Introduction
I finished paralegal school in 2012. A few months later, I was invited back to be an instructor in the program. For the next 13 years, I used every opportunity I had to push for a class about discovery. It’s that important. The discovery phase can and willshape the trajectory of the entire case. Written discovery and depositionsform the backbone of pre-trial preparation. Remember that trial lawyers will be telling a story in the courtroom.
Discovery is where that story begins to form. For a litigation paralegal, discovery work is not just a matter of managing deadlines and serving documents. It is an art form that requires accuracy, diligence, insight, and appreciation for how each piece of information, each puzzle piece, sets the path for trial.
It requires dissecting the known facts, and recognizing where the gaps are. It requires knowing how to phrase requests to collect, without objection, the information necessary to fill those gaps with pertinent information. After years of assisting trial lawyers, coordinating with experts, and navigating the procedural difficulties of the Code of Civil Procedure, I have learned that the work done during discovery and depositions often determines the outcome long before your attorney steps into the courtroom.
Written discovery and depositions are not ordinary administrative tasks. They are opportunities to develop themes, lock in testimony, reveal what matters most to address, and educate the parties about the strengths and weaknesses of their own case. They also carry the potential for missteps: some inconvenient, others potentially fatal. This article explores the practical do’s, situational “it depends,” and unequivocal don’ts associated with written discovery and deposition practice in California, framed from the viewpoint of someone who has spent years managing these processes behind the scenes.
It is important to note that we will be looking at discovery from both the plaintiff and defendant perspective because it is imperative that we understand the purpose of defendants’ discovery so that we can address it in our responses and as we prepare an attorney for a deposition. “A paralegal never needs to know the answer but always needs to know where to find it.” – Talar Guedikian. With that in mind, the full range of the California Discovery Act can be found at California Code of Civil Procedure §§ 2016.010-2036.050.
Written Discovery
In most civil cases, written discovery begins shortly after the initial case management deadlines are set. Form interrogatories, special interrogatories, requests for admission, and request for production of documents each serve individual functions. I refer to them as collecting the who, what, when, where, why and how of a case. The paralegal becomes the first handler of all these materials including: organizing, calendaring, conducting preliminary interviews, identifying defects, and preparing them for the attorney’s review. For plaintiffs, written discovery is the chance to define the narrative and build the evidentiary foundation for damages. For defendants, it is an opportunity to search for weaknesses, narrow issues, and support their affirmative defenses.
One of the essential things every paralegal learns early on is that written discovery is not simply an exchange of information … it is a strategic exercise. The “do” in written discovery is to ensure everything is organized, complete, and accurate before it reaches opposing counsel. This seems obvious, but many cases unravel because an incomplete response leads to avoidable discovery disputes. A well-seasoned paralegal works closely with clients, experts, and the internal team to make certain that all responsive documents are gathered, bates stamped, and reviewed for privileged information before production.
And don’t forget those privilege logs! They are not only necessary, and required per code (C.C.P. §2031.240, et seq.), if done right, they keep the production organized for your team and will be a quick reference guide when gathering the exhibits for trial. One thing to keep in mind in collecting information is to collect it all.
Don’t limit yourself to collecting solely the information requested. If there is more, we want to learn it, know about it, and have it in our “back pocket.” Even if the information seems irrelevant at the time, the goal is to always ensure that we are aware of it before and more so than the opposing party.
For example, form interrogatory 2.8 asks about any felony convictions. I like to ask my clients if there were any misdemeanors or arrests or really any other lawsuits!
Do use written discovery as an opportunity to clarify and educate. Discovery responses are not just answers; they are often the first formal delivery of a party’s theory of the case. Plaintiffs use special interrogatories to shape the narrative on liability and damages. This is the what, why and how of the story we are trying to build. Defendants use them to box in claims, refine timelines, and uncover inconsistencies. A paralegal must think several steps ahead and understand how each question, each objection, and each document will be used months later. Whether drafting a verification page, assembling responses, or preparing a declaration under Code of Civil Procedure § 2030.250, a seasoned paralegal knows that every response must be consistent with the overall strategy.
But let’s keep in mind, really at all times, that the caption page of those requests and/or responses, includes an attorney’s name, their bar number and we are responsible for ensuring that we are providing accurate, complete information while protecting our client’s right to privacy. Sometimes, whether to respond fully, partially, or object entirely falls straight into the category of “it depends.” California discovery law allows for broad inquiry, but it also provides important protections. Not every demand deserves compliance, and not every objection is worth fighting over.
