Saturday, October 7, 2017

Topic Time Tab Page

Relaxing the assignment-of-error rules 9:00 a.m. 13 243 L. Steven Emmert

Court reporter certification 9:20 a.m. 14 247 Philip C. Coulter

Rule-to-show-cause procedure 9:35 a.m. 15* 254 The Hon. Dennis J. Smith

Attorney-issued subpoenas under UIDDA 9:50 a.m. 16 258 Arthur E. Schmalz

Time computation in Rules 1:7 and 4:15 10:05 a.m. 17 275 Sandra J. Havrilak

Proving attorney's fees 10:20 a.m. 18 281 John R. Walk

Expert disclosures 10:40 a.m. 19 289 David N. Anthony

Rule on witnesses in depositions 10:50 a.m. 20* 292 David J. Gogal

Discovery objections 11:05 a.m. 21 307 Thomas W. Williamson, Jr.

Revising Code § 17.1-625 11:25 a.m. 22 315 Stephen C. Price

Party-patient subpoenas of medical records 11:40 a.m. 23 335 Cathleen Kailani Memmer

Best Report Award 11:50 a.m. Presented by Conference Chair

Concluding Remarks 11:55 a.m. Stuart A. Raphael, Conference Chair

ii * denotes carryover topic

Tab 13

242 UJ.m SYK[S, ROURDON, Mil AY[RN &LM, P.C. ATTORNEYS AND COUNSELORS AT LAW JON M . AHERN PEMBROKE O FFICE PARK • B UILDING ONE A . EDWARD BOURDON, JR. 281 INDEPENDENCE B OULEVARD JAMES T. CROMWELL F IFTH FLOOR L . STEVEN EMMERT V IRG INIA B EACH, VIRGINIA 23462-2989 ANGELI NA S . LEE KIRK B . L EVY TELEPHONE: 757-499-8971 M ICHAEL J. LEVY· F ACSIMILE: 757-4 56-5445 H OWARD R. SYKES. JR. September 8, 20 17 DAVID M. ZOBEL

"Admitted 1n Virginia and Washington DC

BY ELECTRONIC MAIL

Stuart A. Raphael, Esquire

Re: Boyd-Graves Study Committee Assignments of error

Dear Stuart:

I' m writing to report on our committee's deliberations on the use of assignments of error in Virginia's appellate courts.

The Virginia approach

Virginia is one of a shrinking minority of jurisdictions th at continue to require appellants to assign error w ith specificity to the judgment under review. Only eight states - Louisiana:, Nebraska, Ohio, Oklahoma, Oregon, Washington, and West Virginia, plus Virginia - continue to require them. (We are grateful to the National Center for State Courts in Williamsburg for data on other states' practices.) Rule 5:17(c)(l) in the Supreme Court and Rule SA: 12( c )(I) in the Court of Appeals require the appell ant to "list, clearly and concisely and without extraneous argument, the specific errors in th e rulings below upon which the party intends to rely." Each rule adds that if the appellant omits assignments, or if th e assignments are insufficient, the appeal will be dismissed.

The Virginia approach in practice

In practi ce, these requirements generate significant uncertainty, because the Supreme Court's application of the assignment-of-error rule has appeared inconsistent to many practitioners. In one well-known example, the court di smissed an appeal because it found the appellant's assignment to be too specific in light of an intervening development. In John Crane, Inc. v. Bristow, Rec. No. 120947 (unpublished, Oct. 25, 201 3), the appellant's assignment specified that the trial court erroneously permitted an implied-warranty claim to be tried under a "substantial contrib.uting factor" theory of causation instead of a " but-for" test. While the appeal was pending, the Supreme Court

243 Im0 SYK!:S. ROURDON. mD AJI[RN & LM. P.C. Stuart Raphael, Esq. September 8, 2017 Page 2

decided a separate appeal that held that the correct test was "sufficient to have caused." The court then dismissed the John Crane appeal because it had not anticipated this change in the law and was too specific to all ow appellate review.

While some aspects of assignments are entirely objective - the best example being the requirement to include them - others are subjective. The primary challenge in drafting an assignment is to ensure that it falls somewhere between the boundaries of too narrow and too broad. The court has dismissed other appeals, beyond John Crane, for assignments it found too specific- notably Kuehn v. Carlyle Towers Condominium Unit Owners Ass'n. , Rec. No. 111 828 (unpublished, Aug. 3, 2012) - as well as too vague.

There are hi gh stakes involved in a di smissal; the lawyer can be sued for malpractice, and the Supreme Court now reports repeat procedural dismissals to the State Bar for an ethics in vestigation of the lawyer.

The Findlay approach to evaluating assignments

In 2014, the justices explored in detail w hat constitutes a sufficient assignment. In Findlay v. Comnwnwealth, 287 Va. Ill (2014), the court approved an assignment that specified the challenged ruling: the denial of a motion to suppress. This was, the court rul ed, sufficient to inform the court and the appellee what matters Findlay was appealing.

If this ruling were embodied in a rule of court, or firmly established in our j urisprudence, the study committee would take comfort in that. But Findlay contained a vigorous dissent that call ed for far more detail, and two members of the majority have left the bench since the decision came down. We perceive that the Findlay holding will remain stable onl y as long as it can command four votes.

Recommendation

The committee unanimously believes that the Supreme Court's approach to assignments presents a problem that should be addressed. Even leaving aside the Bar­ complaint risk to practitioners, a too-strict approach thwarts justice - civil and criminal ­ where potentially meritorious appeals, involving important legal issues, die a procedural death.

244 ~.ID SITf:S. ROURDON. m1l Allf:RN & LM. P.C. Stuart Raphael, Esq. September 8, 2017 Page 3

There are meaningful alternatives to the use of assignments of error. For example, United States Supreme Court Rule 14( l )(a) requires appellants to set out the "questions presented for review." This statement "shall be deemed to comprise every subsid iary question fairly included therein." This more general, and hence more forgiving, requirement has operated well in Washington, and it should work well here, too.

While the committee unanimously believes that Virginia's appell ate courts should discontinue the use of assignments of error and utilize something like a statement of issues or questions presented instead, we recognize that the appellate courts must have a voice in the discussion. Those jurists will have a different perspective on these issues than ours, and that perspective can help to shape an optimal approach to this issue.

The committee recommends that the Boyd Graves Conference ask the Chief Justi ce to authorize a commission, to include appellate jurists, appell ate court personnel, and members of the Conference, to deli berate thi s issue and recommend to the court and the Judicial Council any needed changes to the rules on assignments. We note that this recommendation does not extend to other appellate requirements, such as the contemporaneous-obj ecti on rule; those are outside the scope of our deliberations.

Thank you for allowing me to chair this committee, and for assigning Jim Duane, John Eure, Jay O 'Keeffe, George Somerville, Steuart Thomas, and Tony Troy to work with me. Our deliberations were always engaging, sometimes lively, and in the end, quite enlighten ing.

LSE/cec cc: Professor James .J. Duane, Esquire John D. Eure, Esquire James J. O ' Keeffe, IV, Esquire George A. Somerville, Esquire C. J. Steuart Thomas, III, Esquire Anthony F. Troy, Esquire

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Tab 14

246 LAW OFFICES COULTER & COULTER PROFESSIONAL ARTS BUILDING 30 W. FRANKLIN ROAD, S.W. SUITE 301 Telephone:540- 345-4000 PHILIP C. COULTER P.O. BOX 1299 Facsimile:540-345-8451 JACK B. COULTER ROANOKE, VIRGINIA 24006 (1923-2007)

August 21, 2017

VIA E-MAIL Stuart A. Raphael, Esq. Chairman, Boyd-Graves Conference

Re: Boyd-Graves Study Committee Regulation of Court Reporters Dear Stuart: Our committee, which was carried over from last year’s conference, was tasked with examining the possible implementation of some form of standards or certification requirements to be put into place to govern Virginia court reporters. Specifically, the committee was tasked with exploring possible amendments to The Rules of The Virginia Supreme Court as a method of achieving such oversight as opposed to seeking legislative change as was proposed in past years. Many practicing attorneys may not realize, there are no requirements in Virginia for court reporters to be licensed, certified or regulated. Last year, the committee discussed many of the substantive issues involved in possibly requiring certification. A copy of last year’s report is attached. After much study, the committee report of July12, 2016 recommended that: “…the goals of enhancing the quality of all methods of court reporting (and not just court reporters) by means of a certification process -- which entails the implementation of quality standards -- be furthered by appropriate Study Commission.” The committee also recommended: “…that such Study Commission be appointed by the Chief Justice of the Supreme Court of Virginia and that the Boyd Graves Committee on Court Reporters remain in place to further these objectives.” With that brief background I am pleased to report that our committee met on several occasions by telephone conferences and also, with the assistance of Lorraine Lord, Chief Staff Attorney for the Supreme Court of Virginia, several committee members and Stuart Raphael met personally in Richmond with Chief Justice Lemons and members of his staff to explore this topic and elicit his views and opinions. The Chief Justice was quite interested in this topic, graciously open to all suggestions and shared his views and concerns with the committee. The concerns articulated in the meeting with Chief Justice Lemons centered around the topic which has been similarly discussed in previous meetings by the Boyd Graves committee. The

247 Stuart A. Raphael, Esq. August 21, 2017 Page Two (2)

principal concern was whether the committee could identify an empirical basis for changing the current field of court reporting. In other words, what specific problems exist now to be “corrected” by the imposition of any certification requirement? Also discussed was the fact that many of Virginia’s court reporters are in fact “certified” voluntarily by various trade associations and as such the forces of the market would in large measure ensure quality reporting both presently and well into the future. In discussing these issues, the committee considered conducting surveys and/or collecting anecdotal reports from among various groups such as the V.T.L.A., V.A.D.A., litigation groups and others having hands-on experience with transcripts, recordings and related court-reporting issues in order to better explain any justification for requiring certification. The committee believes that not enough empirical data is currently available to articulate flaws in the current state of Virginia’s court-reporting industry to warrant mandating certification of court reporters. Furthermore, the committee is of the opinion that it is not equipped to conduct its own surveys or otherwise collect appropriate empirical data to justify a certification requirement for court reporters. Several committee members have expressed their philosophical concerns that, in light of the important role they occupy, court reporters should be subject to regulation and/or licensure, or certification requirements like myriad other professions. Therefore, it is the recommendation of this committee that the Boyd Graves Conference go on record as supporting the creation of a Study Commission by either the Supreme Court of Virginia or the General Assembly to examine the need for an appropriate mechanism for enhancing, maintaining and enforcing high standards of quality for Virginia court reporters. I have enjoyed working for several years on this interesting topic and express my sincere appreciation to Chief Justice Lemons and all committee members for their insightful input into these conclusions. Respectfully submitted,

Philip C. Coulter Committee Chairman

PCC/lc Enclosure: Committee Report July 12, 2016 cc: The Honorable Clifford R. Weckstein (Via E-mail) The Honorable Michael F. Devine (Via E-mail) Frank K. Friedman, Esq. (Via E-mail) George A. Somerville, Esq. (Via E-mail) K. Lorraine Lord, Esq. (Via E-mail) David J. Gogal, Esq. (Via E-mail)

248 LAW OFFICES COULTER & COULTER PROFESSIONAL ARTS BUILDING 30 W. FRANKLIN ROAD, S.W. SUITE 301 Telephone:540- 345-4000 PHILIP C. COULTER P.O. BOX 1299 Facsimile:540-345-8451 JACK B. COULTER ROANOKE, VIRGINIA 24006 (1923-2007) July 12, 2016 Stuart A. Raphael, Esq. Chairman, Boyd-Graves Conference Office of the Attorney General 202 North Ninth Street Richmond, VA 23219 Re: Boyd-Graves Study Committee Regulation of Court Reporters Dear Stuart: Our committee has examined the issue of establishing a framework for some form of implementing quality standards for Virginia Court Reporters. As you may recall, the 2013 Boyd Graves Committee which was formed to explore this topic, recommended that legislation be reintroduced similar to Senate Bill 216 which in 2006 passed the Senate but was tabled in the House without further attention. Such legislation was drafted to establish a regulatory board to set these standards and provide enforcement of such certification. [Appendix A] The current committee was tasked to explore implementation of Court Reporter standards by way of Supreme Court Rule change rather than by legislation. It should be noted that our “launch-point” has been the previous recommendation by the Boyd-Graves Conference that such standards should, in fact, be in place. Our Committee has met by conference calls along with invaluable assistance by Mrs. Lorraine Lord, Supreme Court Chief Staff Attorney and Judge Clifford R. Weckstein and their communications directly with Supreme Court Chief Justice Lemons. It is our understanding that the Chief Justice is open to any and all suggestions toward the goal of implementation of standards for Virginia Court Reporters. Additional input to the issues before this Committee was obtained by way of discussions and meetings with the President of the Virginia Court Reporters Association and their various members as well as representatives from the National Court Reporters Association. Numerous anecdotal observations were made by committee members from both the bench’s perspective as well as the litigant attorney’s point of view. The VCRA Board of Directors has gone on record by letter to the Boyd-Graves Conference Committee as recommending “mandatory certification of Court Reporters” and submitted their proposed language for a certification program. [Appendix B] The standards utilized by the VCRA include those established by the National Court Reporters Association which include taking a written exam testing knowledge of technology, reporting and professional practices. Additionally they must pass a three-part skills test (literary at 180 wpm, jury charge at 200 wpm, and testimonial Q/A at 225 wpm). They must achieve 95 percent accuracy on each component of the exam. Stuart A. Raphael, Esq.

249 July 12, 2016 Page Two

For the benefit of many practicing attorneys it has been interesting to learn that according to the VCRA organization there are approximately 125 members of that organization and an estimated 700 total Court Reporters in Virginia although an exact number of these is uncertain. There are three (3) well-known associations which certify various types of court reporters by way of testing through the use of multiple skill examinations: The National Court Reporters Association, The American Association of Electronic Reporters and Transcribers, and the National Verbatim Reporter Association. There are also various types of actual reporters or participants in the process of creating the court record including “Mask Writers, a/k/a Voice Talkers,” “Stenographers,” “Transcriptions” and perhaps even some “Gregg Shorthand reporters.” According to the VCRA President, “It would not be surprising that most attorneys are not aware that Court Reporters are not regulated in some fashion throughout Virginia.” Currently 28 states provide some form of regulation of court reporters. Virginia does not. [Appendix C] The Virginia Code Sections 17.1-128, 17.1-128.1 and 19.2-165 provide certain statutory authority and/or direction concerning “the recording verbatim of the evidence and incidents of trial either by a court reporter or by mechanical or electronic devices approved by the court.” Such recordings seem to include the use of tape recorders/transcribers as another method of capturing and making the record in any case or proceeding. Such Code Sections also conclude by stating that the administration of such Section “shall be under the direction of the Supreme Court of Virginia.” Additionally, Virginia Code Section 8.01-412.2 authorizes the use of audio-visual depositions. [Appendix D] Rule 1:3 of The Rules of The Supreme Court of Virginia currently provides the singular reference to court reporters which states:

Reporters shall be first duly sworn to take down and transcribe the proceedings faithfully and accurately to the best of their ability, and shall be subject to the control and discipline of the judge. When a reporter takes down any proceeding in a court, any person interested shall be entitled to obtain a transcript of the proceedings or any part thereof upon terms and conditions to be fixed in each case by the judge. The proceedings may be taken down by means of any recording device approved by the judge. [Appendix E]

The committee was also made aware of the 2002 Attorney General Opinion directed to Judge Clifford R. Weckstein’s inquiry concerning authority and mechanisms for engaging the services of private court reporters for assistance in transcribing trial proceedings. Such opinion stated such authority indeed existed and was in “the sound discretion of the trial court.” [Appendix F]

Stuart A. Raphael, Esq.

250 July 12, 2016 Page Three

With this myriad of players in the field of actual court reporting and the relatively clear position that the court reporting profession is particularly confined to the arena of judicial matters, the Committee has focused on two (2) principal components of the prospects of a Supreme Court Rule change which might be helpful in creating a framework for certification or implementation of standards to improve and maintain the accuracy and reliability of the record makers. The first issue that was explored was that of what standards should apply? The subsequent issue was that of how should such standards be enforced or implemented? A corollary to the second issue was whether the standards should be voluntary or mandatory. All of these issues present admittedly difficult solutions to be proposed or recommended. The committee unanimously opined that there continues to be a definite need to further the goals of quality court reporting including the need to address ethical responsibilities of various court reporting entities and the need to provide continuing education to stay abreast of the changing technologies in this field. However, in order to achieve this goal more inquiry is needed to isolate and identify the specific concerns raised by court reporters as to the need for any regulation whether by licensing or otherwise. Particular questions raised, in addition to which standards should apply, include whether these standards apply to all types of court reporters? Do the standards apply for in-court proceedings as well as discovery depositions? Are there different standards applicable in criminal proceedings compared to civil proceedings? Do standards apply to court reporters taking depositions out of state? Are continuing educational requirements necessary for continued approval of quality court reporting in light of developing technology? How are such standards to be enforced? The committee examined and considered various “frameworks” for the implementation of court reporting standards, specifically in the form of a Rule of Court detailing these requirements, and even the creation of a Board of Court Reporters set up by the Supreme Court contrasted with a suggested Board of Regulation as proposed by S.B 216 back in 2006. The committee determined that to make specific “standard” recommendations would be premature without further substantive input provided by the expertise of a variety of persons and entities involved in the court reporting profession and precise identification of the ills to be cured and remedies suggested. It is also suggested that upon implementation of an approved Rule change that consideration be given to recommendations for modifications to the existing and relevant statutes which address the “regulation” of court reporters. Based upon these discussions, it is the unanimous recommendation of the committee that the goals of enhancing the quality of all methods of court reporting (and not just court reporters) by means of a certification process -- which entails the implementation of quality standards -- be furthered by appropriate Study Commission. This would include among its members: appellate and trial judges, appellate and non-appellate lawyers from both the plaintiff and defense bars, court reporters from each of the various types of court reporting professions, Circuit Court Clerks and

Stuart A. Raphael, Esq.

251 July 12, 2016 Page Four

representatives from the established court reporting associations. Additional members might also include Commonwealth’s Attorneys, and Public Defenders. The Study Commission should also include in its recommendations methods of enforcement of standards and the consequences of reporting done in violation of such standards. It is the further unanimous recommendation of the committee that such Study Commission be appointed by the Chief Justice of the Supreme Court of Virginia and that the Boyd Graves Committee on court reporters remain in place to further these objectives. Finally, I wish to thank all of the members of this Committee on their valuable input and participation in this very timely and interesting study.

Respectfully submitted,

COULTER & COULTER

Philip C. Coulter Committee Chairman

PCC/lc Enclosures: cc: The Honorable Clifford R. Weckstein Frank K. Friedman, Esq. George A. Somerville, Esq. K. Lorraine Lord, Esq. David J. Gogal, Esq.

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Tab 15

253 September 6, 2017

Stuart A. Raphael, Esq. Conference Chair Boyd-Graves Conference 3018 N. Quincy St. Arlington, Va. 22207

Re: Boyd-Graves Study Committee on whether the Requirements for a Rule to Show Cause Should Be Codified

Dear Stuart:

The Committee tasked with studying the above referenced subject consisted of Judge Dennis J. Smith (Ret.)- Chair, The Hon. Robert F. Hagans, Jr., The Hon. Winship C. Tower (Ret.), Irving M. Blank, Esq., Marni E. Byrum, Esq., Maureen Matsen, Esq., Martha JP McQuade, Esq., and Prof. W. Hamilton Bryson.

Our Committee report is as follows:

Scope of the Issue:

Virginia attorneys seeking guidance on exactly what is required to obtain a Rule to Show Cause have found that there is no one rule, procedure or code section that is applicable to all Rules to Show Cause. The Committee evaluated whether it would be helpful to have a general rule, procedure or code section that practitioners can use to assure uniformity in seeking, obtaining and/or defending against Rules to Show Cause in civil cases. The Committee recognized that summary contempts (those taking place in the presence of a Judge, including failures to appear or produce pursuant to properly served subpoenas) are adequately covered by Va. Code Ann. § 18.2-456.

Study Conducted by Committee:

The Committee communicated by e-mail and several conference 254 calls. The Committee also solicited the input of Circuit Court Judge Lisa Kemler and worked with Ms. Kristen Walsh of the Division of Legislative Services, and Mr. Steven L. Daile Mura, Director of the Virginia Supreme Court's Department of Legal Research to craft its recommendations.

