The Journal of the Virginia Lawyers Association, Volume 24 Number 4, 2013 3

Discovery Gateway to Virginia Rule 4:1 only seems impenetrable.

by E. Stanley Murphy

ISCOVER DI Y 4 The Journal of the Virginia Trial Lawyers Association, Volume 24 Number 4, 2013

iscovery plays a critical role in issue the earliest forms of discovery abuse, raising sham formulation and truth seeking for even defenses solely for the purpose of obtaining an op- the simplest lawsuit. As trial lawyers ponent’s deposition.2 Dthough, we have an ambivalent relation- In 1938, recognizing the inadequacies of tradi- ship with the discovery process. It can be the most tional methods, and concerned that the frustrating essential job we perform. outcome of often depended on the financial We love access to evidence that will support our resources of the parties rather than the merits of case but hate dealing with the Sisyphean problem the case, the U.S. Supreme Court promulgated the of prying meaningful discovery answers from our Federal Rules of Civil Procedure.3 opponents. We expect our adversaries to disclose The new federal rules were revolutionary. They their case but are naturally resistant to disclosing eliminated the last vestiges of common law plead- weaknesses in our own. We happily propound our ing and substituted the complimentary procedures own questions but groan about requests that often of notice pleading and expanded discovery. These seem too burdensome when directed to our clients. twin reforms constitute what the Supreme Court And the problem explodes in cases involving in- has called “one of the most significant innovations” stitutional defendants, many of whom have turned of modern procedural practice.4 Nine years after discovery obstruction into a business objective. adoption of the rules, Justice Murphy explained Judges have a much simpler view of the their impact: problem. They hate discovery disputes and lose The pre-trial deposition-discovery patience with us when we cannot resolve issues mechanism established by Rules 26 to 37 that, on paper at least, appear simple. is one of the most significant innovations No small part of the problem in Virginia is of the Federal Rules of Civil Procedure. the structure and inelegance of Rule 4:1, which Under the prior federal practice, the describes essential discovery rights and responsi- pre-trial functions of notice-giving, issue- bilities. After more than four decades of amend- formulation and fact-revelation were ments and writing by committee, the rule begs for performed primarily and inadequately simplification, with its 2,725 words crammed into by the . Inquiry into the issues 36 inconsistently numbered paragraphs. and the facts before trial was narrowly Although basic discovery principles are clear confined and was often cumbersome in from the rule, the mechanisms for asserting and method. The new rules, however, restrict evaluating privilege, and for judicial interest bal- the pleadings to the task of general ancing, are scattered throughout Rule 4:1, some- notice-giving and invest the deposition- times in haphazard fashion. With so much raw discovery process with a vital role in the material, it is no wonder that discovery abusers preparation for trial.5 always seem to find something to argue about. This article will examine the guiding principles He stressed that discovery is an integral part of of discovery in Virginia courts, provide a plain the modern shift to notice pleading: English summary of the rule’s most important fea- tures, and suggest a practical approach to discovery The various instruments of discovery that employs these principles. now serve (1) as a device, along with the pre-trial hearing under Rule 16, to How we got here narrow and clarify the basic issues be- Let’s begin with a look back. Eighty years ago tween the parties, and (2) as a device for issues in a lawsuit were developed and not infre- ascertaining the facts, or information as quently decided through some form of common to the existence or whereabouts of facts, law pleading. The form of action was critical and relative to those issues. Thus civil trials specific factual averments met with specific types in the federal courts no longer need be of written pleas (dilatory, peremptory or to the carried on in the dark. The way is now merits). Next came the plaintiff’s written replica- clear, consistent with recognized privi- tion followed by the defendant’s written rejoinder.1 leges, for the parties to obtain the fullest At each step a court had the power to determine possible knowledge of the issues and the legal sufficiency of each side’s allegations and facts before trial.6 could end the litigation based upon the ping pong Virginia was reluctant to adopt the federal dis- exchange of legal papers. Once a plaintiff made it covery rules in their entirety but for many years the through this procedural cattle guard, little discov- General Assembly enacted discovery statutes based ery was available. were unknown upon them.7 The federal influence is clear from until the early 1930’s and depositions, if available early reported cases, notably General Accident at all through a bill of discovery, were generally Fire & Life v. Cohen,8 a 1962 decision that may be limited to examination of the parties. Even then, the earliest instance of the Virginia Supreme Court some states limited the scope of depositions to favorably citing federal decisional law to interpret affirmative defenses. This practice led to one of similar Virginia discovery law. The Journal of the Virginia Trial Lawyers Association, Volume 24 Number 4, 2013 5

