Discovery Skills for Legal Professionals in Virginia

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July 24, 2018

I. Overview of Federal Discovery Rules

A. Va. R. 4:1 - General Provisions Regarding Discovery
B. Va. R. 4:2 - Depositions Before Action or Pending Appeal
C. Va. R. 4:3 - Persons Before Whom Depositions May Be Taken
D. Va. R. 4:4 - Stipulations Regarding Discovery Procedure
E. Va. R. 4:5 - Deposition Upon Oral Examination
F. Va. R. 4:6 - Deposition Upon Written Questions
G. Va. R. 4:7 - Use of Depositions in Court Proceedings
H. Va. R. 4:7A – Audio-Visual Depositions
I. Va. R. 4:8 - Interrogatories to Parties
J. Va. R. 4:9 - Production of Documents and Things and Entry Upon land for Inspection and Other Purposes
K. Va. R. 4:9A – Production from Non-Parties of Documents, Electronically Stored Information, and Things and Entry on Land for Inspection and Other Purposes; Production at Trial
L. Va. R. 4:10 - Physical and Mental Examination of Persons
M. Va. R. 4:11 - Requests for Admission
N. Va. R. 4:12 - Failure to Make Disclosure or Cooperate in Discovery Sanctions

II. Scope of Discovery. Va. R. 4:1.

A. General Scope. Generally, “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.” Va. R. 4:1(b).

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B. Trial Preparation Materials. A party may obtain discovery of documents and tangible things otherwise discoverable and prepared in anticipation of litigation “only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” Va. R. 4:1(b)(3).

C. Experts.

1. Discovery of Opinions Held by Testifying Experts. “A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.” Va. R. 4:1(b)(4)(A)(i). A party may also obtain such information through deposition and through such other means as the court may permit. Va. R. 4:1(b)(4)(A).

2. Depositions of Expert Trial Witnesses. “A party may depose any person who has been identified as an expert whose opinion may be presented at trial, subject to the provisions of subdivision (b)(4)(C) of this Rule concerning fees and expenses." Va. R. 4:1(b)(4)(A)(ii).

3. Discovery of Opinions Held by Non-Testifying Experts. “A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.” Va. R. 4:1(b)(4)(B).

III. Responding to Discovery

A. Deadlines for Response. A response to the following must be provided within 21 days after the service of the discovery, except that a defendant may serve responses within 28 days after service of the complaint upon that defendant:

1. Interrogatories
2. Request for Production of Documents or Tangible Things

3. Request for Admissions

B. Nature of Response

1. Substantive Response
2. Objections
a. Must be specified in writing, general objections are improper
b. Most Common Grounds

i. Irrelevance. The discovery request seeks information that is inadmissible at trial and is not reasonably calculated to lead to the discovery of admissible evidence.
ii. Overbreadth. The concept of overbreadth is closely related to relevance.
iii. Undue Burden or Expense. An objection based on the burdensomeness of the discovery request must make specific showing of why the request should not be answered.

iv. Attorney-Client Privilege. "The attorney-client privilege protects from disclosure communications from a client to the client's lawyer or the lawyer's agent relating to the lawyer's rendering of legal advice made with the expectation of confidentiality and not in furtherance of a crime or tort, provided the privilege has not been waived." Thomas E. Spahn, A Practitioner's Guide to the Attorney-Client Privilege and the Work Product Doctrine ¶ 1.302 (2001).

v. Attorney Work Product Doctrine. See Section II(B), above.

C. Supplementation of Responses

1. Certain Discovery Responses. “A party is under a duty promptly to amend and/or supplement all responses to discovery requests directly addressed to (A) the identity and location of persons having knowledge of discoverable matters, and (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which the expert is expected to testify, and the substance of the expert's testimony, when additional or corrective information becomes available.” Va. R. 4:1(e)(1).

2. All Other Responses. “A party is under a duty promptly to amend and/or supplement all other prior responses to interrogatories, requests for production, or requests for admission if the party learns that any such response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Va. R. 4:1(e)(2)

3. As Ordered by Court. The court may order supplementation in addition to that required by the Rules. Va. R. 4:1(e)(3).

4. Means of Supplementation. The supplementing party may supplement by serving an updated discovery response labeled “supplemental” or “amended” or by otherwise notifying the parties of the updated information in writing. Va. R. 4:1(e)(4).

IV. Protective Orders.

A. Certification. A motion for a protective order must be “accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action." Va. R. 4:1(c).

B. Scope of Order. “[F]or good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the county or city where the deposition is to be taken, may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.” Id.

C. Attorney's Fees. The provisions of Rule 4:12(a)(4) apply to motions for a protective order. See Section VI, below. V. Sanctions. In certain circumstances, the court may impose an award of sanctions, including reasonable attorney's fees and costs, against a party. A. If a motion to compel discovery is granted, “the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.” Va. R. 4:12(a)(4).

B. If a motion to compel discovery is denied, “the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.” Id.

C. “If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.” Id.

D. The court may treat as contempt a refusal be a party to provide information compelled by the court. Va. R. 4:12(b)(1).

E. If a party fails to obey an order to provide or permit certain discovery, the court " may make such orders in regard to the failure as are just" including an order taking certain facts as admitted or striking pleadings filed by the party failing to comply. Va. R. 4:12(b)(2).

VI. Electronic Discovery.
The Rules have been amended to implement a "two- tier" system by which a responding party may identify electronic sources of information that are "not reasonably accessible," without incurring substantial burden or cost. The court may still order production if the requesting party makes a showing of good cause. Va. R. 4:1(b)(7).

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