Discovery in Family Law Cases

Transcription

1 Discovery in Family Law Cases

2 THIS MATERIAL IS PRESENTED WITH THE UNDERSTANDING THAT THE PUBLISHER AND THE AUTHORS DO NOT RENDER ANY LEGAL, ACCOUNTING OR OTHER PROFESSIONAL SERVICE. IT IS INTENDED FOR USE BY ATTORNEYS LICENSED TO PRACTICE LAW IN VIRGINIA. BECAUSE OF THE RAPIDLY CHANGING NATURE OF THE LAW, INFORMATION CONTAINED IN THIS PUBLICATION MAY BECOME OUTDATED. AS A RESULT, AN ATTORNEY USING THIS MATERIAL MUST ALWAYS RESEARCH ORIGINAL SOURCES OF AUTHORITY AND UPDATE INFORMATION TO ENSURE ACCURACY WHEN DEALING WITH A SPECIFIC CLIENT'S LEGAL MATTERS. IN NO EVENT WILL THE AUTHORS, THE REVIEWERS, OR THE PUBLISHER BE LIABLE FOR ANY DIRECT, INDIRECT, OR CONSEQUENTIAL DAMAGES RESULTING FROM THE USE OF THIS MATERIAL. THE VIEWS EXPRESSED HEREIN ARE NOT NECESSARILY THOSE OF THE VIRGINIA LAW FOUNDATION Virginia Law Foundation. All rights reserved.

3 ABOUT OUR SPEAKERS Robert R. Hagy, II, Law Offices of Rob Hagy, P.C. / Charlottesville Robert ("Rob") R. Hagy, II, Esq., is the owner and proprietor of the Law Offices of Rob Hagy, P.C., established in August 2004 and located in Charlottesville. Mr. Hagy practices all aspects of Family and Divorce Law in the juvenile and circuit courts of the cities and counties constituting Central Virginia (Charlottesville, Albemarle, Greene, Nelson, Louisa, Fluvanna, Orange, and Buckingham). He is a graduate of the University of Virginia and received his J.D. from George Mason University. Mr. Hagy was a member of the George Mason Law Review, where he served as a Notes Editor. He served as the Assistant Commonwealth's Attorney for Fluvanna County from 2002 until Mr. Hagy is a member of the American Bar Association's Section of Family Law, the Family Law Section of the Virginia State Bar, the Domestic Relations Section of The Virginia Bar Association, the Charlottesville Albemarle Bar Association, and the Family Law Section of the Virginia Trial Lawyers Association. Darlene S. Lesser, Odin Feldman Pittleman, P.C. / Fairfax Darlene Lesser is a principal with Odin Feldman Pittleman and is a member of the Family Law & Domestic Relations and Litigation practice groups. She represents clients throughout Virginia, including the Northern Virginia Counties of Arlington, Fairfax, Fauquier, Loudoun, Prince William, and Frederick in both circuit courts and Juvenile and Domestic Relations courts. Ms. Lesser s practice focuses on family law issues, including negotiating and litigating custody, visitation, relocation, equitable distribution of property, finances and retirement funds, as well as alimony and child support. Her trial experience as an Assistant Public Defender in Florida enhances her representation of clients in all aspects of litigated issues, including domestic-related criminal matters such as protective orders and domestic assault. In addition, Ms. Lesser was named one of Virginia's Legal Elite for 2006, 2007, and 2008 in the Family/Domestic Law section by Virginia Business magazine, and was recognized as one of Virginia's 2008 and 2009 Rising Stars in the Family Law Section. iii

4 Discovery in Family Law Cases 1. Initial Information Gathering 1 2. Planning for Discovery 3. Informal v. Formal Discovery a. Make liberal use of releases 2 and other legal authorizations. i. For example: Access to minor's records. A. Notwithstanding any other provision of law, neither parent, regardless of whether such parent has custody, shall be denied access to the academic or health records of that parent's minor child unless otherwise ordered by the court for good cause shown or pursuant to subsection B. B. In the case of health records, access may also be denied if the minor's treating physician or the minor's treating clinical psychologist has made a part of the minor's record a written statement that, in the exercise of his professional judgment, the furnishing to or review by the requesting parent of such health records would be reasonably likely to cause substantial harm to the minor or another person. If a health care entity denies a parental request for access to, or copies of, a minor's health record, the health care entity denying the request shall comply with the provisions of subsection F of :03. The minor or his parent, either or both, shall have the right to have the denial reviewed as specified in subsection F of :03 to determine whether to make the minor's health record available to the requesting parent. C. For the purposes of this section, the meaning of the term "health record" or the plural thereof and the term "health care entity" shall be as defined in subsection B of :03. 1 Form 1 2 Forms 2, 3, 4, 5, 6, and 7 Page 1 of 52