In 1966, the Virginia Supreme Court adopted the stored information, or things; first version of state discovery rules.9 These provi- • Entry, inspection and testing of land or other sions continued to co-exist with a patchwork of property; discovery statutes until 1977 when the Court and • Physical and mental examinations; and the General Assembly adopted a comprehensive set • Requests for admission.15 of discovery rules that we now recognize as Part All of these devices are regulated and to some Four of the Rules of the Supreme Court.10 Al- extent limited by Rule 4:1 which defines basic dis- though amended continuously since their adoption, covery obligations and privileges. With all respect the essential structure of the rules has remained to the rule’s drafters and revisers however, the rule unchanged for 36 years. Unchanged too is the is a mess. continuing influence of federal law when Virginia Based on Federal Rule 26, this gateway discov- courts are required to apply or construe our own ery provision has been amended more than a dozen discovery rules.11 times since it was originally adopted. For the Because most discovery rulings are discretion- most part, discovery rights have been expanded16 ary12 and few involve more than harmless error,13 but the drafters have also attempted to provide there is little discovery precedent from the Virginia mechanisms for asserting privilege,17 for managing Supreme Court. Reported Virginia electronic discovery,18 and for litigating motions to opinions can be helpful but are best applied to spe- compel.19 Other revisions have imposed require- cific discovery topics. Widely reported, and easily ments of good faith pleading,20 and have revised accessible through 80 years of treatise commen- requirements for supplementation of discovery tary, federal discovery opinions are the most reli- responses.21 In places, these amendments seem to able source of legal authority for most questions repeat discovery principles that already have been involving the scope of discovery and privileges. clearly stated in the rule.22 Even the inconsistent Half a century after embracing federal discovery numbering of the rule is confusing. concepts, it seems beyond question that Virginia When we consider that Federal Rule 26 itself courts remain committed to the principle of liberal had been written by committee over a 40-year pe- discovery to formulate issues, to eliminate trial by riod by the time Virginia adopted it as the basis for ambush, and to encourage settlement. As the U.S. Rule 4:1, it is no surprise that the text has become Supreme Court noted on the twentieth anniversary ponderous. of the federal rules: None of which is to suggest that its provisions are hard to understand. Discovery rights, responsi- Modern instruments of discovery serve bilities and privileges clearly emerge from a disci- a useful purpose. . . They, together with plined approach to Rule 4:1’s 2,725 words and the pretrial procedures, make a trial less a six pages they consume in the current rule volume. game of blindman’s buff and more a It helps then to summarize the most impor- fair contest with the basic issues and tant discovery principles with a few declarative facts disclosed to the fullest practicable. sentences. Without oversimplifying Rule 4:1, its Only strong public policies weigh against important principles can be easily stated. disclosure.14 Subdivision (b) (1) describes the core discovery This short review of the origins of discovery is right: important for more than passing historical interest. If we understand the origin of modern discovery DISCOVERY IN LESS THAN 120 WORDS practices and the critical role they play in a notice • Relevant non-privileged information is presumptively discoverable. pleading system, we are better able to choose the right discovery method, to write better discovery • Judges may limit the scope of discovery but only for good cause. questions, and to understand our own responsibil- • The party seeking to limit discovery carries a heavy burden. ity to provide discovery responses. Most impor- • Statutory and common law privileges are inviolate. tantly, a firm grasp of the role that federal courts Privileges created by Rule 4:1 are not. played in developing the twin towers of notice pleading and liberal discovery methods leads us • Opinion evidence may or may not be discoverable. to rich sources of federal decisional law that are Opinions by a party not created in anticipation of litigation useful in obtaining meaningful discovery responses are usually discoverable. from our opponents. Opinions of experts expected to testify must be disclosed The Rule 4:1 Jungle without charge to opposing parties. Additional discovery is Twelve rules contained in Part Four describe subject to limitations and will cost. methods of Virginia discovery: Opinions of consulting experts almost always are protected. • Depositions by oral examination or written Obtaining extraordinary discovery of them will cost. A lot. questions; Opinions of counsel and other forms of work product are never • Written interrogatories; discoverable. • Production of documents, electronically 6 The Journal of the Virginia Trial Lawyers Association, Volume 24 Number 4, 2013

