4.10 Discovery
Library | Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.) |
4.10 DISCOVERY
4.1001 Overview.
A. In General. Discovery is covered by Part Four of the Rules of Supreme Court. 990 Part Four is applicable to civil cases in circuit courts, whether the claims arise at law or in equity. "Action," as used in Part Four, includes claims in law and equity.
In practice, the major fact-finding vehicle on any claim is the deposition. 991 "Deposition de bene esse" is not defined in Part Four of the rules. It is taken where all parties agree that it shall be read into the record and the deponent was present at trial.
Discovery under Part Four is applicable to circuit courts only. No discovery in general district court, except subpoena duces tecum (request for production of documents). In general district court, a subpoena duces tecum
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may be directed to a party as well as a nonparty. 992 In practice, a general district court trial may serve the purpose of free discovery. Remember right to new trial (de novo) in circuit court.
1. Parties and Nonparties. Certain discovery methods are available only against parties, namely, interrogatories, 993 requests for admission. 994 Remember provisions for bringing in additional parties. 995
2. Service of Discovery. Generally served informally on counsel, 996 except for depositions before an action or pending appeal. 997
3. Signing of Discovery, Responses and Objections. 998 Requests for discovery and responses or objections thereto made by a party represented by an attorney must be signed by at least one attorney of record in the attorney's individual name. Likewise, a party who is not represented by an attorney must sign the request, response, or objection.
For depositions, signing and filing are covered by Rule 4:5(e) and (f).
Includes documents and tangible things requested under Rule 4:9. Result is that some clerk's offices are overwhelmed. These go to the requesting attorney unless court orders that they should go to the clerk.
Filing requirements: Interrogatories are not filed in the office of the clerk. 999 Requests for production and responses or objections are not filed with the clerk unless the court directs. 1000 Requests for admission are served and filed as provided in Rule 4:8. 1001 Oral depositions in divorce or annulment actions are filed with the clerk and in other actions the
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depositions are lodged with the attorney for the party who initiated the taking of the deposition. 1002
B. Methods. 1003
1. Depositions.
A. Oral Examination. "After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination." 1004
B. Written Questions. After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon written questions. 1005 Very seldom used.
2. Written Interrogatories. Limited to thirty, including all parts and sub-parts. May not serve more than thirty without leave of court for good cause shown. 1006 Interrogatories may be directed to parties only. In the case of a public or private corporation or a partnership or association or governmental agency, the interrogatories are to be answered by any officer or agent, who must furnish such information as is available to the party. 1007
3. Production of Documents and Things to Parties and to Third Parties (Subpoena Duces Tecum). 1008
A. | Parties. 1009 | ||
B. | Nonparties—attorney issued subpoena duces tecum. 1010 |
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C. | Limitation to certain officials. 1011 A prior order of the court is required when the party upon whom the request is to be served or the person to whom the subpoena is to be directed is a state or federal official listed in the rule. | ||
D. | Patient health records protected by the privacy provisions of Va. Code § 32.1-127.1:03 are disclosed only in accordance with that statute. 1012 |
4. Requests to Permit Entry on Land. 1013 May be served on parties only for inspection and other purposes.
5. Physical and Mental Examinations. 1014 On motion for good cause shown the court may order physical or mental examination of a party or of a person in the custody or under the legal control of a party when such person's condition is in controversy. The examination requires a court order, but the parties may agree otherwise.
6. Requests for admission. 1015 Requests may be served on parties only and for purposes of pending action only. Requests must relate to statements or opinions of fact or applications of law to fact, or the genuineness of documents described in the request.