5 4. Order of Conducting Discovery a. Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party's discovery. Rule 4:1(d)(1). b. Order of Most Effective Use? 5. Form v. Specific Discovery 6. General Discovery Principles a. The granting or denying of [discovery] is a matter within the trial court's discretion and will be reversed only if the action taken was [an abuse of discretion]. Travis v. Finley, 36 Va. App. 189, 204, 548 S.E.2d 906, 913 (2001) (quoting Rakes v. Fulcher, 210 Va. 542, 546, 172 S.E.2d 751, 755 (1970)). b. A trial court's decision to admit evidence that is not timely disclosed, rather than impose the sanction of excluding it, will not be reversed unless the court's action amounts to an abuse of discretion. Rappold v. Indiana Lumbermens Mutual Ins., 246 Va. 10, 14, 431 S.E.2d 302, 305 (1993) (quoting Woodbury v. Courtney, 239 Va. 651, 654, 391 S.E.2d 293, 295 (1990)). c. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Rule 4:1(b)(1). i. Sanford v. Sanford, 19 Va. App. 241, 450 S.E.2d 185 (1994) (holding that trial court could not order parties to exchange tax returns where there was no petition concerning support pending citing Rule 4:1(b)(1)). ii. Johnson v. Johnson, 1 Va. App. 330, 338 S.E.2d 353 (1986) (holding that trial court could not order parties to exchange tax Page 2 of 52

6 returns where court was without authority to make any change as to past due installments citing Rule 4:1(b)(1)). iii. Hall v. Hall, 05 Vap UNP (2005) (holding that trial court erred in sustaining wife s objection to husband s interrogatories about adultery in a divorce case where spousal support was an issue). 1. Rule 4:8(e) provides that any party may serve upon another party interrogatories that relate to any matters which can be inquired into under Rule 4:1(b). In turn, Rule 4:1(b)(1) defines the general scope of discovery as follows: a. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party.... It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. b. As the plain language of Rule 4:1(b)(1) indicates, a party's request for discovery will not be denied so long as it is relevant to the subject matter involved in the pending action. Id.; see Lyle, Siegel, Croshaw & Beale, P.C. v. Tidewater Capital Corp., 249 Va. 426, , 457 S.E.2d 28, 36 (1995). The rule thus establishes a broad scope for discovery requests, defining the relevancy of such requests by relation to the subject matter of the action, regardless of whether [they] relate[] to the claim or defense of the party seeking discovery or to the claim or defense of any other party. 1 Friend's Virginia Pleading and Practice 11-5 (2004) (emphasis added). c. Prior to the year 2000, Federal Rule of Civil Procedure 26(b)(1) provided the same broad scope of discovery allowed by Virginia's Rule 4:1(b)(1). Indeed, the pertinent language of Virginia's rule exactly mirrored the federal rule. 1 The Supreme Court of Virginia has not yet followed the federal example by amending this discovery rule. Rule 4:1(b)(1) thus retains the broader scope of discovery present under the older, pre-2000 Page 3 of 52