Parties may obtain discovery regarding tion.”26 Plentiful federal authority recognizes that any matter, not privileged, which is rel- relevance is tested by the breadth of the claims evant to the subject matter involved in asserted27 and that discovery should be permitted the pending action, whether it relates to unless it is clear that the material requested can the claim or defense of the party seeking have “no possible bearing” on the subject matter of discovery or to the claim or defense of the case.”28 any other party, including the existence, This idea is supported by the rule’s stipulation description, nature, custody, condition that information need not be admissible at trial and location of any books, documents, or provided that it “appears reasonably calculated to other tangible things and the identity and lead to the discovery of admissible evidence.”29 location of persons having knowledge of These two ideas are complimentary and that it is any discoverable matter. It is not ground a mistake to base relevancy objections strictly on for objection that the information sought the question of how a discovery request can lead will be inadmissible at the trial if the to admissible evidence.30 The second clause should information sought appears reasonably never be used to overwrite the first.31 calculated to lead to the discovery of Most questions of privilege are also conceptu- admissible evidence.23 ally easy, even though work product objections and questions of whether material was “prepared in But the rule also contains an important balanc- anticipation of litigation” usually are decided on a ing provision: case by case basis.32 Subject to the provisions of Rule 4:8 It is easiest to divide privilege questions into two (g), the frequency or extent of use of the categories. If the privilege asserted is based upon a discovery methods set forth in subdivi- statutory or common law right, then it is inviolate sion (a) shall be limited by the court if in discovery.33 Rule 4:1 however creates two quali- it determines that: fied privileges which may be invaded under certain (i) the discovery sought is unreason- circumstances. If a discovery request involves ably cumulative or duplicative, materials “prepared in anticipation of litigation” or is obtainable from some other or “trial preparation materials” then the court must source that is more convenient, less determine whether the requesting party meets a burdensome, or less expensive; two part test, showing both a “substantial need” (ii) the party seeking discovery has had for the materials as well as the inability “without ample opportunity by discovery in undue hardship to obtain the substantial equivalent the action to obtain the information by other means.”34 sought; or When these tests are met, then the court may or- (iii) the discovery is unduly burdensome der discovery while protecting “against disclosure or expensive, taking into account of the mental impressions, conclusions, opinions, the needs of the case, the amount in or legal theories of an attorney or other representa- controversy, limitations on the par- tive of a party concerning the litigation.”35 Applica- ties’ resources, and the importance tion of this portion of the rule is more frequent than of the issues at stake in the litigation. might be assumed. The court may act upon its own To begin with, Rule 4:1 itself provides that par- initiative after reasonable notice to ties and non-parties each have a right to their own counsel of record or pursuant to a statements,36 and it also requires routine disclosure under subdivision (c).24 of opinions from experts expected to testify at trial.37 In cases where a party has had exclusive This language yields the three principal areas of access to evanescent proof, courts freely required discovery disputes and essential procedural tests disclosure of information that simply cannot be for resolving them. duplicated. For example, Virginia circuit courts Why we argue (usually needlessly) frequently require production of accident and Most discovery disputes revolve around three investigation reports even though a claim might be 38 questions: foreseeable. This approach follows the compa- 39 • What is relevant? rable view of federal courts. • What is privileged? Two features of these rule based privileges also • What interest balancing is appropriate in deserve special comment. First, the protection of light of the practical needs of the case? materials “prepared in anticipation of litigation” 40 The first two questions typically have easy only applies to documents and tangible things. A answers. litigant must always disclose facts relevant to the Relevance is broadly defined under the Rule 4:1 case even those facts may be derived from privi- and by decisional law.25 A discovery request need leged documents, even facts contained in attorneys 41 only relate to “the subject matter of the litiga- files. Aggressive discovery objections frequently do not recognize this distinction. The Journal of the Virginia Trial Lawyers Association, Volume 24 Number 4, 2013 7

