effective discovery practices in Virginia State and Federal Courts By: GOBIND S. SETHI and Kristi C. Kelly

Different discovery strategies Offensive vs. Defensive Offensive: I want to learn things that will actually help my case. Defensive: I want to shut down/box in things that will actually hurt my case. Know which is which, don’t get them confused Don’t object to providing documents that would help your case! If they object to providing documents that would help their case, count your blessings!

State Court General Tips Even though you are not in the Rocket Docket, get going with developing facts that support your case theory. Many Circuit Courts around the commonwealth only hear motions once a month or every other month so it can take time to resolve a discovery dispute which is another reason to get your case moving. Use SDTs to verify the truthfulness of the other sides’ claims/defenses. Use Interrogatories to gather witness information as soon as possible so you can make an early decision as to who the person you want to depose. Do not forget to use request for admissions. Can save you a bundle of money.

Federal Court Tips Rule 26b- Relevant to claims and defenses and proportional to the needs of the case Considers importance of issues at stake in the action Amount in controversy Parties’ relative access to information Parties’ resources Importance of discovery surrounding the issues Whether burden and expense outweighs the benefit Rocket Docket- justice delayed is justice denied Judges never reward an obstructionist General Objections are frowned on; “subject to”; “will produce”

5 METHODS OF DISCOVERY DEPOSITIONS REQUEST FOR PRODUCTION REQUEST FOR ADMISSIONS INTERROGATORIES SUBPOENA BASED DISCOVERY

depositions: When to conduct party depositions in the course of discovery? If you conduct non-party depositions first, you’ll gain additional information for party depositions. However, if you conduct non-party depositions first, the opposing party will get a primer of the type of questions you will ask and they will be better prepared for the party deposition.

STATE COURT: Party depositions may be read into evidence Rule 4:7(a)(3) allows party depositions to be read by the opposing party This is an effective strategy at trial, because you can call the opposing party on “cross”, and the party can be lead by their counsel. Must make sure you have a clean transcript of at least the questions you want to read into evidence. If there is an objection made to form, ask for a more specific objection, and consider rephrasing the question.

Federal Court: Depositions Unlike state court, depositions can be used at summary judgment. Your client’s deposition can be used to throw your case out of court: depo prep is crucial. Plf’s dep is make-or-break for civil rights litigation Many judges will allow you to call them during a depo to have a dispute resolved. A party cannot instruct the witness not to answer unless: Asserts attorney-client privilege Agrees to move for a protective order (Rule 30(d)(3) Or if Court has already limited testimony Depositions limited to seven hours “Anything else? Anything else?”

STATE COURT: DE BENE ESSE DEPOSITIONS No specific rule covering de bene esse depositions Common practice in State Court, especially with experts Still can call “trial” witness to trial in lieu of showing or reading the de bene esse deposition Make sure to rephrase any questions that can be rephrased if there is an objection…Do not want the Judge to sustain the objection and then you are unable to use an answer you needed. If the witness is an expert, make sure to offer the expert as you would at trial. If you are the opposing party, do not forget you can voir dire the expert on his credentials. Try to reach an agreement as to the admissibility of CVs of experts before the deposition so you know if you should offer it into evidence.

REQUESTS FOR PRODUCTION Can only be served on a party Can also request inspection of land, tangible items No limit on how many can be served Rule 34- proportional to needs of the case Objections to discovery In E.D., usually due 15 days after service (three days for mailing) Check scheduling order and local rules Responses to Discovery Due 30 days after service Extensions are routinely provided between parties. Rule 26- Privilege Log In E.D., due either 15 days after service (three days for mailing) or at time of responses

CHALLENGE: HOW TO ENSURE ALL RESPONSIVE DOCUMENTS HAVE BEEN PRODUCED Privilege Log Required in federal court Request production in state court; however, you may be asked to prepare one as well Documents have to be produced as they are kept in the usual course of business or they shall be organized and labelled to correspond with the request categories Send a broad request and a more tailored request for the same category of documents Example: Request 1- Produce all medical records reflecting care and treatment provided to John Doe on or after January 1, 2012 Request 2 – Produce all medical records for John Doe reflects any care or treatment rendered to Joe Doe as a result of the January 1, 2012 motor vehicle accident.

REQUESTS FOR ADMISSIONS Recent change to state court rule- allows only for 30 admissions excluding those related to genuineness of documents No limitation in federal court- Rule 36 An effective device to narrow issues for trial by eliminating the need for proof Not bound by Interrogatory answers but bound by admissions

Challenge: how to get the opposing party to admit the proposed admission request Serve a corresponding Interrogatory with Admissions: For any request for admission that you were unable to admit in full, please state the factual and legal reasons for your denial or qualification and include in your answer a summary of the relevant knowledge of each and every witness which supports your denial or qualification. (Exhibit A). Circuit Court decision ordering a party to answer a corresponding (Exhibit B). If explanations for denied or qualified admissions are required for 5 proposed admissions, does that mean you have utilized 5 of your 30 Interrogatories to serve on that party? Can the explanation or qualification to any admission be read into evidence if provided pursuant to a corresponding Interrogatory? File a Motion to Compel, Strike or Deem Certain Admissions Admitted if answers are evasive.

INTERROGATORIES Rule 33- Limit of 25 Interrogatories per party Serve substantive Interrogatories before depositions? Example: State all facts as to how the accident occurred Cons: 1) Lawyer drafts answers with client 2) Client has perfect answer for deposition 3) Less chance for impeachment

SETTNG THE LIMITS OF THE CLAIMS AND EVIDENCE Interrogatories are more effective here Witness Interrogatories: Identify all witnesses with knowledge of each claim or defense and provide a summary of their knowledge. The opposing party should be limited to the witnesses identified If they attempt to call a non-disclosed witness at trial, move to preclude that testimony Document Interrogatories: Identify all documents that support your claim of contributory negligence. (May get a work product objection here, but still propound) Goal is to know all the information that will be introduced at trial Consider how many times you have introduced interrogatory evidence at trial

SUBPOENA BASED DISCOVERY Broad ranging power to command production of materials Serve subpoenas early in the litigation to obtain information about each claim Sometimes materials responsive to a subpoena may lead to the issuance of a new subpoena Consider using subpoenas to test the truthfulness of witnesses and their claims Example: Witness gives different versions of events to a claims adjuster and at deposition. Serve subpoena on insurance company for statement to adjuster.

SUBPOENA BASED DISCOVERY Rule 45 Documents need to be produced within 100 miles of where they are located Use the District Court they reside If you need to enforce, push the Defendant to file a Motion to Quash in Court where case is pending Depositions- also must occur within 100 miles of deponent A witness fee is required based on calculation of miles necessary to travel

Motions to compel Meet and Confer Usually by telephone, but follow up with an e-mail Be reasonable Judges hate discovery disputes Motions to Compel Different practices for different courts Usually referred to Magistrates in Federal Court Can get fees and costs