, person's, or attorney's failure to respond in good faith to the request for production; or
- That the party, person, or attorney failed to confer with the requesting party in a reasonable and good faith attempt to informally resolve any dispute concerning the request.
COMMENTS
This bill amends the provisions of the Civil Discovery Act (SB 17 (Umberg), Chapter 836, Statutes of 2019) that were enacted in 2020 in two key ways. First, the initial disclosure regime first introduced into state law in 2020 would be triggered by a demand of a party. Second, the mandatory sanction to respond in good faith to document production requests would be increased from $250 to $1,000.
The Legislature, led by this author, has made significant inroads in accomplishing more disclosure in discovery akin to the federal rules. Three years ago, SB 17 altered civil discovery in this state in two important ways. First, it created a framework, modeled on Federal Rule of Civil Procedure 26, for parties to stipulate to an initial disclosure of information that is commonly sought and obtained in litigation. SB 17 permits initial disclosures by stipulation, or agreement, of the parties within 45 days of a court order. The initial disclosures – when agreed to be exchanged by the parties – must include information concerning witnesses, forms of insurance, reimbursement and indemnification. It also requires disclosing descriptions of documents, electronically-stored information and tangible things. Second, SB 17 established a mandatory sanctions regime directed at persons, parties, and attorneys who do not respond to requests for production of documents in good faith.
This bill and SB 17 both attempted to model the initial disclosure regime on the Federal Rule of Civil Procedure 26 and make initial disclosures automatic and mandatory, but met substantial resistance from practitioners. SB 17 was ultimately amended so that initial disclosures were only triggered by stipulation. This measure, though initially introduced to require automatic, mandatory initial disclosures, was amended to provide initial disclosures only upon a party's demand. With this amendment, these initial disclosures more closely model other forms of written discovery in the state—only triggered upon demand of the opposing party.
This bill makes modest changes to existing law to advance its intended goal of disclosure and to limit gamesmanship in civil discovery.
- Demand and not stipulation. As discussed above, any initial disclosure obligation is triggered by a party's demand (as opposed to stipulation).
- 60 days to provide initial disclosures. Existing law provides parties 45 days to provide initial disclosures; this bill extends that time period to 60 days from the date a demand was made.
- Information to be disclosed. The information and material required to be disclosed is substantially similar to what is required under existing law, with minor changes:
- Excludes expert trial witness information from required disclosure.
- Includes insurance policies and any documents regarding whether any insurance carrier is disputing the coverage of the claim involved in the action.
- Clarifies that documents, or their description, must be disclosed if it is relevant to the subject matter of the action.
- Supplemental demands. Eliminates a mandatory supplementation obligation imposed by SB 17, and adopts the supplementation framework in place under California law for other forms of written discovery: by demand, twice before a trial date is set, and once after. (See Code of Civil Procedure Section 2031.050(b).)
- Verification of initial disclosures. A party's initial disclosures must be verified either in a written declaration of the party or the party’s authorized representative, or signed by the party's counsel.
- Categories of cases exempt from initial disclosure requirements. Expands the list of exempted categories to include: actions commenced under the Family or Probate Code, unrepresented litigants, and cases that have been designated as "preference cases."
- Increased sanction for violating discovery rule. Mandates a $1,000 sanction against persons, parties, or attorneys who engage in discovery abuse related to document production.
According to the Author
Discovery is a very important pretrial stage of a trial. It is the process of collecting information in preparation for trial, when both sides engage to collect facts, identify witnesses, and evaluate a case. Unfortunately, the discovery process is often abused by parties, and especially those with more resources – irrespective of the merits of the matter. These abuses lead to disputes that have become increasingly common, expensive, and time consuming. Currently, California law does not condemn strongly enough that abuse of the discovery process will not be tolerated. SB 235 will reduce this discovery abuse by requiring certain initial disclosures to be mandatory and by changing the current suggested sanction to a mandatory $1,000 minimum sanction imposed on lawyers that: fail to timely respond to a documents request, intent to cause unnecessary delay, and fail to meet and confer to resolved any dispute regarding the request.
Arguments in Support
According to the Civil Justice Association of California, "SB 235 is a good governance measure; adherence to discovery rules ensures fairness to both sides of a dispute and makes the best use of the court's valuable time."
Arguments in Opposition
No opposition on file.
FISCAL COMMENTS
According to the Assembly Appropriations Committee, likely minimal state costs, if any. The Judicial Council reports that it cannot precisely predict how these changes in discovery procedures will affect court workload but anticipates that the increased sanction will deter violations of discovery rules, minimizing court time needed to enforce them.
VOTES
SENATE FLOOR: 38-0-2
YES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Seyarto, Skinner, Stern, Umberg, Wahab, Wiener, Wilk
ABS, ABST OR NV: Rubio, Smallwood-Cuevas
ASM JUDICIARY: 10-0-1
YES: Maienschein, Connolly, Dixon, Haney, Kalra, Pacheco, Papan, Reyes, Sanchez, McKinnor
ABS, ABST OR NV: Essayli
ASM APPROPRIATIONS: 15-0-1
YES: Holden, Megan Dahle, Bryan, Calderon, Wendy Carrillo, Dixon, Mike Fong, Hart, Lowenthal, Mathis, Papan, Sanchez, Soria, Weber, Wilson
ABS, ABST OR NV: Pellerin
UPDATED
VERSION: September 1, 2023
CONSULTANT: Shiran Zohar / JUD. / (916) 319-2334 FN: 0001376
SENATE THIRD READING
STR Bill Id:SB 235
Author:(Umberg)
As Amended Ver:July 10, 2023
Majority vote
SUMMARY
Provides a framework so that parties to a civil action may demand initial disclosures regarding information that is typically sought in discovery; and mandates a $1,000 sanction against persons, parties, or attorneys that engage in certain forms of discovery abuse related to the production of documents.
Major Provisions
- Establishes that within 60 days of a demand by any party to a civil action, each party that has appeared in the action, including the party that made the demand, must provide to the other parties an initial disclosure that includes the following information:
- The names, addresses, telephone numbers, and email addresses of all persons likely to have discoverable information.
- The subjects of 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 the action, excluding material for solely impeachment purposes.
- A copy, or 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 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 the action, excluding material for solely impeachment purposes.
- Any contractual agreement and insurance policy that an insurance company may be able to satisfy a judgment, or indemnify or reimburse for payments made to satisfy judgment in the action.
- Any contractual agreement and insurance policy that a person may be able to satisfy a judgment, or indemnify or reimburse for payments made to satisfy judgment in the action.
- For purposes of complying with e), above, a party making such disclosures need only disclose material provisions of an agreement, such as identities of the parties to the agreement, the nature and limits of the coverage, and any and all documents regarding whether any insurance carrier is disputing coverage of the claim.
- Requires a party to make its initial disclosures based on the information reasonably available to it.
- Allows a party that has made a demand for an initial disclosure as described in 1) to propound a supplemental demand on any other party to elicit any later-acquired information bearing on all disclosures previously made by any party.
- Permits a party to propound supplemental demands for initial disclosures twice before the initial setting of a trial date, subject to time limits imposed in Chapter 8 of the Code of Civil Procedure, and once after the initial setting of a trial date.
- Provides that in addition to the supplemental demand permitted in 3) and 4), above, for good cause shown, a court may grant leave to a party to propound one additional supplemental demand.
- Provides that a party's initial disclosures must be verified in a written declaration by the party's counsel.
- Establishes that in addition to the exclusions present under existing law, the following categories of cases are excluded from 1), above:
- An action or proceeding commenced in whole or in part under the Family Code.
- An action or proceeding commenced in whole or in part under the Probate Code.
- An action in which a party is unrepresented by counsel.
- An action in which a party has been granted a preference pursuant to Section 36 of the Code of Civil Procedure.
- Excludes from the initial disclosure requirement in 1), above, any person who is an expert trial witness or is retained as a consultant and may be later designated as an expert trial witness.
- Establishes that changes made to Code of Civil Procedure Section 2016.090 will apply only to civil actions filed on or after January 1, 2024.
- Establishes a January 1, 2027 sunset for the provisions described above.
- Mandates a court to impose upon a party, person, or attorney a $1,000 sanction, payable to the party that moves for the sanction, if the court finds any of the following:
- That the party, person, or attorney did not respond in good faith to a request for production of documents;
- That the party, person, or attorney produced requested documents within seven days before the court was scheduled to hear a motion to compel production of those documents – but only if that motion had to be filed by the requesting party due to the party's, person's, or attorney's failure to respond in good faith to the request for production; or
- That the party, person, or attorney failed to confer with the requesting party in a reasonable and good faith attempt to informally resolve any dispute concerning the request.
COMMENTS
This bill amends the provisions of the Civil Discovery Act (SB 17 (Umberg), Chapter 836, Statutes of 2019) that were enacted in 2020 in two key ways. First, the initial disclosure regime first introduced into state law in 2020 would be triggered by a demand of a party. Second, the mandatory sanction to respond in good faith to document production requests would be increased from $250 to $1,000.
