Initial disclosures in California can be a headache. In the litigation game, the discovery process is akin to a game of chess, with each move potentially determining the trajectory and outcome of the case at hand.
In federal court practice, initial disclosures have been a central part of this process for years.
In California, however, initial disclosures have only recently become a statutory phenomenon.
As a former California litigator, I am acutely familiar with both the benefits and burdens of initial disclosure rules.
This article serves as a guide to understanding the nuanced comparison between federal practice and California’s relatively new initial discovery procedure.
Given that these disclosures are now commonplace within state and federal courts within the Golden State, this post also offers practical tips to leverage these initial disclosure provisions effectively.
California’s new initial disclosures
For many years, the discovery process in California primarily revolved around a series of document requests, interrogatories, and depositions. Frustratingly for many litigators, this model lacked the proactive ethos that federal rules championed. In 2019, with the introduction of California Code of Civil Procedure Section 2016.090, the landscape shifted.
CCP Section 2016.090 was a step towards aligning California’s approach with that of federal courts. Yet, unlike its federal counterpart, which mandates initial disclosures, California chose a voluntary model.
This provision allows parties to stipulate an exchange of relevant information and documents at the outset of litigation, although the court must enter an order mandating initial disclosures before the parties are obligated to make them.
While initially met with some trepidation among practitioners, this new addition has proven useful in countless cases, illustrating the potential benefits of early, transparent information exchange.
Initial disclosures can be a trap for the unwary, however, so it’s good practice to over-familiarize yourself with exactly what your specific court requires.
A practical comparison between the federal initial disclosures and CCP 2016.090
For those who had a regular federal practice prior to 2019, California’s initial disclosure law was not earth-shattering. Nonetheless, the differences that do exist are significant. Here’s a quick rundown of how the state and federal provisions compare:
Mandatory vs. voluntary
The primary distinction between state and federal law lies in the mandatory nature of federal initial disclosures under FRCP Rule 26(a)(1). Indeed, the federal rule begins with the words “Required disclosures” and explicitly applies to all “parties” to the action.
Initial disclosures in California, by contrast, hinge on the parties’ willingness to engage in voluntary disclosures and the court’s willingness to enter an order requiring that process.
Specifically, the California provision contemplates an “order of the court following stipulation by all parties to the action.”
It is important to note that this rule requires stipulation by all parties.
Presumably, then, in multi-party litigation, one or more parties could refuse to stipulate, thus thwarting the initial disclosure process for everyone.
Content
Both jurisdictions require disclosure of key individuals (and their contact information), relevant documents (and their location), and insurance agreements that may impact the litigation.
On its face, the Federal Rule is slightly more prescriptive, also requiring “a computation of each category of damages claimed by the disclosing party – who must also make available for inspection and copying . . . the documents or other evidentiary material . . .on which each computation is based, including materials bearing on the nature and extent of injuries suffered.”
In practice, making detailed disclosures regarding the computation of damages at the outset of litigation is a significant hurdle.
That, combined with the mandatory nature of the federal disclosures, makes initial disclosures a much more burdensome exercise (and may serve as the reason many plaintiffs prefer to file in state court while many defendants attempt to remove cases to federal court).
Timing
FRCP 26 requires disclosures to be made within 14 days after the parties’ Rule 26(f) conference. CCP Section 2016.090, by contrast, states that disclosures must occur within 45 days of the court’s initial disclosure order.
Best practices for making initial disclosures
Regardless of whether California litigants and their attorneys find themselves in state or federal courts, initial disclosures are now a near-certain reality of practice within the state.
Fortunately, there are a few tactics you can employ to make the process as easy and efficient as possible.
Here are my best practice tips:
Check your local rules
Whether you find yourself in state court or one of California’s four federal district courts, be sure to check your specific court’s local rules to determine whether they impact the initial disclosure process.
There’s almost nothing worse than appearing before a judge on a discovery motion only to have to reveal that you’ve not considered these hyper-local and hyper-important customs.
Discuss disclosures early and often
Both court systems expect attorneys to “meet and confer” regarding discovery issues to some extent. In federal court, this process is formalized via the Rule 26(f) conference. In state court, attorneys must “meet and confer” prior to filing any motion to compel discovery.
In practice, it is simply useful and productive to have an open channel of communication with opposing attorneys about the timing, substance, and mechanics of how disclosures will be made.
Although discussions with opponents can sometimes be hard to swallow (I remember them all too well), the litigation will proceed much more efficiently and effectively for all involved if the attorneys have a productive and communicative relationship.
Draft clear agreements
If the parties opt for disclosures beyond what is mandated by rules or statutes, be sure to craft clear, concise written agreements detailing what will be disclosed and when.
