The CCP 2016.040 Meet-and-Confer Declaration: The Certified Shorthand Reporter Clause Added January 1, 2026

Short answer: CCP 2016.040 now has two subdivisions. Effective January 1, 2026, a California meet-and-confer declaration must also state whether the moving party met and conferred about retaining a certified shorthand reporter for the hearing.

For twenty years this statute was one sentence. Every meet-and-confer declaration template in circulation in California was built against that one sentence. Two bills chaptered in 2025 changed it, both operative January 1, 2026, and the result is a declaration with a second required disclosure that has nothing to do with the underlying discovery dispute. Templates that predate this year are now short a paragraph.

What does CCP 2016.040 require now?

Subdivision (a) carries the familiar obligation, with modality language that is new to the operative text: “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt, either in person, by telephone, or by videoconference, to informally resolve each issue presented by the motion.”

Two things follow from that sentence that drafters routinely miss. The obligation is to state facts, not to assert a conclusion. And the attempt must reach each issue presented by the motion. A declaration that describes one phone call about a privilege log does not support a motion that also challenges eight responses on burden grounds.

Subdivision (b) is the addition: “The declaration shall also include whether the moving party has met and conferred, including through an electronic communication, regarding the retention of a certified shorthand reporter to report the hearing on the motion. This subdivision does not prevent the retention of a certified shorthand reporter.”

Which bill added the certified shorthand reporter clause, and when did it take effect?

Two 2025 enactments touched the section, both effective January 1, 2026. AB 711 (Chen), Stats. 2025, ch. 64, sec. 1, introduced the reporter disclosure. AB 1521, Stats. 2025, ch. 200, sec. 12, is the later chaptered version and supplies the operative text quoted above, including the “in person, by telephone, or by videoconference” language in subdivision (a) and the “has met and conferred, including through an electronic communication” formulation in subdivision (b). The bill as introduced would have required the declaration to state whether the moving party “will retain” a reporter. The enacted text asks something different and easier to satisfy: whether the parties conferred about retention.

Read subdivision (b) as a disclosure requirement, not a retention requirement. The answer can be no. What the declaration cannot do is stay silent, because the statute says the declaration “shall also include” the fact of conferral or the absence of it.

Which motions require a meet-and-confer declaration?

Section 2016.040 defines the instrument. The requirement to file one comes from the individual discovery statutes. On a motion to compel further responses to a demand for inspection, CCP 2031.310(b) requires that the motion be “accompanied by a meet and confer declaration under Section 2016.040.” The parallel provisions for interrogatories and requests for admission use the same cross-reference, which is why a single defective declaration can sink a multi-part discovery motion.

Keep the declaration separate from the separate statement. California Rule of Court 3.1345(a) provides that “Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement.” That is a different document with a different function, and combining them is a common reason discovery motions come back. We covered the two-column format in detail in our piece on CRC 3.1350 separate statements.

Rule table

Requirement	Operative language	Source
Good faith conferral, each issue	“shall state facts showing a reasonable and good faith attempt, either in person, by telephone, or by videoconference, to informally resolve each issue presented by the motion”	CCP 2016.040(a)
Reporter disclosure	“The declaration shall also include whether the moving party has met and conferred, including through an electronic communication, regarding the retention of a certified shorthand reporter to report the hearing on the motion.”	CCP 2016.040(b)
No bar on retention	“This subdivision does not prevent the retention of a certified shorthand reporter.”	CCP 2016.040(b)
Declaration required on motion to compel further production	“accompanied by a meet and confer declaration under Section 2016.040”	CCP 2031.310(b)
45-day waiver	“Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.”	CCP 2031.310(c)
Mandatory sanction for failing to confer	“Notwithstanding the outcome of the particular discovery motion, the court shall impose a monetary sanction ordering that any party or attorney who fails to confer as required pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”	CCP 2023.020
Separate statement	“Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement.”	Cal. Rules of Court, rule 3.1345(a)
Electronic service extension	“shall be extended after service by electronic means by two court days”	CCP 1010.6(a)(3)(B)
Notice period	“all moving and supporting papers shall be served and filed at least 16 court days before the hearing”	CCP 1005(b)
New York analogue	“shall indicate the time, place and nature of the consultation and the issues discussed and any resolutions, or shall indicate good cause why no such conferral with counsel for opposing parties was held”	22 NYCRR 202.7(c)
Federal analogue	“The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.”	Fed. R. Civ. P. 37(a)(1)

Drafting-ready meet-and-confer declaration

File this as its own document with the motion. Paragraph 6 is the 2026 addition. Replace the bracketed material and delete the alternatives that do not apply.