The Legislature, led by this author, has made significant inroads in accomplishing more disclosure in discovery akin to the federal rules. Three years ago, SB 17 altered civil discovery in this state in two important ways. First, it created a framework, modeled on Federal Rule of Civil Procedure 26, for parties to stipulate to an initial disclosure of information that is commonly sought and obtained in litigation. SB 17 permits initial disclosures by stipulation, or agreement, of the parties within 45 days of a court order. The initial disclosures – when agreed to be exchanged by the parties – must include information concerning witnesses, forms of insurance, reimbursement and indemnification. It also requires disclosing descriptions of documents, electronically-stored information and tangible things. Second, SB 17 established a mandatory sanctions regime directed at persons, parties, and attorneys who do not respond to requests for production of documents in good faith.
This bill and SB 17 both attempted to model the initial disclosure regime on the Federal Rule of Civil Procedure 26 and make initial disclosures automatic and mandatory, but met substantial resistance from practitioners. SB 17 was ultimately amended so that initial disclosures were only triggered by stipulation. This measure, though initially introduced to require automatic, mandatory initial disclosures, was amended to provide initial disclosures only upon a party's demand. With this amendment, these initial disclosures more closely model other forms of written discovery in the state—only triggered upon demand of the opposing party.
This bill makes modest changes to existing law to advance its intended goal of disclosure and to limit gamesmanship in civil discovery.
- Demand and not stipulation. As discussed above, any initial disclosure obligation is triggered by a party's demand (as opposed to stipulation).
- 60 days to provide initial disclosures. Existing law provides parties 45 days to provide initial disclosures; this bill extends that time period to 60 days from the date a demand was made.
- Information to be disclosed. The information and material required to be disclosed is substantially similar to what is required under existing law, with minor changes:
- Excludes expert trial witness information from required disclosure.
- Includes insurance policies and any documents regarding whether any insurance carrier is disputing the coverage of the claim involved in the action.
- Clarifies that documents, or their description, must be disclosed if it is relevant to the subject matter of the action.
- Supplemental demands. Eliminates a mandatory supplementation obligation imposed by SB 17, and adopts the supplementation framework in place under California law for other forms of written discovery: by demand, twice before a trial date is set, and once after. (See Code of Civil Procedure Section 2031.050(b).)
- Verification of initial disclosures. A party's attorney must verify disclosures in written declaration. This is in line with the attorney verification requirement under Federal Rule of Civil Procedure 26(g).
- Categories of cases exempt from initial disclosure requirements. Expands the list of exempted categories to include: actions commenced under the Family or Probate Code, unrepresented litigants, and cases that have been designated as "preference cases."
- Increased sanction for violating discovery rule. Mandates a $1,000 sanction against persons, parties, or attorneys who engage in discovery abuse related to document production.
According to the Author
Discovery is a very important pretrial stage of a trial. It is the process of collecting information in preparation for trial, when both sides engage to collect facts, identify witnesses, and evaluate a case. Unfortunately, the discovery process is often abused by parties, and especially those with more resources – irrespective of the merits of the matter. These abuses lead to disputes that have become increasingly common, expensive, and time consuming. Currently, California law does not condemn strongly enough that abuse of the discovery process will not be tolerated. SB 235 will reduce this discovery abuse by requiring certain initial disclosures to be mandatory and by changing the current suggested sanction to a mandatory $1,000 minimum sanction imposed on lawyers that: fail to timely respond to a documents request, intent to cause unnecessary delay, and fail to meet and confer to resolved any dispute regarding the request.
Arguments in Support
According to the Civil Justice Association of California, "SB 235 is a good governance measure; adherence to discovery rules ensures fairness to both sides of a dispute and makes the best use of the court's valuable time."
Arguments in Opposition
No opposition on file.
FISCAL COMMENTS
According to the Assembly Appropriations Committee, likely minimal state costs, if any. The Judicial Council reports that it cannot precisely predict how these changes in discovery procedures will affect court workload but anticipates that the increased sanction will deter violations of discovery rules, minimizing court time needed to enforce them.
VOTES
SENATE FLOOR: 38-0-2
YES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Seyarto, Skinner, Stern, Umberg, Wahab, Wiener, Wilk
ABS, ABST OR NV: Rubio, Smallwood-Cuevas
ASM JUDICIARY: 10-0-1
YES: Maienschein, Connolly, Dixon, Haney, Kalra, Pacheco, Papan, Reyes, Sanchez, McKinnor
ABS, ABST OR NV: Essayli
ASM APPROPRIATIONS: 15-0-1
YES: Holden, Megan Dahle, Bryan, Calderon, Wendy Carrillo, Dixon, Mike Fong, Hart, Lowenthal, Mathis, Papan, Sanchez, Soria, Weber, Wilson
ABS, ABST OR NV: Pellerin
UPDATED
VERSION: June 27, 2023
CONSULTANT: Shiran Zohar / JUD. / (916) 319-2334 FN: 0001320
Date of Hearing: August 16, 2023
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Chris Holden, Chair
SBPCA Bill Id:SB 235
Author:(Umberg) – As Amended Ver:July 10, 2023
Policy Committee: | Judiciary | Vote: | 10 - 0 |
|
| ||
|
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Urgency: No State Mandated Local Program: No Reimbursable: No
SUMMARY:
This bill changes state civil discovery procedures to make them more similar to federal civil discovery procedures and increases the sanction for violating discovery rules related to production of documents from $250 to $1,000.
Specifically, among other provisions, this bill:
- Requires parties to make initial disclosures based on a demand by another party, rather than by stipulation of the parties as required by current law.
- Extends the period in which parties must provide initial disclosures from 45 days to 60 days.
- Allows a party to make supplemental demands for initial disclosures twice before a trial date is set and once after a trial date is set.
- Requires a party’s attorney to verify disclosures in written declaration, as required in the Federal Rules of Civil Procedure.
- Exempts from these requirements actions commenced under the Family Code or Probate Code, cases involving unrepresented litigants, and preference cases.
- Requires the court to issue a $1,000 sanction against persons, parties, or attorneys who engage in specified discovery abuse related to document production.
FISCAL EFFECT:
Likely minimal state costs, if any. The Judicial Council reports that it cannot precisely predict how these changes in discovery procedures will affect court workload but anticipates that the increased sanction will deter violations of discovery rules, minimizing court time needed to enforce them.
COMMENTS:
- Purpose. According to the author:
Discovery is a very important pretrial stage of a trial. It is the process of collecting information in preparation for trial, when both sides engage to collect facts, identify witnesses, and evaluate a case. Unfortunately, the discovery process is often abused by parties, and especially those with more resources – irrespective of the merits of the matter. These abuses lead to disputes that have become increasingly common, expensive, and time consuming. Currently, California law does not condemn strongly enough that abuse of the discovery process will not be tolerated. SB 235 will reduce this discovery abuse by requiring certain initial disclosures to be mandatory and by changing the current suggested sanction to a mandatory $1,000 minimum sanction imposed on lawyers that: fail to timely respond to a documents request, intent to cause unnecessary delay, and fail to meet and confer to resolved any dispute regarding the request.
- Background. Discovery is a pre-trial phase of a civil court case in which parties exchange documents and information pertaining to the case. In general, the rules that govern discovery in federal cases are considered to be more streamlined and less prone to gamesmanship by attorneys than the rules governing discovery in state cases. As outlined above, this bill makes a number of changes to make state discovery rules more similar to federal rules. One major change is switching from a system in which initial discovery disclosures are required only if all parties agree to a system where initial discovery disclosures are required if any party demands them. In other words, instead of needing to come to a consensus about whether to exchange significant documents early in a case, one party can simply demand initial discovery disclosures unilaterally. According to the analysis of this bill by the Assembly Committee on Judiciary, this change facilitates initial disclosures, which may result in cost savings to litigants, increased transparency between litigants, and quicker resolution of cases.
- Prior Legislation. SB 17 (Umberg), Chapter 836, Statutes of 2019, among other provisions, established the existing procedure for stipulated initial discovery disclosures and the $250 mandatory sanction for certain discovery violations.
Analysis Prepared by: Annika Carlson / APPR. / (916) 319-2081
Date of Hearing: July 5, 2023
ASSEMBLY COMMITTEE ON JUDICIARY
Brian Maienschein, Chair
SBPCA Bill Id:SB 235
Author:(Umberg) – As Amended Ver:June 27, 2023
PROPOSED CONSENT (As Proposed to be Amended)
SENATE VOTE: 38-0
SUBJECT: Civil discovery
KEY ISSUE: SHOULD THE CIVIL DISCOVERY PROCESS permit parties to demand initial disclosures in most civil cases; and IMPOSE A MANDATORY $1,000 SANCTION on parties who fail to RESPOND IN GOOD FAITH TO REQUESTS FOR PRODUCTION OF DOCUMENTS?
