California Adopts a Federal-Court-Style Initial-Disclosure Law

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California Adopts a Federal-Court-Style Initial-Disclosure Law

Most of our updates focus on substantive changes to the law impacting employers and those in healthcare. This update is for you, too, but it looks at a new procedural change should you be in litigation. In the next few days, we anticipate seeing our first wave of “initial disclosures” now required in most new California state civil cases.

For cases filed after January 1, 2024, California Code of Civil Procedure section 2016.090 now requires parties to produce a (potentially) huge amount of information upon request from the other side—and you have just 60 days to do it. While this is the rule for both sides in a case, it obviously puts a much bigger burden on a large entity (employer) compared to an individual plaintiff.

Specifically, one individual can demand a multi-hundred or multi-thousand-person organization to disclose all “names, addresses, telephone numbers, and email addresses” of everyone “likely” to have “discoverable information,” or about information it “may” use in its case, or who are relevant to the case’s subject matter. Remember, the amount of information that is “discoverable” is far broader than information that can be admitted at trial. While this does not include experts, it still has the potential to be a lot of people—all within 60 days.

And it isn’t just witnesses that you will need to disclose. You also must provide a copy or description “of all documents, electronically stored information, and tangible things” you have and, again, “may” use in the case. Identifying what you “may” use and running a (potentially massive) ESI search, review, and response within 60 days will be quite a task in any case involving large entities. The new law also includes the required disclosure of various insurance agreements. 

When you receive an initial-disclosure demand, you will have to make your disclosure based on the information then reasonably available to you. What is “reasonably available”? That is TBD. But if it is in your “possession, custody, or control,” be ready to produce it, and produce it quickly. And your response to a demand must be verified by a declaration or signed by counsel. Moreover, you do not get to avoid producing witnesses and documents simply because you are not done investigating the case, nor because the other side did not properly produce their information. 

Parties can demand these broad disclosures another time, as a supplemental request, and yet a third time with the court’s approval. 

In summary, employers of all sizes—and the bigger they are, the harder and more costly this will be—need to be ready to produce a lot of information early in a new lawsuit. Documents, witness information, and electronically stored information all must be provided within 60 days of a demand. But it will be a significant burden—in 60 days—to get all of this:

  • Understood — “what’s this case about, who knows about the facts, what documents are relevant”?
  • Located — “where is all this information”?
  • Reviewed — “is this possibly discoverable and is it privileged material”? and
  • Produced — witness lists and information, paper copies, and electronic files.

So, employer defendants and potential defendants will need to give even more thought to getting organized quickly—even before a lawsuit is filed—to meet these new disclosure requirements.

This looks quite like—and is based somewhat on—Rule 26 of the Federal Rules of Civil Procedure. But there are some notable differences, including the court’s role in setting a timeline. Here, it is 60 days from the demand, unlike the federal rule that is 14 days after the Rule 26(f) conference. And federal courts have more leeway, it would seem, to modify the timeline than state courts do here—for example, a party can object to the federal timing, but no such language exists in California’s new law. Thus, it seems only a stipulation of the parties can modify the statute’s timing. And the statute’s language seems to anticipate everything responsive in a party’s possession, absent a stipulation to extend the deadline, must be produced within 60 days. It does not mention a “rolling production.”

This statute was designed to try and get discovery out quickly and resolve cases—and discovery battles—more efficiently. But we anticipate it will come at a significant cost for most employers in the opening stages of new lawsuits.


Keith W. Carlson and Nima A. Jalali

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