7 federal rule. Therefore, federal cases interpreting the rule as it existed before 2000 provide guidance in interpreting Virginia's current rule. See Rakes v. Fulcher, 210 Va. 542, , 172 S.E.2d 751, 755 (1970) (reviewing federal decisions interpreting another rule substantially the same as the Virginia counterpart). d. The United States Supreme Court case of Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978), addressed the scope of the rule prior to the amendment, the issue raised in the instant appeal. In discussing the concept of relevancy under Fed. R. Civ. P. 26(b)(1), the Supreme Court held: i. The key phrase in [the] definition [of the scope of discovery] relevant to the subject matter involved in the pending action has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case. See Hickman v. Taylor, 329 U.S. 495, 501 (1947). Consistently with the notice-pleading system established by the Rules, discovery is not limited to issues raised by the pleadings, for discovery itself is designed to help define and clarify the issues. Id., at Nor is discovery limited to the merits of a case, for a variety of fact-oriented issues may arise during litigation that are not related to the merits. Oppenheimer Fund, 437 U.S. at 351 (emphasis added) (footnotes omitted); see also 23 Am. Jur. 2d Depositions and Discovery 23 (2004) ii. Although the wife's bill of complaint did not raise the issue of adultery in this case, the agreement she attached to the bill of complaint contains a provision barring spousal support for adultery. Thus, the wife's adultery, if true, would be relevant to the subject matter of the suit because the wife requested spousal support... in accordance with the Agreement. Under Rule 4:1(b)(1), the husband was therefore Page 4 of 52

8 entitled to propound the interrogatories in an effort to define and clarify the issues and investigate the viability of the agreement's adultery defense to his spousal support obligation. See 6 Moore's Federal Practice- Civil 6(b) (2005) ( A request for discovery [before the 2000 amendment to Fed. R. Civ. P. 26(b)(1)] was considered relevant if there was any possibility that the information sought may be relevant to the subject matter of the action. (emphasis added)). In other words, if the material... requested... is not specifically encompassed by issues raised in the pleadings, but... is relevant to the subject matter of the action, such matter is discoverable and may later be included in the pleadings, if later required for admissibility at trial, by amendments thereto. Carlson Cos. v. Sperry & Hutchinson Co., 374 F. Supp. 1080, 1103 (D. Minn. 1973). iii. In light of the foregoing, we hold that the trial judge erred as a matter of law in concluding that the husband's interrogatories were irrelevant because they did not relate to any claim or defense. As such, the judge abused the discretion normally afforded trial judges in manners involving the granting or denying of discovery. See O'Brian v. Langley Sch., 256 Va. 547, 552, 507 S.E.2d 363, 366 (1998); see also Shooltz v. Shooltz, 27 Va. App. 264, 271, 498 S.E.2d 437, 441 (1998) (holding that a trial court by definition abuses its discretion when it makes an error of law ). iv. Ash v. Ash, 02 Vap UNP (2002) (holding that trial court improperly denied a wife s motion to compel seeking information via an interrogatory about husband s severance package in a divorce proceeding; request was within the scope of Rule 4:1(b)(1)). v. Mancini v. Mancini, 97 Vap UNP (1997) (holding that trial court improperly quashed wife s subpoenas duces tecum to husband s corporation in child support modification proceeding; requests were within scope of Rule 4:1(b)(1)). Page 5 of 52

9 d. Subject to the provisions of Rule 4:8(g), the frequency or extent of use of the discovery methods set forth in subdivision (a) shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties' resources, and the importance of the issues at stake in the litigation. Rule 4:1(b)(1). e. In any proceeding (1) for separate maintenance, divorce, or annulment of marriage, (a) the scope of discovery shall extend only to matters which are relevant to the issues in the proceeding and which are not privileged; and. Rule 4:1(b)(5). f. Supplementing Discovery i. (e) Supplementation of Disclosures and Responses. A party who has responded to a request for discovery is under a duty to supplement or correct the response to include information thereafter acquired in the following circumstances. Rule 4:1(e). 1. (1) A party is under a duty promptly to amend and/or supplement all responses to discovery requests directly addressed to (A) the identity and location of persons having knowledge of discoverable matters, and (b) the identity of each person expected to be called as an expert witness at trial, the subject matter on which the expert is expected to testify, and the substance of the expert's testimony, when additional or corrective information becomes available. Rule 4:1(e). 2. (2) A party is under a duty promptly to amend and/or supplement all other prior responses to interrogatories, requests for production, or requests for admission if the party learns that any such response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. Rule 4:1(e). 3. (3) A court may order, or the parties may agree to provide, supplementation in addition to that required in subsections (1) and (2) of this subpart (e). Rule 4:1(e). Page 6 of 52

