Discovery

Discovery includes various means of seeking information prior to trial. The most common discovery tools are interrogatories, requests for production of documents, depositions, requests for admission and requests for physical or mental examinations. A brief description of each follows below.

1. Interrogatories

Va. Supreme Court Rule 4:8 allows each party to submit not more than 30 interrogatories, including subparts. Rule 4:8 (g). The format requires that the answers to be inserted after restating the questions, following the word "Answer." The answers must be under oath. Rule 4:8(a). The interrogatories should be crafted only after thinking about facts of the case. It is important that an interrogatory request the amount of liability insurance available to pay any judgment against the defendant. Interrogatories should seek to learn the details of the party's version of the case and any claims or defenses asserted in the litigation.

Practice Pointer: Request that the Defendant provide the factual and legal basis for any affirmative defenses or any denials of your factual and legal assertions in the Complaint. See: Ford Motor Co. v. Benitez, 273 Va. 242 (2007) which held it is sanctionable to assert defenses without factual support.

You should request the identity of any expert who will testify, along with the opinions and underlying facts which support such opinions. The interrogatories should also inquire about the opponent's education, employment history and any criminal convictions. Other important subject matters include statements made by either party, paying fines or pleading guilty to a traffic charge from the collision and the identity of witnesses.

Each party is allotted 21 days within which to file any objections and within which to respond to the discovery. Objections may be considered waived if not noted within 21 days after receipt. Do not file the answers or objections with the court unless you are filing a motion to compel discovery. Rule 4:8(C).

A sample set of interrogatories is attached.

2. Requests For Production of Documents

Rule 4:9 allows a party to request documents or things. This rule also permits the inspection of tangible items and entry onto the land or property of a party to inspect. The requests should ask for copies of any liability insurance policies which might pay a judgment, photographs of the parties or anything at scene of the accident or incident, damage estimates or repair documents, written statements from parties or witnesses, and information about the motor vehicle or product which caused the injury. If improper operation or malfunctioning of a vehicle or product is alleged, you must request repair logs, repair schedules, inspections and other relevant information. Each party should request any document subpoenaed by the opponent where the subpoena is returnable to the party and not the clerk of court. This Request is made pursuant to Virginia Code §8.01-417(B). If the subpoena is returnable to the court, you will likely have to get the documents from the court.

The defense usually requests the plaintiff's medical records generated as a result of the incident at issue, as well as past medical records.

If the operating condition of a vehicle is at issue, you may also want to inspect the vehicle through a request under this rule.

A sample set of requests for production is attached.

3. Depositions

Virginia Supreme Court Rule 4:5 allows for depositions upon oral examination. Depositions are commonly used to secure needed information about the parties' claims and to develop the areas for cross examination and impeachment. Party depositions may be taken in the city or county where the suit is pending, in an adjacent city or county, where the parties agree, or where a court may designate after finding good cause. Rule 4:5(a)(a1)(i). Non-party depositions must be taken in the city or county where the non-party resides, is employed or has a principal place of business. Of course the non-party can agree to another location and for good cause, the court can always order a non-party to appear at another location. Rule 4:5(a)(a1)(ii). You will typically have to subpoena a non-party to appear for deposition.

Depositions taken out of state are controlled by Rule 4:5(a)(a1)(iii) and allow for depositions before a person authorized to administer an oath where the deposition will be held, or before a person appointed or commissioned by the court in which the action is pending or pursuant to a letter rogatory. A letter rogatory will include a list of questions which are to be answered under oath.

The Uniform Interstate Depositions and Discovery Act states that depositions and related documentary production sought in Virginia pursuant to a subpoena issued under the authority of a foreign jurisdiction shall be subject to the provisions of the Uniform Interstate Depositions and Discovery Act. Virginia Code §§ 8.01-412.8 through 8.01-412.15. A subpoena issued by a clerk of court under this article shall be served in compliance with the applicable statutes of the Commonwealth for service of a subpoena. § 8.01-412.11. This use of this provision to facilitate discovery in foreign lawsuits is conditioned on reciprocal privileges granted attorneys needing discovery in the foreign jurisdiction. § 8.01-412.14.

