California recently amended its legal code to require initial disclosures upon demand for all lawsuits filed after January 1, 2024. The California Code of Civil Procedure §
2016.090 is the amended section. This comes as a result of significant changes to the state’s policy intended to provide more up-front information and streamline the legal process. Due to these changes, defendants will now have to investigate the merits of claims early and prepare evidence, shifting the balance into plaintiffs’ favor.
The bill prompting these changes, SB 235, necessitates mandatory initial disclosures for all parties within 60 days following any represented party’s request. This bill was conceived to combat perceived abuses of discovery, such as unnecessarily prolonging access to information crucial to understanding a case’s strength or settlement potential.
The revised California rule requires broader disclosure, encompassing more than what is deemed reasonable or pertinent to the claim. Unlike its federal counterpart, Rule 26(a) of the Federal Rules of Civil Procedure, the California law mandates the disclosure of all persons and information deemed relevant to the subject matter of the action, regardless of whether the party intends to use them in support of their claims or defenses. Additionally, California’s rules don’t adhere to the principle of proportionality prevalent in federal laws.
It appears that the new California regulation edges the plaintiffs’ side during litigation. It demands not merely the disclosure of “insurance agreements,” as the Federal Rule does, but also “any contractual agreement” with any “person” that might be held accountable to satisfy a judgment or to reimburse or indemnify. Furthermore, while the federal rule requires a calculation of each damage category claimed by the disclosing party for better understanding, the Californian rule omits this requirement altogether, enabling plaintiffs to obscure their claimed damages until later stages of litigation.
Over the past few years, several other states have made similar moves with rules that some consider more expansive than the federal laws. Ohio, Michigan and Texas have all mandated early information disclosures without awaiting a discovery request. The new rules extend from factual bases for claims to anticipated areas of expert testimony.
The call for early disclosures necessitates substantial strategic planning from litigants practicing in California state court. Early investigation and preparation for the disclosures mandated could prove advantageous during the case’s beginning stages. However, lawyers need to counsel clients about the importance of gathering and organizing pertinent documents and information upfront to preempt any unwelcome surprises or last-minute scrambles. Parties are urged to adapt to these changes—as noncompliance penalties can fall onto lawyers—to mitigate risk and position themselves effectively for the life of the litigation process.
You can review the full details and implications of this change in the referenced article.