The Committee reviewed an informal survey of various states to ascertain whether those jurisdictions had or had not codified the requirements for Rules to Show Cause in civil cases. Of the states surveyed, none were found with any specific codifications; however, some rules and forms at least partially addressed the issues, most of which were limited to specific practice areas. A search was also made of the Virginia Code for references to Rules to Show Cause and, although references were found to specific types of Rules to Show Cause, nothing in the Code establishes procedural requirements to obtain a Rule to Show Cause, nor did we find any requirements regarding service of process. 1 The Committee also reviewed various resources for determining the totality of requirements of a Rule to Show Cause, including the Virginia Civil Benchbook, some localities' Court procedures manuals, treatises dealing with contempt and the like. These uniformly indicate that an affidavit or verified petition to support the issuance of a Rule is required although none are in themselves binding authority.

It became the consensus of the Committee that a rule or statute should be proposed specifically providing that no Rule to Show Cause should be issued absent an affidavit to support the request for the Rule. It was also agreed that the affidavit be served along with the Rule to Show Cause.

1 The following sections were identified: Virginia Code Ann. § 58.1-3146 (issuance of a Rule before removal of City or County Treasurers); § 8.01-508 (Rule to Show Cause against a judgment debtor who fails to adequately answer debtor's interrogatories or make conveyance of property deliverable to satisfY a judgment); § 38.2-4710 (State Corporation Commission may assess a $100 per day penalty for engaging in business without a license only after ten days' notice has been given to the defendant by rule to show cause). These sections provide no guidance as to procedures for issuance or service of Rules to Show Cause. § 54.1-3935 (procedures for disciplining attorneys by three­ judge circuit court) states that it is governed by procedures set forth in Part Six, Section IV, Paragraph 13 oftbe Rules of Supreme Court of Virginia, but that Rule does not specifY service requirements. 255 Options Considered by the Committee:

The Committee then considered whether the requirements for a Rule to Show Cause should be set forth as a proposed Rule of Civil Procedure or a proposed statutory amendment. The consensus of the Committee was that a statutory amendment would be the most useful option for practitioners and would result in the most broad-based and uniform application. A proposal which used the term "verified motion" was modified at the suggestion of Legislative Services as that phrase has no basis in the Virginia Code and pursuant to Rule 1 :4(b), a pleading that is sworn to is an affidavit for all purposes for which an affidavit is required or permitted.

Recommendation:

In order to address the lack of citable authority on the requirements for a Rule to Show Cause, the Committee recommends that the Virginia Code be amended to add a new section:

§ 8.01-274.1. Petition for Rule to Show Cause. Except as otherwise provided by law, any party requesting a rule to show cause in any civil action shall file with the court a motion or petition or a form prescribed by the Supreme Court of Virginia. The motion or petition or form shall include facts identifying with particularity the violation of a specific court order and be sworn to or accompanied by an affidavit setting forth such facts. The rule to show cause entered by the court shall be served on the person alleged to have violated the court order along with the accompanying motion or petition or form and any affidavit filed with such motion or petition or form.

On behalf of our Committee, I thank you for allowing us to be of service to the Boyd-Graves Conference. Please let me know if you have any questions or need anything further from our Committee.

Judge Dennis J. Smith (Ret.)

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Tab 16

257

HUNTON & WILLIAMS LLP 2200 PENNSYLVANIA AVENUE, NW WASHINGTON, D.C. 20037-1701

TEL 202 • 955 • 1500 FAX 202 • 778 • 2201

ARTHUR E. SCHMALZ DIRECT DIAL: 703 • 714 • 7467 EMAIL: [email protected]

September 8, 2017 FILE NO: 99997.034087

Stuart Alan Raphael, Esq. Hunton & Williams LLP 2200 Pennsylvania Avenue, N.W. Washington, D.C. 20037-1701

Re: Boyd-Graves committee report on potential modifications to the Virginia Uniform Interstate Depositions and Discovery Act to facilitate the use of attorney-issued subpoenas

Dear Stuart:

Thank you for the opportunity to chair the committee assigned to study potential modifications to the Virginia Uniform Interstate Depositions and Discovery Act (“VUIDDA” or the “Act”) to facilitate the use of attorney-issued subpoenas. The other members of the committee are: Bryan Grimes Creasy, Esq., Stephanie E. Grana, Esq., Robert T. Mitchell, Jr., Esq., Mark C. Nanavati, Esq., Sandra M. Rohrstaff, Esq. and Lucia Anna Trigiani, Esq. Their diligent research, insights and other contributions have been extremely helpful in preparing this report.

A. Introduction and summary.

Boyd Graves Conference member David Gogal, Esq. proposed the topic for our committee’s study. He suggested that the VUIDDA’s process for enabling out-of-state litigants to conduct discovery in Virginia could be streamlined if the Act were amended to allow them to domesticate foreign subpoenas in the Commonwealth using an attorney-issued subpoena. Currently, the VUIDDA expressly authorizes only a clerk-issued subpoena as the sole means for domesticating a foreign subpoena in Virginia. Mr. Gogal, however, noted that certain provisions of the Act possibly can be read as indirectly authorizing the use of attorney- issued subpoenas. The committee agrees that the VUIDDA is potentially ambiguous in that regard. We recommend clarifying the Act to eliminate this possible ambiguity, but not revising the statute substantively to authorize the use of attorney-issued subpoenas. In our view, the potential benefit of such a change – reducing the relatively minor delay of

ATLANTA AUSTIN BANGKOK BEIJING BRUSSELS CHARLOTTE DALLAS HOUSTON LONDON LOS ANGELES MIAMI NEW YORK NORFOLK RALEIGH RICHMOND SAN FRANCISCO TOKYO TYSONS WASHINGTON www.hunton.com258

Stuart Alan Raphael, Esq. September 8, 2017 Page 2 processing a foreign subpoena through the clerk’s office – does not justify a substantive amendment that possibly could have unintended adverse consequences. Our suggested statutory clarification is in Section G, on page 13, below. The Virginia Division of Legislative Services (“DLS”) reviewed our proposed revision and incorporated it into a draft Bill, attached as Exhibit A.

In the course of our study, we also identified some questions on a few related issues, specifically:

 Whether a proper “foreign subpoena” under the VUIDDA must be issued only by the clerk of a court of record in another state, or whether the term also contemplates a foreign attorney-issued subpoena from a jurisdiction that allows them?  What are the procedures that a circuit court clerk must use for processing a foreign subpoena under the VUIDDA?  Does Code § 8.01-412.10(E) conflict with Rules 4:5(a1)(iv) and 4:9(b)(iv) of the Supreme Court of Virginia by allowing out-of-state litigants to use discovery processes in the Commonwealth other than those specified in the VUIDDA?  Does the early 19th century out-of-state subpoena procedure in Code § 8.01-407(C) continue to serve a valid purpose after enactment of the VUIDDA?

Because these questions are beyond the direct scope of the committee’s study topic, we do not propose any particular recommendations for addressing them. If the Boyd Graves Conference determines that any of these issues merit further study by the committee, we will be happy to examine them further.

B. General overview of the VUIDDA.

The Virginia General Assembly enacted the VUIDDA1 in 2009 to provide “reciprocal mechanisms by which discovery of persons and documents in Virginia may be obtained in connection with actions pending in a foreign jurisdiction through presentment of a subpoena issued by the foreign jurisdiction.”2 It was adapted from the model Uniform Interstate

1 Va. Code Ann. §§ 8.01-412.8 through 8.01-412.15 (2015). 2 Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., 289 Va. 426, 436, 770 S.E.2d 440, 444 (2015).

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Stuart Alan Raphael, Esq. September 8, 2017 Page 3

Depositions and Discovery Act (“UIDDA” or “Model Act”) promulgated by the Uniform Law Commission (“ULC”) in 2007.3

The applicable procedure under the VUIDDA is generally straightforward. To compel a resident of the Commonwealth to produce documents or to testify at a deposition in Virginia (the “discovery state”), a party to civil litigation in another state (the “trial state”) must first obtain a “foreign subpoena”4 from the trial state and submit it to an appropriate Virginia circuit court.5 This process does not require the foreign litigant to retain a Virginia attorney or to initiate a civil action in a Virginia court.6 Once the foreign subpoena is filed in the circuit court, the clerk then is required to issue a Virginia subpoena to be served upon the designated non-party in the Commonwealth:

When a party submits a foreign subpoena to a clerk of court in the Commonwealth, the clerk, in accordance with that court's procedure, shall promptly issue a subpoena for service upon the person to which the foreign subpoena is directed.7

3 See Interstate Depositions and Discovery Act, UNIF. LAW COMM’N, http://www.uniformlaws.org/Act.aspx?title=Interstate Depositions and Discovery Act (last visited Sept. 6, 2017). 4 “Foreign subpoena” is defined as “a subpoena issued under authority of a court of record of a foreign jurisdiction.” Va. Code Ann. § 8.01-412.9 (2015). 5 Va. Code Ann. §8.01-412.10(A)(i) (2015). In addition to submitting the “foreign subpoena” to the circuit court clerk, the party seeking discovery must include a “written statement that the law of the foreign jurisdiction grants reciprocal privileges to citizens of the Commonwealth for taking discovery in the jurisdiction that issued the foreign subpoena.” Id., § 8.01-412.10(A)(ii). This additional step is required by the VUIDDA’s explicit reciprocity provision. See Va. Code Ann. § 8.01-412.14 (2015) (“The privilege extended to persons in other states for discovery under this article shall only apply if the jurisdiction where the action is pending has extended a similar privilege to persons in the Commonwealth, by that jurisdiction's enactment of the Uniform Interstate Depositions and Discovery Act, a predecessor uniform act, or another comparable law or rule of court providing substantially similar mechanisms for use by out-of-state parties.”) This reciprocity requirement is not part of the Model Act. See UNIF. INTERSTATE DEP. AND DISC. ACT § 7 (2007), available at http://www.uniformlaws.org/shared/docs/interstate%20depositions%20and%20discovery/uidda_final_07.pdf (last visited Sept. 6, 2017). 6 Va. Code Ann. § 8.01-412.10(D) (“A request for the issuance of a subpoena under this article does not constitute an appearance in the courts of the Commonwealth, and no civil action need be filed in the circuit court of the Commonwealth.”) 7 Va. Code Ann. § 8.01-412.10(B) (emphasis added).

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Stuart Alan Raphael, Esq. September 8, 2017 Page 4

Although attorney-issued subpoenas are routinely used in civil litigation pending in Virginia courts, there is no explicit provision in the VUIDDA by which a foreign subpoena may be domesticated in Virginia using an attorney-issued subpoena. The statutory language quoted above specifically authorizes only circuit court clerks to issue VUIDDA subpoenas. Thus, the General Assembly presumably did not intend to allow attorney-issued subpoenas to be used.8 That conclusion is reinforced by the VUIDDA’s service of process and enforcement provisions, which similarly refer only to clerk-issued subpoenas:

A subpoena issued by a clerk of court under this article shall be served in compliance with the applicable statutes of the Commonwealth for service of a subpoena.9 . . .

An application to the court for a protective order or to enforce, quash, or modify a subpoena issued by a clerk of court under § 8.01-412.10 shall comply with the statutes and rules of court of the Commonwealth and be submitted to the court in the circuit in which discovery is to be conducted.10

The comments to the Model Act also seem to suggest that its drafter, the ULC, contemplated that only clerk-issued UIDDA subpoenas would be used in the discovery state.11

8 E.g., Miller & Rhoads Bldg., LLC v. City of Richmond, 292 Va. 537, 543-44, 790 S.E.2d 484, 487 (2016) (“In interpreting statutory language, we have consistently applied the time-honored principle expressio unius est exclusio alterius. . . . Under this maxim, [w]hen a legislative enactment limits the manner in which something may be done, the enactment also evinces the intent that it shall not be done another way.”) (citations and internal quotation marks omitted). 9 Va. Code Ann. § 8.01-412.11 (2015) (emphasis added). 10 Va. Code Ann. § 8.01-412.13 (2015) (emphasis added). 11 See UNIF. INTERSTATE DEP. & DISC. ACT § 3, cmt. (“The committee envisions the standard procedure under this section will become as follows, using as an example a case filed in Kansas (the trial state) where the witness to be deposed lives in Florida (the discovery state) . . . The [Florida] clerk of court, upon being given the Kansas subpoena, will then issue the identical Florida subpoena. . . The act of the clerk of court is ministerial, yet is sufficient to invoke the jurisdiction of the discovery state over the deponent.”) (emphasis added)

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C. Is the VUIDDA potentially ambiguous as to whether attorney-issued subpoenas may be used?

The italicized statutory language quoted above suggests that the VUIDDA allows a foreign subpoena to be domesticated in Virginia only through a clerk-issued subpoena. Mr. Gogal, however, suggested that other language in the Act possibly could be read to authorize the use of attorney-issued subpoenas. Specifically, Code § 8.01-412.10(E) states that the VUIDDA procedures exist “in addition to other procedures authorized in the Code of Virginia and the rules of court for obtaining discovery.” Because the Code of Virginia and Rules of the Supreme Court allow attorney-issued subpoenas to be used for discovery in Virginia courts, one possibly could argue that attorney-issued subpoenas are one of the “other procedures” authorized by Code § 8.01-412.10(E).

On the other hand, it is also possible that the Act’s specific language authorizing only a circuit court clerk to issue VUIDDA subpoenas is sufficient to trump the more general language of Code § 8.01-412.10(E).12 The answer to this question, however, is unclear in the committee’s view – particularly since Code § 8.01-412.10(E) is a non-uniform provision that was presumably added to the VUIDDA to serve a particular purpose unique to the Commonwealth.13

12 E.g., Commonwealth v. Brown, 259 Va. 697, 706, 529 S.E.2d 96, 101 (2000) (observing that “statutes will be harmonized, if possible, and if they conflict, the more specific statute prevails.”) In addition, the text of the Virginia Code and Rules of the Supreme Court appears to authorize attorney-issued subpoenas for use only in civil litigation pending in a Virginia court, thus potentially negating the argument that they could be used in connection with foreign litigation. For example, Code § 8.01-407(A) states that attorney-issued subpoenas may be used in “a civil proceeding pending in a court or at a deposition in connection with such proceeding.” (Emphasis added). “Court,” for the purposes of that section, is defined as “the courts of this Commonwealth, any other person or body appointed by it or acting under its process or authority in a judicial or quasi-judicial capacity, and any other judicial, quasi-judicial, or fact-finding body acting pursuant to the laws of the Commonwealth . . . .” Va. Code Ann. § 8.01-385(2) (2015); see also Va. Sup. Ct. R. 4:9A(a)(2) (authorizing attorney-issued subpoenas duces tecum to non-parties in connection with litigation pending in a Virginia circuit court.) The committee, however, does not find this language sufficiently clear to resolve the uncertainty. 13 The parallel section of the Model Act (§ 3) does not contain language similar to Code § 8.01- 412.10(E). See UNIF. INTERSTATE DEP. AND& DISC. ACT § 3. We were unable to determine precisely why Code § 8.01-412.10(E) was included as part of the VUIDDA.

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D. Other questions regarding the subpoena process under the VUIDDA.

In the course of its study, the committee found a few other matters relating to the VUIDDA’s subpoena process to be less than perfectly clear. Although these issues go beyond the direct scope of the committee’s study topic, we mention them here as possible areas for further examination.

1. Does the VUIDDA require a Virginia circuit court clerk to accept an attorney-issued subpoena from a foreign state?

The committee believes that the VUIDDA is arguably uncertain as to whether a “foreign subpoena” that a Virginia circuit court clerk must accept for domestication can only be issued by the clerk of a foreign court, or whether a foreign attorney-issued subpoena might also be proper under certain circumstances. This issue is the subject of mandamus litigation recently instituted against John Frey, the Clerk of the Circuit Court of Fairfax County.14

The case against Mr. Frey arose out of litigation in Texas. The plaintiff requested the Clerk of the Fairfax County Circuit Court to issue document subpoenas to eight non-party employees of the defendant in the Texas case (a California limited liability company), each of whom resided in Virginia. The clerk’s office in Fairfax refused to issue the requested subpoenas because the plaintiff did not submit foreign subpoenas issued by a Texas clerk of court. Instead, the plaintiff filed Requests for Production of Documents that its Texas counsel had issued to each of the non-party employees. The plaintiff asserted that this is the proper procedure under the Texas rules of court for obtaining discovery from an employee or other person under the control of an opposing party. The plaintiff argued that each of the Requests for Production of Documents qualified as a “foreign subpoena” under the VUIDDA, noting that the definition of that term contemplates more than simply a traditional subpoena issued by a clerk of a foreign court. In particular, Code § 8.01-412.9 defines a “foreign subpoena” as “a subpoena issued under authority of a court of record of a foreign jurisdiction,” with the incorporated term, “subpoena,” broadly defined as “a document, however denominated, issued under the authority of a court of record requiring a person to [appear and testify at a deposition, produce documents or things, or to permit inspection of premises under control of the person].”15

14 See Verified Petition for Mandamus, Montage Mortgage, LLC v. John T. Frey, No. CL-2017- 0007990 (Cir. Ct. Fairfax Cnty. June 7, 2017) (hereafter, “Montage Mortgage”). 15 Va. Code Ann. § 8.01-412.9 (emphasis added).

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In opposing the mandamus petition, Mr. Frey asserted that a “foreign subpoena,” as defined under the VUIDDA, must be issued by the clerk of a foreign court of record, and not by an attorney in that jurisdiction. He argued that, unless a foreign subpoena had the clear imprimatur of the clerk of a foreign court of record, a Virginia circuit court clerk would have no practical way of being sure that the foreign subpoena was, in fact, properly issued “under authority of a court of record of a foreign jurisdiction” as required by the Act.16 Mr. Frey also noted that the Virginia Circuit Court Clerks’ Manual, promulgated by the Office of the Executive Secretary of the Supreme Court of Virginia, describes a “foreign subpoena” under the VUIDDA as a subpoena that is issued directly by a court of record in another state.17 On June 23, 2017, the Circuit Court of Fairfax County agreed with Mr. Frey’s position and dismissed the mandamus petition.18 A month later, the plaintiff noticed an appeal to the Supreme Court of Virginia.19 As of the date of this report, a petition for appeal has not yet been filed.

Although not raised in the litigation against Mr. Frey, the comments to the Model Act suggest that its drafter, the ULC, contemplated that a “foreign subpoena” includes an attorney-issued subpoena from the trial state where such process is authorized by that state’s procedures:

The committee envisions the standard procedure under this section will become as follows, using as an example a case filed

16 See Clerk’s Response and Opposition to Petitioner’s Petition for Mandamus, Montage Mortgage, (Cir. Ct. Fairfax Cnty. June 19, 2017). Mr. Frey further argued that the plaintiff’s subpoena request did not satisfy the VUIDDA’s reciprocity requirements, as Texas has not adopted the UIDDA, and its foreign discovery procedures apparently would not allow a Virginia attorney-issued subpoena to be domesticated in that state. Id. 17 Id. The Virginia Circuit Court Clerk’s Manual states that: “[t]he creation of the Uniform Interstate Depositions and Discovery Act in 2009 provided that a party may submit a subpoena issued by a court of record from another state to the clerk of the circuit court serving the jurisdiction in which discovery is sought in the Commonwealth.” OFFICE OF THE EXEC. SEC’Y OF THE SUP. CT. OF VA., VIRGINIA CIRCUIT COURT CLERK’S MANUAL at 3-17 (July 2017) (emphasis added), available at http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwiq4- 6wstfVAhXnsVQKHQa0AewQFggoMAA&url=http%3A%2F%2Fwww.courts.state.va.us%2Fcourts%2Fcircuit %2Fresources%2Fmanuals%2Fcc_manual_civil%2Ftable.pdf&usg=AFQjCNHrRW56xwPFx0648VKa8bINTS2 OPA (last visited Sept. 6, 2015). 18 See Final Order, Montage Mortgage (June 23, 2017). 19 See Notice of Appeal, Montage Mortgage (Jul. 24, 2017).