Second, protections for materials prepared for that it will determine what documents litigation and trial apply to persons other than at- are relevant and produce those docu- torneys. Express language of the rule protects ma- ments only. This type of answer hides terial prepared “by or for [a] party or by or for that the ball. It leaves the plaintiff wonder- . . . party’s representative (including his attorney, ing what documents are being produced consultant, surety, indemnitor, insurer, or agent).”42 and what documents are being withheld. Furthermore, it permits the defendant to Burdens and boilerplate be the sole arbiter of that decision. Such Before we consider the nettlesome question of an objection is really no objection at all interest balancing, it is important to understand the as it does not address why potentially re- procedural setting of motions to limit discovery. sponsive documents are being withheld. When a litigant requests non-privileged informa- The defendant, having no incentive to err tion relevant to the subject matter of the lawsuit, the on the side of disclosure, has arrogated to burden shifts to the responding party to show that itself the authority to decide the question the request is improper. Because the scope of dis- of relevance which is unquestionably the covery is broad, the burden of evading discovery is decision of the judge.46 heavy. As one federal court described the principle: The procedural burden for obtaining discovery Rule 26(c) provides in pertinent part: is slightly different in cases involving a privilege “Upon motion by a party or by the person arising under the discovery rules. from whom discovery is sought, and for Once a party has demonstrated that the re- good cause shown, the court in which quested information qualifies as trial preparation the action is pending . . . may make any or material prepared in anticipation of litigation, order which justice requires to protect a the burden of showing substantial need and undue party or person from annoyance, embar- hardship returns to the party seeking discovery.47 rassment, oppression, or undue burden Most frequently, substantial need can be shown by or expense.” demonstrating that the evidence has disappeared or 48 All motions under these subparagraphs cannot be duplicated. Undue hardship frequently of the rule must be supported by ‘good involves expense or effort beyond the resources of 49 cause’ and a strong showing is required the requesting party, but some courts treat practi- before a party will be denied entirely cal impossibility of obtaining comparable evidence 50 the right to take a deposition. Under as a form of hardship. the liberal discovery principles of the Interest balancing Federal Rules defendants were required With these procedural burdens in mind, we to carry a heavy burden of showing why are prepared to consider the circumstances under discovery was denied. which a court will constrain the scope of otherwise In order to meet this burden, a party resisting relevant discovery. Ordinarily the circumstances discovery must make a “strong showing” of good should be rare. cause,43 supported by specific facts and persuasive Subsection (b) (1) authorizes the court to limit legal arguments.”44 discovery under four circumstances, most of which Broadly worded boilerplate objections and involve the proportionality and reasonableness of self-serving discovery limitations are improper and the request. Discovery can be limited after a show- often draw the ire of judges as demonstrated by ing that the discovery: the following excerpt from Atheridge v. Aetna, a • Is “unreasonably cumulative.” frequently cited federal discovery case:45 • Can be obtained from a more convenient, less burdensome or less expensive source. Aetna includes the standard boilerplate • Is “unreasonably burdensome”; or “general objections” section in its re- • That the party has had ample opportunity to sponses to plaintiffs’ request for produc- obtain the information.51 tion which includes blanket objections In general, courts resolve questions under this as to relevance, burdensomeness and section of the rule by weighing the cost and burden attorney-client privilege and work prod- of responding to a particular request against the uct privilege. Such general objections do importance and relevance of the evidence it is not comply with Fed. R. Civ. P. 34(b) and likely to produce.52 It bears repeating, however, courts disfavor them. that conclusory claims that discovery is “unduly * * * burdensome” are insufficient. The party resist- The defendant does not object with speci- ing discovery must always show how and why a ficity to the request itself, or to its scope, request is unreasonable: on relevance grounds. Rather, it merely repeats the discovery standard contained Defendant merely states, in conclusory in Fed. R. Civ. P. 26(b)(1), then states fashion, that the requests are unduly bur- 8 The Journal of the Virginia Trial Lawyers Association, Volume 24 Number 4, 2013

densome. That too is insufficient. There in cases where there are no other available wit- is nothing in defendant’s responses which nesses in the same expertise.64 It’s always cheaper permits the Court to ascertain why or to do your own work. how the request is burdensome in order to make a ruling. The party opposing Five keys to a happy discovery life discovery “must show specifically how Except for the problem of dealing with re- an interrogatory is overly broad, bur- calcitrant litigants, most discovery disputes can densome or oppressive, by submitting be avoided with good sense and attention to the affidavits or offering evidence which discovery principles discussed in this article. Even reveals the nature of the burden.”53 if your opponent is a discovery abuser, a few prac- tical suggestions can streamline your discovery and Opinion discovery improve the results of your discovery motions. Finally, we consider the discovery of opinion Think before