Initial Disclosures are Now Available in California. Is Your Law Firm Ready to Use Them?

California recently took a step toward making civil litigation more cost-effective in state trial courts. An amendment to the California Code of Civil Procedure (“CCP”) that went into effect in 2020 introduced the possibility to opt-in (by stipulation and court order) to “Initial Disclosures” and mandatory supplementation of written discovery.

The potential value of this provision cannot be overstated. Parties want their cases resolved quickly and efficiently. Initial disclosures can help them to do so. The catch is that the new initial disclosure rules, which are set forth in CCP 2016.090, only apply if all parties in a civil dispute agree to use them.

The origins of initial disclosures (in federal courts):

“Initial Disclosures” have been part of civil cases in federal courts across the country for nearly three decades.

Under Federal Rule of Civil Procedure 26(a), the parties must reveal specific facts about their respective claims and defenses at the outset of the “discovery” stage. The date when the Initial Disclosures are due depends in part on the court’s schedule, but the idea is to require the parties to exchange facts critical to their cases within a few months after plaintiffs and defendants have filed their complaint(s), answer(s) and/or any motions relating to their allegations.

A second feature of the Federal Rule (see Fed R. Civ. P. 26(e)) is that it requires automatic supplementation and correction of written discovery. Parties must provide supplemental disclosures and supplement their responses to any written discovery; this must be done “in a timely manner” after a party learns new facts that render its prior disclosures or responses incorrect or incomplete.

The new rules for initial disclosures in California state courts:

The rules set forth in CCP § 2016.090 adopt both the above-stated concepts from Fed. R. Civ. P. 26 – that is (1) initial disclosures; and (2) timely supplementation and correction to written discovery.

The Initial Disclosures provision in CCP § 2016.090(a) is slightly different from its federal counterpart in substance. The § 2016.090(a) Initial Disclosures consist of:

(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 is 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, nature

and limits of the coverage.

In more abbreviated terms, the stipulating parties must initially disclose:

- witnesses (or potential witnesses);

- documentary evidence supporting (or potentially supporting) the party’s claims

or defenses;

- insurance agreements (that might apply to a judgment resulting from the

claims alleged); and

- indemnification agreements (that might apply to a judgment resulting from the

claims alleged).

The Federal Rule requires all the above items except for indemnification agreements. The Federal Rule also requires parties alleging damages to produce damages computations as part of their Initial Disclosures. (see Fed. R. Civ. P. § 26(a)(iii)). This item is not required in Initial Disclosures pursuant to CCP § 2016.090.

The most important difference between Federal Rule 26(a) and CCP § 2016.090(a) is simply that the Federal Rule is mandatory while the California rule (at least for now) only applies if the parties agree to use it.

Conclusion:

Using initial disclosures in state court can create cost savings for litigants and make the playing field more transparent. Provided the parties agree to adopt them, these new rules can lead to quicker settlements. They can also eliminate the need for time-consuming supplemental discovery requests.

Litigants in California must be sure that whomever they select as legal counsel knows how to use discovery to move their case from start to finish as efficiently as possible. This law firm stays abreast of changes in the procedural rules for this reason. Initial disclosures can allow litigants to vet the facts shortly after the case commences. We are prepared to use these and other discovery mechanisms proactively and with an eye toward securing results for our clients.