Motion To Compel Recorded Statement Of Defendant

V I R G I N I A :

IN THE CIRCUIT COURT OF THE COUNTY OF FAIRFAX
Plaintiff


v.


Defendants


Case No.
MOTION TO COMPEL RECORDED STATEMENT OF DEFENDANT

Comes now the Plaintiff, by counsel, and in support of her Motion to Compel refers the Court to the accompanying Memorandum of Points and Authorities.

MEMORANDUM OF POINTS AND AUTHORITIES

On September 1, 2006, Plaintiff was struck by a minivan driven by the Defendant.

In discovery, Plaintiff requested that Defendant produce any written or recorded statements of the parties (Plaintiff's Request for Production of Documents #3). The Defendant provided a recorded statement to her insurance company on September 15, 2006, fourteen days after the accident. The Defendant has objected to producing the transcript of that statement.

I DEFENDANT'S RECORDED STATEMENT WAS NOT OBTAINED IN ANTICIPATION OF LITIGATION

Under Rule 4:1(b)(1), the statement is discoverable unless a privilege applies. The Defendant, as the party asserting the privilege, has the burden of establishing that privilege. Robertson v. Commonwealth, 181 Va. 520, 25 S.E.2d 352 (1943).

The majority of Virginia Circuit Courts have found that recorded statements provided by insureds to their insurance carriers are not protected as having been prepared in anticipation of litigation.1 In Overton v. Dise, 35 Va. Cir. 177 (Fairfax, 1994), Judge Wooldridge held that a statement taken day after the accident was taken in the ordinary course of business, and not subject to privilege. In Estabrook v. Conley, 42 Va. Cir. 512 (Rockingham, 1997), Judge McGrath held that the involvement of counsel was a prerequisite for the privilege to apply. "If the matter was not significant enough to involve counsel with an eye to preparing a litigation defense, it is not in this Court's view entitled to the protection afforded by Rule 4:1(b)(3) of the Rules of the Supreme Court of Virginia." 42 Va. Cir. at 513. See alsoMcKinnon v. Doman, 72 Va. Cir. 547 (Norfolk, 2007); Wood v. Barnhill, 52 Va. Cir. 274 (Charlottesville, 2000); Thompson v. Winn Dixie Raleigh, Inc., 49 Va. Cir. 115, 116 (Chesterfield, 1999) ("any statement taken prior to the date defense counsel was retained is discoverable").

While the Virginia Supreme Court has not addressed this specific issue, its ruling in Riverside Hospital, Inc. v. Johnson, 272 Va. 518 (2006) is instructive. In Riverside, the Court was asked to extend privilege to a hospital incident report. In declining to extend the privilege, the Court remarked:

Factual patient care incident information that does not contain or reflect any committee discussion or action by the committee reviewing the information is not the type of information that must "necessarily be confidential" in order to allow

participation in the peer or quality assurance review process. 272 Va. at 533. Likewise, a recorded factual statement provided by a driver to her insurance company shortly after an accident does not contain any strategic information that should be kept confidential. For these reasons the motion to compel should be granted.

II PLAINTIFF HAS A SUBSTANTIAL NEED FOR THE STATEMENT

Even if the recorded statement should be deemed to have been taken in anticipation of litigation, it is still discoverable under Rule 4:1(b)(3). Plaintiff has a substantial need for the statement and is unable to obtain the information contained therein without undue hardship.

Defendant has raised contributory negligence as a defense. In her answers to interrogatories, Defendant states:

At the time of the accident I was backing out of a parking space. The plaintiff should have kept a proper lookout and should have noticed that I was backing out of my space and should have avoided walking into the path of my vehicle.

At her deposition of January 6, 2009, Defendant testified, on page 53, line 16, as follows:

Q. Whose fault is it, Ms. Green?

A. I can't respond to that.

Q. Why?

A. Because I have no answer to that.

She later testified on page 62, line 8 as follows:

Q. But my question is do you have any evidence to suggest Ms. Moss didn't keep a proper lookout?

A. I don't have evidence one way or the other.

In Larson v. McGuire, 42 Va. Cir. 40 (Loudoun, 1997), the Court was faced with a similar situation where the Defendant was relying on the defense of contributory negligence. In ruling that the Plaintiff met her burden under Rule 4:1(b)(3) and that the recorded statement provided by the Defendant to her insurer was discoverable, Judge Horne stated:

These statements would have been taken shortly after the accident and would serve as a basis for understanding defendant's claim of contributory negligence, as that claim is now clouded by deposition testimony. In addition, it is important that the parties be able to fully explore inconsistencies and ambiguities in the testimony of the opposing party during the discovery process. Not only may such statements be used to prove an element of a party's claim but may also serve as a means of impeachment.

42 Va. Cir. at 45.

In Massenburg v. Hawkins, 70 Va. Cir. 13 (Greensville, 2005), the Court likewise found the recorded statement was discoverable. As the Court stated:

Courts are unanimous in finding that a contemporaneous statement provides good cause for allowing discovery. This value is particularly evident in cases where the "witnesses' statements [are] approximately contemporaneous with the accident . . . [and] opposing counsel had no opportunity to question the witnesses until weeks or months later."

70 Va. Cir. at 16, quoting Guilford Nat'l Bank v. Southern Ry. Co., 297 F.2d 921, 926 (4th Cir. 1962).

Defendant's statement, taken a mere fourteen days after the accident, possesses unique qualities that cannot be replicated by other means. For this reason, the motion to compel should be granted.

WHEREFORE these premises considered, Plaintiff requests that this Court grant the motion to compel and direct the Defendant to produce the transcript of the recorded statement provided by the Defendant to her insurer.

By: _________________________________

Law Offices of Jeremy Flachs

Jeremy Flachs, Esq.

Jeremy.Flachs@Flachslaw.com

1 See Lopez v. Woolever , 62 Va. Cir. 198, 201 (Fairfax, 2003) and discussion therein. Note however that Judge Alden took the minority view of applying a case-by-case analysis.

2 A minority use a case-by-case analysis. See McCullough v. Standard Pressing Machines Co., 39 Va. Cir. 191 (Fairfax, 1996) (J. Vieregg) (holding that if serious injuries are involved, then the insurance company is as a consequence necessarily anticipating litigation, and the privilege applies). See also Veney v. Duke, 69 Va. Cir. 209 (Fairfax, 2005) (J. Ney) (holding that all statements made by insureds to their insurance carriers were privileged as being taken in anticipation of litigation). In effect, Judge Ney equated the insured/carrier relationship with the attorney/client, doctor/patient, and penitent/priest relationships, thus going well beyond the minority view.

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