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in Kansas (the trial state) where the witness to be deposed lives in Florida (the discovery state): A lawyer of record for a party in the action pending in Kansas will issue a subpoena in Kansas (the same way lawyers in Kansas routinely issue subpoenas in pending actions). That lawyer will then . . . hire a process server (or local counsel) in Florida, who will take the completed and executed Kansas subpoena and the completed but not yet executed Florida subpoena to the clerk’s office in Florida. . . . The clerk of court, upon being given the Kansas subpoena, will then issue the identical Florida subpoena.20

The definitions of “foreign subpoena” under the Model Act and in the VUIDDA are virtually the same,21 so the Model Act’s comments potentially lend support for the conclusion that a foreign attorney-issued subpoena from the trial state qualifies as a valid “foreign subpoena” under the VUIDDA – at least where the rules of the foreign court authorize the use of attorney-issued subpoenas. On the other hand, Mr. Frey’s argument that the Act requires a clerk-issued foreign subpoena also appears to have merit. In the committee’s view, the correct answer on this issue is uncertain.22

2. How are Virginia circuit court clerks required to process the paperwork for a VUIDDA subpoena request?

The committee also found that the VUIDDA does not provide specific guidance to Virginia circuit court clerks on how they must process a request for issuance of a VUIDDA subpoena. The Act states only that a clerk must issue a VUIDDA subpoena based on a foreign subpoena filed with the court.23 As the Virginia Circuit Court Clerk’s Manual observes, the VUIDDA offers no further instructions on the process: “[t]he code provides no direction on how to handle the paperwork in these instances. Most clerks place these documents in a miscellaneous file.”24

20 UNIF. INTERSTATE DEP. & DISC. ACT § 3, cmt. (emphasis added). 21 Id., § 2; Va. Code Ann. § 8.01-412.9. 22 None of the 39 jurisdictions that have adopted the UIDDA appear to have clarified the Model Act’s definition of “foreign subpoena” to any material degree. 23 Va. Code Ann. § 8.01-412.10(B). 24 OFFICE OF THE EXEC. SEC’Y OF THE SUP. CT. OF VA., VIRGINIA CIRCUIT COURT CLERK’S MANUAL at 3-17.

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We found that the UIDDA in at least one jurisdiction – New Jersey – has attempted to provide additional guidance on these issues. Its UIDDA specifies that court clerks must open a miscellaneous civil matter and charge a filing fee in connection with an application for a UIDDA subpoena.25 And unlike the VUIDDA, which requires the circuit court clerk to prepare the Virginia subpoena to be issued, the UIDDA in certain other states requires the requesting party to do that – presumably helping to reduce the burden on the clerk’s office.26

3. Does Code § 8.01-412.10(E) potentially conflict with Rules of the Supreme Court that require Virginia discovery in out-of-state cases to be conducted under the VUIDDA?

In addition, the committee found a potential conflict between a section of the VUIDDA and the Rules of the Supreme Court of Virginia regarding deposition and document subpoenas. As previously noted, under Code § 8.01-412.10(E), procedures other than the VUIDDA may be used by out-of-state litigants to conduct discovery in Virginia, but the statute doesn’t identify what those procedures are. The Rules of the Supreme Court, however, may conflict with that statute insofar as they require out-of-state litigants who seek subpoenas for depositions or production of documents in Virginia to use only the VUIDDA procedures.27

25 N.J. Ct. R. 4:11-4(a) (2014) (“[a petition for a UIDDA subpoena] shall be treated as a miscellaneous matter and the fee charged shall be pursuant to R. 1:43.”) 26 See, e.g., N.J. Ct. R. 4:11-4(b)(1) (“an out-of-state attorney or party may submit a foreign subpoena along with a New Jersey subpoena, in the name of the Clerk of the Superior Court, which complies with subparagraph (3) . . . .”); Wis. Stat. Ann. § 887.24(3)(a) (2016) (“a party must submit the foreign subpoena to the clerk for the county in which discovery is sought to be conducted in this state, accompanied by the appropriate Wisconsin subpoena form which shall do all of the following. . . .”) 27 See Va. Sup. Ct. R. 4:5(a1)(iv) (2017) (“Depositions and related documentary production sought in Virginia pursuant to a subpoena issued under the authority of a foreign jurisdiction shall be subject to the provisions of the Uniform Interstate Depositions and Discovery Act, Virginia Code §§ 8.01-412.8 through 8.01- 412.15.”) (emphasis added); Va. Sup. Ct. R. 4:9(b)(iv) (2017) (“Production of documents and electronic records sought in Virginia pursuant to a subpoena issued under the authority of a foreign jurisdiction shall be subject to the provisions of the Uniform Interstate Depositions and Discovery Act, Virginia Code §§ 8.01-412.8 through 8.01-412.15.”) (emphasis added). Of course, in the event of any irreconcilable conflict between Code § 8.01- 412.10(E) and the Rules of the Supreme Court, the statute would prevail. See Va. Const. Art. VI, § 5; accord Va. Code Ann. § 8.01-3(D) (2015).

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4. After enactment of the VUIDDA, does Code § 8.01-407(C) continue to serve a useful purpose?

During its study, the committee ran across Code § 8.01-407(C), an obscure statute dating back to the early 19th century that authorizes the issuance of Virginia witness subpoenas in connection with out-of-state proceedings: “This section shall be deemed to authorize a summons to compel attendance of a citizen of the Commonwealth before commissioners or other persons appointed by authority of another state when the summons requires the attendance of such witness at a place not out of his county or city.”28 Exactly how the statute operates under modern practice is not completely clear, and there appear to be no reported cases addressing or applying it. Perhaps it remains as one of the additional non- VUIDDA avenues for conducting Virginia discovery in out-of-state litigation contemplated by Code § 8.01-412.10(E)? Regardless, after adoption of the VUIDDA, it is unclear to the committee what, if any, purpose the statute may continue to serve.

E. Attorney-issued subpoenas under other states’ versions of the UIDDA.

The committee reviewed the laws of other jurisdictions that have adopted the UIDDA to see if any allow a foreign subpoena to be domesticated by an attorney-issued subpoena. Presently, 37 states plus the District of Columbia and the U.S. Virgin Islands have enacted some form of the UIDDA.29 Of them, five have adopted provisions that expressly allow licensed attorneys in those jurisdictions to domesticate a foreign subpoena using an attorney- issued subpoena, while also preserving the traditional court clerk-issued subpoena option: California,30 Iowa,31 New Jersey,32 New York,33 and Wisconsin.34 We found no case law or

28 Va. Code Ann. § 8.01-407(C). The language of this section has remained largely unchanged over the last two centuries. See, e.g., Va. Code ch. 176, § 20 (1849) (“This section shall be deemed to authorize a summons to compel attendance before commissioners or other persons appointed by authority of another state; but only in case they be citizens of this state, and the summons requires the attendance of the witness at a place not out of his county”); Va. Code ch. 34 (1825) (“[C]ommissioners or other persons appointed by the authority of foreign courts to take depositions of witnesses residing in this State shall have and exercise the same powers to compel the attendance of witnesses in such cases as commissioners appointed under the authority of the courts of this Commonwealth . . . .”)

29 See Interstate Depositions & Discovery Act, UNIF. LAW COMM’N, http://www.uniformlaws.org/Act.aspx?title=Interstate Depositions and Discovery Act (last visited Sept. 6, 2017). 30 Cal. Civ. Proc. Code § 2029.350(a) (2013) (“Notwithstanding Sections 1986 and 2029.300, if a party to a proceeding pending in a foreign jurisdiction retains an attorney licensed to practice in this state, who is an

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Stuart Alan Raphael, Esq. September 8, 2017 Page 11 news reports identifying any problems or concerns with the use of attorney-issued UIDDA subpoenas in those states. The Chair and members of the New York State Bar Association’s Commercial & Federal Litigation Section reported no problems with that state’s procedure. One member commented that the more streamlined process of using attorney-issued subpoenas was welcomed by the New York Bar and has worked well in his view.

F. Input from Virginia practitioners and stakeholders.

The committee also sought input regarding the subject of its study from relevant stakeholders, such as the Virginia Court Clerk’s Association, the Litigation Section of the Virginia Bar Association, and Mr. Gogal, who proposed the study topic. All recommended that the VUIDDA’s provisions regarding attorney-issued subpoenas should be clarified, but they differed on the nature of the suggested changes.

The Education Committee of the Virginia Court Clerk’s Association (“ECOM”) expressed concerns over allowing attorney-issued subpoenas to be used for domesticating a foreign subpoena. ECOM suggested that citizens of the Commonwealth are better protected by having the circuit court involved with the process from the start. That way, the clerk’s active member of the State Bar, and that attorney receives the original or a true and correct copy of a foreign subpoena, the attorney may issue a subpoena under this article.”) 31 Iowa Code Ann. Rule 1.1702(2)(a)(2) (2013) (“a. To obtain issuance of a subpoena under this rule, a party to a proceeding in a foreign jurisdiction must either: (1) request a signed, blank subpoena from the clerk of an Iowa court in the county in which discovery is to be conducted pursuant to rule 1.1701(2); or (2) arrange for an attorney who is retained by that party and who is licensed or otherwise authorized to practice law in Iowa to issue and sign the subpoena as an officer of the court pursuant to rule 1.1701(2).”) 32 N.J. Ct. R. 4:11-4(b) (2014) (“(1) Submission of Foreign Subpoena. Whenever the deposition of a person is to be taken in this State pursuant to the laws of a foreign state for use in connection with proceedings there, an out-of-state attorney or party may submit a foreign subpoena along with a New Jersey subpoena, in the name of the Clerk of the Superior Court, which complies with subparagraph (3) to an attorney authorized to practice in this State or to the Clerk of the Superior Court or designee. The foreign subpoena must include the following phrase below the case number: ‘For the Issuance of a New Jersey Subpoena under New Jersey Rule 4:11-4 (b)’ and shall be filed with the Clerk of the Superior Court. It shall be treated as a miscellaneous matter and the fee charged shall be pursuant to R. 1:43.”) 33 N.Y.C.P.L.R. 3119(b)(4) (2011) (“Notwithstanding paragraph one of this subdivision, if a party to an out-of-state proceeding retains an attorney licensed to practice in this state, and that attorney receives the original or a true copy of an out-of-state subpoena, the attorney may issue a subpoena under this section.”) 34 Wis. Stat. Ann. § 887.24(3)(c) (2016) (“Alternatively, a party may retain an attorney who is licensed or otherwise authorized to practice law in Wisconsin to sign and issue the Wisconsin subpoena as an officer of the court pursuant to s. 805.07. The subpoena must comply with par. (a) (1) to (5).”)

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Stuart Alan Raphael, Esq. September 8, 2017 Page 12 office can potentially head off any problems with the foreign subpoena, as occurred in Mr. Frey’s case. ECOM also noted that having the court involved at the outset establishes an identifiable civil matter in which motions to enforce or challenge the subpoena can be initiated.35

The VBA Litigation Section generally favored amending the VUIDDA to allow licensed Virginia attorneys to issue subpoenas as an alternative method for domesticating a foreign subpoena. It expressed the view that the ethical constraints on Virginia lawyers, and their legal obligations as officers of the court, would obviate any concerns over possible improper conduct by out-of-state lawyers seeking discovery from citizens of the Commonwealth. While the group did not identify any specific problems arising from the current process, it expressed concerns over the Act’s lack of clarity, and the varying practices and procedures among the different circuit courts in Virginia.

Mr. Gogal suggested that the VUIDDA could be improved if clarified to allow a licensed Virginia attorney to domesticate a foreign subpoena using an attorney-issued subpoena. In addition to eliminating the ambiguity of the current statute, he explained that such an amendment would streamline the process, making it more effective and efficient for litigants. He relayed some past experiences where a party to out-of-state litigation had difficulty meeting discovery deadlines due to the time required for the circuit court clerk to process the paperwork and issue the VUIDDA subpoena. He also noted that, if timely service cannot be made – such as where a witness is evasive or otherwise is not found – the party seeking discovery potentially may have to re-submit the subpoena request to the clerk’s office with a new production/deposition date, leading to additional delays.36 Mr. Gogal suggested that such delays could be reduced if a Virginia attorney were able to re-issue the subpoena with a new compliance date.

G. Recommendations and conclusion.

Although certain stakeholders were in favor of amending the Act to allow a licensed Virginia attorney to issue VUIDDA subpoenas, the committee does not recommend such a change. We were unable to identify any serious problem with the current statute that, in our

35As previously observed, however, even though most clerks’ offices do appear to open a miscellaneous matter upon submission of a foreign subpoena, the VUIDDA doesn’t specify whether that is actually required. 36 See, e.g., Va. Code Ann. § 8.01-407(A) (“A sheriff shall not be required to serve an attorney-issued subpoena that is not issued at least five business days prior to the date that attendance is desired.”)

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Stuart Alan Raphael, Esq. September 8, 2017 Page 13 view, warrants a substantive amendment along those lines. We do not believe that the relatively minor additional delay required for a circuit court clerk to process the paperwork and issue a Virginia subpoena justifies the adoption of a substantive change that possibly could have unforeseen adverse consequences.

In addition, some committee members suggested that new procedural clarifications might be required if the Act were amended to allow Virginia attorneys to issue VUIDDA subpoenas. Under the current process, out-of-state litigants must work with a circuit court clerk to obtain a VUIDDA subpoena in the Commonwealth. Though perhaps not as specific as it could be, the process, nonetheless, gives the clerk’s office an opportunity to open a file and track the subpoena, thereby facilitating any subsequent proceedings to challenge or enforce it. The role of the clerk would be largely bypassed if foreign subpoenas could be domesticated with an attorney-issued subpoena, thus potentially making it harder for clerks’ offices to keep track of VUIDDA matters in the absence of additional clarifying procedures.37 This additional possible complication is another reason why the committee is not in favor of amending the VUIDDA substantively to facilitate the use of attorney-issued subpoenas.

We do, however, recommend clarifying the VUIDDA to eliminate the potential ambiguity arising from Code § 8.01-412.10(E) that Mr. Gogal pointed out. As previously noted, by broadly incorporating into the VUIDDA all discovery procedures available under the Virginia Code and Rules of the Supreme Court, Code § 8.01-412.10(E) arguably can be read to authorize, indirectly, the use of attorney-issued subpoenas under the Act. To avoid that possible interpretation, we recommend adding the following language at the end of Code § 8.01-412.10(E): “, except that no subpoena issued in the Commonwealth pursuant to this article may be issued by any person other than the applicable circuit court clerk of court in the Commonwealth, in accordance with subsections A and B.” Thus, as amended, Code § 8.01- 412.10(E) would read:

37 New Jersey’s version of the UIDDA offers one potential example of the type of procedural clarification that might be necessary to accommodate the use of attorney-issued subpoenas under the VUIDDA. See N.J. Ct. R. 4:11-4(b)(1) (2014) (“Whenever the deposition of a person is to be taken in this State pursuant to the laws of a foreign state for use in connection with proceedings there, an out-of-state attorney or party may submit a foreign subpoena along with a New Jersey subpoena, in the name of the Clerk of the Superior Court, which complies with subparagraph (3) to an attorney authorized to practice in this State . . . . The foreign subpoena must include the following phrase below the case number: ‘For the Issuance of a New Jersey Subpoena under New Jersey Rule 4:11-4 (b)’ and shall be filed with the Clerk of the Superior Court. It shall be treated as a miscellaneous matter and the fee charged shall be pursuant to R. 1:43.”).

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§ 8.01-412.10. Issuance of subpoena.

* * *

E. The provisions of this article shall be in addition to other procedures authorized in the Code of Virginia and the rules of court for obtaining discovery., except that no subpoena issued in the Commonwealth pursuant to this article may be issued by any person other than the applicable circuit court clerk of court in the Commonwealth, in accordance with subsections A and B.

DLS’ draft Bill incorporating our proposed revision is attached as Exhibit A to this report.

The committee notes that our proposed addition to Code § 8.01-412.10(E) does not address the issue raised in the mandamus suit against Mr. Frey – namely, whether a “foreign subpoena” as defined in the VUIDDA may include a foreign attorney-issued subpoena as well as a clerk-issued subpoena from another jurisdiction. Because that particular issue is beyond the scope of our assigned study topic, we offer no recommendation or comment except that clarification of the statute may be warranted to avoid future disputes over its meaning. If the Conference agrees, we will be happy to study the issue further. It is also possible that the Supreme Court of Virginia could clarify the issue if it were to grant a petition for appeal in the case against Mr. Frey.

For similar reasons, we provide no suggested changes for addressing the relative lack of specificity on how circuit court clerks should process a VUIDDA subpoena request, the potential inconsistency of Code § 8.01-412.10(E) with Rules 4:5(a1)(iv) and 4:9(b)(iv), or the continued relevance of the early 19th century subpoena procedure under Code § 8.01-407(C). We are prepared to consider these issues further, however, should the Conference desire us to do so.

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If you or any other members of the Conference have any questions or would like additional information about anything in this report, please let me know and the committee will gladly oblige.

Sincerely,

Arthur E. Schmalz

272 18100274D 8/29/2017 10:17 AM Olwine, Brittany

SENATE BILL NO. ______HOUSE BILL NO. ______

1 A BILL to amend and reenact § 8.01-412.10 of the Code of Virginia, relating to the issuance of foreign 2 subpoenas; clerk of court.

3 Be it enacted by the General Assembly of Virginia: 4 1. That § 8.01-412.10 of the Code of Virginia is amended and reenacted as follows: 5 § 8.01-412.10. Issuance of subpoena.

6 A. To request the issuance of a subpoena under this article, a party shall submit to the clerk of

7 court in the circuit in which discovery is sought to be conducted in the Commonwealth (i) a foreign

8 subpoena and (ii) a written statement that the law of the foreign jurisdiction grants reciprocal privileges 9 to citizens of the Commonwealth for taking discovery in the jurisdiction that issued the foreign 10 subpoena. 11 B. When a party submits a foreign subpoena to a clerk of court in the Commonwealth, the clerk, 12 in accordance with that court's procedure, shall promptly issue a subpoena for service upon the person to

13 which the foreign subpoena is directed. 14 C. A subpoena under subsection B shall: 15 1. Incorporate the terms used in the foreign subpoena; and 16 2. Contain or be accompanied by the names, addresses, and telephone numbers of all counsel of 17 record in the proceeding to which the subpoena relates and of any party not represented by counsel. 18 D. A request for the issuance of a subpoena under this article does not constitute an appearance 19 in the courts of the Commonwealth, and no civil action need be filed in the circuit court of the

20 Commonwealth. 21 E. The provisions of this article shall be in addition to other procedures authorized in the Code of 22 Virginia and the rules of court for obtaining discovery, except that no subpoena issued in the 23 Commonwealth pursuant to this article may be issued by any person other than the applicable circuit 24 court clerk of court in the Commonwealth, in accordance with subsections A and B. 25 #

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274 THE HAVRILAK LAW FIRM, P.C. ATTORNEYS AT LAW SANDRA L. HAV I~ I LA K 0 T ELEPIIONE (703)-591- 1515 9990 FAIRFAX BOULEVARD FACSIMILE (703)-591-4847 MELANNIE H. DINO J ULIA A. YOLLES SUITE410 www. HavrilakLaw.com STACI HOLI.OWAY FIGUEROA FAIRFAX, VIRGINIA 22030 0 MEMBER VA & DC BARS

August 14, 2017

VIA EMAIL ONLY Stuart A. Raphael, Esquire

RE: Are changes needed to Rules 1:7 and 4:15 of the Rules of Supreme Court of Virginia?

Dear Stuart:

We would like to thank you for providing us with the opportunity to study this issue. Our committee consisted of Philip C. Coulter, Roger T. Creager, W. David Harless, Roger W. Mullins, George 0. Peterson, and Charles W. Sickels. Professor Kent Sinclair was drafted into service and graciously agreed to participate in our discussions and provided invaluable guidance and assistance in drafting our proposed amendments. Also, my associate Staci H. Figueroa was a great help to me in keeping everything organized, revising Rules based upon our meetings, and keeping us focused on the assignment at hand.

Our committee was assigned the task of considering whether changes are needed to Rules I :7 and 4: 15 of the Rules of Supreme Court of Virginia. Specifically, we were asked to consider whether Rule I :7 should be amended to provide that same-day hand delivery by a commercial deli very service is deemed the equivalent of hand delivery; and, whether Rule 4: l5(c) should be amended to specify the time of day by which briefs must be served on counsel. The committee also considered whether Rule 1:1 2 should be amended in order to provide consistency between Rule 4: 15(e) and Rule l : 12. The committee held several conference calls and exchanged many emails regarding these issues. We also enlisted the help of Professor Kent Sinclair in drafting the various proposed amendments considered by the committee.

With respect to Rule 1:7, the committee discussed issues that arise due to the fact that the Rule sets forth the manner in which one' s time to respond should be computed when served with papers via commercial delivery service; however, it makes no distinction between same-day hand delivery by commercial delivery service and delivery by commercial deli very service that may take a number of days. Furthermore, the Rule does not address whether additional time should be added if a paper is received after 5:00p.m. After numerous discussions on the topic, the committee agreed that same-day hand delivery, whether by counsel or commercial delivery service, should be treated in the same manner with respect to determining the time in which one is required to respond. The committee further agreed that, when a paper is received after 5:00 p.m., the time to respond to such paper should be calculated from the following day. Accordingly, the committee recommends that Rule 1:7 be amended as set forth in Exhibit 1 attached hereto.