you ask. Before sending the first evidence. Again, the topic is easily bookended. interrogatory, write a discovery plan that outlines Because discovery of relevant information is what you need to know and the best ways to permissible if reasonably calculated to lead to ad- discover those facts. Remember the twin purposes missible evidence, relevant opinions from a party of discovery and concentrate on issue formulation, litigant typically are discoverable.54 A possible definition of your opponent’s claims, and discovery exception exists for so-called “self-critical analy- of facts that either buttress or damage your case. sis” materials but the privilege is controversial and Learn the basis of the other side’s claims and use has never been recognized by the Virginia Supreme discovery tools to limit the issues that need to be Court. Federal courts also have been reluctant to litigated. Resist the impulse to propound discovery recognize “self-criticism” as a new privilege and requests under the guise of thoroughness that are the better reasoned cases limit discovery of self- out of proportion to the importance of issues in critical opinion only to instances in which a party controversy. is required by law to analyze its own behavior, for Carefully evaluate which discovery methods are example, hospital peer review proceedings and best suited to your discovery goals. Use requests federally mandated equal opportunity audits.55 for admission to narrow issues and to establish At the other end of the spectrum is the absolute uncontested facts and documents. Use interrogato- prohibition against discovery of attorney client ries to identify the basis for claims or defenses, to communications and work product. A complete identify witnesses, and to commit your opponent to treatment of that subject is well beyond the scope the claims he or she can litigate. Using an interrog- of this article but attorney client privilege is deeply atory to identify documents within your opponent’s embedded in Virginia law and is specifically pro- control seems pointless. Instead, use a 4:9 request tected under Rule 4:1(b) (3).56 to obtain the document. That interrogatory you just In between these two extremes are questions saved can be used to inquire about documents that relating to discovery of expert witnesses. Rule no longer exist or that may be in the possession of 4:1(b) (3) not only permits but requires disclo- someone other than your opponent. sure of opinions by experts expected to testify at Remember that answers to your interrogatories trial if this information is requested. The litany of will be written by a lawyer and frequently will be required information is familiar to all but the most self-limited in some fashion. Under those circum- unseasoned trial lawyers,57 and failing to disclose stances, it will be hard to ask meaningful follow trial opinions virtually mandates their exclusion at up questions. Use interrogatories to identify the trial.58 Parties may depose opposing trial experts people you will need to depose in order to get at their own expense but discovery through other productive follow up answers. Limit the number means is within the discretion of the court.59 and length of examinations only to what the case Discovery of experts who are not expected will justify. Don’t forget the power of party deposi- to testify at trial60 is severely limited. It may be tions either of an individual litigant or through the ordered only after a showing of “exceptional cir- subject matter deposition of a corporation. cumstances under which it is impracticable for the Use discovery forms as checklists, not as a sub- party seeking discovery to obtain facts or opinions stitute for thoughtfully analyzing what you really on the same subject by other means.”61 need to know. Once you develop a reliable set of Even if a party is able to satisfy this austere test, forms, reread them regularly and evaluate the qual- the resulting discovery will cost the inquiring party ity of the information they produce as well as any not only the cost of the expert’s time in respond- difficulty you have encountered enforcing them. ing to discovery but also a portion of the expense Use discovery sparingly. It’s never a good idea to required to develop the opinions in the first place.62 do something just because you can. Remember that The burden of obtaining discovery of consulting every discovery question you ask will telegraph experts is extraordinarily high and generally only your own concerns or objectives. Don’t reveal more can be met if it is impossible to duplicate the opin- than is necessary. Also bear in mind the work that ion due to a lack of access to source materials,63 or you may be creating for yourself by requesting The Journal of the Virginia Trial Lawyers Association, Volume 24 Number 4, 2013 9 oceans of information that you do not really need. reasonable and your opponent has nothing to hurl A carefully targeted discovery plan is always your way, you will litigate fewer discovery mo- better than a scattershot approach. Massive discov- tions and win more of the motions that you file. ery requests are difficult to enforce and may well Be firm, but don’t over burden the court.This is fuel your opponent’s motion to limit discovery the hardest part of living a virtuous discovery life. under Rule 4:1(b) (1) (i), (ii), (iii). It is a lot of work to prepare a motion to compel, to Never send discovery that you are not prepared negotiate