How Outside Counsel Can Manage California’s New Discovery Rules and Privilege Challenges

How Outside Counsel Can Manage California’s New Discovery Rules and Privilege Challenges

According to an article by David W. Gouzoules, Partner at Procopio, discovery remains a costly, time-consuming challenge, particularly with the introduction of California’s new discovery rules and privilege challenges.

The mandatory initial disclosure requirements under the California Code of Civil Procedure (CCP) § 2016.090 took effect for cases filed on or after January 1, 2024. This statute requires parties to disclose information about witnesses, relevant documents, and applicable insurance or indemnification provisions within 60 days of a request. Unlike federal Rule 26, this statute broadens the scope to include all potentially relevant materials. This raises concerns about over-disclosure, uncertainty about when the obligation to disclose is triggered, and risks to confidentiality regarding indemnification provisions.

To mitigate these burdens, Gouzoules says that firms should consider stipulating modifications to initial disclosure requirements, using categorized descriptions instead of voluminous document productions, and redacting sensitive contractual provisions while ensuring compliance with disclosure rules.

Beyond procedural changes, counsel must remain vigilant about attorney-client privilege and work product protections. A recent case, Southern California Edison v. Superior Court, highlights the nuances of privilege when communications involve non-attorneys. 

The Court of Appeal reversed a lower court’s ruling that certain internal emails were non-privileged, emphasizing that documents prepared as part of an attorney-directed investigation qualify for protection. This case underscores the need for clear documentation of legal involvement to maintain privilege claims.

Additionally, Gouzoules adds that counsel must separate legal and business advice, as California courts do not automatically extend privilege to corporate counsel merely because an attorney is copied on communications. Legal analysis should be explicitly identified in emails or memoranda to ensure protection.

Given the evolving complexities of discovery and privilege, outside counsel’s guidance remains crucial for safeguarding privilege, streamlining compliance, and effectively managing litigation risks.