6.7 Remedies for Failure to Make Written Discovery

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

6.7 REMEDIES FOR FAILURE TO MAKE WRITTEN DISCOVERY

6.701 Motion to Compel.

A. Grounds. If a party fails to answer an interrogatory submitted under Rule 4:8 or fails to permit inspection of documents, things, or premises under Rule 4:9, the discovering party may move for an order compelling an answer or an order compelling inspection in accordance with the request.

B. Notice. Rule 4:12(a) requires only "reasonable notice to other parties and all persons affected thereby."

C. Evasive or Incomplete Answers. Rule 4:12(a)(3) provides that an evasive or incomplete answer is treated as a failure to answer.

D. Certification of Good Faith Effort to Resolve Dispute. Rule 4:12(a)(2) requires a certification that the moving party has conferred or attempted to confer with other affected parties in an effort to resolve the discovery dispute before filing the motion.

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E. Award of Expenses of Motion.

1. Mandatory. Rule 4:12(a)(4) provides that if the motion to compel is granted, the court must award the moving party the reasonable expenses occurred in obtaining the order, including attorney fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. On the other hand, the rule provides that if the motion to compel is denied, the court must award the party opposing the motion reasonable expenses incurred in opposing the motion, including attorney fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust. ⁶⁴ If the motion is granted in part and denied in part, the court may apportion the expenses among the parties in a manner that appears just.

2. Award Available Against Party, Attorney, or Both. The award of expenses involved in either a successful or an unsuccessful motion to compel may be imposed on the party whose conduct necessitated the motion, the attorney advising the conduct, or both of them.

6.702 Sanctions for Failure to Comply with Discovery Order.

A. In General. Under Rule 4:12(b)(2), if a party fails to obey any order to provide or permit discovery, including an order made under Rule 4:12(a), the court in which the action is pending may make whatever orders regarding the failure to provide discovery as are just.

B. Evidentiary and Substantive Sanctions. Orders permitted by Rule 4:12(b) include (i) an order that any facts related to the subject of the order be...