SB 235: New civil procedure law promotes transparency, aligns with federal law

SB 235, signed into law by Gov. Gavin Newsom on Sept. 30, appears at first blush to be an unassuming technical exercise. But it actually implements important changes in the way civil litigation discovery is conducted.

The new law brings California’s process into alignment with the Federal Rules of Civil Procedure, streamlines the discovery process, and increases penalties for noncompliance. It should level the playing field for all parties in contentious litigation by ensuring they have all information they need to effectively make their case.

Effective Jan. 1, 2024, these amendments to the Code of Civil Procedure will reshape the discovery process.

Initial Disclosures

More Time - Section 2016.090 of the Code of Civil Procedure will now give parties more time to respond to discovery demands. Instead of 45 days, each party in a civil action will now have 60 days to provide initial disclosures in response to a demand by any party to the action, unless the parties stipulate otherwise. This change should increase the fairness of the process by giving the parties more time to gather and present information, allowing them to more thoroughly prepare their cases.

More Information - The new law should increase the fairness of the civil discovery process by ensuring that all parties have early access to a complete set of information. In keeping with the Federal Rules of Civil Procedure, the parties will be required to disclose far more information as part of their initial disclosure, including all existing relevant witness information and documents.

But SB 235 goes beyond the requirements of FRCP Rule 26(a)(1), which requires parties to disclose witnesses and documents “that the disclosing party may use to support its claims or defenses.” Under amended CCP Section 2016.090(a)(1)(A), the parties will be required to disclose witnesses and documents that are relevant to the case, even if those witnesses and documents could potentially be harmful to their case.

Scope of Disclosure

The initial disclosures under SB 235 must include all of the following information:

• Names, addresses, telephone numbers, and email addresses of all persons likely to have discoverable information that the disclosing party might 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.” This does not include information used solely for impeachment, nor does it cover expert witnesses and consultants that a party might later designate as experts;

• Copies, or descriptions by category and location, of all documents noted above; and

• Relevant insurance policies that might be used “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.”

Excluded from the initial disclosure requirements are in pro per parties, unlawful detainer actions, small claims matters, family law or probate cases, and actions in which a party has been granted preference under CCP Section 36.

By requiring more information up front, SB 235 should streamline the discovery process by forcing parties to evaluate their positions at an earlier point in the process. The law does not excuse a party from making 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,” and it puts the onus on counsel to verify the accuracy of the disclosures.

Because parties must now disclose all relevant witness information and documents at the outset and must verify such disclosures via a written declaration, the new law should ultimately curtail what has in the past been a lengthy and cumbersome discovery process.

Sanctions

Finally, SB 235 raises the mandatory discovery abuse sanction from $250 to $1,000. These sanctions may be excused if the court finds that their imposition would be unjust, but otherwise they will be imposed when a court finds that a party or its counsel did not respond in good faith to a request for production of documents, that it produced documents within seven days before the court would hear a motion to compel production of records, or that it failed to confer in a reasonable and good faith attempt to resolve informally any dispute concerning the request.

The increased penalty is clearly intended to impress on parties and counsel the importance of responding timely and in good faith to discovery demands.

Conclusion

SB 235 is scheduled to expire three years after its effective date, on Jan. 1, 2027, suggesting that the legislature will revisit its changes in the future. For now, the bill should promote transparency and fairness in the civil discovery process while streamlining the process for litigants.