it, and to argue it. The reality of modern to compel. Your discovery questions can be bril- dockets is that judges frequently have trouble find- liant, narrowly tailored to the issues, and carefully ing time to devote to extensive discovery motions considered as part of an overall plan. Unless you and that you are likely to wait a while even to get are prepared to enforce your discovery request on the docket. Discovery abusers understand these though, you might as well save the effort of serv- realities and use them to delay your case. ing it. In today’s discovery climate, particularly If you have been selective with your discovery against many corporations, you should expect to requests and thoughtful in the way you have writ- receive aggressive boilerplate objections. Don’t ten them, you should have a manageable motion help your adversary by writing irrelevant, overly to compel. If your motion includes more than you broad, and difficult to understand questions. would want to decide as a judge, trim it down or As you are writing the discovery request or split it into two motions. asking a deposition question, imagine the objec- When you present your arguments, make the tion you are likely to draw and visualize yourself most of your time. Present thoughtful arguments arguing the motion to compel. Ask yourself what and demonstrate not only that you have exhausted you can do to tighten up the question or to reduce efforts to negotiate a resolution before filing he its scope so that an overworked circuit judge will motion, but also that your original request was find it easy to compel an answer. relevant, proportional and unobjectionable. Deal Answer discovery the way you would expect with blanket objections at one time. Group similar your opponent to answer your questions. Provid- issues unless the court requires you to proceed one ing your opponent with meaningful discovery re- question at a time. There are usually patterns to sponses has practical consequences far beyond the discovery evasion. philosophical implications. Among other things, Support your motion with a brief that outlines there is a severe risk of losing evidence important the basis for, and the importance of receiving to your claim if you withhold the information meaningful discovery answers. The authority cited from discovery. You might ultimately prevail on in this article is a good starting point but develop a claim that your adversary’s question is objec- your own standard cure letter and core legal argu- tionable or that it is not written clearly enough to ment for your supporting memorandum. If the require a particular disclosure. It is hard to predict issue involves more than broad based discovery the outcome of those battles however, and you objections (yes, you will get those), look for fact risk both evidence exclusion and trial delay. A far specific federal and Virginia circuit court cases that wiser course is to err on the side of disclosing more will give your judge a starting point for deciding than a question strictly requires, particularly if it your motion. pertains to an issue on which you bear the burden If you find yourself dealing with a Rambo-like of proof. opponent who simply refuses to answer, demon- Written discovery questions frequently are strate in your arguments how much time and effort overbroad, difficult to interpret, or ask for both that party has invested in evading discovery rather privileged and non-privileged information. Resist than providing meaningful answers. Do it gently the impulse to file a blanket objection. Disclose though. The court generally doesn’t need much discoverable information that is within the contem- help in spotting discovery abusers. plation of the question. Object where you must. Consider alternative methods of resolving dis- Describe what you believe is fair inquiry and what covery obstruction that is overwhelming in scope. is out of bounds. Delineate the boundaries you Rule 4:1 is broad enough and flexible enough to have placed on your response, but give discover- support a request for appointment of a special able information. master whose expense may be charged to the non- Providing the discovery response you expect prevailing party. to receive is also tactically a good idea. If you are ______dealing with a difficult adversary or an institutional discovery abuser, you can be certain of two things: Mark Twain once remarked that “Work is a nec- You will be filing a motion to compel and your essary evil to be avoided.” He was probably talking opponent will usually retaliate with a cross motion about discovery. A firm understanding of Rule 4:1 to compel answers from your client. Don’t give and the importance of the discovery process make them ammunition. Write the discovery response the work much easier and improve your chances of that demonstrates by comparison what they have avoiding quagmires. refused to provide you. If your own requests are Be reasonable. Be smart. Read the rules. 10 The Journal of the Virginia Trial Lawyers Association, Volume 24 Number 4, 2013

