2.3 Relevance

• Library: Civil Discovery in Virginia (Virginia CLE) (2017 Ed.)

2.3 RELEVANCE

2.301 Relevance to the Subject Matter. The broad scope of discovery is reflected in the statement in Rule 4:1(b)(1) that "[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." The pleadings always frame the "subject matter" in the litigation. ³

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2.302 Reasonably Calculated to Lead to Discovery of Admissible Evidence. "It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." ⁴ For example, in a products liability action, evidence of a post-accident design change, even though inadmissible at trial, was discoverable because it was relevant and "reasonably likely" to lead to the discovery of admissible evidence. ⁵

The trial court has broad discretion to decide whether requested information is "reasonably calculated" to lead to the discovery of admissible information. ⁶ One circuit court has held that the requested documents met the "reasonably calculated" standard where they (i) would likely permit a more thorough and effective examination of the other parties and their expert witnesses; (ii) could lead to the discovery of other party documents that might be admissible or other witnesses; and (iii) could assist in understanding what the other parties knew or should have known and when they knew it. ⁷

In practice, Virginia circuit courts interpret the "reasonably calculated" standard liberally in favor of disclosure. Courts usually find sufficient a showing that the requested information could lead to the discovery of admissible evidence. ⁸

2.303 Discoverability of Specific Kinds of Information.

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A. Insurance Agreements. A party may discover the existence and contents of any insurance agreement under which any entity carrying on an insurance business may be liable to satisfy any part of a judgment in the action. Disclosure does not make that information admissible in evidence at trial. An application for insurance is not considered part of an insurance agreement. ⁹

B. Books, Documents, and Other Tangible Things. A party may discover "the existence, description, nature, custody, condition and location of any books, documents, or other tangible things" that are otherwise discoverable. ¹⁰

C. Identity and Location of Persons with Knowledge. A party may discover "the identity and location of persons having knowledge of any discoverable matter." ¹¹

D. Trial Preparation: Materials. A party may sometimes discover "documents and tangible things . . . prepared in anticipation of litigation or for trial by or for another party" or by or for another party's representative. To discover materials of this kind, the party must show a "substantial need" for them in preparing its case and that it cannot without "undue hardship" obtain the substantial equivalent of the material by other means. ¹² Federal Rule 26(b)(3)...