6.9 Written Discovery in Federal Court

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

6.9 WRITTEN DISCOVERY IN FEDERAL COURT

6.901 In General. Although medical malpractice cases rarely go to federal court, they can if they involve diversity jurisdiction, which happens most particularly in the areas of Virginia that border other states. Also, the same facts that give rise to a garden variety medical malpractice claim may also support recovery under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) ⁷³ and other federal statutes that create federal question jurisdiction. The well-rounded medical malpractice attorney should have at least a working knowledge of written discovery in federal court.

Although Part Four of the Rules of the Virginia Supreme Court was modeled on the corresponding provisions of the Federal Rules of Civil Procedure (Federal Rules), there are some significant differences between the two sets of rules. Local rules of individual districts cause further complications, so that written discovery in federal court presents a number of traps for the unwary.

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6.902 Federal and Virginia Rules Compared.

A. Interrogatories. Interrogatories in federal court are governed by Federal Rule 33. Answers to interrogatories are due within 30 days after service, rather than 21 days as in state court. Like Virginia Rule 1:7, Federal Rule 6(d) provides for an extra three days to answer interrogatories that are served by mail.

B. Requests for Production. Federal Rule 34 governs requests for production. As with interrogatories, the party receiving the requests for production has 30 days from the date of service in which to file a response. Federal Rule 34 also provides that a party producing documents for inspection must either produce them as they are kept in the ordinary course of business or organize and label the documents to correspond with the categories of documents specified in the request for production.

C. Subpoenas.

1. Procedure. Federal Rule 45 governs the issuance of subpoenas duces tecum. An attorney authorized to practice in the court where the case is pending can issue them directly, without intervention from the clerk, as long as the subpoena complies in form with the requirements of Federal Rule 45(a)(1). Each clerk's office should have a supply of reproducible subpoena forms available to counsel. ⁷⁴ This subpoena may be served not only within Virginia but also at any place outside Virginia that is within 100 miles of the place of the deposition, hearing, trial, production, or inspection specified...