Expedited discovery and mandatory sanctions: Why I wrote SB 235

The time and expense of discovery is increasingly an impediment to accessing justice. Discovery gamesmanship and its attendant motion practice has clogged the courts, delayed resolution on the merits, and dramatically driven up the costs of litigation – making it nearly impossible for many Californians to access justice.

The purpose of SB 235, now codified as sections 2016.090 and 2023.50 of the California Code of Civil Procedure, is to reduce delay and litigation costs and to provide courts with the tools to vigorously enforce it. The early production of information is intended to provide a basis for meaningful settlement discussions early in the litigation. SB 235 is also crafted to expedite discovery and reduce discovery battles – particularly over the production of documents. The law – effective Jan. 1, 2024 – is derivative of rule 26(a)(1) of the Federal Rules of Civil Procedure, but it is not identical.

It simply requires – after the demand of one or more parties – that certain basic information be produced:

“(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 … ,

(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 … 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.”

Cal. Civ. Code § 2016.090.

This information lets the parties know early on who has a stake in the litigation (and to what extent they may be responsible for damages), basic information as to the evidence that supports the claims and defenses, and relevant witnesses.

To further reduce gamesmanship, I included the following provision: “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 party’s disclosures, or because another party has not made its disclosures.” Id.

To incentivize compliance and disincentivize gamesmanship, judges are now required to issue mandatory sanctions of at least $1,000 for failure to comply in “good faith” with the new law: “A party’s obligations under this section may be enforced by a court on its own motion or the motion of a party to compel disclosure.” Id. Boilerplate objections, without substantive responses, do not comply with the letter or intent of the law.

Where a party has a good faith reason for not complying, “[t]he 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.” Cal. Civ. Code § 2023.050.

Whether SB 235 achieves its intended purpose is now in the hands of California’s trial judges. If judges wish to reduce discovery disputes, stimulate earlier settlements, and discourage what has increasingly become the standard discovery gamesmanship – they will vigorously enforce the new law. Otherwise, on Jan. 1, 2027—the law will sunset, and the discovery slog will return.