Rome LLP

Written by Sridavi Ganesan, Partner at Rome LLP | Commercial Litigation, IP Litigation, Outside General Counsel & Advisory, Real Estate Litigation, & Internet-related Litigation.

In a recent case against a prominent medical group, I deposed an agent who improperly verified discovery responses on behalf of the corporation. When I questioned their designated verifier, “So what steps do you take to take [sic] that the responses are accurate?” their verifier replied, “I don’t.” The verifier’s only involvement with the verification of discovery responses on behalf of the medical group was the 5-10 minutes it took to quickly review fully prepared discovery responses sent to them in their final form by the corporation’s outside counsel and to sign the corresponding verifications. The designated verifier never spoke to the medical group’s counsel or anyone at the organization about how the information used to formulate the discovery responses was obtained, from whom, or whether the information provided was true and accurate. This type of “verification” of discovery responses therefore has the same practical effect as no verification at all. The law is clear that unverified responses are “tantamount to no responses at all” (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636).

In the case of this prominent medical group’s discovery verification process, the verifier’s answers throughout the deposition established the entity’s lack of rigorous information gathering and proper handling of discovery responses, putting the company in a vulnerable legal position. When handling discovery verification on behalf of an entity, it is important to remember that any signed declaration must be executed by an agent who has domain knowledge and can speak comprehensively about the information collection and verification process. Absent of this, you run the risk of damaging your or your corporate client’s credibility in relation to the case, and run the risk of sanctions being entered against your client.

Best practices to mitigate risk in the discovery verification process

Ensuring the accuracy and completeness of your discovery response process is critical to mitigating legal risk. First and foremost, designating a single point person to verify responses streamlines communication and enhances the accuracy of your responses. But choosing one person as the entity’s verifier, as in the case of the medical group, is not sufficient. Your point person must also be involved in speaking to domain experts and in the collection of information to respond to discovery requests. Centralizing the information gathering in the discovery process under a dedicated individual protects your company’s interests and safeguards you from the possibility of costly legal mistakes.

The designated verifier must ensure that they can answer any questions about who the information was gathered from, how it was gathered, and why those who offered the information were the right people to do so. The point person must collaborate closely with relevant departments within the company to verify discovery responses that mitigate risk for both the company and themselves.

To properly verify Discovery responses, implement these best practices: 

• Designate one person to be the point person or the agent on behalf of the corporation. 
• Review the request thoroughly and identify all the areas of information required, which departments or domain experts will be responsible for providing relevant information, and how you will verify the information is correct and thorough before signing a declaration.
• Have the designated verifier be involved in the gathering of all relevant information and supplemental documentation to fulfill document requests and interrogatories.
• If your verifier is not your attorney, provide all information to your in-house counsel or attorney team so you can work together on properly crafting and verifying discovery responses. 
• Make sure the designated verifier keeps detailed records of their information gathering process and can answer all questions about how information was gathered in the event they are deposed by opposing counsel. 
• When gathering information, make sure to be extensive with your questioning. Keep in mind that any experts or witnesses could be subject to interrogation about the depth of your verifiers’ information gathering to discredit your case.

How can the improper handling of discovery verification affect your or your corporate client’s case?

As a designated representative or verifier, you will sign off on discovery responses that are vouching for the authenticity and accuracy of the information under penalty of perjury. If this verification is mishandled, you risk legal sanctions, including fines, dismissal of claims or defenses, or having requests for admissions deemed admitted. Further, if the verifier lacks any knowledge of how or from where/whom the information used to prepare the discovery responses was obtained, the verifier can be subject to a contempt sanction. In short, if you or your designated representative are deposed without keeping accurate records relating to the information provided in the discovery responses, it could be fatal to your credibility and your case. 

What should you do if you’ve already verified discovery responses without following these best practices?

If you fear you or your entity’s designated verifier has already verified and submitted insufficient discovery responses, you must quickly take action to mitigate risk. You can submit a new verification form for your/your company’s discovery responses, or the designated person who signed off on the verification can retroactively speak to anyone who gathered information and find out how and from whom all information was collected. At Rome LLP, we advise corporate clients and in-house counsel on how best to mitigate risk for themselves and their corporate clients.  

Your Outside General Counsel & Legal Advisory Team

We regularly advise corporations and other entities on best practices associated with their compliance and risk management. We act as outside general counsel for our corporate clients or work in tandem with in-house counsel in an advisory capacity. Collaborating with our legal team preemptively is more efficient and cost-effective than waiting until you are facing legal disputes. We learn your business inside and out and help you implement compliance measures, thoroughly auditing your risk management strategies to prevent legal challenges before they arise. Email me directly at sridavi@romellp.com to discuss your legal needs, or call us to schedule a free consultation.