Get Ready to Disclose!: An Analysis of Senate Bill 235
Several weeks ago, California Governor Gavin Newsom signed Senate Bill (“SB”) 235 into law. Under the new law, parties will be required to provide initial disclosures within 60 days of a demand from any party. It will likely have a significant impact on discovery procedures and pose new challenges for most California civil litigators starting next year, when the law goes into effect.
SB 235 changes Code of Civil Procedure section 2016.090 to mandate, rather than merely allow for, certain initial disclosures to automatically be made in all civil matters. Notably, the law does not apply to unlawful detainer actions, small claims actions, matters proceeding under the Family Code or Probate Code, or any matter in which Section 36 trial preference has been ordered. Self-represented litigants are also exempt from the requirement.
Previously, initial disclosures were discretionary, and parties had the option to stipulate to initial disclosures. SB 235 creates a mandatory disclosure requirement and increases the current suggested $250 sanction to a mandatory $1,000 minimum sanction for lawyers who fail to timely respond to a documents request, intend to cause unnecessary delay, and fail to meet and confer to resolve any dispute regarding the request. Specifically, parties will need to disclose persons or records that are relevant to the subject matter of the action, as well as information and records regarding insurance policies or contracts that would make a person or insurance company liable to satisfy a judgment. The bill also allows a party who has made, or responded to, a demand for initial disclosures to propound supplemental demands.
Additionally, attorneys found to have violated Code of Civil Procedure section 2016.090’s mandatory requirements may also be reported to the State Bar. Section 2016.090’s early initial disclosure requirements can be avoided only by written stipulation of the parties or by court order.
In making this change, which is modeled after Rule 26(1) of the Federal Rules of Civil Procedure, the California legislature recognized that current law does not go far enough to curb the increasingly common discovery abuses that are expensive, time consuming, and waste the limited court resources.
Although seemingly beneficial for litigants, this new law presents certain challenges; especially in cases that are complex in nature, such as construction defect, cases with complicated causation or medical issues, etc. These cases typically require extensive investigation to gather evidence, which is usually not readily available at the outset of the case. Lawyers will need to be vigilant and take additional precautions to ensure clients can comply with this new section – when responding to the initial demand and to any subsequent demands to account for new information or documents identified through further investigation and discovery.