Code of Civil Procedure § 2016.090: The State Court’s Equivalent of FRCP Rule 26 Initial Disclosures?

Code of Civil Procedure § 2016.090: The State Court’s Equivalent of FRCP Rule 26 Initial Disclosures?

The year of 2020 will be remembered as a year of many tribulations. But, hopefully, just hopefully, 2020 will also be remembered as a year of opportunities that brought us closer together as families and, yes, even as litigants.

Although Code of Civil Procedure (CCP) §2016.090 was drafted prior to the Pandemic, the new statute gives attorneys an opportunity to bring civility back to litigation and to participate in early disclosures just like those required by Rule 26 of the Federal Rules of Civil Procedure.

Code of Civil Procedure §2016.090 went into effect on January 1, 2020 and applies “only to a civil action upon an order of the court following stipulation by all parties to the action,” meaning that, unlike Rule 26, CCP §2016.090 is still voluntary but nonetheless available to litigants.

Once the court enters an order pursuant to stipulation of the parties, within 45 days of the order and “without awaiting a discovery request,” each party must provide to the other parties an initial verified disclosure that includes “all” of the following information:

• name and contact information of witnesses, “along with the subjects of that information,” that the disclosing party plans on using to support its claims or defenses;
• a copy, “or a description by category and location,” of all documents or electronically stored information that the disclosing party has to support its claims or defenses;
• any agreement under which an insurance company may be liable to satisfy a judgment entered in the action or to indemnify or reimburse for payments made to satisfy the judgment; and
• any agreement under which a person, as defined in Evidence Code 175, may be liable to satisfy a judgment entered in the action.

Section 2016.090, subsection (2), makes it mandatory for a party to make its initial disclosures based on the information “then reasonably available to it” and a party is not excused from making its initial disclosures simply because it has not fully investigated the case. Subsection (3) also requires a party to supplement its disclosures in a timely manner, or as ordered by the court, and, importantly, subsection (4) allows the court on its own motion or on the motion of a party to compel disclosure.

For those of you who practice in federal court, you may have seen the benefits of Rule 26, which takes the gamesmanship out of the discovery process. In my humble opinion, and looking beyond 2020, CCP §2016.090 is likely to become mandatory. Why not start using it now?

Author’s Bio: Marie E Wood