Document Production Gamesmanship Run Amuck – Governor Newsom Should Sign SB 17
In July 2018 our firm served a relatively routine request for production of documents in a business litigation matter. After a year of gamesmanship, the motion to compel production was heard on September 2019. We are awaiting the court’s final decision. Assuming the court adopts its tentative decision, we hope to receive the few hundred documents requested in December 2019. Unfortunately, this 17-month interval between request and production is not unique or even among the most egregious examples of discovery gamesmanship — delaying litigation, tying up the courts, and straining the ability of parties to access justice in civil disputes. This abuse of discovery’s intended purpose has resulted in a system that too often favors resources over merit.
This year I authored Senate Bill 17 to mitigate some of the gamesmanship that has become endemic in civil litigation. The measure encourages the initial disclosure of information and discovery materials, further discourages gamesmanship by imposing a $250 sanction on a party, person, or attorney who fails to act in good faith in response to a request for documents, and authorizes the court to require the offending attorney to report the sanction to the State Bar.
Code of Civil Procedure Section 2023.010 (c) states that a misuse of the discovery process includes, “employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” Despite this rather clear language, gamesmanship is increasingly bogging down the judicial system — while simultaneously aggravating judges who generally loathe discovery disputes.
SB 17 provides that after the parties stipulate and the court enters an order, all parties are required to, within 45 days of the court order, provide to the other parties an initial disclosure that includes certain information related to discoverable information. The initial disclosure requirement of SB 17 is modeled after Federal Rule of Civil Procedure 26(a) (1), which has been in place for over 25 years in federal court. According to the notes of the Advisory Committee on Rules for the 1993 amendment, initial disclosure “is based upon the experience of district courts that have required disclosure of some of this information through local rules, court-approved standard interrogatories, and standing orders.” The notes from the FRCP committee also state that “the required pre-discovery exchange of core information results in savings of time and expense because litigants can use the results to guide further proceedings in the case.” The committee further notes that courts in Canada and the United Kingdom have required disclosure of information for years.
If judges encourage parties to stipulate to the provisions of SB 17 it would bring the efficiencies created under FRCP 26 to California courts. SB 17 also sends a message to all parties to cease abuses in connection with document production by imposing minimum sanctions and reporting to the State Bar. These are both much needed reforms to help ease the state’s civil court backlog. Californians deserve nothing less in their pursuit of civil justice.
SB 17 is sitting on Gov. Gavin Newsom’s desk awaiting his signature. If the governor signs this bill and California’s judges encourage the exchange provisions of SB 17 — litigants and the courts should see less gamesmanship and fewer court resources devoted to discovery fights.
Senator Umberg represents the 34th Senate district which includes northern Orange County and Long Beach. He is a founding partner of Umberg Zipser LLP.