For cases filed after January 1, 2024, CCP §2016.090 now includes new rules for initial disclosures of information in discovery.

Timing and Trigger of Initial Disclosures

Any party that has appeared in the litigation may demand that all parties make disclosures 60 days thereafter.  This shortened timeline is intended to encourage early information sharing and foster a more collaborative approach to discovery.  However, disclosures are not required if no demand is made, so parties might be encouraged to reach alternative agreements instead of making such a demand and putting all parties “on the clock.”

Content and Terms of Initial Disclosures

The prior version of CCP §2016.090, authorized the Court to order parties to provide initial disclosures within 45 days of a demand. The amendment to the Discovery Act now removes the need for the court’s intervention and specifies content that must be included in initial disclosures. Parties must disclose:

1. Names and contact information of individuals likely to have relevant, discoverable information regarding disputed claims or defenses (not including expert witnesses, consultants, or information that is to be used solely for impeachment);
2. A brief description of the nature and substance of each party’s claims and defenses; and
3. Copies or descriptions of documents, electronic data, or other tangible items that support each party’s claims or defenses.

The amendment explicitly states that a party cannot avoid the obligation to provide initial disclosures based on reasons such as incomplete case investigation. It also prohibits disputing the adequacy of another party’s disclosures or the non-compliance of another party in making their disclosures.

Exceptions and Limitations to Initial Disclosures

There are some exceptions and limitations to the new initial disclosure rules. For example, the procedure for initial disclosures does not apply to parties who are not represented by counsel, nor does it apply to unlawful detainer actions, small claims actions, or actions brought under the Family or Probate Codes. Additionally, the court may grant an extension of time to provide initial disclosures for good cause shown.

The Courts will also likely have to answer some questions left open by revised statute. For example, are there obligations of a late-added party to make disclosures without an additional demand from the prior parties?

Key Takeaways

The objective of the newly enacted initial disclosure provisions is ostensibly to reduce litigation expenses and, possibly, encourage quicker resolutions to litigation. When parties are required to disclose the factual bases for their allegations at the start of the litigation process, unsupported claims may be identified more quickly. Parties may then be able to cut short the protracted timelines of traditional discovery and shorten the overall length of litigation (and size of attorney’s fees).

The objective of the newly enacted initial disclosure provisions is ostensibly to reduce litigation expenses and, possibly, encourage quicker resolutions to litigation. When parties are required to disclose the factual bases for their allegations at the start of the litigation process, unsupported claims may be identified more quickly. Parties may then be able to cut short the protracted timelines of traditional discovery and shorten the overall length of litigation (and size of attorney’s fees).

More comprehensive responses to initial disclosures can encourage parties to better assess the strengths and weaknesses of their cases at the outset, and experienced practitioners indeed may use these additional tools to efficiently streamline their cases. However, these disclosure requirements may end up introducing more inefficiencies into the discovery process. Since parties may still demand up to four supplemental disclosures, along with the initial disclosures, it is possible the initial disclosures will only add to the tasks required in the discovery process. There is nothing to prevent parties from demanding these new initial disclosures, up to four supplemental disclosures, and also issue regular discovery requests.

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