Best Legal Practices, Part 2: Discovery and Depositions

The California Rules of Court and the Code of Civil Procedure have established clear guidelines for the preparation of discovery and for conducting depositions. What may not be so clear, and what may be taken for granted as just being “known,” are the things we do in the course of these procedures that are considered best practice. The following are some best practices that should help you in these areas.

Propounding Discovery

If you know your attorney routinely propounds interrogatories, requests for production, requests for admission, etc., why wait for your attorneys to tell you, “We’re going to be sending a complete discovery package to opposing counsel in the XYZ case.” Instead, as soon as all parties have appeared in the case, go ahead and create shells for these documents (even if it’s just the information from your master caption). At least these documents will be sitting in the queue and ready for you and your attorney/paralegal to work on when the time comes.

This also means making sure you already have a master proof of service prepared so that it can easily be added when you are ready to serve the discovery on opposing counsel.

Make sure that the proof of service is unsigned when sending the documents out, and then immediately sign the original proof of service afterward and retain it for your files.

Find out ahead of time how your attorney wants the discovery served, i.e., U.S. Mail, electronic service, personal service, etc. This can be especially critical if you are close to the discovery cut-off date. It also makes a difference when calendaring the date responses are due from the other parties and whether you need to line up someone to personally serve the documents.

Remember that the propounding party always keeps the original discovery documents and serves a copy on the responding parties.

Responding to Discovery

Because discovery documents must be verified, remember to include a date in your discovery calendaring to make sure you have received the signed verification back from the client. So often law offices follow the practice of “Verification to follow” when returning responses to the propounding party, and many times never provide the verification. Unless you are only serving objections, the responses must be verified. Failure to do so results in all of your objections being waived. Follow best practices and be sure to obtain the verification and include it when serving your responses.

Ask the propounding party to provide you with an electronic copy of the special interrogatories, requests for production, and requests for admission. This will make creating the shells for your discovery responses much easier and definitely take less time. There is nothing wrong with asking the propounding party for this information and, in fact, the Code of Civil Procedure section 2030.210(d) and (e) states that it must be provided in a format agreed upon by the parties within three (3) court days of the request.

Make sure that the proof of service is unsigned when sending the responses back to the propounding party, and then immediately sign the original proof of service afterward and retain it for your files.

Be sure to look at the method of service used by the propounding party, as this dictates when your responses are due.

When requesting an extension of time from the propounding party to respond to discovery, the best practice is to always keep a copy of the email exchange, notes of the telephone conversation, etc., regarding the request and granting of the extension. Be sure to calendar the new response date.

Remember that the responding party always sends the original responses to the propounding party and keeps a copy.

In General

Best practice when receiving discovery requests or discovery responses that are served via U.S. Mail or by overnight mail service is to retain the envelope they came in. If the date on the postmark or overnight label does not match the date on the proof of service, there may be grounds for asserting deficient or untimely service, failure to respond within the time dictated by statute, etc.

If discovery documents are being personally served, check the proof of service on the documents to ensure they were actually served on the date listed.


When scheduling depositions, it is best practice to provide the court reporting agency with a copy of the notice of deposition. This not only provides them with all of the details needed regarding the deposition, including who is being deposed, when, where, by whom, whether video recording is required, and so forth, having the notice of deposition allows the court reporter to set up the caption page in advance of preparing the deposition transcript.

Be sure to ask whether the court reporter assigned to your deposition is a licensed Certified Shorthand Reporter. There are some businesses soliciting the legal industry who send notaries public (who are authorized to administer oaths at hearings, depositions, etc.) and only take an audio recording of the deposition to later be transcribed. These are not licensed Certified Shorthand Reporters (although they have no qualms about charging the same rates as a CSR), they are not trained as licensed CSR, and they do not understand the importance or intricacies of being the “guardian of the record.”  The transcripts also do not stand up in court and judges are increasingly disallowing them to be entered into evidence.

When the court reporter arrives, immediately ask for their business card and confirm that they are a licensed CSR. It is too late to object or cancel the deposition once the oath has been administered.  Once the deposition has started, it must go forward. If it is determined PRIOR to the oath being administered that the “court reporter” is not a licensed CSR, then the deposition can be canceled and rescheduled for a time when a licensed CSR is available and can be present.

When parties arrive for the deposition, it is best practice to ask who they are and what deposition they are appearing for. There may be more than one deposition occurring in your office, and someone simply saying “I’m here for the deposition” does provide sufficient information for placing them in the correct conference room, making sure they are not exposed to information or parties in a different matter, etc. Also, let your attorney know when the parties arrive, as the attorney may want to meet privately with them before the deposition begins, or want them seated in a specific area prior to the deposition.

Best practice for any law office is to protect confidential information. It is not uncommon for a visiting attorney to wander into the staff area and ask if someone can make copies of a document. Therefore, when a deposition is happening in your office, do your best to make sure that client files, computer monitors, loose documents, etc., are shielded from visitors. This also applies to telephone calls and office conversations. If your office is an open concept design within earshot of visitors, use good judgment when conducting phone or office conversations to ensure you are not disclosing any confidential information, including client names.

It is also a good practice to reserve two conference rooms for the deposition – – one for the deposition itself, and the other for use as a “breakout” room for any of the parties that may need to confer away from the other parties.

When it comes to the handling of sealed, original deposition transcripts that come to your office, make sure that EVERYONE – – especially front desk and office services personnel – – anyone who may come into contact with the sealed, original transcript – – knows that the sealed transcript MUST NOT BE OPENED! Personnel that handle mail may have been taught to open all mail, date-stamp it, then route it, which is fine for all other mail but not for sealed, original deposition transcripts. Best practice is to have the sealed, original transcript immediately placed with the client files by the assistant or paralegal assigned to the case and remain in its original unsealed condition until it is submitted to the court on the first day of trial, where it will then be opened.



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