Paralegals must balance these considerations, always guided by the litigation plan and when in doubt, check with the attorney. For example, when opposing counsel issues burdensome or duplicative requests for production, the team may choose to respond with objections supported by a reasonable limit or clarification. Timing is also a perpetual “depends.” Whether to serve discovery early or later in the process must be considered alongside trial deadlines, expert retention, and anticipated law-and-motion practice.
Serving discovery too early risks receiving objections that the discovery is premature, or that the defense has not had an opportunity to conduct a diligent investigation. Serving it too late compressesthe timeline and may place undue pressure on experts or clients, and let’s face it … us! A skilled paralegal anticipates these logistical challenges and organizes the workflow in a way that supports the attorneys’ strategic decisions.
Discovery responses are not just answers; they are often the first formal delivery of a party’s theory of the case.
This is where a discovery plan comes into play. It’s important to sit down with the attorney once a case has been filed and come up with a schedule that is reasonable, not overwhelming, and also which will produce the most effective results. Yet in all this nuance, there are absolute “don’ts” in written discovery. Do not allow a deadline to slip, as discovery statutes are unforgiving regarding late responses. Missing a deadline for interrogatories or requests for admission can result in waiver of objections, deemed admissions, or costly motions to compel. A paralegal lives by the calendar, internal reminders, and redundancy. Double-calendaring is not paranoia, it is survival. Another major “don’t” is producing documents without proper review.
The rule is not to skim documents for what stands out as possibly privileged. It is to do the same review the defense will, in detail, for that tiny bit of information that should have been redacted. Social security numbers, bank account numbers, nonrelevant medical history … these are all in the short, basic list of what information should always be redacted and withheld. Similarly, do not respond to discovery with vague or evasive answers.
In California, courts expect good-faith compliance, and failure to respond substantively not only invites sanctions but also unnecessarily involves the judge, something no litigation team should do. Written discovery is never black and white. Each case will have its own roadmap. While similar cases may lead to similar discovery, the fact patterns will never be identical. Those gaps we are trying to fill may be in different parts of the story, the documents relevant to one case may have no effect on another. Remember what you did in a previous case, and what was beneficial and what wasn’t – allow for that to help guide you, while still keeping in mind that you are starting all over again, each and every time!
Depositions
Once written discovery has been exchanged and the document universe mapped, depositions begin to take center stage. Depositions in California are powerful tools, providing attorneys with the ability to lock in testimony, explore credibility, and test factual claims under oath. For a paralegal, depositions are a logistical undertaking and a strategic puzzle. Preparing for deposition as a paralegal may include collecting documents an attorney may want to use, sitting in on depositions to take notes or display exhibits, but much of a paralegal’s job happens before that! It starts with the deposition notice.
Things to consider: with or without a subpoena, with or without document production? All of that will depend on your deponent and will be on a case-by-case basis. What doesn’t change are the rulesset forth in California Code of Civil Procedure § 2025.220 which require you to “do” the following: include the date and time of the deposition, the name and address of the deponent and more importantly, the intention to record the testimony by audio or video for use at trial. (C.C.P. § 2025.220(a)(5)(6).)
Depositions are a logistical undertaking and a strategic puzzle.
You’ve served the deposition notice, you’ve calendared it, and yet so many people are quick to forget to reserve a court reporter, a videographer and if needed, a translator! How do you know if you need a translator? First place to look is a party’s response to form interrogatory nos. 2.9 and 2.10 which ask if English is easily read, written and understood. Yet, I would suggest not stopping there: at the end of your deposition notice, add a one-line sentence that requires the opposing party to notify if a translator will be necessary.
A paralegal’s role as it relates to depositions may be more limited than in written discovery, except when it pertains to expert discovery. It’s often standard to have a deposition notice already curated for expert depositions. Unlike written discovery, a litigation paralegal should not have to recreate the wheel in trying to formulate a list of documents sought from an opposing party’s expert. Rather, focus your attention on scheduling the depositions while also ensuring that it provides your team with sufficient time to collect the documents, as they need to be produced three days before.
More importantly, remember to always provide a copy of the opposing party’s expert deposition testimony to your expert in the same field. This is necessary to allow your expert to review and assist in pointing to the discrepancies, the inaccuracies, or otherwise formulating a different opinion within their expertise. Lastly, never forget to collect original and/or certified copies of the deposition transcripts as you will need to provide them to the court at the start of trial.