275 Stuart A. Raphael, Esq. August 14, 2017 Page 2

Regarding Rule 4:15, although the question presented was whether Rule 4: 15(c) should be amended to specify the time of day by which briefs must be served upon counsel, the committee agreed that any such requirement would be more properly placed in subpart (e) of Rule 4:15 as it defines service for the purposes of motions practice. The committee determined that such a revis.ion would necessarily implicate Rule 1:12 due to the fact that it is cross-referenced in Rule 4:15(e).

Initially, the committee considered simply amending Rule I: 12 to clarify that any papers served after 5:00 p.m., regardless of the manner of service, would be deemed served on the next day that is not a Saturday, Sunday, or legal holiday. However, this did not resolve the conflict that exists between the two Rules due to Rule 1:12 deeming service to occur on dispatch and Rule 4:15 deeming service to occur upon receipt. The committee then discussed whether, in an effort to harmonize the two Rules, Rule 1:12 should be revised such that a paper would be deemed served upon receipt, rather than dispatch. After many debates on the topic, the committee agreed that requiring the serving party to prove receipt of a paper in the event of a dispute would likely result in as many, if not more, problems than those created by the Rules as currently written.

The committee then shifted its di scussion to whether Rule 4: 15(e) should be revised to deem motions pleadings served upon dispatch. The apparent purpose of Rule 4: 15(e), and the cause of its conflict with Rule 1:12, is seemingly to ensure that parties receive motions pleadings in sufficient time to properly respond. The committee considered numerous ways in which Rule 4: 15(e) might be revised such that it would be consistent with Rule 1:12 while maintaining its purpose of ensuring sufficient notice of motions. Although numerous drafts of proposed revisions were circulated and discussed by the members of the committee, the committee was ultimately unable to reach a consensus on ho\V best to address these issues. The committee did agree, however, that minor revisions to the first paragraph of Rule I: 12 are needed in order to make Rule 1:12 consistent with the proposed revisions to Rule I :7. Thus, the committee recommends that Rule 1:12 be amended as set forth in Exhibit 2 attached hereto.

After consideration and discussion of these matters, the committee has unanimously approved the attached proposed amendments to Rules 1:7 and 1: 12. It is our recommendation that the amendments be presented to the full Conference for its consideration and approval. Our understanding is that the proposed amendments would then be sent to the Judicial Council of Virginia, who would further consider the amendments and determine whether to recommend them to the Supreme Court of Virginia. Additionally, while the committee was not able to reach a consensus on an amendment to Rule 4:15, we have agreed that the issues outlined herein, including its conflict with Rule 1:12, should be further studied by the Judicial Council.

Very truly yours,

276 Stuart A. Raphael, Esq. August 14, 2017 Page 3

SLH// Enclosures cc: Philip C. Coulter, Esq. (w/enclosures) Roger T. Creager, Esq. (w/enclosures) W. David Harless, Esq. (w/enclosures) Roger W. Mullins, Esq. (w/enclosures) George 0. Peterson, Esq. (w/enclosures) Charles W. Sickels, Esq. (w/enclosures) Professor Kent Sinclair (w/enclosures)

277 CURRENT VERSION

Rule 1:7. Computation of Time

Whenever a party is required or permitted under these Rules, or by direction of the court, to do an act within a prescribed time after service of a paper upon counsel of record, three (3) days shall be added to the prescribed time when the paper is served by mail, or one (I) day shall be added to the prescribed time when the paper is served by facsimile, electronic mail or commercial delivery service. With respect to Parts Five and Five A of the Rules, this Rule applies only to the time for tiling a brief in opposition.

PROPOSED REVISED VERSION

Rule I :7. Computation of Response Dates

Whenever a party is required or permitted under these Rules, or by direction of the court, to do an act within a prescribed period of days after service of a paper upon counsel of record,

(a) No days shall be added if the paper is served by:

( 1) manual delivery no later than 5:00 p.m. by counsel, counsel' s agent or courier, or a commercial delivery service making same-day delivery; (2) facsimile transmission completed no later than 5:00p.m.; or (3) electronic mail transmitted no later than 5:00p.m.

(b) One (1) day shall be added to the prescribed time ifthe paper is served by:

(I) manual delivery after 5:00p.m. by counsel, counsel' s agent or courier, or a commercial delivery service making same-day delivery; (2) facsimile transmission completed after 5:00p.m.; (3) electronic mail transmitted after 5:00 p.m.; or (4) placing the paper in the hands of a commercial delivery service for next­ day delivery.

(c) Three (3) days shall be added to the prescribed time if the paper is served by mai l.

With respect to Parts Five and Five A of the Rules, this Rule applies only to the time for filing a brief in opposition.

278 Rule 1:12. Service of Papers after the Initial Process.

All pleadings, motions and other papers served n llcr the initial process in an action and not required to be served otherwise and requests for subpoenas duces tecum shall be served by delivering, dispatching by commercial delivery service !'or samc-uav or ncxt­ dav dcli \'cn, transmitting by facsimile, deli verin!?transmi lli n!.!. by electronic mail when Rule 1: 17 so provides or when consented to in writing signed by the person to be served, or by mailing, a copy to each counsel of record on or before the day of filing.

Subject to the provisions of Rule 1:17, service pursuant to this Rule shall be effective upon such delivery, dispatch, transmission or mailing, except that papers served by facsimile transmission completed after 5:00p.m. shall be deemed served on the next day that is not a Saturday, Sunday, or legal holiday. Service by electronic mail under this Rule is not effective ifthe party making service learns that the attempted service did not reach the person to be served.

At the foot of such pleadings and requests shall be appended either acceptance of service or a certificate of counsel that copies were served as this Rule requires, showing the date of delivery and method of service, dispatching, transmitting, or mailing. When service is made by electronic mail, a certificate of counsel that the document was served by electronic mail shall be served by mail or transmitted by facsimi le to each counsel of record on or before the day of service.

279

Tab 18

280 John R. Walk HIRSCHLER d. 804.771.9519 I [email protected] FLEISCHER 2100 E. Cary Street ATTORNEYS AT LAW Richmond, Virginia 23223 t: 804.771.95oo 1 t: 804.644.0957 www.hf-law.com

September 1, 2017

VIA E-MAIL: stuart.a.raphael(@gmail.com AND U.S. MAIL

Stuart A. Raphael, Esquire 3018 N. Quincy Street Arlington, Virginia 22207

Re: Report ofBoyd-Graves Study 'omminee on Recovery of Altorney's ·ees

Dear Stuart:

Enclosed is our Study Committee's Report on Recovery of Attorney's Fees for inclusion in the conference materials.

JRW/me

Enclosure cc: John A. C. Keith, Esquire The Honorable Marilynn C. Goss Victor 0. Cardwell, Esquire Brian Dolan, Esquire Laurie E. Forbes, Esquire John E. Lichtenstein, Esquire Mary Lynn Tate, Esquire

RICHMOND I FREDERICKSBURG I TYSONS 281 REPORT OF BOYD GRAVES STUDY COMMITTEE ON RECOVERY OF ATTORNEY'S FEES

This committee was charged with reviewing the current state of the law regarding the proper procedure and proof necessary to recover attorney's fees in Virginia. Traditionally, this commonly was done by submitting affidavits attesting to billing rates, nature of services provided, time expended, complexity ofthe matter, etc. With the advent of modern billing systems, often bills with detailed time entries were attached as exhibits. The presiding Judge was deemed to be familiar with prevailing local hourly rates, the complexity of the matter, etc., and would make a determination as to reasonableness of the fees requested.

All of this changed with the Virginia Supreme Court's ruling in Mullins v. Richlands

National Bank, 241 Va. 447, 403 S.E.2d 334 (1991). That case involved recovery under a promissory note that included a provision for recovery of"reasonable" attorney's fees. The trial judge awarded fees to plaintiffs counsel equal to 10% ofthe amount recovered. On appeal, the award of attorney's fees was reversed. However, rather than simply reversing on the percentage- based recovery, the Virginia Supreme Court went on to state that there must be evidence presented at trial to support the reasonableness of fees requested and that "ordinarily expert testimonv will be required to assist the fact finder." 241 Va. at 449.

Since Mullins, there have been several Virginia Supreme Court cases of note regarding the procedure and proof necessary to recover attorney's fees. In Tazewell Oil Company v.

United Virginia Bank, 243 Va. 94, 413 S.E.2d 611 (1992), fees were sought under the civil conspiracy statute, Virginia Code § 18.2-500. No expert testimony was presented in support of the plaintiffs fee claim, but the plaintiff did submit detailed billing records, along with affidavits attesting to the accuracy of the time billed and reasonableness of hourly rates charged. The trial

282 court awarded $472,000 to plaintiff's counsel and on appeal this result was affirmed. Regarding the necessity of expert testimony, the Virginia Supreme Court held that although expert testimony "ordinarily" would be required (quoting Mullins), it was "nol required in every case."

243 Va. at 112.

The Virginia Supreme Court revisited this area in Seyfarth, Shaw, Fairweather &

Geraldson v. Lake Fairfax Seven. L.P., 253 Va. 93 , 480 S.E.2d 471 (1997). This case involved a direct suit by a law firm against its client for recovery of contracted for legal fees. At the commencement of trial, the defendant moved to dismiss on the basis that the plaintiff had identified no expert witness pursuant to interrogatory under Rule 4:1(b)(4) to testify to the reasonableness of fees being sought. The trial court held that expert testimony was required and since no expert had been identified, the plaintiffs claim was dismissed. On appeal, this result was reversed. Once again, citing Mullins, the Virginia Supreme Court held that "ordinarily" expert testimony was required in order to establish the reasonableness of fees. However, citing

TazeweU Oil Company, the Court went on to state that this was "not required in every case."

253 Va. at 96-97.

Chawla v. BurgerBusters, Inc., 255 Va. 616,499 S.E.2d 829 (1998) is frequently cited for its discussion related to reasonableness of attorney's fees. However, in this case, the issue of attorney's fees was bifurcated and both parties called expert witnesses to testify during a two day hearing solely devoted to the issue of attorney's fees. There is no discussion, however, of whether this was required. Conversely, in West Square, LL v. Communication Technologies,

274 Va. 425, 649 S.E.2d 698 (2007), fees were presented by affidavit by lead trial counsel detailing services provided, hourly rates, qualifications of attorneys involved in the case, etc., with copies of itemized billing records attached. While defendant disputed the quantum of fees

2

283 claimed, it did not object to the manner of presentation and, thus, there is no discussion as to whether it was proper.

Most recently, the Virginia Supreme Court addressed the procedure for recovery of attorney's fees in Lambert v. Sea Oats Condominium Association, Inc., 293 Va. 245, 798 S.E.2d

177 (2017). This case arose under the Condominium Act which contains a provision,§ 55-

79.53(A), allowing recovery of"reasonable" attorney's fees to the prevailing party. Lambert claimed that the Association failed to repair the exterior door to her condominium and sought

$500 in General District Court. The General District Court ruled in favor of the Association and

Lambert appealed.

At the trial before the Circuit Court, Lambert rested without putting on any evidence of her attorney's fees. During closing argument, Lambert reminded the Court that she was seeking attorney's fees and tendered an affidavit claiming $8,232 in fees. Noting that the Association had not had an opportunity to review the affidavit, Lambert suggested that the Court schedule a later hearing on the issue. The Association proceeded with the closing argument without objecting to the request for attorney's fees or the submission of the affidavit. The Court awarded

Lambert the $500 in damages sought and set a briefing schedule as to Lambert's prayer for attorney's fees. In its written response, the Association argued that no fees should be awarded as no evidence of fees was submitted during Lambert's prima facie case. To the contrary,

Lambert's affidavit was tendered during closing argument, i.e., after Lambert had rested her case.

The trial court awarded Lambert $375 in attorney's fees, explaining that the fees demanded were unreasonable in relation to the $500 principal sum in dispute. Most of the

Supreme Court opinion deals with this aspect of the decision and on this issue, the Virginia

3

284 Supreme Court held that under the seven (7) part test of Manchester Oaks Homeowners' Assn. v.

Batt, 284 Va. 409,732 S.E.2d 690 (2012), the trial court's decision was an abuse of discretion.

More pertinent to the Committee's study was the discussion of the Association's assignment of cross-error. As to the contention that proof of attorney's fees must be introduced during the claimant's prima facie case, the Virginia Supreme Court distinguished the Association's authority (including Seyfarth, Shaw, supra) as being unique to suits where attorneys were suing under engagement contracts. The Court went on to explain:

That is not true where a party seeks attorney's fees as the prevailing party in an underlying action. To the contrary, it is often appropriate to delay the issue of awarding attorney's fees until the disposition on the merits reveals which party has actually prevailed, and on which claims. That is why Rule 3 :25(D) allows a trial court to establish a procedure before trial for deciding attorney's fees in cases where they may be awarded.

The Court noted in a footnote that, contrary to Rule 3:25, the trial court did not establish the procedure for adjudicating attorney's fees until after trial; however, "no party challenges this departure from the Rule." Likewise, in a separate footnote, the Court noted that "[the

Association] did not object to the affidavit. .. either when Lambert supplied the affidavit, when the circuit court stated that it would mark the affidavit as filed, or at any other time during the trial." 293 Va. 259, 260, footnotes 9 and 10. Accordingly, while the Court upheld recovery of fees in this situation, there is certainly the implication that timely objection may have resulted in a different ruling.

The foregoing cases fail to provide definitive guidance as to exactly what situations fall under the "general" rule requiring expert testimony versus those where recovery can be had without expert testimony. Certainly, there is the suggestion in Tazewell Oil Company and

Seyfarth that what was missing in Mullins were detailed billing records documenting services performed, hours expended and hourly rates charged. The practice that appears to have evolved

4

285 is that in complex commercial litigation involving substantial fee claims, the parties tend to agree to bifurcate the fee component pursuant to Rule 3 :25 (often there are claims and counterclaims each involving claims for attorney's fees) and both parties employ experts to either support or refute the attorney's fees being claimed by the prevailing party. On the other hand, in cases where the fee claims are more modest, the parties tend to rely on affidavits with detailed billing records attached and trial courts are awarding fees employing the rationale of Tazewell Oil

Company. See~ Lambert v. Sea Oats Condomin.ium_Association, Inc. and West Sguare LLC v. Communication Technologies, supra.

One additional aspect requires discussion. Under the Rules of Professional Conduct, subject to some exceptions, the "witness/advocate" rule would prohibit trial counsel from testifying to a contested issue in the case. However under§ 3.7(a)(2), an exception exists where

"the testimony relates to the nature and value of legal services rendered in the case." This exception appears to exist specifically to permit parties to satisfy the requirements of Mullins without necessarily incurring the expense of engaging a third-party expert witness. Thus, for those parties or counsel uncomfortable with going to trial on a suit including a claim for attorney's fees without an expert, a ready remedy exists under current law in simply making a protective identification of trial counsel, or a partner or associate in trial counsel's firm, as an expert on the issue of attorney's fees. 1

Our committee was charged specifically with reporting on whether there was merit in creating by statute or rule change a procedure whereby attorney fee claims under a threshold amount could be presented by affidavit or some other simplified procedure. The consensus of our study committee is that while it would certainly be helpful to have more definitive guidance

1 See also, Toraish. Admr. v. Lee, 293 Va. 262, _ S.E.2d _ (2017) ("A doctor who is a defendant in a medical malpractice action may serve as an expert witness in his defense"); Virginia Code § 8.01-396 ("no person shall be incompetent to testify because of interest, or because of being a party to any civil action"). 5

286 from the Virginia Supreme Court as to precisely what cases fall under Mullins versus those that do not, the situation appears to have sorted itself out through practice such that there does not appear to be enough of a problem at present to justify creating a solution through either statute or rule change. Accordingly, the recommendation of the study committee is that no action be taken on this issue.

John R. Walk, Chair The Honorable Marilynn C. Goss Victor 0. Cardwell, Esquire Brian Dolan, Esquire Laurie E. Forbes, Esquire John E. Lichtenstein, Esquire Mary Lynn Tate, Esquire

6

287

Tab 19

288 DAVID N. ANTHONY TROUTMAN SANDERS LLP 804,697.5410 telephone Attorneys at Law 804.698.5118 facsimile TROUTMAN Troutman Sanders Building [email protected] 1001 Haxall Point P.O. Box 1122 {23218-1122) SANDERS Richmond, Virginia 23219 804.697.1200 telephone troutmansanders.com

July 21, 2017

BY EMAIL & REGULAR MAIL sraphael(a)oag.state.va.us Stuart A. Raphael, Esq. Solicitor General of Virginia Office of the Attorney General 900 East Main Street Richmond, VA 23219

Re: Boyd-Graves Committee on Disclosure of Information for Testifying Experts: Rule 4;Ub)r4)(A) The Hon. Everett A. Martin Thomas Moore Lawson Thomas G. Bell, Jr. Donald N. Patten Susan M. Hicks Henry N. Ware, Jr.

Dear Stuart:

Our Committee was tasked with determining whether Rule 4:1(b)(4)(A) should be expanded to include an affirmative duty for parties to disclose certain information that may be relevant to establish an expert witness' bias, similar to Fed. R. Civ. P. 26(a)(2)(B). Rule 4:1(b)(4)(A) governs the disclosure of information concerning testifying experts and currently reads as follows:

(A)(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion, (ii) A party may depose any person who has been identified as an expert whose opinion may be presented at trial, subject to the provisions of subdivision (b)(4)(C) of this Rule concerning fees and expenses, (iii) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision (b)(4)(C) of this Rule, concerning fees and expenses as the court may deem appropriate.

In considering a possible amendment to Rule 4:1(b)(4)(A), the Committee considered whether a party should be required to disclose the number of times the expert has testified for plaintiffs or defendants, the amount earned as an expert witness in the previous five years, or the expert's prior testimony for the lawyer who engaged the expert in the current case. While the

ATLANTA BEIJING CHARLOTTE CHICAGO HONG KONG NEW YORK ORANGE COUNTY PORTLAND RALEIGH RICHMOND SAN DIEGO SAN FRANCISCO SHANGHAI TYSONS CORNER VIRGINIA BEACH WASHINGTON, DC 289 TROUTMAN SANDERS

Stuart A. Raphael, Esq. July 21, 2017 Page 2

Committee members unanimously agreed that the aforementioned information is relevant and should be provided if requested through discovery, the Committee does not recommend the amendment of Rule 4:1(b)(4)(A) to include an affirmative duty to disclose such information.

The Committee agreed that any information regarding a testifying expert's potential bias is typically obtainable through interrogatories, depositions, or stipulations as contemplated in the current Rule. Despite recognition that issues do arise relating to these types of information for expert witnesses, the Committee members were reluctant to include an affirmative duty for what is oftentimes not an insurmountable problem in discovery.

I want to thank the service of The Honorable Everett A. Martin, Thomas G. Bell, Jr., Susan M. Hicks, Thomas Moore Lawson, Donald N. Patten and Henry N. Ware, Jr. on our Committee.

Please let me know if you have any questions or need anything further from me regarding the Committee's study.

Very truly yours.

David N. Anthony

cc: Committee Members (by email)

31605509 290

Tab 20

291

M E M O R A N D U M

TO: Boyd-Graves Conference

FROM: David J. Gogal, Chair Thomas L. Appler, Esq. Beverly A. Burton, Esq. The Hon. Donald M. Haddock, Jr. Roger A. Petersen, Esq. Melissa W. Robinson, Esq. Derrick L. Walker, Esq.

RE: Report of the Committee on the Rule on Witnesses in Depositions

DATE: June 9, 2017

______

EXECUTIVE SUMMARY

Our Committee was asked to study the following questions: first, whether the Virginia

Rules should be clarified with regard to whether the rule on witnesses applies to pre-trial depositions; and second, should trial witnesses be precluded by the rule on witnesses from reading before trial the transcript of a de bene esse deposition. Our Committee concluded that the Virginia Rules should be clarified, more in line with the Federal Rules, to provide that the rule on witnesses generally does not apply to pre-trial depositions, except where a party obtains a protective order. The Committee is recommending that a couple of additional improvements be made to the Virginia deposition procedural rules, though not currently part of the Federal Rules, to make it easier in Virginia to obtain a protective order when appropriate and to confirm the private nature of discovery by clarifying who may attend depositions among other things. In short, the Committee believes that while under the Federal rules the burden is on the party

292 objecting to the attendance of non-parties to establish good cause for its objection, given the

private nature of discovery in Virginia, the Virginia rule should place that burden on the party

who seeks to bring non-parties to a deposition to obtain an order permitting his or her attendance, in the absence of agreement by the parties.