Endnotes domain cases is restricted to “issues that are relevant to 1. See, generally, Benjamin J. Shipman, Handbook of the proceeding and which are not privileged.” The limi- Common Law Pleading (3rd Ed. West Publishing tation seems redundant in light of earlier portions of the 1923). rule allowing discovery of “any matter, not privileged, 2. See, generally, John H. Beisner, “Discovering a Better which is relevant to the subject matter involved in the Way: The Need for Effective Civil Litigation Reform,” pending action.” 60 Duke Law Journal 547, 554-558 (2010). 23. Va. Rule 4:1 (b) (1). 3. Id. See, generally, Historical Notes, Orders and Adviso- 24. Id. ry Committee Notes, FED. R. CIV. P. 1, et seq. Congress 25. Herbert v. Lando, 441 U.S. 153, 177, 99 S. Ct. 1635 gave the Court power to adopt uniform federal rules in (1979) (“the deposition-discovery rules are to be ac- 1934, eliminating the so-called “conformity principle” corded a broad and liberal treatment to effect their that required federal courts to use the procedure of the purpose of adequately informing the litigants in civil state in which each district court sat. Federal rule mak- trials”); Schlagenhauf v. Holder, 379 U.S. 104, 121, ing is carried out through the Judicial Conference of the 85 S. Ct. 234 (1964) (“[t]he Federal Rules of Civil United States which the Congress established in 1922 Procedure should be liberally construed”); Hickman v. as the first effort to modernize federal courts. See, 28 Taylor, 329 U.S. 495, 507, 67 S. Ct. 385 (1947) (“the U.S.C. §331. deposition-discovery rules should be accorded a broad 4. Hickman v. Taylor, 329 U.S. 495, 500-501; 67 S. Ct and liberal treatment”). 385, 388-389 (1947). 26. Va. Rule 4:1 (b) (1). 5. Id. 27. Cox v. McClellan, 174 F.R.D. 32, 34 (W.D.N.Y. 1997) 6. Id. (magistrate judge concluded that “actions alleging viola- 7. Kent Sinclair, Leigh B. Middleditch, 1-12 Virginia tions of §1983 require especially generous discovery”); Civil Procedure, §12.1 (5th Ed. LexisNexis Matthew Inmates of Unit 14 v. Rebideau, 102 F.R.D. 122, 128 Bender). (N.D.N.Y. 1984) (“federal policy favors broad discovery 8. 203 Va. 810, 127 S.E.2d 399 (1962). See, also, in civil rights actions”). McLaughlin v. Gholson, 210 Va. 498, 171 S.E.2d 816 28. Miller v. Doctor’s Gen. Hosp., 76 F.R.D. 136, 138-139 (1970); Rakes v. Fulcher, 210 Va. 542, 172 S.E.2d 751 (W.D. Okla. 1977) (“relevancy is broadly construed (1970). at the discovery stage of litigation and a request for 9. See, Sinclair & Middleditch, supra, §12.1; also, Rules discovery should be considered relevant if there is any of the Supreme Court of Virginia, Historical Notes pre- possibility that the information sought may be relevant ceding Rule 1:1; Rakes, 210 Va. 542, 545; 172 S.E.2d to the subject matter of the action”).; Gagne v. Reddy, 751, 754, n.4. 104 F.R.D. 454, 456 (D. Mass. 1984) (“discovery should 10. Id. ordinarily be allowed under the concept of relevancy 11. See, e.g., Am. Surety Safety Cas. v. C.G. Mitchell unless it is clear that the information sought can have Construction, 268 Va. 340, 352; 601 S.E.2d 633, 640 no possible bearing upon the subject matter of the ac- (2004); Brown v. Black, 260 Va. 305, 311; 534 S.E.2d tion”). 727, 730 (2000) [Virginia Supreme Court retains the 29. Va. Rule 4:1 (b) (1). See, Kidwiler v. Progressive right to interpret its own rules.]. Paloverde Ins. Co., 192 F.R.D. 193, 198 (N.D. W. Va. 12. Rakes v. Fulcher, 210 Va. 542, 545; 172 S.E.2d 751, 755 2000) (relevance for discovery purposes defined more (1970). Although Rakes remains valuable precedent, broadly than relevance for evidentiary purposes). it is important to remember that 1977 amendments to 30. Lyle, Siegel, Croshaw & Beale, P.C., v. Tidewater Capi- Rule 4:1 eliminated the requirement for good cause in tal Corporation, 249 Va. 426, 438-439, 457 S.E.2d 28, order to obtain discovery of documents. The changes 34 (1995). track 1970 changes to FED. R. CIV. P. 26. Even after the 31. See, VEPCO v. Citizens for Safe Power, 222 Va. 866; amendments, the core work product holding of Rakes 284 S.E.2d 613, (1981) [improper to single out a par- seems unassailable. ticular phrase when construing a statute]; Garrison v. 13. See, e.g., Turner v. Manning, 216 Va. 245, 253; 217 S.E. First Federal Savings & Loan, 241 Va. 335; 402 S.E.2d 2d 863, 870 (1975). 25 (1991) [must interpret enactments as a whole; no 14. United States v. Proctor & Gamble, 356 U.S. 677, 682; phrase is meaningless]. 78 S. Ct. 983, 986-987 (1958). 32. Hickman v. Taylor, supra; Wilson v. Norfolk & Ports- 15. Va. Rule 4:1, summarizing Rules 4:2-4:12. mouth Beltline R. Co., 69 Va. Cir. 153 (2005). 16. Early versions of the rules excluded divorce and an- 33. See, Sinclair & Middleditch, supra, §12.3 for a list of nulment proceedings, habeas corpus, coram nobis and Virginia privileges. condemnation proceedings from discovery. Today, at 34. Va. Rule 4:1 (b) (3). least limited discovery is available in all those cases. 35. Id. See, Rule 4:1(b) (5). 36. Id. 17. Rule 4:1(b) (6). 37. Id. 18. Rule 4:1(b) (7). 38. See, e.g., Moore, etc., et al v. Farm Fresh, At Law No. 19. Rule 4:1(b)(8) CL94-20624F (Newport News Circuit Court, October 20. Rule 4:1(b) (8) (g). 30, 1995); Schuyler v. Holland, At Law No. CL94- 21. Rule 4:1 (b) (8) (e). 20049W (Newport News Circuit Court, September 22. For example, the stipulation in Rule 4:1 (b) (5) (1) (a) 12, 1995); Pressey v. State Farm Mutual Automobile that discovery in domestic relations, habeas and eminent Insurance Company, et al, At Law No. 20693 (Newport The Journal of the Virginia Trial Lawyers Association, Volume 24 Number 4, 2013 11