SYNOPSIS
Existing law, which was enacted in 2020, provides a framework for parties, by stipulation, to exchange initial disclosures of information that is commonly sought in civil discovery: the identities of persons likely to have discoverable information; copies or descriptions of documents, electronically stored information, and objects that the disclosing party may use to support its case; and any contractual arrangements for insurance, reimbursement, or indemnification for liabilities. It excluded unlawful detainer and small claims actions from its initial disclosure regime. That same law also imposed a $250 sanction against a party or attorneys that abused the discovery process by refusing to produce documents in good faith. This author-sponsored bill inches closer to the initial disclosure regime imposed under the federal rules (which automatically require initial disclosures in most civil cases), and would make these initial disclosures mandatory upon demand by the other party. The bill would exclude additional categories of cases from this initial disclosure regime: actions commenced under the Family or Probate Codes, so-called “preference cases,” and those civil actions where a party is unrepresented by counsel. These provisions of the bill would only come into effect for cases filed after January 1, 2024 and –absent further action by the Legislature—would sunset on January 1, 2027. This bill would also permanently increase the amount of the sanction for flouting discovery rules related to production of documents to $1,000. This bill is unopposed, and is supported by the Civil Justice Association of California.
SUMMARY: Provides a framework so that parties to a civil action may demand initial disclosures regarding information that is typically sought in discovery; and mandates a $1,000 sanction against persons, parties, or attorneys that engage in certain forms of discovery abuse related to the production of documents. Specifically, this bill:
- Establishes that within 60 days of a demand by any party to a civil action, each party that has appeared in the action, including the party that made the demand, must provide to the other parties an initial disclosure that includes the following information:
- The names, addresses, telephone numbers, and email addresses of all persons likely to have discoverable information.
- The subjects of 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 the action, excluding material for solely impeachment purposes.
- A copy, or 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 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 the action, excluding material for solely impeachment purposes.
- Any contractual agreement and insurance policy that an insurance company may be able to satisfy a judgment, or indemnify or reimburse for payments made to satisfy judgment in the action.
- Any contractual agreement and insurance policy that a person may be able to satisfy a judgment, or indemnify or reimburse for payments made to satisfy judgment in the action.
- For purposes of complying with e), a party making such disclosures need only disclose material provisions of an agreement, such as identities of the parties to the agreement, the nature and limits of the coverage, and any and all documents regarding whether any insurance carrier is disputing coverage of the claim.
- Requires a party to make its initial disclosures based on the information reasonably available to it.
- Allows a party that has made a demand for an initial disclosure as described in 1) to propound a supplemental demand on any other party to elicit any later-acquired information bearing on all disclosures previously made by any party.
- Permits a party to propound supplemental demands for initial disclosures twice before the initial setting of a trial date, subject to time limits imposed in Chapter 8 of the Code of Civil Procedure, and once after the initial setting of a trial date.
- Provides that in addition to the supplemental demand permitted in 3)-4), for good cause shown, a court may grant leave to a party to propound one additional supplemental demand.
- Provides that a party’s initial disclosures must be verified in a written declaration by the party’s counsel.
- Establishes that in addition to the exclusions present under existing law, the following categories of cases are excluded from 1):
- An action or proceeding commenced in whole or in part under the Family Code.
- An action or proceeding commenced in whole or in part under the Probate Code.
- An action in which a party is unrepresented by counsel.
- An action in which a party has been granted a preference pursuant to Section 36 of the Code of Civil Procedure.
- Excludes from the initial disclosure requirement in 1) any person who is an expert trial witness or is retained as a consultant and may be later designated as an expert trial witness.
- Establishes that changes made to Section 2016.090 will apply only to civil actions filed on or after January 1, 2024.
- Establishes a January 1, 2027 sunset for the provisions described above.
- Mandates a court to impose upon a party, person, or attorney a $1,000 sanction, payable to the party that moves for the sanction, if the court finds any of the following:
- That the party, person, or attorney did not respond in good faith to a request for production of documents;
- That the party, person, or attorney produced requested documents within seven days before the court was scheduled to hear a motion to compel production of those documents—but only if that motion had to be filed by the requesting party due to the party’s, person’s, or attorney’s failure to respond in good faith to the request for production; or
- That the party, person, or attorney failed to confer with the requesting party in a reasonable and good faith attempt to informally resolve any dispute concerning the request.
EXISTING LAW:
- Authorizes, pursuant to the Civil Discovery Act, various forms of discovery to be utilized in civil litigation, including depositions, interrogatories, requests for admission, requests for physical or mental examinations, and demands for inspection, including requests for production of documents. (Code of Civil Procedure Sections 2016.010-2036.050. Unless otherwise noted, all statutory references hereinafter are to the Code of Civil Procedure.)
- Establishes that the scope of discovery encompasses any matter, not privileged, that is relevant to either the subject matter of the action or the determination of a motion in the action, if the matter is either itself admissible as evidence or appears reasonably calculated to lead to the discovery of admissible evidence. (Section 2017.010.)
- Permits a court, on a motion for a protective order, to limit the scope of discovery if the court determines that the burden, expense, or intrusiveness of discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. (Section 2017.020 (c).)
- Allows a party to use discovery to determine whether an agreement exists under which an insurance carrier may be liable to satisfy, in whole or in part, a judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment. Also allows discovery as to the contents of such an agreement, including the identity of the insurance carrier and the nature and limits of the coverage. (Section 2017.210.)
- Permits a party to take the oral deposition of a person after providing that person with a deposition notice, and in that notice, setting forth any materials or categories of materials, including electronically stored information, that the person is required to produce. (Section 2025.220.)
- Permits a party to obtain discovery through a deposition subpoena that commands the attendance and testimony of a person to be deposed, and that can also command the production of business records, documents, electronically stored information, and tangible things. (Section 2020.510.)
- Permits a party to obtain discovery through issuance of a deposition subpoena that commands only the production of business records for copying. (Section 2020.410.)
- Permits a party to bring a motion to compel a deponent to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice that the deponent has failed to produce. (Section 2025.450.)
- Permits a party to obtain discovery from another party by propounding a demand to inspect, copy, test, or sample documents, tangible things, land, other property, and electronically stored information in the possession, custody, or control of any other party to the action (hereinafter, “inspection demand”). (Section 2031.010.)
- Permits a party to obtain discovery by propounding to any other party written interrogatories to be answered under oath. (Section 2030.010.)
- Permits a party to propound supplemental interrogatories in order to obtain information acquired by the responding party after it responded to the initially-propounded interrogatories. (Section 2030.070.)
- Permits a party to propound, with limitations, supplemental inspection demands for any later-discovered documents, tangible things, land or other property, or electronically stored information in the possession, custody, or control of the party on whom the demand is made. (Section 2031.050.)
- Requires a party to whom an inspection demand has been directed to respond separately to each item or category of item demanded with any of the following:
- A statement that the party will comply with the particular demand;
- A representation that the party lacks the ability to comply with the demand; or
- An objection to the particular demand. (Sections 2031.210-2031.240.)
- Requires the party to whom an inspection demand has been propounded to sign the response under oath unless the response contains only objections, and requires the attorney for the responding party to sign any responses that contain an objection. (Section 2031.250.)
- Provides that the propounding party may move for an order compelling a response to an inspection demand if the responding party fails to serve a timely response; if the responding party fails to permit the inspection in accord with its statement of compliance; or if the propounding party deems that a) a statement of compliance with the demand is incomplete, b) a representation of inability to comply is inadequate, incomplete, or evasive, or c) an objection in the response is without merit or too general. (Sections 2031.300-2031.320.)
- Permits a court to impose sanctions, including monetary sanctions, against any party or any attorney of a party for specified violations of the discovery process, as set forth in the Civil Discovery Act. (Sections 2023.010-2023.040.)
- Requires a court, notwithstanding any other law, and in addition to any other sanctions imposed pursuant to the Civil Discovery Act, to impose a $250 sanction, payable to the requesting party, upon a party, person, or attorney if, upon reviewing a request for a sanction made pursuant to Section 2023.040 of the Code of Civil Procedure, the court finds certain specified conduct occurred, including failure to respond to discovery requests in good faith, as provided. (Section 2023.050 (a).)
- Requires notice to the party, person, or attorney against whom the sanction is proposed to be imposed and opportunity for them to be heard before sanctions can be imposed. Allows a court to excuse the imposition of the sanction required if the court makes written findings that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Section 2023.050 (c), (d).)
- Provides a safe harbor from sanctions, absent exceptional circumstances, for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system. (Sections 2017.020, 2031.060.)
- Requires attorneys to report to the State Bar of California in writing within 30 days of learning that they are subject to a judicial sanction of $1,000 or more, unless the sanction is for failure to make discovery. (Business and Professions Code Section 6068 (o).)
- Establishes a rebuttable presumption that a natural person acted in good faith if that person was not represented by an attorney in the action at the time the conduct that is sanctionable occurred. This presumption may only be overcome by clear and convincing evidence. (Section 2023.050 (e).)
- Provides that within 45 days of an order of the court following stipulation by all parties to the action, other than unlawful detainer actions or those in the small claims division of the court, the parties shall, without awaiting a discovery request, provide to the other parties an initial disclosure including specified information. (Section 2016.090.)
