Chapter 2 - 2.1 Discovery Rules

• Jurisdiction: Virginia

2.1 DISCOVERY RULES

2.101 Scope of Discovery Generally. The scope of discovery permitted under the Rules of the Virginia Supreme Court is very broad. Rule 4:1(b)(1) states that a party may request discovery of any unprivileged matter relevant to the case. The rule establishes that it is not a matter of objection that the requested information itself is not admissible as long as it "appears reasonably calculated to lead to the discovery of admissible evidence." But the same paragraph warns that the court has the power to limit discovery if it is "unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive." The rule permits the court to consider the specifics of the case, including the amount in controversy and the limitations imposed by the parties' resources, in making this determination.

Under Rule 1:6, claims litigated or that may have been litigated are subject to a res judicata bar. In order to discover what may have been litigated, namely, potential claims, discovery has to have some flexibility. In Manchester Oaks Homeowners Ass'n v. Batt,¹ the court said,

[t]he purpose of discovery is to narrow the issues being litigated. Little v. Cooke, 274 Va. 697, 717-18, 652 S.E.2d 129, 141 (2007) (citing Sheek v. Asia Badger, Inc., 235 F.3d 687, 693 (1st Cir. 2000)). However, such narrowing principally serves the purpose of avoiding surprise. See id. at 718, 652 S.E.2d at 141. Accordingly, we have held that permitting a plaintiff to raise a new claim at trial that was neither disclosed in discovery nor pled in the complaint constituted an abuse of discretion because the defendant was prejudiced by the inability to prepare to defend against the new claim. Id.

Therefore, potential claims should be fair game for discovery to determine whether they may have sufficient merit to be pursued.

The general touchstones as far as what is discoverable are the following:

• Must be reasonably calculated to lead to admissible evidence;

• Must be reasonably likely to prove or disprove an issue in the case; and

• Must not be privileged.

The frequency or extent of use of discovery may be limited if the court determines that:

1. It is unreasonably cumulative or duplicative or is obtainable from some other source that is more convenient, less burdensome, or less expensive;

2. The party seeking discovery has had ample opportunity to obtain the information; or

3. It is unduly burdensome or

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