Effective as of January 1, 2020, all civil litigants in California will have additional discovery burdens. The California Code of Civil Procedure now requires “[a]ny documents or category of documents produced in response to a demand for inspection, copying, testing, or sampling shall be identified with the specific request number to which the documents respond.” Cal. Civ. Pro. § 2031.280(a). This is a major departure from the prior rule. Responsive documents can no longer be produced as they were “kept in the usual course of business.” This new requirement applies to all pending cases in California, regardless of whether a case commenced prior to the amendment’s effective date of January 1, 2020.
Consumer advocates, defense attorneys, tort reformists, and trial judges are all eagerly awaiting a decision by the Ninth Circuit which all hope will clarify the process for certifying a nationwide settlement class in the Ninth Circuit. Specifically, an en banc Ninth Circuit panel will decide whether “variations in state law can defeat” predominance in class action litigation.
California overhauled its Rules of Professional Conduct effective November 1, 2018. This post highlights some impactful revisions for commercial litigators. However, all California lawyers should familiarize themselves with the sixty-nine new and revised rules.
Should Titanic’s Box Office release or the debut of Harry Potter already be described as events from the ancient past? It would hardly seem so. But, the amendment to the ancient documents exception to the rule against hearsay contained in Fed. R. Evid. 803 (16) suggests otherwise. Fed. R. Evid. 803 (16) provides that statements in an ancient document are not excluded by the rule against hearsay (Fed. R. Evid. 802) if the document’s authenticity can be established. See Rule 803 of the Federal Rules of Evidence. Prior to the recent amendment, Rule 803 (16) described ancient documents as documents “at least 20 years old.” As amended, Rule 803(16) limits the ancient documents exception “to statements in documents prepared before January 1, 1998.” Id. The use of a January 1, 1998 cut-off avoids having the identification of what is an “ancient document” be a moving target. The Judicial Conference Advisory Committee on Evidence Rules (“the Committee”) recognized that Fed. R. Evid. 803, left as is, soon could have become “a vehicle to admit vast amounts of unreliable electronically stored information (ESI),” as the twenty year lookback period crept forward into the age of electronic documents. The Committee was specifically concerned about the risks created by the unreliability of older ESI, in combination with the “exponential development and growth of electronic information since 1998.”
Consistent filing and service procedures will become less of an oxymoron in California – especially for those legal practitioners who appear in the state’s appellate courts. E-filing is currently not mandatory in most cases in appellate courts, but soon will be uniformly required, except for pro-se litigants. The State’s trial courts, California Superior Courts, can choose to implement e-filing if they do not already require it. New standard e-filing and e-service rules will become effective January 1, 2017. Those resentful of mid-afternoon traffic rejoice. Messengers and couriers beware.