Chapter 2 - 2.4 Objections To Discovery

• Jurisdiction: Virginia

2.4 OBJECTIONS TO DISCOVERY

2.401 In General. If a party from whom discovery is sought opposes the request, objection must be made during the time limit for response to discovery set by the rules or, in some cases, by the court if the time has been extended by pretrial order. If counsel cannot resolve the objection by conferring with the affected parties, a motion for a protective order should be considered.

This raises some other questions:

1. Can you file objections with no responses? The rule dealing with interrogatories is different than that for request for documents:

a. Rule 4:8(d) on interrogatories provides that a party may answer or object, but if an objection is made, then the objection is in lieu of the answer. As such, it is not possible under the rule to both object and answer as to a single interrogatory. If an answer is provided with the objection, then the objection is probably waived.

b. Rule 4:9(b) dealing with requests for documents provides that a party must respond within the time allowed. Those responses must include any objections to the requests and must also state whether responsive documents are being withheld. If such documents are being withheld, then this presumably would trigger the need for a privilege log.

2. If a party objects but also answers, is the objection thereby waived? Probably, but not as to information later acquired. Beginning a response by stating "without waiving the objection the following answer is provided" waives the objection as to interrogatories.¹⁷ As indicated above, the objection must state whether any responsive documents are being withheld pursuant to the objection.¹⁸ Although a similar requirement does not apply to interrogatories, it is a good practice to state whether anything is being withheld.

The use of general objections as a type of blunderbuss approach to objections is common. Rule 4:8(d) states that the reasons for the objection must be set forth. General objections are just that; they do not apply to any particular interrogatory or discovery request and therefore they cannot be countered by opposing counsel. The purpose of the objection is to alert opposing counsel as to the potential problem with the discovery request and give counsel the opportunity to cure the problem. A general objection does not do that. That does not mean that general objections cannot or should not be used, but they should be used somewhat sparingly.

Below is a general statement of objection and a list of general objections that may be helpful as a checklist:

General objection is made to this discovery request as follows:

• To the extent that the instructions or definitions exceed or are inconsistent with the rules of the court, they are objected to;

• All objections as to relevance, authenticity, or other basis for admissibility at trial are preserved;

• To the extent that any of these discovery requests call for documents or information protected by the attorney-client privilege or the attorney work product doctrine, they are objected to.

2.402 Specific Objections. Objections must be specific and be framed in such a way as to allow the opposing party to respond and thereby potentially cure the objection without court involvement. each type of discovery has certain rules that apply only to that type. Some objections are, however, equally applicable to any discovery request. The following objections comprise a quick checklist to use in evaluating a request:

• Not reasonably calculated to lead to admissible evidence;

• Privileged (specify the privilege);¹⁹ If the question just calls for "facts." then even though they may have come from a "privileged" source, they should still be disclosed.

• Subject to the attorney work product doctrine;

• Calls for the mental impressions of counsel;

• Confidential or propriety;

• Prepared in anticipation of litigation;²⁰

• Equally available to the opposing party;

• Overly broad. Counsel may ask that the scope be limited in time or otherwise. In the case of requesting medical information, it may be limited to a five-year period;²¹

• Vague, ambiguous, or unclear;

• Unduly burdensome;

• Seeking legal opinions or legal conclusions; and

• Beyond the scope of permissible discovery.

An excellent website dealing with objections to discovery is found at www.winfredclerk.com/athey.htm.

All of the objections must be specific. The objections to discovery stated above—that the requests are overly broad, unduly burdensome, irrelevant or immaterial, or call for opinions and conclusions—by themselves are not sufficient. The objection must be specific enough to state what it is about the request that is overly broad, unduly burdensome, vague, or calling for an improper opinion or conclusion. If the objection is to vagueness or ambiguity of the request, then the objecting party should describe exactly what is ambiguous so that opposing counsel can cure the ambiguity.

As to legal opinions and legal conclusions, the general test of whether or not these are discoverable is would they provide leads to evidence or clarify issues in the case thereby expediting the disposition of the claim.²²

Contention interrogatories are sometimes troublesome. Rule 4:8(e) allows for discovery of opinions or contentions that relate to fact or the application of law to fact.

If the information requested is equally accessible to the opposing party, then, under Rakes v. Fulcher,²³ the discovery need not be granted. For instance, discovery of public records is equally accessible to both sides.

More detailed descriptions of many of the principal objections follow.

A. Not "Reasonably Calculated to Lead to Admissible Evidence."Rule 4:1(b)(1) states that the information sought must be "reasonably calculated to lead to the discovery of admissible evidence." Because the rule is worded so broadly that it permits even inadmissible evidence to be the subject of inquiry if it could arguably lead to admissible evidence, this is a difficult objection to make successfully. However, an objection to a question on the grounds that it is not relevant to the proceeding should still be possible. Rule 4:1(b)(1) couches this issue in terms of relevance to the subject matter involved in the litigation. Some nexus must exist for the question to be permissible.

In a personal injury case, typically the plaintiff's medical history, with respect to that portion of the body that was injured, is discoverable. Discovery about the plaintiff's general medical and psychological history and injuries to portions of the body that are not alleged to have been injured in this case should be limited to a five-year period before the accident. Inquiries about prior accidents or occurrences may be discoverable but probably should be limited to a period of three years before the accident in question.²⁴

B. Information Equally Available. Discovery is intended to reveal information that is in the possession of an opposing party or, in some instances, a third party when it is not otherwise available to the requesting party. Discovery should not be granted if, for example, the requesting party has an equal opportunity to investigate the subject matter or if all witnesses are known to both sides and available to be interviewed.²⁵ Rule 4:1(b)(1) makes it clear that discovery should not be permitted if the requested material can be obtained from another source that is more convenient, less burdensome, or less expensive. Discovery requests should not allow a party to merely take advantage of opposing counsel's more thorough preparation for trial.²⁶

C. Privileged Information.²⁷ Rule 4:1(b)(1) affirmatively states that privileged information is not subject to discovery. The facts of a particular case determine the types of privilege protection that may be raised. However, almost any claim of privilege may be waived if the otherwise privileged material has already been produced in another proceeding.²⁸ The most common privileges in this context are those set forth below.

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