5.3 Discovery

• Library: Virginia Family Law: A Systematic Approach (Virginia CLE) (2018 Ed.)

5.3 DISCOVERY

5.301 In General. Lawyers have the full range of discovery tools available to them in circuit court cases. Interrogatories, requests for production of documents, depositions, requests for admissions, and motions for physical and mental examinations are all available if needed. Discovery in circuit court matters can be initiated by counsel without leave of court. The scope of discovery in some family law matters is restricted. In any proceeding for divorce, separate maintenance, or annulment, the scope of discovery extends only to matters that are relevant to the issues in the proceeding and that are not privileged. ⁷

The extent to which formal discovery will be undertaken in family law matters varies greatly from case to case. Some matters, such as an action to enforce the terms of a visitation order, may entail informal fact-investigation but no formal discovery. On the other hand, the trial of an equitable distribution

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matter involving a large and complex marital estate is likely to involve extensive use of formal discovery tools. Care should be taken to prevent the inadvertent disclosure of confidential information. ⁸ In addition to the simplicity or complexity of the issues in the matter, the availability of formal discovery is influenced by the ability of the client to pay the high costs involved in formal discovery. The extent to which formal discovery is used in each case should be carefully planned by the lawyer.

A pretrial conference may help in determining a plan and schedule of discovery, as well as any limitations on the scope and methods of discovery. ⁹ Before filing a discovery motion, counsel must make a reasonable effort to discuss and resolve the subject of the motion with opposing counsel. If a resolution is not reached, counsel should determine a mutually agreeable hearing date and time. ¹⁰ If the court enters a pretrial order modeled on the Virginia Supreme Court's Uniform Pretrial Scheduling Order, ¹¹ any discovery motion filed must contain a certification that counsel has made a good faith effort to resolve with opposing counsel the subject of the motion. Discovery will continue after a demurrer, plea, or dispositive motion is filed, unless the court orders that discovery on some or all issues in the suit be suspended. ¹²

Responses to discovery requests must be supplemented with information acquired later in some situations. ¹³ A party must supplement previous responses concerning any question directly addressed to (i) the identity and location of persons having knowledge of discoverable matters and (ii) the identity of each person expected to be called as an expert witness at trial, the subject matter on which the witness is expected to testify, and the substance of the witness's testimony. A party must amend a prior response if the party obtains information and, based on the new information, the party knows (i) that the response previously given was incorrect when made or (ii) that the response previously given, though correct at that time, is no longer true and the circumstances are such that a failure to amend the response is, in substance, a knowing concealment. See Appendices 5-18 and 5-19 for a request for supplementation and a response.

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5.302 Depositions. In suits raising equitable claims, depositions may be used both as a form of evidence and as a method of discovery. The historical use of depositions as evidence in equity matters is still permitted pursuant to Rule 4:0(b) of the Rules of the Supreme Court of Virginia. Additionally, Rule 4:7(a)(1) provides that any deposition taken in a civil action may be used for any purpose in supporting or opposing an equitable claim. If the deposition is to be read in any Virginia court action against a person under a disability, the deposition must be taken in the presence of a guardian ad litem appointed by the court or an attorney serving pursuant to section 8.01-9 of the Virginia Code or upon questions agreed to before the taking of the deposition. ¹⁴

There is no limit on the number of witnesses whose depositions may be taken, except by order of the court for good cause shown. ¹⁵ In a divorce or annulment case, the notice to take depositions served within Virginia must be served by an authorized officer unless the defendant is represented by counsel in the matter, in which case the notice may be served in accordance with Rule 1:12. ¹⁶ The deposition of a party, or a witness designated under Rule 4:5(b)(6)., must be taken in the city or county where the suit is pending, or in an adjacent city or county, unless the parties agree otherwise or the court, for good cause, orders otherwise. ¹⁷ In addition to depositions in which all counsel and the deponent are present in the same location, depositions upon oral examination can be taken by telephone, video conferencing, or teleconferencing unless otherwise ordered by the court. ¹⁸ In a deposition using one of these methods, the officer administering the oath to the deponent should be in the same location as the deponent. Audio-visual depositions must comply with special procedural and technical requirements. ¹⁹

