SB 235: California Code of Civil Procedure Amended to Provide for Initial Discovery Disclosures

On September 30, 2023, Governor Newsom signed into law SB 235 which provides for a new discovery tool of initial disclosures effective January 1, 2024.

Under the current law, Code of Civil Procedure Section 2016.090 provides for initial disclosures but only upon order of the court following a stipulation of the parties. As expected, parties never stipulate to initial disclosures under this section. The statute has now been amended to permit any party to make a demand for the initial disclosures and for the disclosing party to respond within 60 days. In other words, any party can now ask for initial disclosures without a stipulation.

Initial disclosures are not a novel concept. They are already a requirement in federal cases under the Federal Rules of Civil Procedure, Rule 26(a).

Initial disclosures require that upon a demand by a party the responding party must disclose the following:

1. Disclose the identity of any witnesses that are likely to have discoverable information along with the subjects of that information the that disclosing party may use to support its claims or defenses;

2. Produce a copy of all documents in the disclosing party’s possession that may support its claims or defenses;

3. Produce a copy of all insurance policies covering the party for the matter; and

4. Produce all contracts that may implicate indemnity or reimbursement obligations.

The initial disclosures need to be verified but it appears that the attorney can verify the response. Additionally, supplemental initial disclosures are permitted throughout the case. The law takes effect and will only apply to cases filed between January 1, 2024 and January 1, 2027 when the law is set to expire.

What does this mean for parties? A party should clearly make a demand for initial disclosure as it will require the disclosing parties to disclose all key witnesses and documentary evidence in support of their claims or defenses. However, it is clear that initial disclosures will now lead to having to disclose key witnesses or evidence that may have not been otherwise asked for in a well drafted discovery request in interrogatories or request for production of documents by the opposing party. Additionally, it remains unclear whether there will be evidentiary ramifications for failure to disclose a key witness or piece of evidence from the initial disclosures. Is the court willing to grant a Motion in Limine in this regard?

Although ultimately the impact may be somewhat minimal since the majority of witnesses or documentary evidence would likely have been already disclosed in response to written discovery, it appears to somewhat benefit an attorney that may or may not grasp what they are looking for in discovery. It will be interesting to see how initial disclosures play out when they come our way in 2024.