Practice Pointer: A party should depose the opposing party's expert witness, subject to not doing so where the expert designation is not harmful to your case or is so limited in scope that a deposition would not be productive. If you depose an expert, you are required to pay the expert's fees and expenses. Rule 4:1(b)(4)(A)(ii). It has become common for some experts to charge outrageous fees, usually in an effort to discourage contact with the lawyers and avoid litigation. An expert's fees are always subject to review for reasonableness by the court. Nevertheless, fees of $1000.00 per hour for highly qualified medical specialists will likely be approved.

Rule 4:5(b)(6) allows a party to depose a corporation or partnership or governmental agency through the testimony of a representative designated to speak for and bind the entity. The notice of deposition for such designated representative shall set forth the topics to be questioned at deposition.

A sample Rule 4:5(b)(6) notice of deposition is attached.

Rule 4:5 also contains subparts. The subparts include how to require the production of documents at the deposition (use a subpoena duces tecum if a nonparty or list the documents if a party) -Rule 4:5 (b)(1), how to defend against oppressive or embarrassing conduct (seek a court order and where feasible, call for a judge during the deposition) -Rule 4:5(d), and how to change the transcript (make edits on the errata sheet within 21 days of receipt of the transcript) - Rule 4:5(e). There are also sanctions for failure to attend a deposition. Rule 4:5 (g).

Practice Pointer: If you fail to subpoena a non-party witness who you noticed

for deposition, and such witness does not appear, you may be required to pay for the time of your opponent. (Rule 4:5 (g)(2).

Rule 4:2 permits a deposition even before a lawsuit is filed, but only under limited circumstances. Such a deposition may be needed where a party or witness is expected to be unavailable at a later date due to illness, death or other exigent circumstance. Notice and service of the notice on the opposition are required, and if not feasible, a court order may be secured to further the ends of justice. Rule 4:2(a)(1)-(3).

Depositions of a party may be read into evidence at trial for the purpose of offering substantive evidence. Rule 4:7(a)(3). Depositions may also be used to impeach any witness who was deposed. Rule 4:7(a)(2).

4. Requests For Admissions

Rule 4:11 permits a party to formulate requests for admission that relate to statements or opinions of fact or the application of law to fact. Unlike the limit of 30 interrogatories, there is no limit to the number of requests for admission. Failure to admit or deny within 21 days may result in the requests being deemed admitted. Rule 4:11(a). A denial may be qualified if good faith requires that a party admit only part of an request. An answering party may not give lack of information or knowledge as a reason for failure to admit unless he also states that he has made a reasonable inquiry and the information known or readily obtainable is insufficient to enable him to admit or deny.

Practice Pointer: Requests for admission are invaluable to force an opponent

to admit important facts prior to the trial. For example, the plaintiff may submit requests which establish liability through concessions about how the incident occurred and what roles each party played in the incident. Requests for admission are also very helpful in ensuring documents can be admitted as business records under the "shopbook rule." This rule requires establishing a foundation for admission including:

1. That the record is a "business record";

2. That the record was made in the regular course of business;

3. That the entry of data or information to create the record was made at or near time of transaction;

4. the entry of the data or information into the record was authorized (made by person having a duty to make entry)

See , 1924 Leonard Road, L.L.C. v. Roekel, 272 Va. 543, 636 S.E.2d 378 (2006).

Virginia case law has severely limited the ability of a doctor to testify to findings in records of other medical providers on direct examination. See: McMunn v. Tatum, 237 Va. 558 (1989) and Commonwealth v. Wynn, 277 Va. 92 (2009). Requests for admissions can provide the foundation for the admission of the records of other providers, subject to redacting inadmissible opinions. Although this topic is beyond the scope of this presentation, parties could also issue a subpoena to the records custodian to establish that the records are "business records" and therefore admissible under the shopbook rule.

A sample set of requests for admission is attached.

5. Physical and Mental Examination of Persons

Rule 4:10 provides for medical evaluations of the plaintiff at the request of the defendant. Theoretically, for good cause, a plaintiff could request the defendant be evaluated. The examiner must be a health care provider as defined in Va. Code 8.01-581.1. 1 For good cause, the court may order the examination take place out-of-state, and where required, the court may waive the rule that the examiner be licensed by and have an office in Virginia. Rule 4:10(b). The examiner shall submit a report which must contain his findings, including the results of all tests made, diagnoses and conclusions, together with like reports of all earlier examinations for the same condition. Rule 4:10(c)(1). The report shall be served on counsel and filed with the court.