- Requires a party to make the initial disclosures based on the information then reasonably available to it and to verify such disclosures under penalty of perjury. 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. (Section 2016.090 (a)(2).)
- Requires a party that has made its initial disclosures or responded to a discovery request, to supplement or correct a disclosure or response in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect and the additional or corrective information has not otherwise been made known to the other parties during the disclosure or discovery process, or as ordered by the court. (Section 2016.090 (a)(3).)
- Authorizes the above obligations to be enforced by a court on its own motion or the motion of a party to compel disclosure. (Section 2016.090 (a)(4).)
- Establishes that a party is not excused from making an initial disclosure 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. (Section 2016.090 (a)(2).)
- Requires verification of a party’s initial disclosures under penalty of perjury as being true and correct to the best of the party’s knowledge. (Section 2016.090 (a)(5).)
- Excludes from stipulated initial disclosure obligations small claims and unlawful detainer actions. (Section 2016.090 (b).)
- Establishes that parties in the following types of actions may petition the court for a preference, in which case the matter is set for trial no more than 120 days from the granting of such a motion:
- Cases involving a party to a civil action who is over 70 years of age, where the party has a substantial interest in the action as a whole, and the health of that party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.
- Cases to recover damages for a wrongful death or personal injury upon the motion of any party to the action who is under 14 years of age. (Section 36.)
- Provides that a court has discretion to grant a motion for preference as described in 29) that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, or that is supported by a showing that satisfies the court that the interests of justice will be served. (Id.)
- Mandates a court to impose upon a party, person, or attorney a $250 sanction, payable to the party that moves for the sanction, if the court finds any of the following:
- That the party, person, or attorney did not respond in good faith to a request for production of documents;
- That the party, person, or attorney produced requested documents within seven days before the court was scheduled to hear a motion to compel production of those documents—but only if that motion had to be filed by the requesting party due to the party’s, person’s, or attorney’s failure to respond in good faith to the request for production; or
- That the party, person, or attorney failed to confer with the requesting party in a reasonable and good faith attempt to informally resolve any dispute concerning the request. (Section 2023.050 (a).)
- Requires, under federal law, certain initial disclosures to be made by one party to the other parties without awaiting a discovery request in civil litigation in federal courts. (Federal Rules of Civil Procedure 26 (a)(1)(A).)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: This bill amends the provisions of the Civil Discovery Act (SB 17 (Umberg) Chap. 836, Stat. 2019) that were enacted in 2020 in two key ways. First, the initial disclosure regime first introduced into state law in 2020 would be triggered by a demand of a party. Second, the mandatory sanction to respond in good faith to document production requests would be increased from $250 to $1,000. According to the author:
Discovery is a very important pretrial stage of a trial. It is the process of collecting information in preparation for trial, when both sides engage to collect facts, identify witnesses, and evaluate a case. Unfortunately, the discovery process is often abused by parties, and especially those with more resources – irrespective of the merits of the matter. These abuses lead to disputes that have become increasingly common, expensive, and time consuming. Currently, California law does not condemn strongly enough that abuse of the discovery process will not be tolerated. SB 235 will reduce this discovery abuse by requiring certain initial disclosures to be mandatory and by changing the current suggested sanction to a mandatory $1,000 minimum sanction imposed on lawyers that: fail to timely respond to a documents request, intent to cause unnecessary delay, and fail to meet and confer to resolved any dispute regarding the request.
California civil discovery is notoriously prone to gamesmanship. Discovery gamesmanship and obfuscation are notorious issues in civil litigation. (See, e.g., Mannino v. Sup. Ct. (1983) 142 Cal. App. 3d 776, 778 (“[T]he discovery process is subject to frequent abuse and, like a cancerous growth, can destroy a meritorious cause or defense….”); Reedy v. Bussell (2007) 148 Cal. App. 4th 1272, 1293 (“The record here demonstrates the [defendants] were recalcitrant in virtually every aspect of discovery, and failed to either produce documents or provide proper written answers to discovery[, and t]heir obstinacy continued during trial.”)
This situation is unfortunate especially given California’s longstanding policy in favor of expansive discovery. The California Supreme Court has recognized, correctly, that “the Legislature intended to take the ‘game’ element out of trial preparation while yet retaining the adversary nature of the trial itself.” (Greyhound Corp. v Superior Court (1961) 56 Cal. 2d 355, 376.) Our Supreme Court is also correct in noting that, “in order to accomplish th[ese] purpose[s], the discovery statutes ‘must be construed liberally in favor of disclosure.’” (Emerson Electric Co. v. Superior Court (1997) 1107 Cal. 4th 1101, 1107 (quoting Greyhound, ibid).)
Gamesmanship can take many forms. One way this occurs is through the use of overly broad and burdensome discovery requests. Parties can manipulate the rules to flood their opponents with numerous requests for information, documents, and depositions, with the intention of overwhelming them and causing delays and increased costs. Another oft-employed tactic involves the opposite approach: parties may purposefully delay or withhold certain documents or information, even if they are relevant to the case, to gain an advantage or to force the opposing party into settlement negotiations. This bill, and its predecessor SB 17, target these obfuscation tactics.
Existing law. Litigants typically seek to discover the identities and whereabouts of persons with information about the dispute; the content of documents that opposing parties might use to support claims or defenses; and whether, and to what extent, opposing parties are covered by insurance policies. In recognition of the fact that this information is so routinely sought in discovery, the Federal Rules of Civil Procedure have, for nearly 50 years, required the parties to a lawsuit to disclose this information within 14 days of a mandated conference regarding the case. (Federal Rule of Civil Procedure 26 (a)(1), (f).)
The Legislature, led by this author, has made significant inroads in accomplishing more disclosure in discovery akin to the federal rules. Three years ago, SB 17 altered civil discovery in this state in two important ways. First, it created a framework, modeled on Federal Rule of Civil Procedure 26, for parties to stipulate to an initial disclosure of information that is commonly sought and obtained in litigation. SB 17 permits initial disclosures by stipulation, or agreement, of the parties within 45 days of a court order. The initial disclosures—when agreed to be exchanged by the parties— must include information concerning witnesses, forms of insurance, reimbursement and indemnification. It also requires disclosing descriptions of documents, electronically-stored information and tangible things. Second, SB 17 established a mandatory sanctions regime directed at persons, parties, and attorneys who do not respond to requests for production of documents in good faith.
This bill and SB 17 both attempted to model the initial disclosure regime on the Federal Rule of Civil Procedure 26 and make initial disclosures automatic and mandatory, but met substantial resistance from practitioners. SB 17 was ultimately amended so that initial disclosures were only triggered by stipulation. This measure, though initially introduced to require automatic, mandatory initial disclosures, was amended to provide initial disclosures only upon a party’s demand. With this amendment, these initial disclosures more closely model other forms of written discovery in the state—only triggered upon demand of the opposing party.
This bill makes modest changes to existing law to advance its intended goal of disclosure and to limit gamesmanship in civil discovery.
- Demand and not stipulation. As discussed above, any initial disclosure obligation is triggered by a party’s demand (as opposed to stipulation).
- 60 days to provide initial disclosures. Existing law provides parties 45 days to provide initial disclosures; this bill extends that time period to 60 days from the date a demand was made.
- Information to be disclosed. The information and material required to be disclosed is substantially similar to what is required under existing law, with minor changes:
- Excludes expert trial witness information from required disclosure.
- Includes insurance policies and any documents regarding whether any insurance carrier is disputing the coverage of the claim involved in the action.
- Clarifies that documents, or their description, must be disclosed if it is relevant to the subject matter of the action.
- Supplemental demands. Eliminates a mandatory supplementation obligation imposed by SB 17, and adopts the supplementation framework in place under California law for other forms of written discovery: by demand, twice before a trial date is set, and once after. (See Code of Civil Procedure Section 2031.050(b).)
- Verification of initial disclosures. A party’s attorney must verify disclosures in written declaration. This is in line with the attorney verification requirement under Federal Rule of Civil Procedure 26(g).
- Categories of cases exempt from initial disclosure requirements. Expands the list of exempted categories to include: actions commenced under the Family or Probate Code, unrepresented litigants, and cases that have been designated as “preference cases.”
- Increased sanction for violating discovery rule. Mandates a $1,000 sanction against persons, parties, or attorneys who engage in discovery abuse related to document production.
The implications of this bill on civil discovery. The promise of an initial disclosure regime includes cost savings for litigants, a more transparent playing field, and quicker and more efficient resolution of cases. Three years after initial disclosures were made available to litigants in civil actions, it is unclear whether that promise has been fulfilled. Gamesmanship appears as prevalent as ever, and the $250 mandatory sanction imposed by SB 17 likewise has not appeared to deter nefarious discovery conduct amongst attorneys. (See, e.g., Facebook, Gibson Dunn Sanctioned for ‘Egregious’ Conduct (Feb. 9, 2023), https://www.law360.com/articles/1574896/facebook-gibson-dunn-sanctioned-for-egregious-conduct.) The Committee is unaware of any data by Judicial Council (or anyone else) since SB 17 was signed into the law, showing how often initial disclosures were stipulated to. In any event, it is probably too soon to determine whether initial disclosures, if actually utilized, resulted in increased efficiency and speedier resolution of cases.