10 4. (4) A party may supplement a prior discovery response by filing an updated response labelled "Supplemental" or "Amended", or by otherwise notifying all other parties of the updated information in writing, signed by counsel of record. Rule 4:1(e). a. Cases i. See, e.g., Ayala v. Aggressive Towing & Transport, Inc., 276 Va. 169, 174, 661 S.E.2d 480, 483 (2008) (finding that defendants failed to timely supplement[] their discovery disclosures ). ii. Hey v. Arlington County Dept. of Human Services, 08 Vap UNP (2008) (permitting guardian ad litem to call expert witness despite failure to supplement discovery where guardian was never asked to disclose experts pursuant to Rule 4:1(b)(4)(A)(i) and Rule 4:1(e)). iii. Hardey v. Metzger, 08 Vap UNP (2008) (holding that trial court has the discretion to determine whether to bar evidence which was not supplemented (in this case attorneys fee invoices) and did not abuse that discretion by failing to exclude invoices in this case citing Rule 4:1(e)(2)). iv. Evans v. Evans, 97 Vap UNP (1997) (holding that trial court could deny admission of two letters supplemented in discovery where supplemented after discovery cut off date). g. General v. Specific Objections i. Loudoun County Asphalt v. Wise Guys Contracting, 20 Cir , 79 Va. Cir. 605 (2009) 1. I am unable to tell which of the many general objections apply to which discovery request. At the very least I think such Page 7 of 52

11 7. Privilege and Trial Preparation Material general objections are not permitted under the discovery rules unless a party in good faith makes it clear that every general objection applies to every discovery request. Considering the issues raised by the pleadings and the discovery in this case, I do not see how Fru-Con in good faith can assert every general objection to every discovery request. a. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection. Rule 4:1(b)(6)(i). i. Loudoun County Asphalt v. Wise Guys Contracting, 20 Cir , 79 Va. Cir. 605 (2009) 1. Fru-Con asserts that it is not required to produce certain documents because of confidentiality, privilege or work product, yet it provided no privilege log or logs as required by Rule 4:1(b)(6). If Fru-Con asserts confidentiality, privilege or work product in its future responses to discovery, then it must provide a privilege log describing the documents not produced as required by the discovery rules. ii. Christine Eppard v. Gwendolyn Kelly, 62 Va. Cir. 57; 2003 Va. Cir. LEXIS 313 (2003). 1. It is apparent from the record that these items contain numerous discrete pieces of information, gathered by various individuals at various dates for various purposes. Neither privilege log provides specific information with regard to any of these discrete pieces of information. Absent such information, Plaintiff cannot adequately assess the applicability of the privileges claimed for those items. Therefore, Defendant has not met her burden under Rule 4:1(b)(6) with respect to those items. b. If a party believes that a document or electronically stored information that has already been produced is privileged or its confidentiality is otherwise protected the producing party may notify any other party of such claim and Page 8 of 52

12 the basis for the claimed privilege or protection. Upon receiving such notice, any party holding a copy of the designated material shall sequester or destroy its copies thereof, and shall not duplicate or disseminate such material pending disposition of the claim of privilege or protection by agreement, or upon motion by any party. If a receiving party has disclosed the information before being notified of the claim of privilege or other protection, that party must take reasonable steps to retrieve the designated material. The producing party must preserve the information until the claim of privilege or other protection is resolved. Rule 4:1(b)(6)(ii). 8. Protective Orders 3 a. (c) Protective Orders. 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 in which the action is pending or alternatively, on matters relating to a deposition, the court in the county or city where the deposition is to be taken, may make any 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: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court. Rule 4:1(c). b. Timing Issues 9. Formal Discovery Tools a. Interrogatories-Rule 4:8 4 3 Forms 8 and 9 4 Forms 10 and 11 Page 9 of 52