As to the second issue, the Committee agreed that Virginia practice generally does not recognize de bene esse depositions per se, given that the determination as to whether a deposition will be allowed in lieu of live testimony normally is not decided until trial. Thus, the

Committee concluded no special rule should be adopted for so-called de bene esse depositions and trial witnesses should not be precluded, at least before trial, from reviewing transcripts designated as de bene esse, in the absence of a protective order.

I. FIRST ISSUE: WHETHER THE RULE ON WITNESSES APPLIES TO PRE- TRIAL DEPOSITIONS

This issue comes up from time to time in Virginia practice, though apparently there are

no published Virginia opinions on the topic. The origin of the confusion may be related to the

absence of a codified Virginia Rules of Evidence when an amendment to Rule 30(c)(1) of the

Federal Rules of Civil Procedure finally resolved the issue for the Federal courts in 1993.

A. Background on the Rule on Witnesses

As noted by the U.S. Supreme Court in Geders v. United States, 425 US 80 (1976):

The aim of imposing the rule on witnesses, as the practice of sequestering witnesses is sometimes called, is twofold. It exercises a restraint on witnesses tailoring their testimony to that of earlier witnesses, and it aids in detecting testimony that is less than candid.

Id. at 86. See also Motley v. Tarmac, Inc., 258 Va. 98, 102 (1999) (The purpose of the [rule on

witnesses] is to discourage and expose fabrication and collusion by witnesses and to minimize

2

293 the likelihood that witnesses will alter their testimony so that such testimony is consistent with testimony provided.”); G. John Henry Wiqmore, Evidence in Trials at Common Law § 1838 at

354 (3rd Ed. 1940). (Witness sequestration is “. . . one of the greatest engines that the skill of man has ever invented, for the detection of liars in a court of justice.”).

This practice of separating witnesses has its origins in biblical times, as an example of its application is referenced in the Book of Daniel (Daniel 13:51-59). See Opus 3 Ltd v. Heritage

Park, Inc., 91 F.3d 625, 628 (4th Cir. 1996) (Daniel exonerates Susanna after separating her accusers and questioning them independently). The rule on witnesses was later integrated into the English common law and thereafter the common law of Virginia. See Hampton v.

Commonwealth, 190 Va. 531, 58 S.E.2d 288, 297 (1950) (“A majority of the states have adopted the English custom which is, that exclusion, separation and sequestration of witnesses is a matter not of right, but within the sound judicial discretion of the trial court.”). The court in Hampton further noted that Virginia at that time had codified the common law rule on witnesses, at least with respect to criminal cases, to likewise allow for such exclusion of witnesses in the court’s discretion. Id. citing Va. Code § 19-219 (“In the trial of all criminal cases, whether the same be felony or misdemeanor cases, the court may, in its discretion, exclude from the trial any or all persons whose presence is not deemed necessary.”). However, even in the absence of a statute, the common law in Virginia recognized the trial court’s power to exclude and sequester witnesses in both civil and criminal cases. Burford v. Commonwealth, 179 Va. 752, 20 S.E.2d

509 (1942); United Dentists, Inc. v. Commonwealth, 162 Va. 347, 73 S.E. 508 (1930).

The modern application of the Virginia rule on witnesses expanded the rule to require the court to grant any request of a party for the exclusion of witnesses at trial. While the former statute, Va. Code § 8-211.1, contained the same qualifier “. . . whose presence is not necessary to

3

294 the proceedings,” the Supreme Court of Virginia ultimately held that language void for vagueness. Jefferson v. Commonwealth, 212 Va. 255, 183 S.E.2d 734 (1971). Currently, we have three Virginia statutes concerning the “rule on witnesses.” The statute for civil cases is

Virginia Code section 8.01-375.

§ 8.01-375 Exclusion of witnesses in civil cases (Subsection (a) of Supreme Court Rule 2:615 derived in part from this section and subsection (b) of Supreme Court Rule 2:615 derived from this section). The Court trying any civil case may upon its own motion and shall upon the motion of any party, require the exclusion of every witness. However, each named party who is an individual, one officer or agent of each party which is a corporation or association and an attorney alleged in a habeas corpus proceeding to have acted ineffectively shall be exempt from the rule of this section as a matter of right.

Where expert witnesses are to testify in the case, the court may, at the request of all parties, allow one expert witness for each party to remain in the courtroom; however, in cases pertaining to the distribution of marital property pursuant to § 20-107.3 or the determination of child or spousal support pursuant to § 20-108.1, the court may, upon motion of any party, allow one expert witness for each party to remain in the courtroom throughout the hearing.

The two statutes for criminal cases are Virginia Code sections 19.2-184 and 19.2-265.1.

§ 19.2-184 Witnesses may be separated (Subsection (a) of Supreme Court Rule 2:615 derived in part from this section). While a witness is under such examination all other witnesses may by order of the judge be excluded from the place of examination and kept separate from each other.

§ 19.2-265.1 Exclusion of witnesses (Subsection (a) of Supreme Court Rule 2:615 derived in part from this section and subsection (c) of Supreme Court Rule 2:615 derived from this section. In the trial of every criminal case, the court, whether a court of record or a court not of record, may upon its own motion and shall upon the motion of either the attorney for the Commonwealth or any defendant, require the exclusion of every witness to be called, including, but not limited to, police officers or other investigators; however, each defendant who is an individual and one officer or agent of each defendant which is a corporation or association shall be exempt from the rule of this section as a matter of right. Additionally, any victim as defined in § 19.2-11.01 who is to be called as a witness shall be exempt from the rule of this section as a matter of law unless, in accordance with the provisions of § 19.2-265.01, his exclusion is otherwise required.

4

295

In addition, as of July 1, 2012, the Virginia Rules of Evidence became effective and Rule

2:615, derived from Virginia Code sections 8.01-375, 19.2-184 and 19.2-265.1, became

Virginia’s version of Rule 615 of the Federal Rules of Evidence (“FRE”). In short, as of July 1,

2012, Virginia now has a “rule on witnesses” in the Rules of the Supreme Court of Virginia.

B. Exclusion of Witnesses at Pre-Trial Depositions Under the Federal Rules

Prior to 1993, there was a great deal of controversy regarding the application of the “rule

on witnesses” to pre-trial depositions. While the Federal Rules of Civil Procedure generally governed such depositions, the federal courts were in conflict as to the scope of Rule 30(c) of the

Federal Rules of Civil Procedure (“FRCP”) and the application of FRE 615. Until 1993, FRCP

30(c) stated that “[e]xamination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of the Federal Rules of Evidence.” Pursuant to this pre-1993 FRCP

30(c) language, federal courts struggled as to how to apply FRE 615, which stated “[a]t the

request of a party the court shall order witnesses excluded so that they cannot hear the testimony

of other witnesses.” Construing FRCP 30(c) along with FRE 615, some federal courts decided

that the mere request of a party was sufficient to exclude potential witnesses from attending a

deposition. Lumpkin v. Bi-Lo, Inc., 117 F.R.D. 451 (D. Utah 1957) (applying FRE 615 to pre-

trial depositions). Other federal courts determined that “good cause” was required under FRCP

26(c) to obtain a protective order for such exclusion of persons at pre-trial depositions. BCI

Communication Systems, Inc. v. Bell Atlanticom Systems, Inc., 112 F.R.D. 154 (N.D. Ala.

1986) (refusing to apply FRE 615 to pre-trial depositions). Because of this conflict, Congress amended FRCP 39(c) in 1993 to expressly state that depositions are to be conducted “. . . as they

5

296 would at trial under the Federal Rules of Evidence, except Rule 103 [Rulings on Evidence] and

615 [Excluding Witnesses].”

Thus, under the current Federal Rules of Civil Procedures, in order to seek the exclusion of potential witnesses (and any other persons for that matter) from attending pre-trial depositions, a party must seek a protective order pursuant to FRCP 26(c)(1)(E).

In response to the 1993 amendment of FRCP 30(c), the courts in some states amended their own versions of the rule to conform to the revised federal rule. Others have yet to do so, and a few have chosen, expressly or implicitly, not to do so.

C. The Virginia Procedural Rules and the Rule on Witnesses

The Rules of the Supreme Court of Virginia (“Virginia Rules”), initially adopted on

November 22, 1971, generally were modelled on the Federal Rules of Civil Procedure (“Federal

Rules”). Over the years, there have been numerous amendments to the Federal Rules, many of which have been adopted in the Virginia Rules, while others have not been adopted. Virginia adopted as its model for Rule 4:5 Deposition upon Oral Examination, the equivalent FRCP 30

Depositions by Oral Examination, which was subsequently amended. It is noteworthy to compare the similar language:

FRCP 30

* * *

(c) Examination and Cross-Examination; Record of Examination; Objections; Written Questions.-(1) Examination and Cross-Examination. The examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence, except Rule 103 and 615. After putting the deponent under oath or affirmation, the officer must record the testimony by the method designated under Rule 30(b)(3)(A) . . ..

6

297 Because Virginia did not adopt the Federal Rules of Evidence, and until 2012 had no codified state rules of evidence, the language in Rule 4:5 necessarily omitted any reference to such rules of evidence and is stated as follows:

Rule 4:5 Depositions Upon Oral Examination

* * *

(c) Examination and Cross-Examination; Record of Examination; Oath; Objections. Examination and cross-examination of witnesses may proceed as permitted at the trial. The office before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under his direction and in his presence, record the testimony.

In short, a distinction between FRCP 30 and Virginia Rule 4:5 is the carve-out in the

Federal Rules of FRE 103 and FRE 615 of the Federal Rules of Evidence. FRE Rule 103 concerns the obligation to timely object to the admissibility of evidence1, and FRE Rule 615 is the equivalent of our rule on witnesses.

1 While not specifically asked to do so, the Committee also considered whether to include the contemporaneous objection rule, Rule 2-103 of the Virginia Rules of Evidence, as a carve-out to Rule 4:5, consistent with FRCP 30(c)’s inclusion of the equivalent federal contemporaneous objection rule. The Committee agreed it would be wise to do so, in order to avoid any misunderstanding should the contemporaneous objection rule carve-out be absent from the Virginia version of the deposition rule. It is worth noting the similarity of the two rules:

Federal Rules of Evidence Rule 103:

Rule 103. Rulings on Evidence. (a) Preserving a Claim of Error. – A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and: (1) If the ruling admits evidence, a party, on the record: (A) timely objects or moves to strike; and (B) states the specific ground, unless it was apparent from the context; or (2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context. (b) Not Needing to Renew an Objection or Offer of Proof. – Once the court rules definitively on the record – either before or at trial – a party need not renew an objection or offer of proof to preserve a claim of error for appeal. (c) Court’s Statement About the Ruling; Directing an Offer of Proof. – The court may make any statement about the character or form of the evidence, the objection made, and the ruling. The court may direct that an offer of proof be made in question-and-answer form. (d) Preventing the Jury from Hearing Inadmissible Evidence. – To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means. 7

298 FRE Rule 615:

Excluding Witnesses. At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding: (a) A party who is a natural person; (b) An officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney; (c) A persona whose presence a party shows to be essential to presenting the party’s claim or defense; or (d) A person authorized by statute to be present.

Virginia Rule 2:615:

Exclusion of Witnesses (Rule 2:615(a) derived from Code §§ 8.01-375, 19.2- 184, and 19.2-265.1; Rule 2:615(b) derived from Code § 8.01-375; and Rule 2:615(c) derived from Code § 19.2-265.1). (a) The court, in a civil or criminal case, may on its own motion and shall on the motion of any party, require the exclusion of every witness including, but not limited to, police officers or other investigators. The court may also order that each excluded witness be kept separate from all other witnesses. But each named party who is an individual, one officer or agent of each party which is a corporation, limited liability entity or association, and an attorney alleged in a habeas corpus proceeding to have acted ineffectively shall be exempt from the exclusion as a matter of right. (b) Where expert witnesses are to testify in the case, the court may, at the request of all parties, allow one expert witness for each party to remain in

(e) Taking Notice of Plain Error: - A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved. (Amended by order adopted April 17, 2000, effective December 1, 2000, and by order adopted April 26, 2011, effective December 1, 2011.)

Virginia Rules of Evidence Rule 2:103:

Rule 2:103. Objections and Proffers. (a) Admission or exclusion of evidence. – Error may not be predicated upon admission or exclusion of evidence, unless: (1) As to evidence admitted, a contemporaneous objection is stated with reasonable certainty as required in Rule 5:25 and 5A:18 or in any continuing objection on the record to a related series of questions, answers or exhibits if permitted by the trial court in order to avoid the necessity of repetitious objections; or (2) As to evidence excluded, the substance of the evidence was made known to the court by proffer. (b) Hearing of jury. – In jury cases, proceedings shall be conducted so as to prevent inadmissible evidence from being made known to the jury.

The Committee also noted that it would be worthwhile to add a clarification to Rule 4:5 that “[O]bjections as to the form of questions, however, should be raised during the deposition.”

8

299 the courtroom; however, in cases pertaining to the distribution of marital property pursuant to § 20-107.3 or the determination of child or spousal support pursuant to § 20-108.1, the court may, upon motion of any party, allow one expert witness for each party to remain in the courtroom throughout the hearing. (c) Any victim as defined in Code § 19.2-11.01 who is to be called as a witness may remain in the courtroom and shall not be excluded unless pursuant to Code § 19.2-265.01 the court determines, in its discretion, that the presence of the victim would impair the conduct of a fair trial.

Some Virginia counsel have objected on grounds of the rule on witnesses to the review

by a witness of deposition transcripts of other witnesses, citing Rule 4:5(c) which does not

specifically carve out an exception for the rule on witnesses. Until the Virginia Rules of

Evidence were adopted a few years ago, however, there was no codified body of rules of

evidence and thus no “rule on witnesses” in our state rules to cite to as an exception. Now that

we have Rule 2-615, our own state version of FRE 615, we have been asked to decide whether to recommend that Virginia Rule 2-615 be referenced expressly as an exception to Rule 4:5(c), just

as FRE 615 is referenced as an exception to FRCP 30(c)(1).

Another thought to consider is the nature of the “rule on witnesses,” which is not self-

executing. Both in FRE Rule 615 and Virginia Rule 2-615, the exclusion of witnesses is not

automatic, but requires action by the court, either upon request or motion, or the court may do so

on its own. If requested by either party, such exclusion of witnesses is mandatory, but it still

requires court action. In short, unless a party has sought such an order by the court before a deposition, Virginia Rule 2-615 arguably could not apply at a pre-trial deposition.

It also is important to note that Virginia has its own version of FRCP 26(c)(1), which

is the rule cited by the Federal courts as providing the appropriate remedy, a protective order, to restrict who may review deposition transcripts. Rule 4:1(c) of the Rules of the Supreme Court of

Virginia, in pertinent part, provides:

9

300 * * *

(c) Protective Order. Upon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown the court . . . may make an order which justice requires to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense, including one or more of the following: . . .

(2) that the discovery may be had only on specified terms and conditions …

(5) that discovery be conducted with no one present except persons designated by the courts . . ..

Like the Federal system, this Committee believes this protective order remedy is

the appropriate remedy for a party that seeks to limit who can review a particular

deposition transcript or, in the exceptional case, when it may be necessary to exclude a

party from a deposition. It does require a party to show “good cause”, and the Federal courts generally have ruled that conclusory allegations and speculative assertions of potential harm are not enough, instead a party must offer a “particular and specific demonstration of fact.” Jones v. Circle K Stores, Inc, 185 F.R.D. 223,224 (M.D.N.C.

199); quoting In re Terra Int’l Inc, 134 F.3d 302, 306 (5th Cir. 1998). While the

Committee concluded, consistent with the current Federal Rules, that Rule 4:1(c) is the

applicable remedy for motions to restrict access to deposition transcripts, the Committee

also recommends, as one treatise suggests, James F. Herbison, Corporate Reps in Deps:

To Exclude or Not Exclude, 78 Wash. U. L. Q 1521 (2000), that language such as “or to

ensure the integrity of the proceeding” needs to be added to confirm the availability of

this remedy when there is a concern of witness fabrication and collusion.

With respect more generally as to who may attend depositions, the Committee

recommends an approach different than the Federal procedure, and more appropriate to

10

301 Virginia’s recognition of the private nature of discovery, as more particularly described

in Section III below.

II. SECOND ISSUE: WHETHER TRIAL WITNESSES SHOULD BE PRECLUDED BY THE RULE ON WITNESSES FROM READING BEFORE TRIAL THE TRANSCRIPT OF A “DE BENE ESSE” DEPOSITION

The Committee has concluded that Virginia Rule 2-615 should not apply generally to

pre-trial depositions because (1) it should (like the reference to FRE 615 in FPCP Rule 30(c)(1))

be referenced as a carve-out to Virginia Rule 4:5(c) and (2) because the appropriate remedy for

pre-trial restrictions on the review of depositions is a Rule 4:1(c) protective order. It, thus, follows that there should be no general prescription against witnesses reviewing other witnesses’

deposition transcripts, even so-called “de bene esse” depositions, prior to trial, at least not in the

absence of a protective order.

There is another reason the Committee concluded that no such extension of the “rule on

witnesses” should be adopted, and that has to do with the widely-held understanding of many

Virginia practitioners that Virginia jurisprudence generally does not draw such a distinction

between so-called “de bene esse” depositions and other pre-trial depositions. With respect to “de

bene esse depositions” it is worth noting that the Virginia Rules do not use the term and, with

one exception, the concept is not even mentioned in our Rules.2 Arguably, this is because the

court ultimately decides, normally at trial, whether under Rule 4:7, a deposition may be used in

lieu of live testimony. In short, one generally does not know for sure until trial what deposition

transcripts are to be used in lieu of live testimony, and thus, even if the Committee were to

decide that such “de bene esse” depositions should not be reviewed by other witnesses, there

would appear to be difficult enforcement hurdles.

2 The only exception noted by the Committee is the Uniform Pretrial Scheduling Order referenced in Rule 1:18B, which provides that “depositions taken in lieu of live testimony at trial will be permitted until 15 days before trial.” 11

302

III. COUNSEL’S CONTROL OF DEPOSITION

A number of our Committee members noted that our Report should include some recommendation regarding the adoption of a rule to resolve conflicts with respect to who may attend depositions, a rule that acknowledges that unlike court proceedings and court filings, which have a statutory presumption of open access, Va. Code § 17.1-208; Daily Press, Inc. v.

Commonwealth, 285 Va. 447, 456 (2013) (citing Shenandoah Publishing House, Inc. v. Fanning,

235 Va. 253, 259, (1988)), discovery normally is permitted to be conducted in private in

Virginia. As the Supreme Court of Virginia noted in Shenandoah Publishing House, “pretrial depositions and interrogatories are not public components of a civil trial … Discovery rarely takes place in public. Depositions are scheduled at times and places most convenient to those involved. Interrogatories are answered in private.” Id at 260, quoting Seattle Times Co. v.

Rhineheart, 467 U.S. 20, 33 (1984). In short, while the public and press normally have a right to attend trials and review court files, there is no such right to attend depositions, which are usually held in the private offices of attorneys. This distinction is recognized in the Shenandoah

Publishing House case. The Committee concluded that a provision should be included in Rule

4:8 stating that unless otherwise agreed to by the parties, it will be presumed that only the parties and the witness and their counsel will attend the deposition. If any party wants to bring a friend, family member, expert or other non-party (other than its counsel) to a deposition, such party must provide reasonable notice in advance of the deposition to the other parties and seek agreement. If there is an objection by any other party, the party may not bring a non-party to the deposition, unless in its discretion the trial court finds good cause to allow such non-party to attend the deposition.

12

303 IV. PROPOSED RULES CHANGES

The Committee thus recommends three changes to the Rules of the Supreme Court of

Virginia.

First, Rule 4:5 should be amended as follows in red and italicized:

Rule 4:5 Depositions Upon Oral Examination

(b) Notice of Examination: General Requirements; Special Notice; Production of Documents and Things; Deposition of Organization

* * *

(4) Unless otherwise agreed to by the parties, it will be presumed that only the parties and the witness and their respective counsel will attend the deposition, given the private nature of discovery. If any party desires to bring a friend, family member, expert, or other non-party (other than its counsel) to a deposition, such party must provide reasonable notice in advance of the deposition to the other parties and seek agreement on the attendance of such non-parties at the deposition. If there is an objection by any other party, such non-party may not attend the deposition, unless, in its discretion, the trial court finds good cause to allow such non-party to attend the deposition.

* * *

(c) Examination and Cross-Examination; Record of Examination; Oath; Objections. Examination and cross-examination of witnesses may proceed as permitted at the trial under the Virginia Rules of Evidence, except Rule 2:103 and 2:615. Objections as to the form of questions, however, should be raised during the deposition. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under his direction and in his presence, record the testimony.

