6.3 Types of Written Discovery

• Library: Medical Malpractice Law in Virginia (Virginia CLE) (2017 Ed.)

6.3 TYPES OF WRITTEN DISCOVERY

6.301 Interrogatories.

A. In General. Rule 4:8(a) provides that "[a]ny party may serve upon any other party written interrogatories to be answered by the party served . . . who shall furnish such information as is available to the party." ⁶

B. Limitation on Number. Rule 4:8(g) limits the number of interrogatories that may be served upon another party to thirty, whether at one time or cumulatively, including all parts and subparts. What constitutes a "subpart" within the meaning of this rule is often a subject of dispute between the parties. However, no reported court decisions have defined this term.

C. Time for Response. Rule 4:8(d) requires service of a copy of answers to interrogatories, including objections, within 21 days after the service of the interrogatories, unless interrogatories are served on the defendant along with the complaint. In such a case, the defendant has 28 days after service in which to serve answers to interrogatories. Answers to interrogatories must be filed within 24 days if served by mail. ⁷

D. Signature Requirement. Rule 4:8(d) also requires that the interrogatories be answered under oath. The interrogatory answers must be signed by the person making them. Any objections to the interrogatories must be signed by the attorney making them.

E. Use of Answers.

1. To Support Summary Judgment. Rule 4:8(e) provides that answers to interrogatories may be used to support a motion for summary judgment under Rule 3:20. However, at least one court has interpreted this rule to apply only to interrogatory answers of the opposing party. In other words, a party cannot use its own answers to interrogatories to plead the other party out of court. ⁸

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2. At Trial. Rule 4:8(e) also provides that interrogatory answers may be used to the extent permitted by the rules of evidence. They are admissible at trial both for impeachment purposes and as substantive evidence. However, interrogatory answers generally are not conclusively binding because respondents are entitled to explain or clarify their answers, as appropriate. ⁹ An interesting question arises when a party attempts to use interrogatory answers given by the opposing party in a previous lawsuit at the trial of a current lawsuit. One court has held that interrogatory answers from a previous action may not be used as substantive evidence by a non-party to that action. ¹⁰ However, the answers may be used for impeachment. ¹¹

F. Option to Produce Business Records. Rule 4:8(f) provides that where the answer to an interrogatory may be obtained from the business records of the party answering the interrogatory, that party may specify the records from which the answer may be obtained and provide the party serving the interrogatory with an opportunity to examine and copy the records. However, this rule applies only where the burden of obtaining the answer is substantially the same for the party serving the interrogatory as it is for the party served. When the burden on the requesting party is greater than the burden on the party responding to the interrogatory, this option may not be used. ¹²

6.302 Requests for Production of Documents.

A. In General. Rule 4:9(a) permits any party to serve on any other party a request to (i) produce and allow the inspection and copying of any designated documents or tangible things that are in the possession of the other party; (ii) produce such documents in court at the time of trial; or (iii) permit entry to designated land or property for the purpose of inspection, measuring, photographing, or testing the property or any designated object or operation located there. ¹³

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B. No Limit on Number. Unlike Rule 4:8, Rule 4:9 places no limit on the number of requests for production of documents that may be served.

C. Time for Response. The deadlines for filing responses to requests for production of documents are the same as those for filing answers to interrogatories. ¹⁴

D. Limitation on Use. A litigant cannot use a request for production of documents to circumvent the exclusive methods for discovering expert opinions established by Rule 4:1(b)(4), namely, (i) through interrogatories to the other party requiring the party to identify their expert witnesses and the subject matter of those witnesses' testimonies; (ii) through depositions of expert witnesses who will testify at trial; or (iii) by court order. ¹⁵

6.303 Subpoena Duces Tecum.

A. Court-Issued Subpoena Duces Tecum. Under Rule 4:9A(a)(1), upon written request by counsel or a pro se party, the clerk of the court where the action is pending will issue a subpoena duces tecum to a nonparty, demanding the nonparty to produce any documents or tangible things described in the request for the subpoena or to permit the party requesting the subpoena to inspect any tangible things in the custody of the nonparty.

B. Attorney-Issued Subpoena Duces Tecum. Rule 4:9A(a)(2) permits an attorney to issue a subpoena duces tecum as an officer of the court if he or she is an active member of the Virginia State Bar at the time the subpoena is issued. The subpoena must be signed by the attorney and contain the attorney's address, telephone number, and Virginia State Bar identification number. A copy of the attorney-issued subpoena must be mailed or delivered to the clerk of the court in which the case is pending on the day that it is issued.

C. Notice to Other Parties. The request for a court-issued subpoena duces tecum and the copy of the attorney-issued subpoena filed with the court must include a certificate indicating that a copy of the request

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has been mailed or delivered to all counsel of record and to any unrepresented parties.

D. Fees. For each court-issued subpoena that is requested, a fee must be paid to the clerk of the court where the action is pending. No fee is required for attorney-issued subpoenas. If the subpoena is to be served by the sheriff, a separate fee must be paid to the sheriff of each jurisdiction in which subpoenas are to be served.

E. Multiple Subpoenas Issued to Same Institution. In many larger hospitals, not all patient records are maintained in the same central location. Specific examples of records that may not be a part of the main hospital chart include records from the radiology and pathology departments, records from outpatient clinics, and bills from the business office. In these cases, separate subpoenas must be issued to each department that maintains separate records. A call to the hospital records custodian will be sufficient to determine whether multiple subpoenas are necessary.

F. Remedy for Failure to Respond to Subpoena. Rule 4:9A(g) provides that a nonparty who fails or refuses to comply with a subpoena issued under Rule 4:9A may be proceeded against for contempt of court as provided in section 18.2-456 of the Virginia Code.

G. Limitations on Subpoena. A subpoena duces tecum should not be used when it is not intended to produce evidentiary materials but is used as a "fishing expedition" in the hope of uncovering information that may be material to the case. ¹⁶ A subpoena duces tecum under Rule 4:9A cannot be served on a party to the lawsuit. ¹⁷ Likewise, a subpoena duces tecum cannot be used to discover facts known and opinions held by expert witnesses. ¹⁸ It is unclear whether a subpoena duces tecum can be issued to an expert for the production of documents related to the expert's compensation for testifying or to any prior relationship, if any, with the attorney who hired the expert in the present case. In Flora v. Shulmister, ¹⁹ the court limited its holding to the question of a subpoena used to discover an expert's opinion. In two subsequent

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cases, the Virginia Supreme Court held that evidence of fees paid to an expert by the same defendant or the same insurance company in previous cases may be admissible. ²⁰ Even if this information could not be subpoenaed from the expert, it could be obtained through a subpoena to the insurance...