13 i. (a) Availability; Procedures for Use. Any party may serve upon any other party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish such information as is available to the party. Interrogatories 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. Rule 4:8(a). ii. (b) Form. The party answering the interrogatories shall restate each question, by photocopying it or otherwise, then insert the word "Answer" and immediately thereafter state the response to that question. The answering party shall attach the necessary oath and certificate of service to the answers. Rule 4:8(b). iii. (c) Filing. The interrogatories and answers and objections thereto shall not be filed in the office of the clerk unless the court directs their filing on its own initiative or upon the request of any party prior to or during the trial. For the purpose of any consideration of the sufficiency of any answer or any other question concerning the interrogatories, answers or objections, copies of those documents shall be made available to the court by counsel. Rule 4:8(c). iv. (d) Answers. Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections signed by the attorney making them. The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections if any, within 21 days after the service of the interrogatories, except that a defendant may serve answers or objections within 28 days after service of the bill of complaint or motion for judgment upon that defendant. The court may allow a shorter or longer time. The party submitting the interrogatories may move for an order under Rule 4:12(a) with respect to any objection to or other failure to answer an interrogatory. Rule 4:8(d) Travis v. Finley, 36 Va. App. 189, 548 S.E.2d 906 (2001). 5 Form 12 Page 10 of 52

14 2. Kawar v. Bouk, 19 Cir. L , 71 Va. Cir. 295 (2006) (holding that a party waives objections by failing to respond in a timely fashion pursuant to Rule 4:8(d)). v. (e) Scope; Use. Interrogatories may relate to any matters which can be inquired into under Rule 4:1(b), and the answers may be used to the extent permitted by the rules of evidence and for the purposes of Rule 3:20. Only such interrogatories and the answers thereto as are offered in evidence shall become a part of the record. An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pretrial conference or other later time. Rule 4:8(e). 1. Hall v. Hall, 05 Vap UNP (2005) (discussing scope of interrogatories and discovery in general in this case where trial judge improperly limited interrogatories about adultery in spousal support proceeding). vi. (f) Option to Produce Business Records. Where the answer to an interrogatory may be derived or ascertained from the business records, including electronically stored information, of the party upon whom the interrogatory has been served or from an examination, audit or inspection of such business records, or from a compilation, abstract or summary based thereon, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries. A specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be ascertained. A specification of electronically stored information may be made under this Rule if the information will be made available in a reasonably usable form or forms. Rule 4:8(f). vii. (g) Limitation on Interrogatories. No party shall serve upon any other party, at any one time or cumulatively, more than thirty written interrogatories, including all parts and sub-parts without leave of court for good cause shown. Rule 4:8(g). See Brendle v. Page 11 of 52

15 Brendle, 16 Cir. CL , 73 Va. Cir. 390 (2007); Howard v. Howard, 19 Cir. C107126a (1992). 1. How do I respond when I receive more than thirty interrogatories? a. Do I count all parts and subparts until I reach thirty and then stop there? b. Do I have to respond at all? i. It is my view that, when the number of interrogatories propounded violates the number permitted by the rule, no response by the opposing party is required. This eliminates the difficult problem of determining which thirty questions should be answered. Under these circumstances, the appropriate course of action for Mr. Brendle is to propound interrogatories that do not exceed the simple thirty questions permitted by the rule. Alternatively, he may request leave to file more than the maximum number that is allowed. Nevertheless, it should be noted that moving for leave to propound more than thirty interrogatories by no means guarantees that such a request will be granted. The rule permits the number to be increased only with leave of court for good cause shown. Brendle v. Brendle, 16 Cir. CL , 73 Va. Cir. 390 (2007). c. What constitutes good cause shown? d. How do I avoid this problem in drafting my own interrogatories? i. Provide co-counsel a copy of your requests and ask them to stipulate that either: 1. They are no more than thirty; or 2. That they will answer if more than thirty, but expect to have to extend the same courtesy. Page 12 of 52

16 ii. When in doubt, move the court for relief as soon as possible. 6 b. Requests for Production of Documents or Things from a Party-Rule 4:9 7 i. Any party may serve upon any other party a request to produce and permit the party making the request to inspect, copy, test or sample any designated documents or electronically stored information which is in the possession, custody or control of the party whom the request was served or (2) to produce any documents or electronically stored information to the court in which the proceeding is pending at the time of the trial or (3) to permit entry upon designated land or other property in the possession or control of the upon whom the request is served for the purpose of inspection, measuring, testing, surveying, photographing, or sampling the property or any designated objection or operation. Rule 4:9. ii. Like other forms of discovery, litigants may obtain documents or other things which is not privileged so long as it is reasonably calculated to lead to the discovery of admissible evidence, even if the items requested may not be admissible. However, in divorce, annulment or separate maintenance, discovery shall extend only to matters which are relevant to the issues in the proceeding and, which are not privileged. Rule 4:1(5). iii. A request for production of documents may be served upon the Plaintiff after commencement of an action or upon the Defendant after he or she was served with the complaint. The request shall set forth the items or documents requested with reasonable specificity. The form for production must be stated. The request shall specify a reasonable time, place period and manner of making the inspection and performing any acts, such as an appraisal, for example. The request must specify the form or forms in which electronically stored information is to be produced, for example, on a disc, on a thumb drive, etc. See Rule 4:9(b)(i). 6 Forms 13 and 14 7 Forms 15 and 16 Page 13 of 52