All objections made at time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Any objection must be stated concisely in a nonargumentative and nonsuggestive manner. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition and he shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim.

13

304

Second, Rule 4:1(c) of the Rules of the Supreme Court of Virginia, should be amended as follows:

* * *

(c) Protective Order. Upon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown the court . . . may make an order which justice requires to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense, or to ensure the integrity of the proceeding, including one or more of the following: . . .

(2) that the discovery may be had only on specified terms and conditions …

(5) that discovery be conducted with no one present except persons designated by the court . . ..;

14

305

Tab 21

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3415 FLOYD AVENUE R ICHMOND, V IRGINIA 23221 T EL 804-288-1661 F AX 804-282-1766 www.wllc.com

THOMAS W. WILLIAMSON, JR. [email protected] DIRECT: 804-325-1123

June 9, 2017

Stuart A. Raphael, Esq. Chair, Boyd-Graves Conference 202 North Ninth Street Richmond, VA 23219

Re: Study of Discovery Response Accompanied By Objection

Dear Stuart:

You requested me to chair a Committee to study whether Part 4 of the Rules of the Supreme Court of Virginia should be amended to provide that if a party objects to a discovery request but goes on to make a qualified answer, the objection is waived or taken by the court as an evasive answer or non-answer. The Conference members serving with me on the Committee are: Gary A. Bryant, John R. Fletcher, Steven M. Garver, R. Lee Livingston, Roscoe B. Stephenson, III, and Wallace B. Wason, Jr.

On behalf of our Committee, I submit this Report to you for the consideration of the 2017 Conference.

Background

A not uncommon practice in responding to requests for production has been to assert an objection and then add, without waiving or subject to the stated objections, the following documents are provided. The asserted objections usually fall within the realm of “boilerplate objections”. Boilerplate objections include those staples “unduly burdensome” and “overly broad”.

Boilerplate objections coupled with some response create a quandary for the discovering party. Is the responder withholding documents responsive to the request? Is the responder merely producing the provided documents as a matter of grace and standing on the asserted boilerplate objection to support a

307

June 9, 2017 Page 2 of 4 refusal to produce other materials known to the responder or to search sources within responder’s control that may contain items responsive to the request?

A diligent discovering party, when confronted with this scenario, must ask the responder to affirm that nothing has been withheld or will be withheld without notice pursuant to the boilerplate objection. Failing at that, the responder’s only recourse is filing a motion to compel. This process frustrates the efficient conduct of discovery. In many instances, a desire to “hedge bets” induces use of boilerplate objections and not a well-grounded resistance against laboring to produce responsive materials.

Although no published opinions from Virginia courts address this problem, reported federal decisions have condemned the use of boilerplate objections as being improper unless based on particularized facts. This disdain for boilerplate objections has manifested a refusal to consider the objection with a resultant order to produce all materials responsive to the discovery request. See Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 358 (D. Md. 2008).

Kinetic Concepts, Inc. v. ConvaTec Inc., 268 F.R.D. 226 (M.D.N.C. 2010) surveyed Fourth Circuit district court published opinions declaring boilerplate objections invalid. The vice of coupling a boilerplate objection with some production of documents was specifically discussed by United States Magistrate Judge Auld who authored Kinetic Concepts. Characterizing a response “subject to certain objections” as one that “confuses more than clarifies” Magistrate Judge Auld quoted from and relied upon the following decisions:

This type of answer hides the ball. It leaves the [opposing party] wondering . . . what documents are being withheld. Furthermore, it permits the defendant to be the sole arbiter of that decision. Such an objection is really no objection at all as it does not address why potentially responsive documents are being withheld. [The responding party], having no incentive to err on the side of disclosure, has arrogated to itself the authority to decide questions of relevance which is unquestionably the decision of the judge.

Athridge v. Aetna Casualty and Surety Co., 184 F.R.D. 181, 190 (D.D.C. 1998). See also id. (opining that party's statement regarding production of "'relevant, non-privileged' documents 'subject to and

308

June 9, 2017 Page 3 of 4

without waiving' [its] objection[s], serves only to obscure potentially discoverable information and provides no mechanism for either plaintiffs or the Court to review defendant's decisions" (internal brackets omitted)). Accord Fresenius Med. Care Holding Inc. v. Baxter Int'l, Inc., 224 F.R.D. 644, 656 (N.D. Cal. 2004) ("[The defendant] responds [to the plaintiff's motion to compel by asserting] that it 'is not withholding any non-privileged, relevant responsive documents' . . ., [however,] [the defendants'] assertion that it is not withholding any non-privileged documents is clearly limited by its unilateral designation of relevance. . . . [The defendant] must produce all non-privileged responsive documents . . . ."); Mercer v. Allegheny Ludlum Corp., 125 F.R.D. 43, 46 (S.D.N.Y. 1989) ("[Non-party] Goldman Sachs, through its counsel, answers [plaintiffs' motion to enforce a subpoena requesting documents] in essence that counsel have looked at the Goldman Sachs files; that they have given to plaintiffs' counsel everything relevant to the issues; and that plaintiffs must be content with that declaration. . . . [T]his is not sufficient. . . . Plaintiffs are not, in my judgment, required to accept the disclaimer of non-relevance from Goldman Sachs or its counsel in respect of documents which to date they have not been permitted to inspect.").

Kinetic Concepts, Inc., 268 F.R.D. 248-49.

Federal Rule Amendment

Rule 34 (b) (2) (C) of the Federal Rules of Civil Procedure was amended in 2015 to require that an objection to a request for production “must state whether any responsive materials are being withheld on the basis of that objection.” According to the Advisory Committee which crafted the amendment,

This amendment should end the confusion that frequently arises when a producing party states several objections and still produces information, leaving the requesting party uncertain whether any relevant and responsive information has been withheld on the basis of the objections. The producing party does not need to provide a detailed description or log of all documents withheld, but does need to alert other parties to the fact that documents have been withheld and thereby facilitate an informed discussion of the objection. An objection that states the limits that have controlled the search for responsive and relevant materials qualifies as a statement that the materials have been “withheld.”

309

June 9, 2017 Page 4 of 4

Notes of Advisory Committee on 2015 Amendments Fed Rules Civ. Proc. R. 34.

Recommendation

The membership of the Committee, with one member dissenting, has endorsed a recommendation to amend Va. Sup. Ct. R. 4:9 by adopting the federal requirement that an objecting party state whether any responsive materials are being withheld on the basis of the objection. The text of the proposed amendment to Rule 4:9 accompanies this Report.

Disclosing whether or not materials are being withheld pursuant to an asserted objection imposes minimal burden upon the objecting party. Simply stating the limits of a search would suffice in many instances to discharge the duty created by the proposed amendment. Furnishing the discovering party with this information would eliminate the need to make inquiry of the objecting party. Discovering parties may acquiesce in the stated limits accompanying the objection. Motions to compel would be reserved for circumstances where the objector has articulated that documents have been withheld or the search for information limited in a manner incompatible with the discovering party’s views of the scope and necessity of discovery.

Adjudication of the disputes about asserted objections would be facilitated by requiring the objecting party to have articulated at the outset the nature of what has been withheld or not done pursuant to the objection. Rulings would be based upon not an abstract objection but on what actually is in play as to sources of information cordoned off by the objection.

Sincerely,

Thomas W. Williamson, Jr.

TWWJr/tw

310 Proposed Change to Va. Sup. Ct. R. 4:9

(Change Shown in Boldface)

Rule 4:9. Production by Parties of Documents, Electronically Stored Information, and Things; Entry on Land for Inspection and Other Purposes; Production at Trial

(a) Scope. --Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on his behalf, to inspect, copy, test, or sample any designated documents or electronically stored information (including writings, drawings, graphs, charts, photographs, and other data or data compilations stored in any medium from which information can be obtained, translated, if necessary, by the respondent into reasonably usable form), or to inspect, copy, test, or sample any designated tangible things which constitute or contain matters within the scope of Rule 4:1(b) and which are in the possession, custody, or control of the party upon whom the request is served; or (2) to produce any such documents or electronically stored information to the court in which the proceeding is pending at the time of trial; or (3) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 4:1(b).

(b) Procedure.

(i) Initiation of the Request. --The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the complaint upon that party. The request shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, period and manner of making the inspection and performing the related acts. The request may specify the form or forms in which electronically stored information is to be produced.

(ii) Response. --The party upon whom the request is served shall serve a written response within 21 days after the service of the request, except that a defendant may serve a response within 28 days after service of the complaint upon that defendant. The court may allow a shorter or longer time. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, including an objection to the requested form or forms

311 for producing electronically stored information, stating the reasons for the objection. An objection must state whether any responsive materials are being withheld on the basis of that objection. If objection is made to part of an item or category, the part shall be specified and production shall be permitted as to the remaining parts. If objection is made to the requested form or forms for producing electronically stored information -- or if no form was specified in the request -- the responding party must state the form or forms it intends to use. The party submitting the request may move for an order under Rule 4:12(a) with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested. A motion under this Rule must be accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action.

(iii) Organization, Reasonable Accessibility, and Forms of Production. --Unless the parties otherwise agree, or the court otherwise orders:

(A) Production of Documents. A party who produces documents for inspection either shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request.

(B) Electronically Stored Information.

(1) Responses to a request for production of electronically stored information shall be subject to the provisions of Rules 4:1(b)(7) and 4:1(b)(8).

(2) If a request does not specify the form or forms for producing electronically stored information, or if a responding party objects to the requested form or forms of production, a responding party must produce the information as it is ordinarily maintained if it is reasonably usable in such form or forms, or must produce the information in another form or forms in which it is reasonably usable. A party need not produce the same electronically stored information in more than one form.

(iv) Proceedings Under the Uniform Interstate Depositions and Discovery Act. --Production of documents and electronic records sought in Virginia pursuant to a subpoena issued under the authority of a foreign jurisdiction shall be subject to the provisions of the Uniform Interstate Depositions and Discovery Act, Virginia Code §§ 8.01-412.8 through 8.01- 412.15.

312 (c) Proceedings on Failure or Refusal to Comply. --If a party fails or refuses to obey an order made under section (b) of this Rule, the court may proceed as provided by Rule 4:12(b)(2).

(d) Filing. --Requests to a party pursuant to this Rule and responses or objections shall be filed as provided in Rule 4:8(c).

313

Tab 22

314 l McCANDLISH A ceuJury of/ooldllJ:.fon&•ard.

Direct (703) 934-1134 • Fall: : (703) 737-0165 • E·mail; [email protected]

September 8, 2017

Stuart Raphael, Esq Chair, Boyd-Graves Conference

Re: Proposed Repeal of § 17.1-625 VA. CODE

Dear Stuart:

Our committee was composed of Beverly A. Burton, Leonard L. Brown, Jr., Steven W. Pearson, Melissa G. Ray, S. Howard Woodson, ill, and myself. I am pleased to present our report in response to the charge that we consider repeal of § 17.1-625 VA. CODE which reads:

Although the party recovering may have had mare than one attomey, only the fees of one shall be taxed in the same court.

This section is found in Title 17.1 "Courts of Record" and Chapter 6 "Costs Generally."

The taxing of attorney's fees as an item of costs was considered at the 2013 Boyd-Graves Conference as part of the study of the recovery of appellate counsel fees. (See the attached September 3, 2013 committee report authored by Judge David B. Carson.) The 2013 Conference approved that committee's recommendation to eliminate attorney's fees as an item of costs to be taxed at the conclusion of a case, and the General Assembly repealed those portions of§ 17.1-624 which provided therefor. (See the attached resulting enactment found in Chapter 315 of the 2014 Acts of Assembly.) You will note that the commiuee was not specific in its recommendations and, apparently, § 17.1-625 was overlooked for repeal. Our committee believes that it should be repealed, or at least amended.

By virtue of: i. § 17.1-625 being found in the chapter regulating costs; ii. that this section followed§ 17.1-624 which, until its 2014 amendment, provided for the taxing of attorney's fees as an item of costs; and iii. its use of the term "taxed" which ordinarily applies to the assessment of recoverable costs by the clerk, and not to an award of costs under a fee-shifting provision; our committee believes that § 17.1-625 was intended as a limitation on the taxing of attorney's fees as an item of costs under § 17.1-624. We did not trace these provisions' entire statutory history but suffice it to say that in Title 52 "Fees and Costs," Chapter CLXXXV "Of Costs Generally" of the

McCandlish Lillard ml Legal Counsel

20 I Loudoun Street, S.E .. Suite 20 l Leesburg. Virginia 20175-3118 Ma in 703.737.0200 · Fax 703.737.0165

Foir(ox Offrce: 11350 Random Hills Rood, Suite 500 Foirfo;c , V1rg in.a 22030-741 1 Main 703.273.2288 Fox 703.352 .4300 www.mccandlishlawyers.com 315 Stuart Raphael, Esq. September 8, 2017 Page 2 of3

1849 VA. CODE, both § 17.1-625 and the pre-20 14 version of§ 17.1-624 are to be found verbatim, providing further confirmation that the sections are in pari materia and were intended to be read together. With the 2014 amendment of§ 17.1-624 to eliminate attorney's fees as an item of recoverable costs, § 17.1-625 is an anachronism.

But it is not just a harmless anachronism. Although, as previously noted, it uses the term "taxed"- thereby implying that it has to do with court costs and not attorney-fee shifting provisions- the argument can be made that it is a limitation on more than one attorney recovering fees under exceptions to the American Rule. It's presence in the Code is of significance and its use of the term "taxation" renders it confusing but not meaningless.'

Indeed, in Peter Farrell Supercars, Inc. v. Monsen, 82 Fed. Appx. 293, 300-301 (4th Cir. 2003); cert. denied, 541 U.S. 1064 (2004); the Court of Appeals reviewed an award of counsel fees in a Virginia Consumer Protection Act case(§ 59.1-200, et seq. VA. CODE). Counsel for the losing party objected to the award of fees for the two lawyers representing the victor, arguing that § 17.1-625 was a bar. The Fourth Circuit disposed of this argument stating:

Virginia courts have yet to rule on the meaning of this section, but we believe that, assuming arguendo that the section prohibits more than one attorney from receiving a fee award, the district court followed the legislature's intent in this action. The district court removed all of the duplicative fees from the lodestar when calculating the award. Thus, by its actions, the district court was, in fact, ensuring that only one attorney's worth of work was being credited in the fee award. Because the district court followed the clear intent of the Virginia Code, we do not find the award of attorney's fees to be an abuse of discretion.

While the court in Peter Farrell Supercars, Inc. v. Monsen did not bar an award of counsel fees for more than one attorney based on § 17.1-625, it did not reject that possibility by asserting that this section is a limitation only on an award of court costs. Believing that it may be appropriate for the fees of more than one attorney to be awarded in a case where attorney fee shifting is

1 "Because the words of a statute are chosen with care, 'we will not read a legislative enactment in a manner that renders any portion of that enactment useless.' Antisdel v. Ashby, 279 Va. 42, 48 (20 I0). Rather, 'we will apply an act of the legislature by giving reasonable effect to every word used.' /d.'' Riverside Owner, LLC. v. City of Richmond, 282 Va. 62, 69 ( 20 I I)

316 Stuart Raphael, Esq. September 8, 2017 Page 3 of3

allowed, and that the continued existence of§ 17.1-625 could thwart such an award, our committee recommends its repeal.

That being said, our committee had some concern that the General Assembly might look upon a bill repealing § 17.1-625 as a proposal to remove a reasonable limitation on lawyer's fees, and therefore oppose it on that basis. If the Conference feels such a concern is justified, the committee would recommend the statute's amendment as follows:

Although the party recovering may have lzad more than one attorney, only the !!12!!::. duplicative fees ffj't>-'te shall be taxed in the same court.

Our committee wishes to thank you for allowing us to participate in this study.

With best wishes and kind regards, I remain

....

SCP/rp Enclosures cc: John A. C. Keith, Esq. Beverly A. Burton, Esq. Leonard L. Brown, Jr., Esq. Steven W. Pearson, Esq. Melissa G. Ray, Esq. S. Howard Woodson, III, Esq.

317 318 0 0

TwENTY-THIRD jUDICIAL CIRCUIT OF VIRGINIA

DAV1D 1!. CAilSON, JUDGE CIRCUIT COUilT FOil THI COUNTY OF aoANOIC£ IIOANOK! CITY COinTHOUSl OICUIT COURT FOil TH! CITY OF IOANOKE 31~ CHURCH AVEHU£. Sw. P.o.aox:m ClllCUIT COUI\T FOR THE CITY OF SAL£M IIOAMOICE. VIIICINIA l400l.Olll (S40) IS).l456 FAX ()40) IS3·1040 COMMONWEALTH OF VIRGINIA DCAASON•COUIITI STAnVA US

September 3, 2013

VIA EMAIL [email protected] John R. Walk, Esquire Hirschler Fleischer P. 0. Box500 Richmond, VA 23218-0500

Re: Report of Boyd-Graves Committee on Recoverable Costs and Attorney's Fees on Appeal

Dear John:

Our Committee was asked to study whether the applicable Rules and Statutes should be amended to allow for the recovery of attorney's fees in the appellate court in a situation where a Petition for Appeal is granted, but the Appellee substantially prevails. Currently. such fees are available from the appellate court under Rule l:IA and Rule 5:35 only where the Supreme Court refuses a Petition for Appeal.

Presumably, where pennitted by statute or contract, an Appellee who prevails on the merits of an appeal will be entitled to fees (i.e. ifthe Petition is granted and the ruling below is affinned}. For that matter, an Appellant whose Petition is granted and who prevails on appeal would also have a claim to fees if the case is governed by fee shifting statutes or contracts. An Appellant who won on appeal, however, might ultimately lose the re-trial. The remand could also result in a partial verdict for both sides. The Committee was concerned that various potential merits scenarios would be difficult to regulate in the appellate court. The current rule is silent as to all outcomes beyond a simple denial of a Petition. As it stands, the rule is limited, but inoffensive.

The Committee concluded that there is no perceived need to expand the rule to merits outcomes, and that such an attempt could have confusing or negative consequences. We recommend no expansion of the existing rule.

319 0 0

John R. Walk, Esquire September 3, 2013 Page2

The Committee also considered the role ofVa. Code§ 17.1-624, which provides for a de minimis award of attorney's fees ($50.00) to a successful appellate litigant as part of costs taxable. We concluded that this is a vestige from distant days when $50.00 was in fact a meaningful award. The Committee is concerned that in cases where post-appeal fees are available by contract or statute in the lower court, opposing parties may plausibly argue that a subsequent fee petition is foreclosed because the Court of Appeals or Supreme Court has already awarded the prevailing party its attorney's fees ($50.00).

The Committee does not perceive a widespread problem in this area, but does see a potential problem. Given that few attorneys count on or expect the small fee pursuant to Va. Code § 17.1-624, it is recommended that this statutory award of fees in the appellate courts be deleted from the Code. ~;7un,~

David B. Carson, Chairman

DBC:mpr cc: Roger T. Creager, Esquire- Via email [email protected] Beverly A. Burton, Esquire- Via email [email protected] Cindra M. Dowd, Esquire- Via email [email protected] Frank K. Friedm~ Esquire- Via email [email protected] John R. Fletcher, Esquire- Via email [email protected] L. Steven Emmert, Esquire - Via [email protected] Paul M. Black, Esquire- Via email [email protected] Stephen C. Price, Esquire- Via email [email protected]

320 321 VIRGINIA ACTS OF ASSEMBLY-- 2014 SESSION

CHAPTER315

An Act to amend and reenact § 17.1-624 of the Code of Virginia, relating to costs taxed by the clerk of court.

[H 303] Approved March 27,2014

Be it enacted by the General Assembly of Virginia: 1. That § 17.1-624 of the Code of Virginia is amended and reenacted as follows: § 17.1-624. Who to tax costs. The clerk of the court wherein any party recovers costs shall tax the same. He shaY ifte.kitJe tftet:eifl fat: Ike fee af stteh ~ aMemey, if he has eRe+ 1. Ia a ease ef the cemmem:ealth, if ae hi§Jhel! fee is alle·,;ee .. $ 5. 88 2. Ia a ehaaeel!y ea~se ether thaa a metiea, whea the matter ia eeatreversy eleeeees $18 8 ia ame~at er val~e ...... $ 15. 8 8 3. Ia the Ce~rt ef Atl!'eals ...... $ 58.88 4. Ia the S~!'reme ce~rt ...... $ 58.88 lH fl6 ease shaY ffieFe ~ efte fee ee tiHtetl agaiftst ~ SftfM' ~ itftless ~ eeufi etkerwise difeets,.

