The Journal of the Virginia Trial Lawyers Association, Discovery Gateway to Discovery Virginia Rule 4:1 only Volume 24 Number 4, 2013 by E. Stanley Murphy seems impenetrable. DIS 3 CO V E R Y Y Y Y Y Y Y Y Y Y Y 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 pleading methods, and concerned that the frustrating essential job we perform. outcome of trials 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 pleadings. 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. Interrogatories 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 circuit court 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.