It is impossible to determine how much the revisions the initial disclosure regime proposed in this bill will make a difference, but there is reason to be optimistic about their likely impact. Pursuant to this measure, initial disclosures will be mandatory upon demand, meaning that parties will not have to agree to produce them. By permitting a party to demand them, without obtaining agreement of the opposing party, the likelihood that they will be utilized seems significantly higher.
The likely effect of increased sanctions is likewise unknown. Prior to SB 17, California courts had the authority to impose monetary sanctions in an amount at their discretion against any party that engaged in “conduct that is a misuse of the discovery process.” (Code of Civil Procedure Section 2023.030 (a).) Such misuse of the discovery process included failure to respond or submit to an authorized method of discovery, and failure to confer with an opposing party in a reasonable and good faith manner. (Code of Civil Procedure Section 2023. 010 (d, i).) Monetary sanctions were also specifically available against parties who unsuccessfully brought or opposed a motion to compel compliance with an inspection demand (Code of Civil Procedure Section 2023.320 (b)) and against deponents who failed to produce a requested document at deposition prior to SB 17 becoming law. (Code of Civil Procedure Section 2025.480.)
SB 17 was intended to supplement these provisions, and to provide an additional basis for obtaining sanctions for the failure to produce responsive documents. Importantly, this provision within SB 17 also provided a mechanism for a reportable event to the State Bar: “Notwithstanding paragraph (3) of subdivision (o) of Section 6068 of the Business and Professions Code, the court may, in its discretion, require an attorney who is sanctioned pursuant to subdivision (a) to report the sanction, in writing, to the State Bar within 30 days of the imposition of the sanction.” This supersedes the general rule in Business and Professions Code section 6068, subdivision (o)(3) that provides sanctions for failure to make discovery and monetary sanctions of less than $1,000 did not need to be reported to the State Bar. It is unknown whether increasing the amount of monetary sanctions will have any effect on limiting attorneys’ behaving badly; if past is prologue, that appears unlikely.
The rationale for exempting certain categories of cases. In the process of negotiating this measure between the author, stakeholders, and Committee staff, concerns were raised about including certain categories of cases in this initial disclosure regime. Family and probate law, for example, are unlike other civil actions and are subject to their own unique procedures. For example, there is already a well-developed statutory scheme for the exchange of information in family law cases. This is because, pursuant to Family Code Section 721, spouses are subject to the general rules governing fiduciary relationships that control the actions of persons occupying confidential relations with each other. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other.
Likewise, in so-called “preference cases,” a category of cases proposed to be excluded in the below author’s amendment, cases are set for trial within 120 days, and the discovery that ensues is pegged to that fast-tracked date. Stakeholders argued—and the author agreed—that these categories of cases have their own unique procedures and should not fall within these general initial disclosure rules.
The bill in print also excludes unrepresented parties, in recognition that their level of sophistication and access may substantially differ from represented parties. Though Federal Rule of Civil Procedure 26, after which much of this bill is modeled, does not except unrepresented parties, this exclusion is not entirely unique. For example, for purposes of imposing mandatory sanctions discussed above, unrepresented parties are presumed to have acted in good faith—no such presumption exists for attorneys. Nevertheless, excluding all unrepresented parties from certain discovery obligations does not appear to have a corollary under other discovery rules.
Additional considerations. Stakeholders have expressed a desire to including “complex” cases in this list of cases that do not need to comply with the initial disclosure regime created by this bill. A “complex case” is an action that requires exceptional judicial management to avoid placing unnecessary burdens on the court or the litigants and to expedite the case, keep costs reasonable, and promote effective decision making by the court, the parties, and counsel. (Rule of Court 3.400(a).) California’s complex courts are specialized departments within the civil divisions of several of the state’s superior courts. The complex court program was established after a state task force was set up in the mid-1990s to consider the creation of separate courts that would focus on business-related issues. In 2015, the complex courts received permanent funding, and complex courts are littered throughout the state. The discovery procedures differ once a case is designated complex, and the court has much greater involvement in the discovery process. Unlike in “standard” cases which are governed solely by the Code of Civil Procedure, a complex case will be governed by a Case Management Order which will provide guidelines, deadlines, and procedures for all aspects of the litigation from discovery through trial.
In addition, initial disclosures appear particularly useful when there is a limited universe of documents and their initial disclosure would help streamline the discovery process. In a complex case, there are often significantly more documents, issues, and individuals involved, and much of those are only uncovered as the case develops rather than at its outset, further calling into question the utility of requiring initial disclosures for these types of cases.
Author’s amendment - Section 2016.090(b)
(b) Notwithstanding subdivision (a), this section does not apply to the following actions:
(1) An unlawful detainer action, as defined in Section 1161.
(2) An action in the small claims division of a court, as defined in Section 116.210.
(3) An action or proceeding commenced in whole or in part under the Family Code.
(4) An action or proceeding commenced in whole or in part under the Probate Code.
(5) An action in which a party has been granted preference pursuant to Section 36 of this Code.
REGISTERED SUPPORT / OPPOSITION:
Support
Civil Justice Association of California
Opposition
None on file
Analysis Prepared by: Shiran Zohar / JUD. / (916) 319-2334
SENATE RULES COMMITTEE Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | SB 235 |
THIRD READING
Bill No: SB 235
Author: Umberg (D)
Amended: 3/14/23
Vote: 21
SENATE JUDICIARY COMMITTEE: 11-0, 4/18/23
AYES: Umberg, Wilk, Allen, Ashby, Caballero, Durazo, Laird, McGuire, Min, Niello, Wiener
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
SUBJECT: Civil discovery
SOURCE: Author
DIGEST:
This bill mandates, rather than allows for, certain initial disclosures to automatically be made in all civil actions, except unlawful detainer and small claims actions, as specified. This bill raises the sanction that courts must impose when it makes certain findings in relation to civil discovery abuses, as specified, to $1,000.
ANALYSIS:
Existing law:
- Provides, through the Civil Discovery Act, procedures by which parties to a civil action conduct and obtain “discovery,” including by, among other things, oral depositions. (Code Civ. Proc. § 2016.010 et seq.)
- Provides that generally any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc. § 2017.010.)
- Provides for various forms of discovery, including interrogatories, requests for admission, depositions, requests for physical or mental examinations, and requests for production of documents. The propounding party is authorized, on receipt of a response to various forms of discovery, to move for an order compelling a further response if the propounding party deems the response inadequate or insufficient in some manner. (Code Civ. Proc. §§ 2025.010-2033.740.)
- Identifies various misuses of the discovery process. (Code Civ. Proc. § 2023.010.) Authorizes the court to impose various sanctions against anyone engaging in conduct that is a misuse of the discovery process. (Code Civ. Proc. § 2023.030.)
- Requires the court, in addition to the above and notwithstanding the outcome of the particular discovery motion, to impose a monetary sanction ordering that any party or attorney who fails to confer as required pay the reasonable expenses incurred by anyone as a result of that conduct. (Code Civ. Proc. § 2023.020.)
- Requires that a request for a sanction identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. (Code Civ. Proc. § 2023.040.)
- Requires a court, notwithstanding any other law, and in addition to any other sanctions imposed, to impose a $250 sanction, payable to the requesting party, upon a party, person, or attorney if, upon reviewing a request for a sanction made pursuant to Section 2023.040 of the Code of Civil Procedure, the court finds certain specified conduct occurred, including failure to respond to discovery requests in good faith, as provided. (Code Civ. Proc. § 2023.050(a).)
- Requires notice to the party, person, or attorney against whom the sanction is proposed to be imposed and opportunity for them to be heard before sanctions can be imposed. Allows a court to excuse the imposition of the sanction required if the court makes written findings that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc. § 2023.050(c), (d).)
- Authorizes a court, notwithstanding Business and Professions Code section 6068(o)(3), to require an attorney who is sanctioned to report the sanction, in writing, to the State Bar within 30 days of the imposition of the sanction. (Code Civ. Proc. § 2023.050(b).)
- Establishes a rebuttable presumption that a natural person acted in good faith if that person was not represented by an attorney in the action at the time the conduct that is sanctionable occurred. This presumption may only be overcome by clear and convincing evidence. (Code Civ. Proc. § 2023.050(e).)
- Provides that within 45 days of an order of the court following stipulation by all parties to the action, other than unlawful detainer actions or those in the small claims division of the court, the parties shall, without awaiting a discovery request, provide to the other parties an initial disclosure including specified information. (Code Civ. Proc. § 2016.090.)
- Requires a party to make the initial disclosures based on the information then reasonably available to it and to verify such disclosures under penalty of perjury. 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. (Code Civ. Proc. § 2016.090(a)(2).)
- Requires a party that has made its initial disclosures or responded to a discovery request, to supplement or correct a disclosure or response in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect and the additional or corrective information has not otherwise been made known to the other parties during the disclosure or discovery process, or as ordered by the court. (Code Civ. Proc. § 2016.090(a)(3).)