322 323 ~ Positive As of: September 7, 2017 10:13 PM Z

Peter Farrell Supercars, Inc. v. Monsen

United States Court of Appeals for the Fourth Circuit October 31, 2003, Argued ; December 3, 2003, Decided No. 02·2230

Reporter 82 Fed. Appx. 293 ·~ 2003 U.S. App. LEX IS 24338 *" poor work on his automobile. The business appealed the PETER FARRELL SUPERCARS, INCORPORATED; judgment in favor of the customer entered on a jury verdict in PETER FARRELL, Plaintiffs-Appellants, v. GORDON the United States District Court for the Eastern District of MONSEN, Defendant-Appellee, and DAVID C. PENNER; Virginia, at Alexandria. JOHN ROBERT DUFF, JR.; MALLOY WOODBRIDGE, LLC; MALLOY LINCOLN MERCURY, INCORPORATED, Overview Defendants. The business contended that the district court improperly retained jurisdiction after the sole federal claim was Notice: [**11 RULES OF THE FOURTH CIRCUIT COURT dismissed, erroneously held that the customer's counterclaims OF APPEALS MAY LIMIT CITA TJON TO were compulsory and not time-barred, and awarded UNPUBLISHED OPINIONS. PLEASE REFER TO THE unreasonable attorney fees to the customer. The appellate RULES OF THE UNITED STATES COURT OF APPEALS court first held that the district court's retention of FOR THIS CIRCUIT. supplemental jurisdiction over the state claims after dismissal Subsequent History: US Supreme Court certiorari denied by of the federal claim was proper, since the federal claim was dismissed on the eve of trial, the parties had completed Perer Fane// SJJJ!£.rmr.u . MonH'Il, 200-1 U.S. LEXIS 3719 (U.S...._ /J:!.ill: 2-1. 2004J substantial pre-trial preparation, and the district court was already familiar with the facts and issues. Further, the Prior History: Appeal from the United States District Court customer's counterclaims necessarily involved the same for the Eastern District of Virginia, at Alexandria. (CA·Ol · evidence as the business's original claims and were thus 1073-A). James C. Cacheris, Senior District Judge. compulsory, and the counterclaims were timely asserted after the customer discovered that his engine was replaced with a Disposition: Affirmed. defective engine rather than merely modified. Finally, the district court properly conducted a detailed analysis of the Core Terms billing records of the customer's attorneys before determining that the rates charged were reasonable, and properly limited district court, counterclaim, engine, compulsory, state law fees to a single counsel's work on the claim under the statute claim, parties, attorney's fees, breach of contract, federal permitting the award. claim, abused, argues, supplemental jurisdiction, violations, circumstances, attorney's, issues, turbo Outcome The judgment on favor of the customer was affirmed. Case Summary LexisNexis® Headnotes

Procedural Posture Appellant , an automobile modification business and its owner, sued appellee customer, alleging that the customer Civil Procedure> ... > Justiciability> Case & posted negative statements about the business on the internet, Controversy Requirements> General Overview and the customer counterclaimed that the business performed

324 Peter Farrell Supercars, Inc. v. Monsen

Civil Procedure > ... > Subject Maller U.S.C.S. § 13r17 for abuse of discretion. Jurisdiction> Supplemental Jurisdiction> General Overview

Civil Procedure> ... >Subject Matter Civil Procedure> ... > Subject Mauer Jurisdiction > Supplemental Jurisdiction > General Jurisdiction > Supplemental Jurisdiction > Same Case & Overview Controversy /IN.S[A ] Subject Matter Jurisdiction, Supplemental 1/NJ[.:l] Justiciability. Case & Controversy Jurisdiction Requirements

The doctrine of supplemental jurisdiction is one of flexibility, District courts have supplemental jurisdiction over state law and there is no mandatory rule requiring dismissal when the claims that form part of the same case or controversy as the federal claim is disposed of before trial. federal claim. 2 ~ U.S.C.S. § /3o7ra,.

Civil Procedure > ... > Jurisdiction > Jurisdictional Civil Procedure> ... > Subject Matter Sources > General Overview Jurisdiction> Jurisdiction Over Actions> General Overview Civil Procedure > ... > Subject Matter Jurisdiction> Supplemental Jurisdiction> General Civil Procedure> ... > Jurisdiction> Jurisdictional Overview Sources > General Overview IIN5[~ ] Jurisdiction, Jurisdictional Sources Civil Procedure> ... > Jurisdiction> Subject Mauer Jurisdiction> General Overview

District courts enjoy wide latitude when deciding whether to Civil Procedure > ... > Subject Matter exercise supplemental jurisdiction in an action. Jurisdiction> Supplemental Jurisdiction> General Overview

//.\'1[.1;.] Subject Matter Jurisdiction, Jurisdiction Over Civil Procedure> ... > Jurisdiction> Jurisdictional Actions Sources > General Overview

Governments> Courts> Judicial Comity A district court may decline to exercise supplemental jurisdictio~ over a claim when the court has dismissed all Civil Pr~cedure > ... > Subject Matter claims over which it has original jurisdiction. 2H Y.S,.C.S. j Jurisdiction> Supplemental Jurisdiction> General J3r17thu.n. Overview

/IN6 [ ~ ] Jurisdiction, Jurisdictional Sources

Civil Procedure > Appeals> Standards of Review > Abuse of Discretion In deciding whether to exercise supplemental jurisdiction, district courts must consider the convenience and fairness to Civil Procedure > ... > Subject Maller the parties, the existence of any underlying issues of federal Jurisdiction> Supplemental Jurisdiction> General policy, comity, and considerations of judicial economy. Overview

J/.V.J£,1:.] Standards of Review, Abuse of Discretion Civil Procedure> ... > Jurisdiction> Subject Matter Jurisdiction > Amount in Controversy An appellate court reviews a district court's actions under ~

Page325 2 of 10 Peter Farrell Supcrcars, Inc. v. Monsen

Civil Procedure> ... > Diversity Jurisdiction> Amount in Civil Controversy > Challenges Procedure > ... > Pleadings> Crossclaims > General Overview IIN7[-*1 Subject Matter Jurisdiction, Amount in Controversy //,V9 [ ~ ] Counterclaims, Compulsory Counterclaims

A district court is not required to dismiss a diversity action If a counterclaim is compulsory, a district court requires no where, after the action begins, one of the claims is dismissed, independent jurisdictional basis to entertain it. leaving the claimed damages below the amount in controversy requirements. However, the court must inquire into whether plaintiff was consciously relying on nimsy grounds to get into Civil federal court. Procedure > ... > Pleadings > Counterclaims > Compulso ry Counterclaims

Civil Civil Procedure > ... > Pleadings > Counterclaims > Compulso Procedure > ... > Pleadings > Counterclaims > General ry Counterclaims Overview

Civil Civil Procedure > Appeals > Standards of Review > De Procedure > ... > Pleadings > Counterclaims > General Novo Review Overview liN IO[A ] Counterclaims, Compulsory Counterclaims Civil Procedure > ... > Pleadings > Crossclaims > General Overview An appellate court reviews a district court's finding that a counterclaim is compulsory de novo. 1/NR[.f:.] Counterclaims, Compulsory Counterclaims

Civil l'ed. N. Cil·. P. l.ltc O requires a party to state as a Procedure > ... > Pleadings> Counterclaims > Compulso counterclaim any claim which at the time of serving the ry Counterclaims pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject Civil matter of the opposing party's claim. Procedure > ... > Pleadings> Counterclaims > General Overview

Civil Civil Procedure > ... > Pleadings > Counterclaims > Compulso Procedure> ... > Pleadings> Crossclaims >General ry Counterclaims Overview

Civil Procedure> ... > Jurisdiction> Jurisdictional Civil Procedure > Judgments > Preclusion of Sources > General Overview Judgments> General Overview

Civil Procedure > ... > Subject Matter Civil Procedure> Judgments> Preclusion of Jurisdiction> Jurisdiction Over Actions> General Judgments> Res Judicata Overview 1/:V I /[.~ ] Counterclaims, Compulsory Counterclaims Civil Procedure > ... > Pleadings > Counterclaims > General Overview Four inquiries help in determining whether a counterclaim is compulsory. ( 1) Are the issues of fact and law raised in the

Page326 3 of 10 Peter Farrell Supercars, Inc. v. Monsen

claim and counterclaim largely the same? (2) Would res injury, not the time of discovery. \'a. Cot!£ A lltt. ..3_8.01-"!.W judicata bar a subsequent suit on the party's counterclaim, (2000). An exception exists for actions in fraud; such claims absent the compulsory counterclaim rule? (3) Will accrue when the fraud is discovered or when it should have substantially the same evidence support or refute the claim as been discovered by the exercise of due diligence. Va. Code well as the counterclaim? and (4) Is there any logical Ann. § 8.01-249.1 (2000). The question of whether a party relationship between the claim and counterclaim? A court used due diligence to discover the fraud must be ascertained need not answer all these questions in the affirmative for the by an examination of the facts and circumstances unique to counterclaim to be compulsory. Instead, the test works less each case. like a litmus, more like a guideline. Of course, the underlying thread to each inquiry is evidentiary similarity, and where the same evidence will support or refute both the claim and Contracts Law > Breach > General Overview counterclaim, the counterclaim will almost always be compulsory. Governments > Legislation > Statute of Limitations >Time Limitations

Civil Procedure > Appeals > Standards of Review > De Contracts Law> Breach > Breach of Contract Novo Review Actions > General Overview

II.V /2 (~] Standards of Review, De Novo Review Contracts Law> Defenses> Statute of Limitations

Governments > Legislation > Statute of An appellate court reviews a district court's determination and Limitations > General Overview application of state law de novo. I/.V /5[A ] Contracts Law, Breach

Antitrust & Trade Law> Consumer Virginia's statute of limitations for breaches of contract is five Protection > Deceptive & Unfair Trade years. Va. Code Ann.§ 8.01-246.2 (2000). Practices > General Overview

Governments > Legislation > Statute of Limitations > Time Limitations Civil Procedure > Appeals> Standards of Review > Abuse of Discretion Governments > Legislation > Statute of Limitations > General Overview /IN 16[A 1 Standards of Review, Abuse of Discretion

liN /J ( ~ ] Consumer Protection, Deceptive & Unfair Trade Practices An appellate court reviews a district court's award of attorney's fees for abuse of discretion.

The statute of limitations for fraud and violations of the Virginia Consumer Practices Act, \'a. Code Ann _§_ 5Y. I 20Q Civil Procedure > Appeals > Standards of !.1..2f!L (200 I), is two years. \'a. Cm!t• Ann. .1 W. I 20_-I.. L Review > General Overview (2001). Civil Procedure > Attorneys > Pro Hac Vice

Governments > Legislation > Statute of Civil Procedure > ... >Costs & Attorney Fees > Attorney Limitations > Time Limitations Fees & Expenses > Reasonable Fees

/IN J.l [~] Statute of Limitations, Time Limitations /IN /7(~] Appeals, Standards of Review

Virginia law generally states that actions accrue at the time of Where a federal district court granted attorney fees pursuant

Page327 4 of 10 Peter Farrell Supercars, Inc. v. Monsen

to a Virginia statute, an appellate court looks to Virginia's Civil Procedure> ... > Costs & Attorney Fees> Attorney standards for determining if the fee award is reasonable. Fees & Expenses > Reasonable Fees

1/Nl / [-*.] Attorney Fees & Expenses, Reasonable Fees

Antitrust & Trade Law > Consumer Protection > Deceptive & Unfair Trade Expert testimony regarding the reasonableness of auorney Practices> General Overview fees is not required in every case. Civil Procedure > ... > Attorney Fees & Expenses > Basis of Recovery > Statutory Awards Civil Procedure> Remedies> Costs & Attorney Civil Procedure > Remedies> Costs & Attorney Fees> General Overview Fees> General Overview IIN2l[j:,] Remedies, Costs & Attorney Fees IIN I8[,;l] Consumer Protection, Deceptive & Unfair Trade Practices See lJ;1. Cmlc Ann . .~ 17. I -625 (2003).

The Virginia Consumer Practices Act, Vu. Code Ann._.f 59J.::.. Counsel: Richard Steven Sternberg, Rockville, Maryland, for 200 e} .\·~ (2001), authorizes an award of attorney's fees to Appellants. prevailing parties. V£r. Code Amr,_1 59.1-20.J{B' (200 I). Francis Eugene Purcell, Jr., WILLIAMS MULLEN, McLean, Virginia, for Appellee.

Civil Procedure> ... > Costs & Attorney Fees> Attorney Judges: Before NIEMEYER, WILLIAMS, and DUNCAN, Fees & Expenses > Reasonable Fees Circuit Judges.

1/.VI 9[.;l] Attorney Fees & Expenses, Reasonable Fees Opinion

In Virginia, counsel must establish, as an element of the [*294] PER CURIAM: attorney's prima facie case, that the fees charged are reasonable. Peter Farrell Supercars and its owner, Peter Farrell, (collectively Farrell) appeal from a jury verdict in favor of Gordon Monsen, a disgruntled Farrell's customer. Farrell's & original complaint stemmed from negative statements that Civil Procedure> ... > Costs Attorney Fees> Attorney 1 Fees & Expenses> Reasonable Fec;:s Monsen posted on the internet. It included several state claims and a federal Lanham Act IIN21J[,;l] Attorney Fees & Expenses, Reasonable Fees claim. In response to Farrell's complaint, Monsen filed several counterclaims alleging breach of contract, fraud and violations of the Virr: iniu Cmr .IJ.l!l1£.Lf~rw ria.\ Act. Th e The When determining if a party has met the burden of showing jury found in favor of Monsen on all claims and that attorney fees are reasonable, the fact finder should counterclaims. Farrell argues that the district court abused its consider such circumstances as the time consumed, the effort discretion by [**2] retaining the action after it dismissed the expended, the nature of the services rendered, and other [*295] federal claim under the Lanham Act, erred by holding attending circumstances. A court should weigh the testimony that Monsen's counterclaims were compulsory and were not of attorneys as to the value of the services, by reference to time barred, and abused its discretion by awarding attorney's their nature, the time occupied in their performance, and other fees to Monsen. We affirm. attending circumstances, and by applying to it their own experience and knowledge of the character of such services.

1 Farrell's complaint named multiple defendants, but by the time trial commenced only Monsen remained. Page328 5 of 10 Peter Farrell Supercars, Inc. v. Monsen

I. an internet bulletin board for RX-7 enthusiasts. For example, Monsen wrote on June I, 2001: The facts relevant to this appeal arise out of a souring of the business relationship between Farrell and one of his [I] strongly recommend that whoever is considering customers, Gordon Monsen. Although Farrell initially peter feral talk to any of the many people that peter has claimed that a conspiracy among a former Farrell Supercars' mistreated and ripped off by selling them retitled out-of­ employee, John Duff, and some of Farrell's business state cars that anything could have happened to and competitors had damaged Farrell's reputation and business, by Virginia [**5] still gives a good clean title for, or the time the trial began the only parties remaining in the charging for work not done as expected. action were Farrell and Monsen. Monsen owned a Mazda RX- (J.A. at 52.) 7 that he took to Farrell for improvements in December 1998. Specifically, Monsen wanted Farrell to install a 500- Farrell countered by bringing this action on July 9, 2001, in horsepower single-engine turbo kit, perform a race-ported the United States District [*296] Court for the Eastern engine exchange, and make other minor adjustments. [**3] District of Virginia, alleging violations of the Lanham Act, 15 Monsen believed that the term "engine exchange" meant that U.S.C.A. § JJ25 (West 1998 & Supp. 2003), and seven state Farrell would remove and rebuild his own engine, not that common law claims for defamation and tortious interference 2 Farrell would literally exchange his engine with that from with a business relationship. another car. An invoice dated December 21, 1998, listed the Monsen counterclaimed for breach of contract, fraud and improvements Farrell would make, including the "race-ported engine-exchange." (J.A. at 83.) violations of the Virginia Consumer Practices Act (VCPA), \'a. Code Ann. § 5CJ.I -200 et .\ea. (Michie 200 I). The district Monsen picked up the car on May 14, 1999, and drove it court dismissed Farrell's Lanham Act claim on April 25, home to Pennsylvania. Monsen experienced difficulties with 2002, principally because Monsen was not in competition the car's driveability almost immediately, and, after the engine with Farrell and did not disseminate his statements as caught fire while Monsen was out for a drive, Monsen took advertisements. A jury trial commenced on June II, 2002. On the car to KD Rotary, a Pennsylvania mechanic. At that time, that date, Farrell took a non· suit as to the former employee in May 1999, KD Rotary determined that the engine fire was John Duff, leaving only Monsen as a defendant. The jury caused by the proximity of the engine wiring harness to the found for Monsen on all of Farrell's counts, and also found for turbo charger and the absence of a heal shield. KD Rotary Monsen on all of his counterclaims. Accordingly, the jury also found faulty wiring and soldering that fell below industry awarded Monsen$ 10,000 for breach of contract,$ 5,000 for standards. Monsen continued to have difficulties with the car fraud,$ 5,000 {**6] in punitive damages, and$ 5,000 for the and returned to KD Rotary in August 2000. KD Rotary VCPA violations. The VCPA award was statutorily trebled to removed the turbo kit and sent it to a specialist, who replaced $ 15,000. After denying Farrell's motion for a new trial, the that turbo kit with a new one because the kit that Farrell had district court awarded Monsen $ 55,823.50 in attorney's fees, installed was severely worn. limiting the fee award to those fees incurred on the VCPA claim. This timely appeal followed. We possess jurisdiction to Armed with a new turbo kit, Monsen began driving the hear the appeal under 28 U.S.C.A. § 1291 (West 1993). Mazda {**4] RX-7 again. One week later, in September 2000, II. the engine simply stopped working. KD Rotary, for the first time, decided to remove the entire engine for examination. On appeal, Farrell argues that the district court abused its Upon inspecting the engine, KD Rotary found that the engine discretion by retaining the action after it dismissed the failed due to excessive wear. KD Rotary noticed that the Lanham Act claim, erred in ruling that Monsen's vehicle identification number (VIN) on the engine did not counterclaims were compulsory and timely, and abused its match the VIN for Monsen's car, and the name "Ed Taylor" discretion in awarding Monsen attorney's fees. 3 was found scratched on the engine. Ed Taylor had previously We address each of these arguments in turn. offered to sell his car, also a Mazda RX-7, to Monsen, but Monsen had declined because Taylor's car had substantially [**7] Supplemental Jurisdiction more miles than Monsen's. Monsen thus believed that Farrell had switched Taylor's engine, which had over 100,000 miles 2 on the odometer, for his, which had only 25,000 miles. Farrell's complaint named other defendants who, by virtue of settlements and non-suits. are not relevant to this appeal.

In response to this perceived wrong, Monsen began posting 3 Farrell also complains of two errors regarding the jury instructions messages regarding his business transactions with Farrell on and verdict form. We find both to be without merit and affirm the district court's findings and conclusions based on its reasoning.

Page329 6 of 10 Peter Farrell Supercars, Inc. v. Monsen

Farrell first argues that the district court abused its discretion court must inquire into "whether plaintiff was consciously by refusing to dismiss the remaining state Jaw claims after it relying [**9] on flimsy grounds to get into federal court." !.4 4 dismissed the sole federal claim, the Lanham Act claim. II( //1.