17 iv. The party served with requests has 21 days in which to object and answer, unless the Complaint was served upon him or her at the same time, which would extend the deadline to 28 days to respond to the requests. When responding, one must state that the request will be responded to or the items requested made available or state the objection and the reasons for the objection. An objection alone will not suffice. If the respondent objects to certain questions, that does not mean relieve him or her from responding to the remaining requests or even remaining subparts of the request. Rule 4:9(b) Kawar v. Bouk, 19 Cir. L , 71 Va. Cir. 295 (2006) (holding that a party waives objections by failing to respond in a timely fashion pursuant to Rule 4:9(b)). 2. Travis v. Finley, 36 Va. App. 189, 548 S.E.2d 906 (2001) (no wavier pursuant to Rule 4:9(b) where court granted extension). 3. Scott v. Scott, 20 Cir. CH9530, 46 Va. Cir. 1 (1998) (contains an excellent analysis of some common requests and common objections to those requests). v. When producing documents, the respondent should produce them or make them available as they are normally kept in the usual course or shall organize each and label them to correspond with the numbered requests. Parties do not have to produce electronically stored information in more than one form. See Rule 4:9(b)(iii)(B)(1) and (2). vi. A litigant may ask for reports and other documents from experts hired in anticipation of litigation, but may not obtain reports from experts hired but not expected to testify only upon a showing of exceptional circumstances under which it is impracticable for the party seeking the facts and opinions on the same subject by other means. Of course, the litigant shall be aware that absent a showing of manifest injustice, the court shall require that the party seeking the discovery pay the expert a reasonable fee for time spent and expenses incurred in responding to discovery. See Rule 4:1(b)(4)(B). 8 Form 17 Page 14 of 52

18 vii. Objections to document requests can include(1) unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome or less expensive; (2) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sough, or (3) the discovery is unduly burdensome or expensive, taking into account the needs of the case, taking into account the limitations on the parties resources, and the importance of the issues. See Rule 4:1(b)(1). viii. When the respondent objects based on privilege or protection of trial preparation materials, the respondent must make the claim expressly and describe the nature of the documents or things not produced in a manner that without revealing information about the privilege or trial preparation would allow the other part to assess the applicability of the privilege. See Rule 4:1(b)(6)(i). ix. The court has the authority to grant a party access to information otherwise protected by Virginia code but Supreme Court rule 4:9 limits inspection and copying to designated documents. The litigant making the request will need to narrow his or her request to specific search terms or photographs of a certain type. A requesting party does not have the right to access the opposing parties computer files carte blanche without permission, unless voluntarily turned over. Albertson v. Albertson, 73 Va. Cir. 94, 2007, Va. Cir. Lexis 132, Fairfax County The Albertson case also held that in a divorce case that wife s authority to have a computer company examine husband s computer under Virginia Code Section and access password protected files did not violate husband s fifth amendment rights because it did not require husband to perform testimonial acts and that was not barred. x. Unlike Interrogatories, there is no limit to requests for production of documents. However the responding party may object as to the burden of excessive requests and a court has the authority to sustain objections. See Rule 4:1(b)(1) xi. When a party from whom documents are sought has tried to confer with counsel about the potential embarrassment, oppression, or undue burden or expense to no avail, the party can petition the court for a protective order to either (1) relieve the party from having to turn over the documents, (2) that discovery is limited in terms, scope, time or Page 15 of 52