- Authorizes the above obligations to be enforced by a court on its own motion or the motion of a party to compel disclosure. (Code Civ. Proc. § 2016.090(a)(4).)
- Requires, under federal law, certain initial disclosures to be made by one party to the other parties without awaiting a discovery request in civil litigation in federal courts. (Fed. Rules Civ. Proc., rule 26(a)(1)(A).)
- Provides that it is the duty of an attorney to report to the State Bar, in writing, within 30 days of the time the attorney has knowledge of the imposition of judicial sanctions against the attorney, except for sanctions for failure to make discovery or monetary sanctions of less than $1,000. (Bus. & Prof. Code § 6068(o)(3).)
This bill:
- Provides that the early disclosures laid out in Code of Civil Procedure Section 2016.090 are mandatory unless modified by an order of the court following stipulation of the parties.
- Raises the sanction in Code of Civil Procedure Section 2023.050 from $250 to $1,000.
Background
Existing law provides for various methods of discovery to obtain evidence in connection with civil litigation, including requests for production of documents. If the party propounding such discovery requests believes that responses are inadequate or objections are without merit or are too general, it may file a motion to compel further responses and involve the court in facilitating the exchange of discovery. Generally, such motions must be preceded by a good faith attempt at an informal resolution of the dispute. Courts can impose sanctions for various misuses of the discovery process.
This bill raises the mandatory sanction for specified discovery abuses from $250 to $1,000. The court continues to have restricted discretion to excuse such sanctions.
The bill also models the Federal Rules of Civil Procedure by requiring certain disclosures of information related to discoverable information to be made by parties in the early stages of nearly all civil cases, absent stipulation by the parties and a court order. Currently such disclosures are only required when stipulated to by the parties and ordered by the court.
This bill is author sponsored. This bill is supported by the Civil Justice Association of California. This bill is opposed by the Consumer Attorneys of California and California Defense Counsel.
Comments
According to the author:
Discovery is a very important pretrial stage of a trial. It is the process of collecting information in preparation for trial, when both sides engage to collect facts, identify witnesses, and evaluate a case. Unfortunately, the discovery process is often abused by parties, and especially those with more resources – irrespective of the merits of the matter. These abuses lead to disputes that have become increasingly common, expensive, and time consuming. Currently, California law does not condemn strongly enough that abuse of the discovery process will not be tolerated. SB 235 will reduce this discovery abuse by requiring certain initial disclosures to be mandatory and by changing the current suggested sanction to a mandatory $1,000 minimum sanction imposed on lawyers that: fail to timely respond to a documents request, intent to cause unnecessary delay, and fail to meet and confer to resolved any dispute regarding the request.
Misuse of the discovery process and sanctions. Civil litigation is rife with discovery abuses, and the discovery process is infamous for the deployment of various bad faith tactics. The Code of Civil Procedure specifically provides a non-exhaustive list of misuses of the discovery process. A court has the authority to impose a variety of sanctions in response to a party’s misuse of various discovery methods. (Code Civ. Proc. § 2023.030.) Courts have found that “[w]henever one party's improper actions—even if not ‘willful’—in seeking or resisting discovery necessitate the court's intervention in a dispute, the losing party presumptively should pay a sanction to the prevailing party.” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1286-1287, citations and quotations omitted.) “A court's decision to impose a particular sanction is subject to reversal only for manifest abuse exceeding the bounds of reason.” (Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th 853, 880, citations and quotations omitted.)
SB 17 (Umberg, Chapter 836, Statutes of 2019) was introduced in response to claims that discovery disputes had become increasingly more common, expensive and time consuming. The author argued that then-existing California law did not “send a strong message that abuse of the discovery process will not be tolerated.” To address those identified challenges, SB 17 allows a party to request and requires a court to impose a monetary sanction of $250 if the court finds any of the following:
- the party, person, or attorney did not respond in good faith to a request for the production of documents, as specified;
- the party, person, or attorney produced the requested documents within seven days before the court was scheduled to hear a motion to compel production of the records that is filed by the requesting party as a result of the other party, person, or attorney’s failure to respond in good faith; or
- the party, person, or attorney failed to confer in person, by telephone, or by letter with the party or attorney requesting the documents in a reasonable and good faith attempt to resolve informally any dispute concerning the request. (Code Civ. Proc. § 2023.050(a).)
The sanction in Section 2023.050 can only be imposed after notice and an opportunity to be heard is afforded to the liable party. The sanction is payable to the requesting party and is in addition to any other sanctions imposed pursuant to existing law. The court is further authorized to require the liable party to report the sanction to the State Bar within 30 days, notwithstanding the requirement under existing law that an attorney report sanctions “except for sanctions for failure to make discovery or monetary sanctions of less than one thousand dollars ($1,000).” (Bus. & Prof. Code § 6068(o)(3).)
This bill increases the near mandatory sanction in Section 2023.050 to $1,000. This further strengthens the hammer on discovery abuse in this context.
Initial disclosures. Rule 26 of the Federal Rules of Civil Procedure provides for certain required disclosures at the outset of civil litigation in federal courts. Pursuant to Rule 26, a party must provide certain information to the other parties of the action even before a discovery request is propounded.
Seeking to mirror this procedural rule, SB 17, discussed above, initially required each party, within 45 days after service of any answer in a civil action and without awaiting a discovery request, to provide to the other parties initial disclosures that include specified information, all of which would be required pursuant to Rule 26. However, the bill eventually only required such disclosures after the parties all stipulated to it and the court ordered it. The discretionary early disclosure statute is found in Section 2016.090 of the Code of Civil Procedure.
Similar to Rule 26, the party must make its initial disclosures pursuant to Section 2016.090 based on the information then reasonably available to it and is not excused from making the disclosures simply because it has not fully investigated the case, it challenges the sufficiency of another party’s disclosures, or another party has not made its disclosures. A party must verify the required disclosures as true and correct under penalty of perjury.
After making these initial disclosures or providing responses to discovery requests, a party must supplement or correct a disclosure or response if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and the additional or corrective information has not otherwise been made known to the other parties during the disclosure or discovery process. These provisions are also found in Rule 26.
This bill now mandates these early disclosures in civil actions, unless the parties agree otherwise and the court so orders. The author argues that the purpose of requiring initial disclosure is to expedite the discovery process, reduce the expense of litigation, and facilitate the early resolution of litigation.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No
SUPPORT: (Verified 5/1/23)
Civil Justice Association of California
OPPOSITION: (Verified 5/1/23)
California Defense Counsel
Consumer Attorneys of California
ARGUMENTS IN SUPPORT: The Civil Justice Association of California argues: “Discovery is a cornerstone of civil litigation. Adherence to the process helps to ensure cases are resolved in a timely manner. Undue delays in the discovery process, particularly those that are intentional, should thus be met with stricter penalties.
Compliance with discovery rules promotes fairness to all parties to a dispute and makes the best use of the court’s valuable time.”
ARGUMENTS IN OPPOSITION: California Defense Counsel writes: “Unfortunately, SB 235 suggests a one-size-fits-all approach, which would apply to every civil action in the state courts. While the approach might work for small, single-issue cases like motor vehicle accidents, the proposal will break down when applied to complex, discovery-heavy cases like products, employment, construction defect, and many others. We are very concerned that overburdened state trial court judges will routinely order initial disclosures in every civil case, without any meaningful evaluation by counsel for the parties, leaving us little or no
time to assemble the massive amounts of discovery required by the bill. This is especially true of electronic discovery.”
Prepared by: Christian Kurpiewski / JUD. / (916) 651-4113
5/3/23 15:01:37
**** END ****
Senator Thomas Umberg, Chair
2023-2024 Regular Session
Bill No: SB 235 (Author:Umberg)
Version: March 14, 2023
Hearing Date: April 18, 2023
Fiscal: Yes
Urgency: No
Consultant: CK
SUBJECT
Civil discovery: sanctions
DIGEST
This bill mandates, rather than allows for, certain initial disclosures to automatically be made in all civil actions, except unlawful detainer and small claims actions, as specified. The bill raises the sanction that courts must impose when it makes certain findings in relation to civil discovery abuses, as specified, to $1,000.
EXECUTIVE SUMMARY
Existing law provides for various methods of discovery to obtain evidence in connection with civil litigation, including requests for production of documents. If the party propounding such discovery requests believes that responses are inadequate or objections are without merit or are too general, it may file a motion to compel further responses and involve the court in facilitating the exchange of discovery. Generally, such motions must be preceded by a good faith attempt at an informal resolution of the dispute. Courts can impose sanctions for various misuses of the discovery process.
This bill raises the mandatory sanction for specified discovery abuses from $250 to $1,000. The court continues to have restricted discretion to excuse such sanctions.
The bill also models the Federal Rules of Civil Procedure by requiring certain disclosures of information related to discoverable information to be made by parties in the early stages of nearly all civil cases, absent stipulation by the parties and a court order. Currently such disclosures are only required when stipulated to by the parties and ordered by the court.
The bill is author sponsored. The bill is supported by the Civil Justice Association of California. The bill is opposed by the Consumer Attorneys of California and California Defense Counsel.