We disagree. 11.\'J['i'J District courts have supplemental In response to Farrell's motion for a new trial, the district jurisdiction over state law claims that "form part of the same court explained its decision to retain the remainder of the case or controversy" as the federal claim. 28 U. S.C t\. § case, noting "the parties had completed substantial pre-trial 5 /3f1lt al t\Vt''' 11)1}3 1. I/.V2[-+ ] A district court, however, preparation," "may decline to exercise supplemental jurisdiction over a and the court "was already familiar with the facts and issues." claim" when the court "has dismissed all claims over which it (J.A. at 168.) Therefore, the court continued, "dismissal at has original jurisdiction." 28 U.S.C.A . .1 13o7th1t3J (I V,- ~ , that late date therefore would not have been fair to the parties, IW3 ). 1/NJ [ ~] We review a [*297] district court's actions and also would not have been an efficient use of judicial under § 13o7 for abuse of discretion. 5/umm.:/wn \'. Caltill, 58 resources." (l.A. at 168.) F./..d I_OfJ .. IM { -I tit Ctr. 199,1.1. The district court's decision to retain jurisdiction over the [**8] Farrell believes that, because the federal claim was state law claims was not an abuse of discretion. The district dismissed before trial, the district court abused its discretion court followed the procedure outlined in Shanaghan, taking by retaining the numerous state law claims. //.\'.:1 [ ~] The into consideration the number [**10] of state law claims doctrine of supplemental jurisdiction is one of flexibility, and remaining as well as the length of time the parties had already there is no "mandatory rule" requiring dismissal when the spent preparing for trial. The district court also appropriately federal claim is disposed of before trial. Camq :i£ Mdlon considered its familiarity with the parties and issues as a l fnil . \'. Col/Ill, -18-1 U.S. 343. 350 11 . 7. 1)8 t.. ,__ t;d. 2cl 720.. 108 factor favoring retention of the state law claims. The Lanham 6 S. Cr. (Jf-1 (/CJ88). Likewise, in Shanaglw11, we noted that Act claim was not disposed of until the eve of trial, //N.'i [~ ] district courts enjoy "wide latitude" when deciding whether to exercise supplemental jurisdiction in an action. almost eight months after the complaint was filed, and the Sluuwc:lum, 5X F.3d at 110. We instructed I/.V6('¥] district remaining state law claims, ahhough numerous, had been courts to consider the "convenience and fairness to the parties, developed and refined throughout the pretrial period. The the existence of any underlying issues of federal policy, district court deserves "wide latitude" in making its comity, and considerations of judicial economy." /d. determination under § 1367, see Slwnaglwn. 58 F. 3d at I 10, Applying those factors in Shanaghan, we held that /IN7[¥ ] a and did not abuse that discretion by retaining jurisdiction. district court was not required to dismiss a diversity action Furthermore, we would be remiss if we failed to note the where, after the action began, one of the claims was curious procedural posture of this appeal. Typically in dismissed, leaving the claimed damages below the amount in supplemental jurisdiction [**Ill cases, the plaintiff is controversy requirements. We did caution, however, that a complaining because the district court failed to retain his supplemental state law claims. Here, Farrell, the plaintiff, is complaining because the district court in which he filed his ~In the alternative, Farrell argues that the district court never had federal and state law claims used its discretion to retain the jurisdiction over the action because the federal claim was a sham. In state law claims after dismissing the federal claim. Farrell fact, at argument Farrell's appellate counsel made the somewhat now claims that he used the Lanham Act claims as a "hook" unusual suggestion, with his client's blessing. that his client should with [*298] which to bring the state Jaw claims under federal be sanctioned for his trial counsel having filed such a spurious claim. jurisdiction. Under these circumstances, we cannot help but Although this strategy may have been a clever attempt to fall within view Farrell's post-trial actions as those of a somewhat sore the purview of the safeharbor provision of J. ~ ·.lt• ml Nult• o( Cil il loser who is upset that his chosen forum rendered an /_'mt•·Jur.· I 1 and thus relieve Farrell of the adverse jury verdict. we unfavorable verdict. must reject it because Farrell's complaint, on its face, stated a Lanham Act claim against the defendants that provided federal question jurisdiction pursuant to 28 U.S.C.A. § 133/ (West 1993) 5 For example, the parties had filed numerous motions, appeared four and original jurisdiction pursuant to ] 8 (I ~· ( 4 \. § IJ3R { n n / Sw1>. times before the district court and numerous times before the JliOh Because multiple defendants, some of whom were magistrate judge, completed discovery and filed witness lists with competitors of Farrell, were dismissed before the Lanham Act claim the court by the time the Lanham Act claim was dismissed. was disposed of by the district court, the fact that Farrell did not state a claim under the Lanham Act against Monsen, standing alone, does 6 Although the trial did not commence until June II. 2002, it was not dictate a finding that the Lanham Act claim was a sham when scheduled to begin in April 2002, but was stayed so that Farrell filed. could attempt to serve notice on one of the co-defendants. Page330 7 of 10 Peter Farrell Supercars, Inc. v. Monsen

Given the district court's careful consideration of the factors inquiry, as we made clear in Pllillla, is the evidentiary listed in Shanaghan, and the wide latitude the district court similarity of the claims. Here, Monsen's [**14] counterclaims possesses when acting under § U f17, we cannot say that the necessarily involve the same evidence as Farrell's original district court abused its discretion in choosing to retain the claims. Monsen is alleging that Farrell performed poor work state law claims after dismissing the Lanham Act claim. 7 on his automobile. Farrell is suing Monsen for statements made in response to that work. The evidence involving both claims would necessarily center on the customization work [**121 The Counterclaims performed by Farrell. Cf. t\{hri::llr \ ',_Gate ~ 3fi2 r.2d 928, 929 (9th Cil·. 19M) (holding that a counterclaim for fraud was Farrell's next contention is that the district court erred in compulsory to a claim for slander because there was finding that Monsen's counterclaims were compulsory within "sufficient identity or overlapping of the events of the factual the meaning of /:(])era/ R11le .J!l Cil'il Prou•d11rt' /3(c0 . background"). 1/N.\'('i] That rule requires a party to state "as a counterclaim any claim which at the time of serving the pleading the [*299] There is a logical relationship between the claims pleader has against any opposing party, if it arises out of the because they "essentially aro se from the souring of [the transaction or occurrence that is the subject matter of the parties'] business relationship." /Jwm£'1 built\. o{ /1.'. Y.. In c. 1·. opposing party's claim." Fed. R. Cir. P. /3(c0. 1/.\'9(~] If a JJ!ill.(!/11~ ~30 F. S!!Jll!.:. l.h .328 .(S.D. W Va. 19Y3J (finding a counterclaim is compulsory, a district court requires no counterclaim for breach of contract and fraud to be independent jurisdictional basis to entertain it. Farrell argues compulsory to a claim of defamation). The issues of fact and that Monsen's counterclaims were not compulsory and, law are similar because "essentially the same burden" would because there was no independent jurisdictional basis for exist in the breach of contract and defamation claims. Sun them, those claims should have been dismissed. Shi{J /miidllll! & Drr Dod Co. I '. Vir ~ inia Elet~~c. Power Co ...... (lY F. R.D. 3\15, 3tJ7 (/;.D. fla. /CJ71 1 (seminal case //.\'/0[41'] We review a district court's finding that a finding [**IS] that counterclaims for breach of contract are counterclaim is compulsory de novo. Paimer 1'. Harrer. 8fi3 compulsory to claims of defamation). F.2d 32Y, 33 I (.:/tlr Cir. I 988 1. In Sue & Sam M fr: . Co. 1'. 8 L· S Co1nt, Co. , 538 F.2cl 1048. 1051- 1053 f4tlr Cir. Jf.J7M , we Because we have stated that evidentiary similarity is the most identified 1/..VJJ[-"f] four inquiries that help in determining important inquiry, and because there is both evidentiary whether a counterclaim is compulsory: (I) [**13] Are the similarity and a logical relationship between Farrell's original issues of fact and law raised in the claim and counterclaim claims and Monsen's counterclaims, we find that the district largely the same? (2) Would res judicata bar a subsequent suit court was correct in holding that Monsen's counterclaims on the party's counterclaim, absent the compulsory were compulsory within the meaning of R11lc I 3(o). Likewise, counterclaim rule? (3) Will substantially the same evidence we find no error in the district court's reasoned analysis of the support or refute the claim as well as the counterclaim? and res judicata and overlap-of-facts-and-issues inquiries. (4) Is there any logical relationship between the claim and counterclaim? "A court need not answer all these questions in Farrell argues in the alternative that Monsen's counterclaims the affirmative for the counterclaim to be compulsory." are time barred. It is undisputed that the invoice for Monsen's Paimer. Sfi3 F.2d at 331 . Instead, the test works "less like a RX-7 is dated December 1998, and that the work was litmus, more [like] a guideline." /d. Of course, the completed on Monsen's car by May of 1999. Farrell filed his "underlying thread" to each inquiry is "evidentiary similarity," complaint in July 2001, more than two years after the alleged and "where ... the same evidence will support or refute both breach of contract and fraud. The district court recognized the claim and counterclaim, the counterclaim will almost that Monsen's counterclaims were filed more than two years always be compulsory." lei. or 33 I -332. after the claims accrued but submitted to the jury the question of whether application of the discovery rule made Monsen's With this framework in mind, we turn to the instant case. The counterclaims timely. district court, in reviewing Farrell's motion to dismiss the counterclaims, determined that each inquiry weighed in favor li.V 12(¥'] We review the district court's determination and of finding that the claims are compulsory. We agree. The key application of [**16] state law de novo. Salve Re ~,; ina Coli. 1·. Rune II . .JYCJ U. S. 225, II 3 L. Ed. 2d 190, II I S. Cr. 1217 (/W lj. liN B {'!i'] The statute of limitations for fraud and 1 Because we find that the district court did not abuse its discretion in retaining the state law claims, we offer no opinion as to whether the district court also possessed diversity jurisdiction under 28 U.S.C.A. § 1332 (West 1993 & Supp. 2003). Page331 8 of 10 Peter Farrell Supercars, Inc. v. Monsen

violations of the VCPA is two years. 8 award is reasonable.

\'a. Code An11. tS 5} 1 (Michie 2003 ). Virginia courts have yet to rules require local counsel be retained in those situations. E.D. Va. rule on the meaning of this section, [*•21] but we believe Local R. 83.1(0). that, ass11ming arguendo that the section prohibits more than one attorney {*301) from receiving a fcc award, the district II H.V Nl[ 'i'] The VCPA authorizes an award of attorney's fees to court followed the legislature's intent in this action. The prevailing parties. Vn ( ·o~ l· · , \1111. § :i!J./.:!0-IllH (Michie 2001 ).

Page332 9 of 10 Peter Farrell Supercars, Inc. v. Monsen district court removed all of the duplicative fees from the lodestar when calculating the award. Thus, by its actions, the district court was, in fact, ensuring that only one attorney's worth of work was being credited in the fee award. Because the district court followed the clear intent of the Vtrginia Code, we do not find the award of attorney's fees to be an abuse of discretion.

For the foregoing reasons, the judgment of the district court is

AFFIRMED

Enclnf ll1•cum~nt

Page333 10 of 10

Tab 23

334 LAW OFFICES OF GLENN ROBINSON & CATHEYPLc

JANES. GLENN (1956-2007) ]OHNEAL M. WHITE MELISSA W. R.OBINSON AMY E. MCLAREN MARK K. CATHEY C. KAILANI MEMMER DIRECT DIAL' (540) 767-2216 VICTORS. ("DINNY") SKAFF, Ill EMAIL' [email protected]

September 12,2017

VIA ELECTRONIC MAIL

Stuart A. Raphael, Esq. Chairman, Boyd-Graves Conference [email protected] c/o Hunton & Williams LLP 2200 Pennsylvania Avenue, NW Washington, D.C. 20037

RE: Boyd-Graves Conference Committee on Virginia Code§ 8.01-413(C)

Dear Stuart:

Our Committee was asked to study whether Virginia Code § 8.01-413(C) should be amended to address cases in which the patient has sued a healthcare provider whose records are the subject of a subpoena under this section. Healthcare providers have taken the position that, after being sued by a patient, discovery of patient records must be made exclusively under Part 4 of the Rules of the Supreme Court of Virginia and that Virginia Code§ 8.01-413(C) is inapplicable. On the other hand, patients take the position that the statutory provision is superior to discovery rules and that the patient has an absolute right to issue and enforce a subpoena under§ 8.01-413(C).

Our Committee was comprised of the following members: Brent Brown, Anne Glenn, Margaret Hardy, Tracy Ann Houck, John Jessee, Jim McCauley, and Stan Wellman. Our Committee was also assisted by The Honorable Mary Jane Hall of the Circuit Court for the City of Norfolk and Avery T. "Sandy" Waterman, Jr., of Newport News. We enjoyed robust discussion and participation from all members of the Committee. At the outset, it should be noted that while our Committee contained numerous attorneys who either specialized in or have handled medical malpractice cases, no member of the Committee recalled either issuing or responding to a subpoena for "records and papers" under§ 8.01-413(C).

FULTON MOTOR LOFTS • 400 SALEM AVENUE, S.W. • SUITE 100 • R.OANOKE. VIRGINIA 24016 TELEPHONE (540) 767-2200 • FACSIMILE (540) 767-2220 • WWW.GLENNR.OB.COM

335 Stuart A. Raphael, Esq. September 12, 20 l 7 Page2

Background

Sandy Waterman has been involved in most of the decided cases on this issue. Sandy kindly provided the following view of the issue from the patient's perspective:

Hospitals, nursing homes and other healthcare providers systematicallY segregate factual information about patient care incidents from the so-called "patient chart". Savry to medical malpractice liability, healthcare policies/procedures and education instruct nurses and other staff to record kry incident facts separatelY in what selfserving!JI are dubbed "hospital records" or the like and claimed to be privileged. Thereby patients and their lavryers are limited to sanitized "patient charts," while pivotal facts are withheld from them.

Moreover, with the advent of electronic medical recordkeeping, healthcare providers have audit trails and under!Jiing metadata that show exact!JI what patient chart materials were accessed, created and/or revised by whom and when. Typical!JI, such important factual information also is withheld from patients. This is so despite federal record statutes.

Obvious!JI patients and their lawyers need and deserve all factual information of care upjront when evaluating medical malpractice suits. Indeed, pre-service expert certification requirements of §8.01-20.1 and §8. 01-50.1 heighten their need and entitlement; otherwise, plaintiffs stand to be hampered or even barred in pursing suit. But healthcare providers withhold such core incident factual information until litigation discovery - plus fight disclosure of them.

However, §8. 01-413 entitles patients and lawyers all "records and papers," including electronic ones; not simp!JI "patient charts." Indeed, the word "charts" does not even appear in the statute; that artificial limitation simp!JI is read into §8. 01-413 by healthcare providers, which gambit usual!JI goes overlooked. Significant!JI, in its wisdom, the General AssemblY afforded absolute patient entitlement, with no limitation of relevance or other discovery objections. "Medical records are much more than just the chart hanging there." Licare v. Riverside Hosp. Inc., No. CL0702452T-01, Hr'g Tr. at 38.16-23 (Newport News Jul, 10, 2007) (emphasis added). "[M]edicine has long past evolved from that time when 'a patient's chart' was a clipboard hung on the foot of a bed." Eason v. Sentara CarePlex Hosp., 88 Va. Cir. 291, 292 (Hampton May 29, 2014) (emphasis added) ("inexorable march to more disclosure").

SignificantlY too, unlike federal record statutes, §8. 01-413 provides prompt Court reliif under §8.01-413(C)for "records and papers" withheld under §8.01-413(B). AID' aggrieved plaintiff immediatelY can file a miscellaneous suit and request Clerk-issued enforcement Subpoenas under §8.01-413(C)(i); or much more convenient!JI, use attornry-issued Subpoenas in any "pending civil case" under §8.01-413(C)(ii). Hence a plaintiffs lawyer can file a medical malpractice suit, and issue in that unserved "pending civil case" the necessary Subpoena; indeed, it makes no sense to file and issue in an unrelated civil case involving on!JI third-parties.

During 2007-2017, the aforesaid enforcement practice under §8.01-413(C)(ii) was upheld in at least 1 0 cases, most!Jl on the Peninsula, but also in Roanoke and most recentlY in Northern Virginia. In fact, to minimize entry and publication of Orders upholding the same, some

336

. : ~ .. Stuart A Raphael, Esq. September 12,2017 Page3

Peninsula providers represented by outside counsel voluntarilY have been providing responsive materials b'!Jiond the "patient chart," albeit often redacted. This pays appropriate deference to Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006) and its burgeoning progeny that patients are entitled to factual information of patient care regardless how seif-serving[y titled, routed and/or segregated.

In most cases, a subpoena issued pursuant to §8. 01-413 (C) is served on the health care provider before the suit has been served. At that time, the subpoena is served on the provider with the style of the case on the subpoena advising the provider that it is a party to a suit which has been filed. The subpoena is usually routed to the provider's attorney. The provider, through counsel, either files a Motion to Quash the subpoena or responds to the subpoena with the patient's "chart" only. At this point, the patient files a Motion to Enforce the subpoena and counsel for the provider responds. Much of the litigation in this arena ensues from either the Motion to Quash or from the Motion to Enforce and the Court is called upon to rule on the validity of the subpoena and if it is held valid, an evidentiary hearing is held to determine whether materials are otherwise protected or privileged.

In a number of cases, Courts have upheld enforcement of §8.01-413(C) subpoenas issued after filing of the suit but before service of the suit. See, e.g., Talton v. Sentara Hosps., 2015 Va. Cir. LEXIS 71, 2015 WL 3633655 (Norfolk Jun. 10, 2015) ("Plaintiff's Motion to Enforce Code §8.01-413(C) subpoena duces tecum is granted"); Eason v. Sentara Hasps., 2014 Va. Cir. LEXIS 111, 2014 WL 8879077 (Hampton Apr. 12, 2014) ("issuance and enforcement of a subpoena duces tecum pursuant to Va. Code §8.01-413(C) is an appropriate way for a patient to obtain healthcare records and papers"); Rauclifuss v. Schultz, 2014 Va. Cir. LEXIS 113, 2014 WL 8879076 (Newport News Jan. 16, 2014) ("§8.01-413(C) [subpoena] is procedurally proper, [medical malpractice suit] in which the plaintiff patient's attorney issued the subpoena is considered 'pending,' and the Complaint need only be filed and not served, too"); Anderson v. Carilion, 2008 Va. Cir. LEXIS 207, 2008 WL 6554433 (Roanoke Aug. 28, 2008) ("plaintiff's Motion to Enforce the subpoena duces tecum is granted"); Purvis v. Riverside, No. CL0704244P-03, (Newport News Feb. 12, 2008) (patient has "absolute right" to healthcare records and papers under §8.01-413).

In other cases, where the provider has argued that it is a defendant in a lawsuit and therefore Part 4 of the Rules of the Supreme Court of Virginia are the exclusive mechanism for discovery, Courts have found that the statute "trumps" the rule. See e.g., Sussman v. Allen, 2017 WL 627037, (Loudoun Feb 10, 2017) (Va. Code §8.01-413(C) subpoena duces tecum "overrides Rule 4:9(a)(3) of the Rules of the Supreme Court of Virginia since it is settled that a Rule of Court must give way to a Code Section"); Cherrie v. Virginia Health Servs., Inc., 2013 Va. Cir. LEXIS 190, 2013 WL 10629709 (Gloucester Dec. 11, 2013) (§8.01-413(C) subpoena is appropriate enforcement vehicle and "trumps" Rule 4:9(C}); Purvis v. Riverside, 2008 Va. Cir. LEXIS 206, 2008 WL 6554431 (Newport News Feb. 27, 2008) ("§8.01- 413(C) enforcement subpoena in no way constitutes discovery, ... statute [§8.01-413] trumps the rule [Rule 4:9(C)]"); Morel v. Mary Immaculate, 2008 Va. Cir. LEXIS 208, 2008 WL 6554426 (Newport News Feb. 26, 2008) ("§8.01-413(C) subpoena duces tecum is proper on the ground a statute is superior to a rule"); Licare v. Riverside, 2007 Va. Cir. LEXIS 338,

337 Stuart A. Raphael, Esq. September 12, 2017 Page4

2007 WL 6787196 (Newport News Aug. 3, 2007) ("§ 8.01-413 is clear and prevails over Va. S. Ct. Rule 4:9(b)"); and Justis v. Sentara Health Sys., 2007 Va. Cir. LEXIS 339, 2007 WL 6787195 (Williamsburg!James City Apr. 30, 2007) ("§8.01-413(C) is clear and prevails over Va. S. Ct. Rule 4:9(b) and ... plaintiff's subpoena duces tecum is not procedurally flawed").

In Wilder v. Children's Hospital of the King's Daughters, Inc., Judge Hall found that the §8.01- 413(C) subpoena was an improper circumvention of the discovery rules and an "attempt to obtain documents from a party in a pending case, but without serving the Complaint and issuing a request for production of documents." 2017 Va. Cir. LEXIS 10 (Norfolk Feb. 6, 2017). Judge Hall found the subpoena to be in violation of Rules 4:9 and 4:9A. This case did involve a previously nonsuited case, but the hospital had not been served in either suit when the issue of quashing or enforcing the §8.01-413(C) subpoena arose. The hospital had made a special appearance to challenge venue and quash the aforementioned subpoena.

Discussion

The Committee reviewed the applicable statute(s), rules and case law. The consensus of the Committee is that the courts are adequately addressing these issues with capable counsel on both sides. We do not support any amendment to the statute, either pro-patient or pro­ provider.

We sincerely thank you for the opportunity to study this interesting topic.

Very truly yours,

GLENN ROBINSON & CATHEY PLC

C. Kai1ani Memmer

CKM:ltc c: P. Brent Brown, Esq. James A. McCauley, Esq. Anne M. Glenn, Esq. Margaret F. Hardy, Esq. Tracy Ann Houck, John T. Jessee, Esq. Stanley P. Wellman, Esq.

338