Practice Pointer: Only the party submitting to the examination (usually the

plaintiff) may offer the report into evidence. Rule 4:10(c)(2).

Rule 4:10 provides that a court may limit the examination and may provide for other terms and conditions. Consider requesting such an order if you represent minors or persons under mental disability (such as a brain injured client), or where the subject matter involves psychiatric issues.

Practice Pointer: Consider requesting a court order to allow observers, such as other family members or a nurse, to attend the examination of a minor or brain injured client. Also consider leave of court to record or videotape the examination. The plaintiff should only agree to an order which states that there shall no obligation to complete questionnaires or respond to questions about liability or other matters collateral to the physical or mental condition of the party.

6. Duty to Supplement Discovery

A party who has responded to a request for discovery is under a duty to supplement or correct the disclosures or response to include information thereafter acquired in the following circumstances as set forth in Rule 4:1(e):

(1) A party is under a duty to supplement promptly its disclosures if the party learns that in some material respect the information disclosed is 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.

(2) A party is under a duty to amend promptly a prior response to an interrogatory, request for production, or request for admission if the party learns that the response is in some material respect incomplete or incorrect, and if the additional information has not otherwise been made known to the other parties during the discovery process or in writing.

Rule 1:18 provides for entry of a Pretrial Scheduling Order. The Scheduling Order states that "[t]he parties have a duty to seasonably supplement and amend discovery responses pursuant to Rule 4:1(e). Seasonably means as soon as practical." By amendment effective January 1, 2001, the word "promptly" was substituted for "seasonably" in Rule 4:1(e)(1)&(2). This amendment suggests an intention to add a sense of urgency to the obligation to supplement. Furthermore, the Uniform Pretrial Order states that "[n]o provision of the Order supercedes the Rules of the Supreme Court of Virginia governing discovery." To the extent the Pretrial Order conflicts with Rule 4:1(e), the Rule will control.

7. Discovery In Federal Court

Although not the subject of this presentation, discovery procedures in federal court have recently been revised. In general, discovery will be more limited and more streamlined than in state court. Rule 26 of the Federal Rules of Civil Procedure requires that the parties disclose certain information without awaiting a discovery request. The mandatory disclosures include the identity of the person having knowledge of the claims and defenses, a copy of all documents used to support the claims or defenses, a computation of all damages with a copy of the supporting documentation, any relevant insurance agreement and the opinions of any experts, both retained and not retained. Fed. R. Civ.P. 26 (a)(1)(i-iv) and (a)(2)(A)&(B). A recent change to the rules now protects both draft reports and communications from counsel as attorney work product, so long as the expert did not rely on the information in forming opinions. Despite this provision, disclosure is required for communications involving a retained expert's compensation, facts or data that the expert considered in forming the opinions to be expressed, and any assumptions provided by the attorney which the expert relied upon in forming the opinions to be expressed. Fed. R. Civ. P. 26 (b)(4)(B) & (C)(i-iii). Parties must also disclose the subject matter of the testimony of non-retained expert and a summary of the facts and opinions to which the witness is expected to testify. Fed. R. Civ. P. 26 (a)(2)(C)(i-ii). This provision would encompass a treating physician who was not retained by the party but who will testify as an expert.

Practice Pointer: Virginia courts have not set forth with clarity the nature

of protection afforded counsel's communication with experts. It is arguable that similar protection is afforded litigants in state court, but the absence of controlling case law leaves the scope of protection unclear. A good resource for litigators is the two volume set by Thomas E. Spahn, entitled The Work Product Doctrine and The Attorney-Client Privilege, Virginia CLE Publications.

1 Virginia Code § 8.01-581.1 defines healthcare provider as any of the following: physician or hospital, dentist, pharmacist, registered nurse or licensed practical nurse or a person who holds a multistate privilege to practice such nursing under the Nurse Licensure Compact, optometrist, podiatrist, chiropractor, physical therapist, physical therapy assistant, clinical psychologist, clinical social worker, professional counselor, licensed marriage and family therapist, licensed dental hygienist, health maintenance organization, or emergency medical care attendant or technician who provides services on a fee basis.

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