PROPOSED CHANGES TO THE LAW
Existing law:
- Provides, through the Civil Discovery Act, procedures by which parties to a civil action conduct and obtain “discovery,” including by, among other things, oral depositions. (Code Civ. Proc. § 2016.010 et seq.)
- Provides that generally any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc. § 2017.010.)
- Provides for various forms of discovery, including interrogatories, requests for admission, depositions, requests for physical or mental examinations, and requests for production of documents. The propounding party is authorized, on receipt of a response to various forms of discovery, to move for an order compelling a further response if the propounding party deems the response inadequate or insufficient in some manner. (Code Civ. Proc. §§ 2025.010-2033.740.)
- Identifies various misuses of the discovery process, including:
- persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery;
- using a discovery method in a manner that does not comply with its specified procedures;
- employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense;
- failing to respond or to submit to an authorized method of discovery;
- making, without substantial justification, an unmeritorious objection to discovery;
- making an evasive response to discovery;
- disobeying a court order to provide discovery;
- making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery;
- failing to confer with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, as specified. (Code Civ. Proc. § 2023.010.)
- Authorizes the court to impose various sanctions against anyone engaging in conduct that is a misuse of the discovery process. Such sanctions include:
- monetary sanctions, in which the court orders one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both to pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct;
- issue sanctions, in which the court orders that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process or orders that the liable party is prohibited from supporting or opposing designated claims or defenses;
- evidence sanctions, in which the court prohibits any party engaging in the misuse of the discovery process from introducing designated matters in evidence;
- terminating sanctions, in which the court strikes out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process; stays further proceedings by that party; dismisses the action, or any part of the action, of that party; or ordering a judgment by default against that party; and
- contempt sanctions, in which the court treats the misuse of the discovery process as a contempt of court. (Code Civ. Proc. § 2023.030.)
- Requires the court, in addition to the above and notwithstanding the outcome of the particular discovery motion, to impose a monetary sanction ordering that any party or attorney who fails to confer as required pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. (Code Civ. Proc. § 2023.020.)
- Requires that a request for a sanction identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought. (Code Civ. Proc. § 2023.040.)
- Requires a court, notwithstanding any other law, and in addition to any other sanctions imposed pursuant to the Civil Discovery Act, to impose a $250 sanction, payable to the requesting party, upon a party, person, or attorney if, upon reviewing a request for a sanction made pursuant to Section 2023.040 of the Code of Civil Procedure, the court finds certain specified conduct occurred, including failure to respond to discovery requests in good faith, as provided. (Code Civ. Proc. § 2023.050(a).)
- Requires notice to the party, person, or attorney against whom the sanction is proposed to be imposed and opportunity for them to be heard before sanctions can be imposed. Allows a court to excuse the imposition of the sanction required if the court makes written findings that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc. § 2023.050(c), (d).)
- Authorizes a court, notwithstanding Business and Professions Code section 6068(o)(3), to require an attorney who is sanctioned pursuant to this bill’s provisions to report the sanction, in writing, to the State Bar within 30 days of the imposition of the sanction. (Code Civ. Proc. § 2023.050(b).)
- Establishes a rebuttable presumption that a natural person acted in good faith if that person was not represented by an attorney in the action at the time the conduct that is sanctionable occurred. This presumption may only be overcome by clear and convincing evidence. (Code Civ. Proc. § 2023.050(e).)
- Provides that within 45 days of an order of the court following stipulation by all parties to the action, other than unlawful detainer actions or those in the small claims division of the court, the parties shall, without awaiting a discovery request, provide to the other parties an initial disclosure including specified information. (Code Civ. Proc. § 2016.090.)
- Requires a party to make the initial disclosures based on the information then reasonably available to it and to verify such disclosures under penalty of perjury. 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. (Code Civ. Proc. § 2016.090(a)(2).)
- Requires a party that has made its initial disclosures or responded to a discovery request, to supplement or correct a disclosure or response in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect and the additional or corrective information has not otherwise been made known to the other parties during the disclosure or discovery process, or as ordered by the court. (Code Civ. Proc. § 2016.090(a)(3).)
- Authorizes the above obligations to be enforced by a court on its own motion or the motion of a party to compel disclosure. (Code Civ. Proc. § 2016.090(a)(4).)
- Requires, under federal law, certain initial disclosures to be made by one party to the other parties without awaiting a discovery request in civil litigation in federal courts. (Fed. Rules Civ. Proc., rule 26(a)(1)(A).)
- Provides that it is the duty of an attorney to report to the State Bar, in writing, within 30 days of the time the attorney has knowledge of the imposition of judicial sanctions against the attorney, except for sanctions for failure to make discovery or monetary sanctions of less than $1,000. (Bus. & Prof. Code § 6068(o)(3).)
This bill:
- Provides that the early disclosures laid out in Code of Civil Procedure Section 2016.090 are mandatory unless modified by an order of the court following stipulation of the parties.
- Raises the sanction in Code of Civil Procedure Section 2023.050 from $250 to $1,000.
COMMENTS
- Stated intent of the bill
According to the author:
Discovery is a very important pretrial stage of a trial. It is the process of collecting information in preparation for trial, when both sides engage to collect facts, identify witnesses, and evaluate a case. Unfortunately, the discovery process is often abused by parties, and especially those with more resources – irrespective of the merits of the matter. These abuses lead to disputes that have become increasingly common, expensive, and time consuming. Currently, California law does not condemn strongly enough that abuse of the discovery process will not be tolerated. SB 235 will reduce this discovery abuse by requiring certain initial disclosures to be mandatory and by changing the current suggested sanction to a mandatory $1,000 minimum sanction imposed on lawyers that: fail to timely respond to a documents request, intent to cause unnecessary delay, and fail to meet and confer to resolved any dispute regarding the request.
- Overview of the discovery process
The Civil Discovery Act (“the Act”) applies to every civil action and special proceeding of a civil nature, unless there is a statutory exception. (Code Civ. Proc. § 2016.010 et seq.) Discovery is the formal exchange of evidentiary information and materials between parties to a pending action. Generally, the Act permits any party to a civil action to obtain discovery regarding any matter, not privileged, that is relevant to the subject matter in the pending action or to the determination of any motion made in that action, if the matter either is admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc. § 2017.010.) Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.
The intention of California’s broad discovery statutes is to make discovery a “simple, convenient, and inexpensive” means of revealing the truth and exposing false claims, to “educate the parties concerning their claims and defenses so as to encourage settlements and to expedite and facilitate trial,” and eliminate surprise. (Greyhound Corp. v. Superior Court of Merced County (1961) 56 Cal.2d 355, 376; Emerson Elec. Co. v. Superior Court (1997) 16 Cal.4th 1101, 1107.) Moreover, California courts have reiterated that discovery provisions are to be liberally construed in favor of disclosure.
Primary devices to conduct discovery include interrogatories, depositions, requests for admissions, and requests for production. If the party propounding such discovery requests believes that responses are inadequate or objections are without merit or are too general, it may file a motion to compel further responses and involve the court in facilitating the exchange of discovery. Generally, such motions must be preceded by a good faith attempt at an informal resolution of each issue presented by the motion to compel and a “meet and confer” declaration must accompany the motion. (Code Civ. Proc. § 2016.040.) In addition, the court is authorized to conduct an informal discovery conference to discuss discovery disputes. (Code Civ. Proc. § 2016.080.)
- Misuse of the discovery process and sanctions
Civil litigation is rife with discovery abuses, and the discovery process is infamous for the deployment of various bad faith tactics. The Code of Civil Procedure specifically provides a non-exhaustive list of misuses of the discovery process, including:
- persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery;
- using a discovery method in a manner that does not comply with its specified procedures;
- employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense;
- failing to respond or to submit to an authorized method of discovery;
- making, without substantial justification, an unmeritorious objection to discovery;
- making an evasive response to discovery;
- disobeying a court order to provide discovery;
- making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery;
- failing to confer with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, as specified.
(Code Civ. Proc. § 2023.010.)
A court has the authority to impose a variety of sanctions in response to a party’s misuse of various discovery methods. (Code Civ. Proc. § 2023.030.) Courts have found that “[w]henever one party's improper actions—even if not ‘willful’—in seeking or resisting discovery necessitate the court's intervention in a dispute, the losing party presumptively should pay a sanction to the prevailing party.” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1286-1287, citations and quotations omitted.) “A court's decision to impose a particular sanction is subject to reversal only for manifest abuse exceeding the bounds of reason.” (Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th 853, 880, citations and quotations omitted.)
Such sanctions can take the form of evidence sanctions, where a court limits the offending party from introducing certain evidence, or issue sanctions, where the court simply accepts certain facts to be established against that party. (Code Civ. Proc. § 2023.030.) The court can take even more aggressive approaches to discovery abuse by treating it as a contempt of court or issuing terminating sanctions that strike out the pleadings of a party, or result in dismissal of the action or entry of a default judgment.
