6.4 Objections to Written Discovery

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

6.4 OBJECTIONS TO WRITTEN DISCOVERY

6.401 Grounds in General. The most common grounds for objection to written discovery are that the information or documents requested are (i) overbroad and unduly burdensome; (ii) were prepared in anticipation of litigation; (iii) constitute attorney work product; (iv) are protected by the attorney-client privilege; or (v) are privileged under section 8.01-581.17 of the Virginia Code.

6.402 Undue Burden. Requests for information that are overly broad in their scope or that may require substantial time and expense to answer are subject to objection. ⁴¹

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6.403 Materials Prepared in Anticipation of Litigation.

A. In General. Rule 4:1(b)(3) provides that documents and tangible things prepared in anticipation of litigation or for trial by another party are discoverable only upon a showing that the parties seeking discovery have substantial need of the materials to prepare their case and that they are unable to obtain the substantial equivalent of the materials by other means without undue hardship. When a party has prepared the documents, they are discoverable depending upon whether the document was prepared in the ordinary course of business or whether it was prepared in anticipation of litigation that was either actual or "reasonably foreseeable."

B. Cases Holding That Materials Were Not Prepared in Anticipation of Litigation. In Whitehead v. Harris-Teeter Inc., ⁴² the court held that statements from employees of the defendant who were witnesses to an accident were not prepared in anticipation of litigation. No claim had been made and no suit had been filed. Moreover, the court concluded that such statements could be taken for a variety of reasons other than in anticipation of litigation. ⁴³

C. Cases Holding That Materials Were Prepared in Anticipation of Litigation. The opposite result was reached in Smith v. National Railroad Passenger Corp. ⁴⁴ In holding that witness statements taken shortly after a railroad accident were prepared in anticipation of litigation, the court adopted a "reasonably foreseeable" test. Under this test, "[i]f a reasonable person in the shoes of the party resisting discovery would have anticipated or reasonably foreseen litigation at the time the material was produced, it should enjoy the qualified protection of Rule 4:1(b)(3)." ⁴⁵ The court went on to find that since the plaintiff had been given the names of all persons having knowledge of the accident and could interview them as easily as could the defendant, he had not established that he had substantial need

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for the witness statements and that he was unable to obtain the same information without undue hardship. ⁴⁶

6.404 Work Product Doctrine.

A. In General. Rule 4:1(b)(3) also protects against the discovery of documents and tangible things prepared in anticipation of litigation or for trial by a party's representative, including the attorney. Even when the requesting party meets the burden of showing substantial need for the material and the inability to obtain their equivalent without undue hardship, there is absolute protection against the disclosure of the "mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation." Since the decision of the United States Supreme Court in Hickman v. Taylor, ⁴⁷ this concept has been known as the work product doctrine.

In Rakes v. Fulcher, ⁴⁸ the Virginia Supreme Court held that discovery procedures were not intended to open an attorney's files to opposing counsel or to afford attorneys the luxury of having opposing counsel investigate their cases for them. In Malone v. Ford Motor Co., ⁴⁹ the court held that a computerized document database developed by defendant's counsel to manage litigation documents constituted attorney work product and was protected from disclosure. ⁵⁰ In Moyers v. Steinmetz, ⁵¹ the court held that correspondence from an attorney to an expert witness must be produced upon request to the extent that it contains statements of fact, but that any portions of the correspondence that contain "mental impressions, conclusions, opinions, or legal theories" of counsel are not discoverable.

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In Campbell v. Dastoor, ⁵² the plaintiff issued a subpoena duces tecum to the president and CEO of the defendant physician's insurer, requesting all correspondence related to or in any way concerning the plaintiff. The president and CEO was involved in telephone and face-to-face communications with defense counsel, and he also received...