DECLARATION OF [COUNSEL] IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO [PARTY]’S DEMAND FOR INSPECTION, SET [NUMBER] (CODE CIV. PROC., SEC. 2016.040)

I, [COUNSEL], declare:

1. I am an attorney licensed to practice before all courts of the State of California and am counsel of record for [PARTY] in this action. I have personal knowledge of the matters stated below and, if called as a witness, could and would testify competently to them.

2. On [DATE], [PARTY] served [RESPONDING PARTY] with Demand for Inspection, Set [NUMBER], consisting of [NUMBER] requests. On [DATE], [RESPONDING PARTY] served verified responses by [electronic service / mail].

3. The responses to Request Nos. [LIST] are at issue in this motion. As to each, [RESPONDING PARTY] [asserted objections without producing responsive documents / produced a partial response subject to objections].

4. On [DATE] I sent [OPPOSING COUNSEL] a letter identifying each of the [NUMBER] responses at issue, stating the specific deficiency in each, and requesting a supplemental response by [DATE]. A true and correct copy is attached as Exhibit [LETTER]. [OPPOSING COUNSEL] responded on [DATE] by [METHOD], stating [SUMMARY]. A true and correct copy is attached as Exhibit [LETTER].

5. On [DATE] at [TIME], [OPPOSING COUNSEL] and I conferred [in person at [LOCATION] / by telephone / by videoconference] for approximately [NUMBER] minutes. We discussed each of the [NUMBER] responses at issue. We resolved Request Nos. [LIST], and [RESPONDING PARTY] agreed to serve supplemental responses to those requests by [DATE]. We did not resolve Request Nos. [LIST]. As to those, [OPPOSING COUNSEL] took the position that [SUMMARY], and I took the position that [SUMMARY]. [On [DATE] I followed up by email confirming the outcome of the conference. A true and correct copy is attached as Exhibit [LETTER].]

6. As required by Code of Civil Procedure section 2016.040, subdivision (b), I state that the parties [have / have not] met and conferred regarding the retention of a certified shorthand reporter to report the hearing on this motion. [On [DATE], by [electronic communication / telephone], I asked [OPPOSING COUNSEL] whether [RESPONDING PARTY] wished to retain a certified shorthand reporter for the hearing and to share the cost. [OPPOSING COUNSEL] [agreed / declined / did not respond]. [PARTY] [will / will not] retain a certified shorthand reporter for the hearing.] [The parties have not conferred on this subject because [REASON].]

7. No further informal resolution of the remaining requests is available. [PARTY] filed this motion on [DATE], which is within 45 days of service of the verified responses as extended under Code of Civil Procedure section 1010.6, subdivision (a)(3)(B).

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed on [DATE] at [CITY], California.

_______________________________
[COUNSEL]

Worked example: the 45-day count and the earliest hearing date

Assume the responding party electronically serves verified responses to a demand for inspection on Friday, October 2, 2026. Count forward.

• 45 calendar days from October 2, 2026 lands on Monday, November 16, 2026. CCP 2031.310(c).
• Because the responses were served electronically, the period is extended by two court days under CCP 1010.6(a)(3)(B). The three carve-outs in that subdivision are a notice of intention to move for a new trial, a notice of intention to move to vacate judgment, and a notice of appeal. A discovery motion deadline is not among them. Two court days after November 16 is Wednesday, November 18, 2026.
• Notice of the motion must be given on or before Wednesday, November 18, 2026, or the right to compel a further response is waived.
• Now the hearing. CCP 1005(b) requires moving papers served and filed at least 16 court days before the hearing. Electronic service of the motion adds two court days, so count 18 court days forward from November 18. Excluding weekends and Thanksgiving on November 26, the earliest available hearing date is Tuesday, December 15, 2026.

Two practical notes. Court closure days are not uniform across California, so confirm the assigned court’s holiday calendar before you lock the hearing date. And the extension operates on the notice deadline, not on the conferral. If you begin the conferral on November 16, you have two court days to complete it, document it, draft the separate statement, and file. That is not a realistic schedule. Our walkthrough of the CCP 1005 court-day count has the backward math for the hearing side.

What happens if you skip the conferral?

