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By Hon. Lee R. Bogdanoff (Ret.)
The worst attorney behavior I saw when I was on the bench involved discovery disputes. Many of the fights were perplexing, with parties staking out untenable positions. The email chains that accompanied discovery pleadings provided a window into unpleasantness outside of court. I sometimes wondered why discovery brought out such behavior. I thought that most of the time clients were not meaningfully involved and largely deferred to counsel. Attorneys reverted to their worst behavior. Other times I suspected that counsel for one side was doing their best to provide cover for a client who was non-responsive to opposition discovery. I think most lawyers hate everything about discovery. When litigators tell me why they leave litigation or the practice altogether, they often say it is because of discovery.
Most attorneys know the law well enough to resolve most discovery disputes without court intervention. California requires meet and confer efforts and gives courts latitude to sanction abuses, and yet discovery motion practice remains heavy. When I practiced, my approach was that unless a request implicated a privacy concern or a privilege, produce it. With that as my framework, I had a hard time as a judge adjusting to discovery wars. I often felt like a parent dealing with squabbling children (though in many instances one party was clearly on the wrong side).
I grew up in the federal system which long ago adopted a policy of early discovery transparency. Parties must make initial disclosures without waiting for requests, and they must supplement in a timely manner if prior disclosures or responses turn out incomplete. That framework encourages production and reduces gamesmanship. I recognize that the federal system cuts against fundamental notions of the adversary system, but I think is appropriate as a matter of policy. The federal system and discovery standards generally encourage voluminous production which is expensive and often of limited utility. But that is a topic for another day.
California now requires initial disclosures relevant to the subject matter of the action in most new civil cases when a party demands them. That is a meaningful change in longstanding law which did not provide for any mandatory disclosures, though it is not automatic like federal practice. In some respects, the California statute imposes broader disclosure than what is required in the federal system once the demand is made. California still does not impose a general continuing duty to supplement though a party may make demand for updated responses twice. The new law originally was set to sunset in January 2027 but has been made permanent. It has been justifiably criticized for being vague and likely to spawn yet more litigation over its requirements.
I hope that the new California statutory regime will reduce the frequency and ferocity of discovery battles. But I doubt it.
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