19 place, (3) that the documents be had by a different form than that requested, (4) limits on those present for inspections or by those who may acquire and possess the information, (5) that only court designated personnel be present for inspection of documents, (6) that certain trade secret or confidential information not be disclosed or only disclosed in certain or limited ways, and (8) that both parties file their documents in sealed envelopes simultaneously to be opened as directed by the court. See Rule 4:1(c). xii. As with all discovery, the respondent has a duty to supplement as responsive documents become available to him. See Rule 4:1(e). xiii. The court has discretion to prevent documents from being admitted at trial that were not turned over to the adverse party who asked for such documents but did not receive them in discovery. If a party receives documents at the last minute, for example, the day of trial, the court may also sanction the producing party. c. Depositions-Rule 4:5 i. Generally. 1. Depositions can be a useful tool in trial preparation, information gathering and discovering the factual basis of a case. Often, when parties are brought together and hear the testimony from witnesses, parties can reach a settlement or at least begin talking. ii. A party in a domestic proceeding in circuit court can take depositions of any party or witness subject to the limitations of Rule 4:1. The Rules do not permit depositions in Juvenile and Domestic Relations Court. See Rule 4:5(a) and Rule 8:15. iii. There is no limit to the number of depositions that can be taken in a case except by order of the court for good cause shown. Rule 4:6A iv. After being sworn before anyone authorized to administer oaths, such as a notary, a deponent, can be asked questions orally, which are answered orally, and a record is taken, usually in the form of a transcript. See Rule 4:5(a) and Rule 4:5(c). v. Depositions may also be taken by telephone, video conference, or teleconferencing so long as an appropriate officer in the locality where Page 16 of 52

20 the deponent is present to answer questions propounded upon him. See Rule 4:5(b)(7). vi. Additionally, a non-party deponent can be asked to bring documents to the deposition when served with a subpoena duces tecum. See Rule 4:5(b)(1). A party deponent can be asked to bring documents if a request complying with Rule 4:9 is made. See Rule 4:5(b)(5). vii. Depositions can be taken any time after the 21 days have run for the Defendant to file his answer, whether an answer was filed or not. One will need leave of court if he or she intends to depose a party or witness before the 21 days have run for the Defendant to answer the Complaint which commenced the action subject to certain exceptions. If there is a discovery cut off, then all depositions in a case must be completed before that date, unless counsel for both parties agree otherwise. See Rule 4:5(a) viii. Party depositions are to be taken in the county or city where the suit is pending or in an adjoining county or city upon which the parties agree. The court, upon a showing of good cause, may designate another location, for example, for an out of state deponent party. See Rule 4:5 (a1)(i). 1. Sakowski v. Sakowski, 23 Cir. CH , 65 Va. Cir. 249 (2004) (errors in taking deposition of party affect validity of divorce decree). ix. Depositions for non-party witnesses shall take place in his or her county or city, or that of his or her employment or principle place of business, at a place where the parties and witness may agree or where the court may designate. See Rule 4:5(a1)(ii). 1. Sakowski v. Sakowski, 23 Cir. CH , 65 Va. Cir. 249 (2004) (errors in taking deposition of non-party witness affect validity of divorce decree). x. If a deponent lives out of state, one must follow the rules in the Uniform Interstate Deposition and Discovery Act, Virginia Code Section through and the state where the deponent resides must have also adopted the Act, a predecessor act (such as the Uniform Foreign Depositions Act), another comparable rule or law or extended a similar privilege to citizens in the Commonwealth. See Rule 4:5(a1)(iii). Page 17 of 52

21 xi. If a party wishes to serve someone outside the Commonwealth, but within the United States, or in a foreign country, the party must follow the procedure in that jurisdiction. In Virginia, one must present a foreign subpoena issued under the authority of a court to the circuit court in which a cause of action is pending, including a written statement that the foreign jurisdiction s laws grant reciprocal privileges to citizens of the Commonwealth for taking discovery in the jurisdiction that issues the foreign subpoena. (Virginia Code Section ). The Circuit Court clerk then promptly issues a subpoena for service upon the deponent in the Commonwealth to whom the foreign subpoena is directed. (Note: a request for the issuance of a subpoena under the Act does not constitute an appearance in the Commonwealth check the jurisdiction in which you intend to send a foreign subpoena). xii. For an in-state deposition, non-party witnesses must to be served with a subpoena to appear for deposition. See Rule 4:5(a) and Rule 4:5(g)(2). xiii. Notice In any proceeding for divorce or annulment of marriage, a notice to take depositions must be served in the Commonwealth by an officer authorized to serve the same, except that, in cases where such suits have been commenced and an appearance has been made on behalf of the defendant by counsel, notices to take depositions may be served in accordance with Rule 1:12. Rule 4:1(b)(5). 2. (1) A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the 9 Form 18 Page 18 of 52