News Circuit Court, October 24, 1995). Red Cross, 23 F.3d 1091, 1098 (6th Cir. 1994); Riccota See, also, Carroll v. Blackwell, At Law No. ML3629 v. Allstate Ins. Co., 211 F.R.D. 622, 624 (S.D. Cal. 2002) (Richmond Circuit Court, January 25, 1996); Billups, [request denied because it would have required manual etc., v. Hunter, At Law No. 31127 (Hampton Circuit review of 50,000 claim files and the burden and expense Court, Part Two, November 1995); Overton v. Dise, At of producing the documents far outweighed the likely Law No. 130350 (Fairfax Circuit Court, November 9, benefit]. 1994); Schoonmaker v. Rogester, At Law No. CL94- 53. Athridge v. Aetna Cas. & Surety Co., 184 F.R.D. 181, 3969 (Virginia Beach Circuit Court, August 17, 1995); 191 (D. D.C. 1998), citing, Chubb Integrated Systems Boone v. Jacobson, At Law No. 95-181 (Portsmouth Limited v. Nat’l Bank of Washington, 103 F.R.D. 52, Circuit Court, September 14, 1995); Hawk v. Leggett’s 59-60 (D.D.C. 1984); see, also, Burns v. Imagine Department Store, Inc., At Law No. CL89-572 (Chester- Films Entertainment, Inc., 164 F.R.D. 589, 592-593 field Circuit Court, August 16, 1989);Genthner v. Orit (W.D.N.Y. 1996); Breon v. Coca-Cola Bottling Co. of Retail Holding Company, Inc., At Law No. 88-000128 New England, 232 F.R.D. 49, 55 (D. Conn. 2005). (Chesterfield Circuit Court, January 24, 1989). 54. Martin v. Valley Nat’l Bank, 140 F.R.D. 291, 300-301 39. See, e.g., Atlanta Coca-Cola Bottling Co. v. Transamer- (S.D.N.Y. 1991). ica Ins. Co., 61 F.R.D. 115, 118 (N.D. Ga. 1972) 55. See, e.g., Spencer Sav. Bank v. Excell Mortg. Corp., 960 40. See, In Re Cendant Corp. Securities Litigation, 343F F. Supp. 835, 840 (D.N.J. 1997), citing many cases. 3d. 658, 662 (3rd Cir 2009); In Re Echo Star Litigation, 56. See, generally, Thomas E. Spahn, Virginia’s Attorney- 448 F3d 1294, 1301 (Fed. Cir 2006). Client Privilege and Work Product Doctrine (Virginia E. Stanley Murphy is a 41. Resolution Trust Corp. v. Dabney, 73 F.3d 262, 266 CLE Publications 1999). graduate of the College (10th Cir. 1995); In re Savitt/Adler Litig., 176 F.R.D. 57. “A party may through interrogatories require any other of William and Mary. In 44, 48 (N.D.N.Y. 1997) (work product protection does party to identify each person whom the other party 1983 he was awarded a not extend to facts); United States v. Dentsply Int’l, Inc., expects to call as an expert witness at trial, to state the J.D. (with distinction) 187 F.R.D. 152, 156 (D. Del. 1999). subject matter on which the expert is expected to testify, from the George Mason 42. Va. Rule 4:1 (b) (3). and to state the substance of the facts and opinions to University School of 43. Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th which the expert is expected to testify and a summary of Law where he was Cir.1975). Emphasis added. the grounds for each opinion” Va. Rule 4:1(b) (4) (i). published in the law 44. McCleod, et al. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 58. See, John Crane, Inc. v. Jones, 274 Va. 581; 650 S.E.2d review. For the past 1990); Wauchop v. Domino’s Pizza, Inc., 138 F.R.D. 538 851 (2007) 20 years his practice (N.D. Ind. 1991); Roesburg v. Johns-Manville Corp., 85 59. Va. Rule 4:1(b) (4) (A) (ii), (iii). with Portsmouth’s F.R.D. 292, 296-297 (E.D. Pa. 1980); White v. Belognis, 60. Colloquially known as “consulting experts.” The Moody Law Firm 53 F.R.D. 480, 481 (S.D. N.Y. 1971). 61. Va. Rule 4:1 (b) (4) (B) has specialized in 45. Josephs v. Harris Corp., 677 F. 2d 985 (3rd Cir. 1982); 62. Va. Rule 4:11 (b) (4) (C). Only “manifest injustice” injury claims under Casson Constr. Co. v. Armco Steel. Corp., 91 F.R.D. will prevent expense sharing. The language of the rule the Federal Employ- 376, 379 (D. Kan. 1980); In Re Folding Carton Antitrust is otherwise mandatory. ers’ Liability Act, cases Litigation, 83 F.R.D. 260, 264 (N.D. Ill. 1979). 63. See, Hartford Fire Ins. Co. v. Pure Air on the Lake Ltd. that frequently involve 46. Athridge v. Aetna Cas. & Surety Co., 184 F.R.D. 181, Partnership, 154 F.R.D. 202, 208 (N.D. Ind. 1993); also, 190 (D. D.C. 1998), citing, Pulsecard, Inc., v. Discover In re Shell Oil Refinery, 132 F.R.D. 437, 442, clarified protracted discovery Card Services, 168 F.R.D. 295, 303 (D. Kan. 1996). by, 134 F.R.D. 148 (E.D. La. 1990); disputes. He has written 47. Va. Rule 4:1(b) (3).; also, Hendrick v. Avis Rent A Car 64. R.C. Olmstead, Inc. v. CU Interface, LLC, 657 F. Supp. extensively on Virginia Sys., 916 F. Supp. 256, 261 (W.D.N.Y. 1996); Corne- 2d 899, 904 (N.D. Ohio 2009), aff’d in part on other civil procedure and lius v. Consolidated Rail Corp., 169 F.R.D. 250, 253 grounds, 606 F.3d 262 (6th Cir. 2010). FELA trial practice. (N.D.N.Y. 1996; Director, Office of Thrift Supervision v. Vinson & Elkins, LLP, 124 F.3d 1304, 1307 (D.C. Cir. www.moodyrrlaw.com 1997). 48. Reedy v. Lull Eng’g Co., 137 F.R.D. 405, 407-408 (M.D. Fla. 1991) [photographs of changed scene]; Savoy v. Richard A. Carrier Trucking, Inc., 176 F.R.D. 10, 14 (D. Mass. 1997) [contemporaneous statements.]; Gut- shall v. New Prime, Inc., 196 F.R.D. 43, 46 (W.D. Va. 2000) [plaintiff almost always has “substantial need for surveillance materials.]. 49. See, e.g., Castle v. Sangamo Weston, Inc., 744 F.2d 1464, 1467 (11th Cir. 1984). 50. In re Int’l Sys. & Controls Corp. Sec. Litig., 693 F.2d 1235, 1240 (5th Cir. 1982) [inability of witness to recall earlier statements]. 51. Va. Rule 4:1 (b) (1) (i), (ii), (iii). 52. Lee Gardens v. Arlington County Board, 250 Va. 534, 538; 463 S.E.2d 646, 648 (1995) [extensive request for tax assessment materials dissimilar to issues in controversy]; Standard Chlorine v. Sinibaldi, 821 F. Supp., 232, 262 (D. Del. 1992). Coleman v. American