CCP 2023.020 is mandatory and it is indifferent to who wins: “Notwithstanding the outcome of the particular discovery motion, the court shall impose a monetary sanction ordering that any party or attorney who fails to confer as required pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”

Keep this category separate from the others. Section 2023.020 is a discovery sanction tied to the conferral failure itself. It is not a CCP 128.7 sanction, which reaches the certifications made by signing a paper and carries its own 21-day safe harbor procedure, described in our piece on the CCP 128.7 safe harbor. Neither is a State Bar discipline proceeding, and neither is a malpractice claim. Different predicates, different procedures, different decisionmakers.

Cross-jurisdiction contrast: New York and federal court

New York. The instrument is an affirmation, not a declaration, and the content requirement is more specific than California’s. Under 22 NYCRR 202.7, a motion relating to disclosure must be accompanied by “an affirmation that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion.” Subdivision (c) supplies the detail: the affirmation “shall indicate the time, place and nature of the consultation and the issues discussed and any resolutions, or shall indicate good cause why no such conferral with counsel for opposing parties was held.” Time, place, nature, issues, resolutions. Four of those five are facts most California declarations already recite, and the fifth, place, is the one that gets dropped. New York has no analogue to the California reporter disclosure.

Federal. Federal Rule of Civil Procedure 37(a)(1) states: “The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” The certification is part of the motion rather than a separate sworn document, and the rule expressly accepts an attempt to confer where the other side will not engage. What the federal rule does not supply is a fixed deadline equivalent to California’s 45 days, and many districts add a joint stipulation or informal conference requirement on top of Rule 37. Confirm the district’s current local rules and the assigned judge’s standing order before drafting.

Pre-filing checklist

• Declaration states facts, with dates, times, participants, and method of conferral, not a conclusion that the parties conferred in good faith.
• Every issue presented by the motion is addressed in the conferral narrative. CCP 2016.040(a).
• Conferral was in person, by telephone, or by videoconference. Letters alone are correspondence, not a conference.
• Subdivision (b) paragraph is present and answers the reporter question one way or the other. CCP 2016.040(b).
• Correspondence exhibits are attached and authenticated in the declaration.
• Separate statement is a separate document, not folded into the declaration. Cal. Rules of Court, rule 3.1345(a).
• 45-day count run from service of the verified response, with the two court day electronic service extension applied if the response was e-served. CCP 2031.310(c); CCP 1010.6(a)(3)(B).
• Any extension of the 45 days is in writing. CCP 2031.310(c) permits no other form.
• Hearing date allows at least 16 court days of notice, plus two court days if the motion is e-served. CCP 1005(b).
• Assigned department’s standing order checked for an informal discovery conference requirement, which sits on top of the statute rather than instead of it.

Discovery motion drafting

Discovery motions are where a compressed timeline does the most damage, because the 45 days is jurisdictional and the papers are three documents rather than one. LegalBriefsUSA drafts California discovery motions as a package: the notice and memorandum, the CRC 3.1345 separate statement, and the section 2016.040 declaration with the subdivision (b) paragraph in place. If you are inside the 45-day window on a demand for inspection and need the separate statement and declaration built from the correspondence you already have, that is the work to send us. Related reading: motion drafting services for attorneys.

Authorities cited

California Code of Civil Procedure sections 2016.040, 2023.020, 2031.310, 1005, and 1010.6, each read in full at california.public.law and independently at codes.findlaw.com, with both sources agreeing on the operative language quoted above. Amendment history for section 2016.040, namely Stats. 2025, ch. 64 (AB 711) and Stats. 2025, ch. 200 (AB 1521), both effective January 1, 2026, confirmed at law.justia.com and rulesofcivilprocedure.com, with the AB 711 bill text read at LegiScan. California Rules of Court, rule 3.1345, read at courts.ca.gov. 22 NYCRR 202.7, subdivisions (a) and (c), read at law.cornell.edu. Federal Rule of Civil Procedure 37(a)(1), read at law.cornell.edu. Left out for lack of verification on the publication date: no case law is cited in this article, because no opinion construing subdivision (b) was located and read in full; no specific federal district local rule number or informal discovery conference requirement is stated, because those texts were not verified against the issuing courts’ current local rules today; and no California court closure day other than Thanksgiving, November 26, 2026, is treated as a non-court day in the worked example.

LegalBriefsUSA.com provides drafting and research support to licensed attorneys and law firms. This article is written for attorneys, is not legal advice, and does not create an attorney-client relationship.