Although the cynical ex-litigator in me rolls her eyes, thinking that motions to compel will become necessary in every case, the more precise you can be about disclosures up front, the less your clients will have to pay for costly motion practice on the back end.
Leverage technology
In today’s digital environment, there’s no excuse not to utilize advanced eDiscovery tools to sift through the mountains of documents and data that are often at issue.
This will ensure that nothing vital is overlooked and may save you from writing a sanctions check down the line when you first notice critical evidence after depositions have closed, for example.
Compliance
Speaking of sanctions, remember that once the parties have agreed to make initial disclosures (at least in state court), that agreement becomes binding. In federal court, the requirements of Rule 26 are your agreement.
Non-compliance can lead to sanctions and possible exclusion of improperly withheld evidence at trial.
Don’t forget the duty to supplement
Both FRCP 26 and CCP 2016.090 expressly require supplemental disclosures whenever new and relevant information is discovered.
The days of holding onto a smoking gun until the eve of a trial are long gone when litigating in California’s state and federal courts.
How to use initial disclosures to your advantage
While initial disclosures are undoubtedly burdensome, they can be wielded as an asset. Here’s how:
Gauge the opposition
Early disclosures can provide a glimpse into the opposing party’s strategy, allowing for better preparation. The manner in which your opponents organize and produce this initial material will give you a good idea of how difficult (or cooperative) they’re going to be throughout the entire discovery process.
This, in turn, will help you prepare your clients for potential costs and delays throughout the entire litigation.
Efficient resource allocation
When the other party reveals so much critical case information early on, it gives you the opportunity to understand the crux of the matter much more quickly than when you had to go on a blind fishing expedition to uncover relevant evidence.
With this knowledge in hand, you (and your clients) can then allocate human and monetary resources more effectively and strategize ways to make your entire case strategy more efficient.
Negotiation leverage
The truth is, there are some cases (particularly on the defense side of things) where you have no idea going into what evidence your opponents plan to leverage against your client. Having comprehensive knowledge at the outset can bolster your position in early settlement negotiations and it may help you resolve cases quickly.
Pre-empt challenges
By opening and willingly engaging in initial disclosures, you and your clients can send a message of confidence. Initial disclosures are an opportunity to deter your opposition from pursuing certain lines of attack. Nothing signals a strong case position more than a lack of gamesmanship.
California’s adoption of initial disclosure provisions, albeit voluntary, signals a move towards a more transparent and efficient litigation process – one that federal litigants have enjoyed for years.
For lawyers and paralegals navigating this new landscape, understanding the nuances of CCP Section 2016.090, juxtaposed with federal provisions, can offer a strategic edge.
Embracing this ethos of early information exchange can potentially streamline litigation, foster settlements, and, importantly, lead to more favorable outcomes for clients.
Common pitfalls and how to avoid them
When dealing with initial disclosures in California, attorneys often encounter several common pitfalls that can complicate the litigation process.
Underestimating time requirements
- Pitfall: Attorneys often underestimate the time needed to gather and disclose all relevant information.
- Solution: Begin the disclosure process early, set clear deadlines, and allocate sufficient time for reviewing documents and consulting with clients.
Failing to supplement disclosures
- Pitfall: Attorneys may forget to update and supplement disclosures as new information emerges, risking sanctions or exclusion of evidence.
- Solution: Implement a regular review process to monitor case developments and ensure that any new information is promptly disclosed.
Providing vague or incomplete disclosures
- Pitfall: Incomplete or unclear disclosures can lead to disputes and motions to compel, causing delays and additional costs.
- Solution: Ensure that initial disclosures are thorough and well-documented, providing detailed and clear information to prevent misunderstandings.
Overlooking local rules and specific court requirements
- Pitfall: Ignoring specific court rules or local customs can result in non-compliance and potential penalties.
- Solution: Always review and adhere to local rules and the specific requirements of the court where the case is being litigated.
Inadequate communication with opposing counsel
- Pitfall: Poor communication with opposing counsel about disclosure expectations can lead to unnecessary conflicts and delays.
- Solution: Engage in early and frequent communication with opposing counsel to clarify disclosure processes and expectations.
Conclusion
Initial disclosures in California can be a headache. In the litigation game, the discovery process is akin to a game of chess, with each move potentially determining the trajectory and outcome of the case at hand.
In federal court practice, initial disclosures have been a central part of this process for years.
In California, however, initial disclosures have only recently become a statutory phenomenon.
As a former California litigator, I am acutely familiar with both the benefits and burdens of initial disclosure rules.
This article serves as a guide to understanding the nuanced comparison between federal practice and California’s relatively new initial discovery procedure.
Given that these disclosures are now commonplace within state and federal courts within the Golden State, this post also offers practical tips to leverage these initial disclosure provisions effectively.