Requests for admission not related to genuineness of documents. No more than thirty such requests may be served on a party by another party unless all parties agree, or the court grants leave for good cause shown. 1016
Requests for admission relating to the genuineness of documents. The number of such requests for admissions is not limited unless the court enters a protective order pursuant to the provisions of Rule 4:1(c) upon
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a finding that justice so requires in order to protect the responding party from unwarranted annoyance, embarrassment, oppression, or undue burden or expense. 1017
4.1002 Scope of Discovery. 1018
A. In General. Any matter not privileged, which is relevant to the subject matter (rather than issues) is discoverable 1019 even if the evidence will not be admissible at the trial, if it may reasonably lead to admissible evidence. 1020
Insurance coverage is discoverable. 1021
In domestic relations, eminent domain, and prisoner remedy cases, discovery maybe had only if it is relevant to the issues. 1022
A party need not provide discovery of electrically stored information (ESI) from sources that the party identifies as not reasonably accessible because of undue burden or cost. The moving party may ask the court to compel discovery or for a protective order, and the party from whom discovery is sought has the burden of showing that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may still order discovery from such sources if the requesting party shows good cause, considering the limitations in Rule 4:1(b)(1) The court may specify conditions for the discovery, including allocations of the reasonable costs thereof. 1023
If the party receiving a discovery request anticipates that it will require the production of ESI and that an ESI protocol is needed, then the receiving party must propose an ESI protocol that should address: (i) an
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initial list of custodians or the persons with knowledge of the party's custodians and the location of ESI, (ii) a date range, (iii) production specifications, (iv) search terms, and (v) the identification and return of inadvertently revealed privileged materials. 1024 If the proposed protocol is not acceptable, the parties must in good faith attempt to agree to limits on discovery of ESI. If the parties are unable to agree to such limits, on a motion to compel discovery or for a protective order, the court shall, in its discretion, determine appropriate limitations or conditions on the ESI request, if any, including allocation of the reasonable costs. 1025
B. "Privileged." Certain classes of information are privileged, and therefore not discoverable. This is generally because of a confidential relationship existing between issuer and recipient of such information.
1. Attorney/Client.
1. | Client to Attorney. 1026 | ||
2. | Attorney to Client. 1027 | ||
3. | House Counsel. 1028 | ||
4. | Client a corporation. U.S. Supreme Court has rejected control group test. 1029 | ||
5. | Is a patent lawyer, a lawyer? Yes and No. 1030 | ||
6. | Is EEOC a lawyer? Yes. 1031 | ||
7. | Confidential data. 1032 |
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8. | Evidence as "tainted." 1033 | ||
9. | It is the client's privilege, not the attorney's. So only client can waive the privilege. 1034 | ||
10. | An employee's use of his employer's computer to send emails to employee's attorney is not privileged when employee handbook provided there was no expectation of privacy in using employer's computer. | ||
11. | Claim of privilege must be described by the nature of document or communication. 1035 |
2. Work Product Doctrine. 1036 Applies to materials prepared in anticipation of litigation or trial, although not covered by attorney/ client privilege, for example, because the materials were prepared entirely within the attorney's office. Applies not just to attorneys, but also to a party's consultant, insurer, agent, etc. See Hickman v. Taylor, 329 U.S. 495 (1947); Fed. R. Civ. P. 26(b)(3).
Party seeking materials must show that he has a substantial need and that he or she cannot obtain otherwise without undue hardship. 1037
Nixon case is precedent that government must disclose in proper circumstances, for example, antitrust prosecution. 1038
A court shall protect against disclosure of mental impressions, conclusions, opinions, and legal theories. The protection extends to compilation of documents, the very existence of which may reveal theory. 1039
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3. Physician/Patient Privilege. 1040 Patient's privilege, not physician's. The privilege is waived when patient's condition in issue. 1041 This includes waiver of psychiatric data when psychiatric condition is in issue. 1042
Court can limit discovery of a plaintiff's physician. 1043 Attorney is limited in contacting a physician. 1044
4. Spouses (But Not When Suing Each Other). 1045
5. Minister of Religion. 1046 Priest/penitent privilege vests in the priest, and can be waived by him. 1047 See Annotation, 71 ALR 3d 794.
6. Fifth Amendment: Defendant Asserting Self-Incrimi-nation Does Not Alone Trigger Immunity. 1048
7. Conflict of Interest Forms by Those Applying for U.S. Government Jobs Are Privileged. 1049
C. Experts of Other Party. 1050 Facts known and opinions held, acquired for litigation or trial, are discoverable only as follows.
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