Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association.


Some Discovery Sanctions are Now Reportable to the State Bar

By Charles V. Berwanger

We all know the courts abhor discovery disputes and the legislature has provided yet another tool to California state courts to encourage proper discovery, albeit in the area of document production and inspection demands. The new discipline tool is embodied in Code of Civil Procedure section 2023.050 added in 2019 effective January 1, 2020. It mandates that a judge who determines that a sanction is warranted as a result of a discovery dispute arising from document production or an inspection demand impose a fine of at least $250 and declares the court "may, in its discretion 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."

Section 2023.50 in permitting the court to report a sanction imposed arising "from document production or an inspection demand" specifies sanctions imposed for violation of (1) Section 2020.010 which provides for deposing a person who is not a party to the proceeding including a deposition for production of business records; (2) Section 2020.410 which provides for a deposition subpoena that commands the production of business records; (3) Section 2020.510 which prescribes the contents of a business records subpoena; (4) Section 2025.210 which provides for the time allowed for the service of a deposition notice; and (5) Section 2031.010 which provides that any party may obtain discovery of documents, tangible things, land or other property, and electronically stored information.

The safe harbor from having to report to the State Bar any discovery sanction is now partially potentially gone. The reporting requirement generally for sanctions is found in Business and Professions Code section 6068(o)(3). It provides that an attorney must "report to the agency (the State Bar) ... within 30 days ... the imposition of judicial sanctions against the attorney, except for sanctions for failure to make discovery or monetary sanctions of less than one thousand dollars ($1,00)." That section is applied to exclude from the reporting requirement any sanctions "for failure to make discovery ..." With the enactment of section 2023.050 that blanket safe harbor is no longer controlling.

 

Charles V. Berwanger is Partner with Gordon Rees Scully Mansukhani.

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**