Chapter 58 Other Discovery Issues

• Library: A Virginia-Specific Summary Guide: Attorney-Client Privilege & Work Product Doctrine (Virginia CLE) (2016 Ed.)

Chapter 58

OTHER DISCOVERY ISSUES

58.1 INTRODUCTION

Litigants and their adversaries may try to pursue or block certain specific types of discovery, including contention interrogatories, Rule 30(b)(6) depositions, and discovery of lawyers.

• Adversaries also seem to increasingly focus on litigants' alleged failure to adequately review and properly produce responsive documents or information—in what can be called "discovery about discovery."

58.2 CONTENTION INTERROGATORIES

Contention interrogatories necessarily seek the fruits of litigants' discovery, and insights into their trial strategy. [58.201]

A federal rule specifically permits such contention interrogatories. ¹ [58.202]

•	The case law supports the rule's language.
VA	A Virginia circuit court 2 refused to order a litigant to answer contention interrogatories asking it to list facts supporting its contentions.

The key issue involves timing—a common work product theme. [58.203]

• Unlike Rule 30(b)(6) depositions (discussed below), the federal rules invite courts to delay litigants' obligation to answer contention interrogatories.

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Some courts refuse to order litigants answers to contention interrogatories early in the discovery process, or remind litigants answering contention interrogatories that they may have to later supplement their responses.

• Ironically, some courts decline to order litigants' answers to contention interrogatories late in the discovery process—because the adversaries already know the litigants' positions, supporting facts, documents, witnesses, etc.

58.3 RULE 30(B)(6) DEPOSITIONS

Fed. R. Civ. P. 30(b)(6) depositions often seek the same type of information as contention interrogatories, and raise the same issues. [58.301]

Unlike the contention interrogatory rule, Rule 30(b)(6) does not invite courts to delay such depositions until closer to trial. [58.302]

Some courts preclude Rule 30(b)(6) depositions as impermissibly invading litigants' work product or privilege protection. [58.303]

• Most of those decisions involve private litigants seeking to depose the government, but some decisions apply the same approach in the private litigation context.

Rule 30(b)(6) depositions implicate a number of waiver concepts. [58.304]

• Designated Rule 30(b)(6) deposition witnesses presumably can waive privilege or work product protections, but most courts hold that merely designating a lawyer does not automatically waive those protections.

• These courts reason that such lawyers may testify about non-protected facts, or about their decision-making role.

Adversaries asking Rule 30(b)(6) deponents about documents the deponents reviewed before testifying might raise privilege or work product issues. [58.305]

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• Although the Sporck doctrine ³ sometimes allows litigants to withhold such documents' identities, some courts find the Sporck doctrine normally inapplicable to Rule 30(b)(6) deponents—who often have no personal knowledge of historical events.

• Similarly, courts applying Federal Rule of Evidence 612 find that "justice requires" disclosure of protected documents Rule 30(b)(6) deponents review.

Rule 30(b)(6) depositions inevitably raise privilege and work product issues. [58.306]

• Some courts acknowledge that lawyers

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