Informal Discovery Conference Continue to be Effectively Used Despite Statute Being Repealed

Enacted in 2017, California Code of Civil Procedure section 2016.080 provided that an informal discovery conference (“IDC”) may be held “upon request by a party or on the court’s own motion” to discuss discovery disputes prior to motion practice. However, pursuant to the language of CCP §2016.080 itself, the statute was repealed on January 1, 2023.

Although the statue was repealed, courts continue to utilize the IDC process to limit motion practice through various sources of authority. Given IDCs have shown to reduce the amount of discovery motions filed by approximately 80%, this process is likely one that will continue to be emphasized and utilized by California courts.

California courts have the authority to efficiently administer all proceedings before them. This authority is derived from the CCP, as well as case law. CCP §128(a)(3), (5) states that the Court has the power to “provide for the orderly conduct of proceedings before it,” and “control in furtherance of justice, the conduct of its ministerial officers, and all other persons in any manner connected with a judicial proceeding before it.” Additionally, a court has the “authority and responsibility to fairly and efficiently administer all of the judicial proceedings that are pending before it.” (People v. Engram (2010) 50 Cal.4th 1131, 1146). This, along with other supporting case law, provides courts with the authority to continue effectively using IDCs in an attempt to streamline the discovery process and reduce unnecessary motion practice.

As stated by the Supreme Court of California, “when no procedure is specified by statute or rule, judges may fashion nonstatutory procedures suitable to the specific cases before them.” (Weiss v. People ex rel. Dep't of Transp. (2020) 9 Cal.5th 840, 857 (citing Citizens Utilities Co. v. Superior Court (1963) 59 Cal.2d 805, 812-13)). Application of this authority can be seen in cases which are deemed complex, in which there will be case management orders which instruct the parties how a case is to be managed. An example of such an order is that a complex case may require an IDC prior to motion practice, even if there is no statute requiring such a conference.

Another way in which California courts continue to require an IDC without impeding a party’s statutory right to file a motion to compel, particularly motions which must be filed within a certain time period. To avoid potentially impeding a party’s right, court will instruct parties that an IDC must be held before a motion can be heard. This allows the California courts to continue to require the IDC process to be completed.

While CCP §2016.080 may have been repealed, IDCs continue to be a useful tool used by courts, and one that is unlikely to be abandoned.