The deposition of a witness, whether or not a party, may be used by any party for any purpose in an issue heard by an advisory jury empaneled pursuant to section 8.01-336(E) of the Virginia Code or hearing ore tenus upon an equitable claim if the court finds that:

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1.	The witness is dead;
2.	The witness is more than 100 miles from the place of trial or hearing or is not in Virginia, unless it appears that the absence of the witness was procured by the party offering the deposition;
3.	The witness is unable to attend or testify because of age, illness, infirmity, or imprisonment;
4.	The party offering the deposition has been unable to procure the attendance of the witness by subpoena;
5.	The witness is a physician or other health professional enumerated in Rule 4:7(a)(4) who, in the regular course of profession, treated or examined any party to the proceeding or is a judge or other public servant enumerated in Rule 4:7(a)(4); or
6.	Such exceptional circumstances exist to make it desirable, in the interest of justice and with regard to the importance of presenting oral testimony, to allow the deposition to be used. 20

Admissibility of the deposition will be determined according to the customary rules of evidence, subject to compliance with the terms of any pre-trial order entered pursuant to Rule 1:18 and to the rules governing objections made during the taking of depositions. ²¹

5.303 Interrogatories. Interrogatories are written questions served by one party on another party that must be answered under oath. The interrogatories posed in Appendix 5-12 illustrate the types of generic questions that may be asked in a basic divorce case. They do not illustrate the types of detailed questions that may be relevant because of factual issues in a specific child custody or equitable distribution case. The lawyer should develop interrogatories and requests for production that reflect the unique needs of each case. For example, where a lawyer needs to value a medical practice, the lawyer will need to seek additional and more detailed information. Because each case is different, the lawyer should modify the form

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interrogatories provided in Appendix 5-12 to more closely reflect the circumstances of the family that is involved in the divorce litigation. In different cases, some of the interrogatories may be expanded, while others may go unused.

Each party is limited to thirty written interrogatories, including all parts and subparts, unless leave of court is granted for good cause shown. ²² In an unusually complex case, the court may find that "good cause" exists to allow a party to serve more than thirty interrogatories on the opposing party. See Appendices 5-15 and 5-16 for forms detailing such a request to the court.

Answers to interrogatories should be accurate and complete. Each interrogatory must be answered separately and fully by the party in writing and under oath. ²³ When the lawyer has received interrogatories, the client should be contacted promptly so that the process of answering the interrogatories can begin. ²⁴ A party may object to interrogatories that ask for privileged information or that are unduly burdensome or oppressive. The objecting party must state the reasons for the objection. Objections to interrogatories are to be signed by the attorney making them. A copy of objections to interrogatories must be served within 21 days after the service of the interrogatories, except that a defendant may serve objections within 28 days after service of the complaint if the interrogatories were served simultaneously with the complaint upon that defendant. The court may allow a shorter or longer time. See Appendix 5-13, which illustrates how answers and objections to interrogatories should be prepared. Answers to interrogatories must be supplemented with information acquired later in some situations. ²⁵ See Appendices 5-18 and 5-19 for a request for supplementation and a response.

5.304 Production of Documents or Things.

A. Request for Production from a Party. Pursuant to Rule 4:9, documents, electronically stored information, and tangible things may be inspected and copied as part of the discovery process. A request for production is directed to a party in the case, while a subpoena duces tecum is directed to a nonparty. As in all discovery conducted in any proceeding for

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divorce, separate maintenance, or annulment, the scope of discovery extends only to matters that are relevant to the issues in the proceeding and that are not privileged. ²⁶ See Appendix 5-20 for a request for production that illustrates the types of documents that may be useful in a basic divorce case. As with the model interrogatories, the lawyer should develop requests for production that reflect the unique needs...