In addition to those sanctions, the court may also order monetary sanctions. The court can order one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both, to pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. (Code Civ. Proc. § 2023.030(a).)
Monetary sanctions can also be imposed against one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. When such sanctions are authorized, the court is required to impose that sanction unless it finds that “the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” The court is also required to impose monetary sanctions against any party or attorney who fails to confer as required. Such party must be ordered to pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. (Code Civ. Proc. § 2023.020.)
SB 17 (Umberg, Ch. 836, Stats. 2019) was introduced in response to claims that discovery disputes had become increasingly more common, expensive and time consuming. The author argued that then-existing California law did not “send a strong message that abuse of the discovery process will not be tolerated.” To address those identified challenges, SB 17 allows a party to request and requires a court to impose a monetary sanction of $250 if the court finds any of the following:
- the party, person, or attorney did not respond in good faith to a request for the production of documents, as specified;
- the party, person, or attorney produced the requested documents within seven days before the court was scheduled to hear a motion to compel production of the records that is filed by the requesting party as a result of the other party, person, or attorney’s failure to respond in good faith; or
- the party, person, or attorney failed to confer in person, by telephone, or by letter with the party or attorney requesting the documents in a reasonable and good faith attempt to resolve informally any dispute concerning the request. (Code Civ. Proc. § 2023.050(a).)
The sanction in Section 2023.050 can only be imposed after notice and an opportunity to be heard is afforded to the liable party. The sanction is payable to the requesting party and is in addition to any other sanctions imposed pursuant to existing law. The court is further authorized to require the liable party to report the sanction to the State Bar within 30 days, notwithstanding the requirement under existing law that an attorney report sanctions “except for sanctions for failure to make discovery or monetary sanctions of less than one thousand dollars ($1,000).” (Bus. & Prof. Code § 6068(o)(3).)
This bill increases the near mandatory sanction in Section 2023.050 to $1,000. This further strengthens the hammer on discovery abuse in this context.
- Initial disclosures
Rule 26 of the Federal Rules of Civil Procedure provides for certain required disclosures at the outset of civil litigation in federal courts. Pursuant to Rule 26, a party must provide certain information to the other parties of the action even before a discovery request is propounded. Such required initial disclosures include:
- the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;
- 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, unless the use would be solely for impeachment;
- a computation of each category of damages claimed by the disclosing party—who must also make available for inspection and copying the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and
- any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.
(Fed. Rules Civ. Proc., rule 26(a)(1)(A).)
Seeking to mirror this procedural rule, SB 17, discussed above, initially required each party, within 45 days after service of any answer in a civil action and without awaiting a discovery request, to provide to the other parties initial disclosures that include specified information, all of which would be required pursuant to Rule 26. However, the bill eventually only required such disclosures after the parties all stipulated to it and the court ordered it. The discretionary early disclosure statute is found in Section 2016.090 of the Code of Civil Procedure.
Similar to Rule 26, the party must make its initial disclosures pursuant to Section 2016.090 based on the information then reasonably available to it and is not excused from making the disclosures simply because it has not fully investigated the case, it challenges the sufficiency of another party’s disclosures, or another party has not made its disclosures. A party must verify the required disclosures as true and correct under penalty of perjury.
After making these initial disclosures or providing responses to discovery requests, a party must supplement or correct a disclosure or response if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and the additional or corrective information has not otherwise been made known to the other parties during the disclosure or discovery process. These provisions are also found in Rule 26.
This bill now mandates these early disclosures in civil actions, unless the parties agree otherwise and the court so orders. The author argues that the purpose of requiring initial disclosure is to expedite the discovery process, reduce the expense of litigation, and facilitate the early resolution of litigation.
Requiring initial disclosures provides certain efficiencies to the litigation process. It may provide a party a better sense of the case for or against it and thereby expedite the resolution of the dispute. Such disclosures also obviate the need to engage in the lengthy, and often costly, discovery process for each piece of relevant information.
However, such required disclosures may prove overly burdensome on certain parties in certain cases, creating a high hurdle at the outset of litigation that may undermine meritorious claims. Rule 26 specifically exempts nine different proceedings from its requirements. This bill maintains the existing exemptions in Section 2016.090—unlawful detainer actions and actions in small claims court.
- Stakeholder positions
Writing in support, the Civil Justice Association of California argues:
Discovery is a cornerstone of civil litigation. Adherence to the process helps to ensure cases are resolved in a timely manner. Undue delays in the discovery process, particularly those that are intentional, should thus be met with stricter penalties.
Compliance with discovery rules promotes fairness to all parties to a dispute and makes the best use of the court’s valuable time.
California Defense Counsel write in opposition:
Unfortunately, SB 235 suggests a one-size-fits-all approach, which would apply to every civil action in the state courts. While the approach might work for small, single-issue cases like motor vehicle accidents, the proposal will break down when applied to complex, discovery-heavy cases like products, employment, construction defect, and many others. We are very concerned that overburdened state trial court judges will routinely order initial disclosures in every civil case, without any meaningful evaluation by counsel for the parties, leaving us little or no time to assemble the massive amounts of discovery required by the bill. This is especially true of electronic discovery.
In contrast with the state system where trial judges simply do not have the resources to conduct active case management, the federal rules contain an entire regime during the discovery phase of litigation. For example, the federal courts stay discovery until the court holds an initial case management conference. No analog exists in the state system, except for 20 days after service of the complaint. Then, the federal courts schedule an initial case management conference, typically 90-120 days after filing. This gives counsel time to work with clients to identify digital evidence on company servers as well as digital evidence on the personal devices of employees, etc.
Writing in an oppose-unless-amended position, the Consumer Attorneys of California (CAOC) lay out a series of amendments to address their concerns. They highlight the core provisions:
Three of the essential changes CAOC seeks are: (1) how this new process for early exchange of information is triggered, (2) what duties the parties have to follow up or supplement automatically, and (3) the addition of a sunset.
First, counsel for both a plaintiff or defendant may not have all of the necessary information as early in the case as the statute is currently drafted. For example, if a plaintiff comes to an attorney with their statute of limitations at risk of running out, that attorney must file the complaint and preserve their client’s rights immediately. SB 235 would impose on that attorney a requirement to, as early as 45 days in to the case, collect and review all of the information demand in the proposed statute. Similarly, defense counsel also may be brought into a case after a complaint has been filed and would then not have enough time to comply with the new statute. CAOC proposes that either party can trigger the initiation of this process by issuing a demand and then any party that has appeared in the case must comply with the statute within 60 days.
Second, our amendments propose changing current subsection (a)(3) which requires automatic supplementation of documents to instead track the existing language of CCP 2030.070. This change is necessary to ensure that all discovery is uniform and there is not a duty to supplement for some types of discovery but not all. Currently, California law does not impose any ongoing duty to supplement (unlike federal law). The Biles v. Exxon Mobil Corp., 124 Cal.App.4th 1315 (2004) case, as you can see from the opening paragraph copied below, makes it clear that no such duty exists in California.
“In deciding this appeal we deconstruct a civil discovery “urban legend” that a responding party has an affirmative duty to supplement responses to interrogatories if and when new information comes into that party’s possession, particularly if the party reserved the right to amend or supplement the earlier responses.”
If the statute goes into effect we are open to discussing increasing this duty to become a duty to automatically supplement before the sunset date. However, this large deviation from current procedures should be done on an incremental basis.
Third, given the nature of this change CAOC seeks to add a three year sunset to allow for further discussion in the legislature as the statute is implemented.
The author has indicated his intent to take many of the amendments suggested by CAOC should the bill move forward and to continue to engage with all interested stakeholders on outstanding concerns.
SUPPORT
Civil Justice Association of California
OPPOSITION
California Defense Counsel
Consumer Attorneys of California
RELATED LEGISLATION
Pending Legislation: SB 554 (Cortese, 2023) reinstates the law providing for informal discovery conferences upon order of the court after stipulation by the parties. This bill is currently pending before this Committee.
Prior Legislation:
SB 17 (Umberg, Ch. 836, Stats. 2019) See Comments 3 & 4.
SB 370 (Umberg, Ch. 208, Stats. 2019) eliminated the options for the form in which documents are to be produced in discovery and requires that any documents or category of documents produced in response to a demand for inspection, copying, testing, or sampling be identified with the specific request number to which the documents respond.
AB 1349 (Obernolte, Ch. 190, Stats. 2019) requires parties to provide certain discovery requests and responses thereto in an electronic format within three court days of the request, except as specified. It also authorizes a party to provide the requested electronic materials in any format, and may transmit the document by any method, as agreed upon by the parties, except as specified.
AB 2230 (Berman, Ch. 317, Stats. 2018) provides that in lieu of a separate statement in connection with a motion to compel further responses to discovery requests, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.
AB 383 (Chau, Ch. 189, Stats. 2017) gives courts discretion to hold informal discovery conferences upon request of a party or on their own motion to discuss disputed discovery issues. It provides the procedures and timelines for such conferences. The outcome of such a discovery conference does not preclude the filing of any discovery motion or prejudice the disposition of such a motion.
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Bill Author
Bill Co-Author(s):