Ethics for New Lawyers: Changes to California’s Civil Discovery Rules Have Ethical Implications

Since the California Supreme Court approved comprehensive revisions to the Rules of Professional Conduct in 2018, the duty of competence has been preeminent among the obligations imposed. Subdivision (b) of Rule 1.1 includes a two-part definition of competence: “For purposes of this rule, “competence” in any legal service shall mean to apply the (i) learning and skill, and (ii) mental, emotional, and physical ability reasonably necessary for the performance of such service.”

Applying the “learning and skill … reasonably necessary …” to perform legal services requires an attorney to remain informed about changes in the law, and to utilize new tools and techniques that become available, when appropriate. Beginning January 1, 2024, civil litigators practicing in Superior Court have an additional means to obtain discovery early in a case by serving a demand for initial disclosures under Code of Civil Procedure Section 2016.090.

As currently enrolled, the statute provides:

(1) Within 60 days of a demand by any party to the action, each party that has appeared in the action, including the party that made the demand, shall provide to the other parties an initial disclosure that includes all of the following information:

(A) The names, addresses, telephone numbers, and email addresses of all persons likely to have discoverable information, along with the subjects of that information, that the disclosing party may use to support its claims or defenses, or that is relevant to the subject matter of the action or the order on any motion made in that action, unless the use would be solely for impeachment. The disclosure required by this subparagraph is not required to include persons who are expert trial witnesses or are retained as consultants who may later be designated as expert trial witnesses, as that term is described in Chapter 18 (commencing with Section 2034.010) of Title 4 of Part 4.

(B) A copy, or a description by category and location, of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, or that is relevant to the subject matter of the action or the order on any motion made in that action, unless the use would be solely for impeachment.

(C) Any contractual agreement and any insurance policy under which an insurance company may be liable to satisfy, in whole or in part, a judgment entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.

(D) Any and all contractual agreements and any and all insurance policies under which a person, as defined in Section 175 of the Evidence Code, may be liable to satisfy, in whole or in part, a judgment entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Only those provisions of an agreement that are material to the terms of the insurance, indemnification, or reimbursement are required to be included in the initial disclosure. Material provisions include, but are not limited to, the identities of parties to the agreement, the nature and limits of the coverage, and any and all documents regarding whether any insurance carrier is disputing the agreement’s or policy’s coverage of the claim involved in the action.

A party’s initial disclosures shall be verified and made on the basis of “the information then reasonably available to it. A party is not excused from making its initial disclosures because it has not fully investigated the case, because it challenges the sufficiency of another party’s disclosures, or because another party has not made its disclosures.”

The statute excludes unlawful detainer actions under Section 1161, small claims matters as defined in Section 116.210, proceedings under the Family Code or Probate Code, actions subject to preference under Section 36, or if a party is not represented by counsel. Section 2016.090 only applies to cases initiated after January 1, 2024.

Unlike the disclosures required by Rule 26 of the Federal Rules of Civil Procedure, the obligations imposed by Section 2016.090 are not self-executing … yet. The current statute is scheduled to sunset on January 1, 2027.

On that date, an amended version of Section 2016.090 takes effect. It requires some – but not all – of the same disclosures, and is subject to a different implementation scheme. Effective January 1, 2027, Section 2016.090 shall read:

(a) The following shall apply only to a civil action upon an order of the court following stipulation by all parties to the action:

(1) Within 45 days of the order of the court, a party shall, without awaiting a discovery request, provide to the other parties an initial disclosure that includes all of the following information:

(C) Any agreement under which an insurance company may be liable to satisfy, in whole or in part, a judgment entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.

(D) Any agreement under which a person, as defined in Section 175 of the Evidence Code, may be liable to satisfy, in whole or in part, a judgment entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Only those provisions of an agreement that are material to the terms of the insurance, indemnification, or reimbursement are required to be included in the initial disclosure. Material provisions include, but are not limited to, the identities of parties to the agreement and the nature and limits of the coverage.

(2) A party shall make its initial disclosures based on the information then reasonably available to it. A party is not excused from making its initial disclosures because it has not fully investigated the case, because it challenges the sufficiency of another party’s disclosures, or because another party has not made its disclosures.

(3) A party that has made its initial disclosures, as described in paragraph (1), or that has responded to another party’s discovery request, shall supplement or correct a disclosure or response in the following situations:

(A) In a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect and the additional or corrective information has not otherwise been made known to the other parties during the disclosure or discovery process.

(B) As ordered by the court.

(4) A party’s obligations under this section may be enforced by a court on its own motion or the motion of a party to compel disclosure.

(5) A party’s disclosures under this section shall be verified under penalty of perjury as being true and correct to the best of the party’s knowledge.

(b) Notwithstanding subdivision (a), this section does not apply to the following actions:

(1) An unlawful detainer action, as defined in Section 1161.

(2) An action in the small claims division of a court, as defined in Section 116.210.

Thus, familiarity with the initial disclosure requirements that took effect at the beginning of 2024 will not keep one in good stead with the duty of competence after January 1, 2027, thereby illustrating that competence in the practice of law requires an ongoing commitment that lasts as long as one is licensed.

Finally, Senate Bill 235, which resulted in the new mandatory disclosure requirements, also increased the allowable sanction for discovery abuse from $250 to $1,000, and affords a court the discretion to “… require an attorney who is sanctioned … to report the sanction, in writing, to the State Bar within 30 days of the imposition of the sanction.” (Code Civ. Proc., § 2023.050.)