22 subpoena shall be attached to or included in the notice. Rule 4:5(b)(1). 3. (2) Leave of court is not required for the taking of a deposition by plaintiff if the notice (A) states that the person to be examined is about to go out of the Commonwealth, or is about to go out of the United States, or is bound on a voyage to sea, and will be unavailable for examination unless his deposition is taken before expiration of the period for filing a responsive pleading under Rule 3:8, and (B) sets forth facts to support the statement. The plaintiff's attorney shall sign the notice, and his signature constitutes a certification by him that to the best of his knowledge, information, and belief the statement and supporting facts are true. Rule 4:5(b)(2). a. If a party shows that when he was served with notice under this subdivision (b)(2) he was unable through the exercise of diligence to obtain counsel to represent him at the taking of the deposition, the deposition may not be used against him. Rule 4:5(b)(2). xiv. The court can issue sanctions upon request when a party / attorney serves notice of a deposition then fails to show up; serves a notice to take a deposition, and in the case of a non-party witness, fails to subpoena the witness and because of such failure the witness fails to attend; or instructs their client to refuse to answer questions on the record, absent some privilege. See Rule 4:5(g)(1), Rule 4:5(g)(2), and Rule 4:12(a)(2) and Rule 4:12(a)(4). xv. Use of Depositions-Rule 4:7 1. Depositions may be used to impeach a witness at trial where the deposition demonstrates different testimony from that which the witness gave at trial. The deposition of a party may be used by an adverse party for any purpose at trial. The deposition of a witness may be used in the place of in-court testimony when the witness lives more than 100 miles from the place of the trial or the witness is dead at the time of the trial, unless it appears that the witness was out of the deposition due to one of the parties. A deposition may also be used in trial due to the deponents age, illness, infirmity or imprisonment when the court approves. Depositions of judges, or Page 19 of 52

23 superintendents of hospitals for the insane who are more than 30 miles from the trial site may also be used in court. A party may move a court to use a deposition of a physician, surgeon, dentist or chiropractor or registered nurse who treated a party in his or her regular course of professional treatment or examination; however, the court may, for good cause shown, demand that the treating professional appear before the court. See Rule 4:7(a)-(f). 2. Cases a. Armistead v. Armistead, 228 Va. 352, 322 S.E.2d 836 (1984) (holding that commissioner erred in denying party s request to admit deposition testimony to impeach mother in a child custody matter). b. Russell v. Russell, 06 Vap UNP (2006) (holding that deposition of father was properly admitted into evidence in custody and visitation proceeding). c. Habboush v. Walsh, 00 Vap UNP (2000) (holding that father could not admit mother s deposition into evidence in lieu of calling her as an adverse witness in a child support and visitation proceeding). xvi. (d) Motion to Terminate or Limit Examination. At any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the court in the county or city where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in Rule 4:1(c). If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order. Page 20 of 52

24 The provisions of Rule 4:12(a)(4) apply to the award of expenses incurred in relation to the motion. 10 xvii. Taking A Deposition-Practical Tips 1. The procedure for depositions is similar to trial. The deponent is sworn, a party or his counsel asks questions of the deponent, to which the opposing counsel can object. If the parties need a ruling from a judge before the objecting attorney will allow his or her client to answer, the attorneys can call a judge for a ruling on the objection, otherwise, the deponent is to cooperate and answer the questions asked of him or her after the objection is stated on the record. Parties may also submit written depositions to a deponent in a sealed envelope which, when answered are then certified by an officer such as a notary. (See Rule 4:6 for specifics on written depositions). xviii. Cases 1. Rahnema v. Rahnema, 47 Va. App. 645, 626 S.E.2d 448 (2006) (trial court properly excludes Final Transcription of alleged de benne esse foreign deposition where transcription too unreliable to have any evidentiary weight). d. Requests for Admissions-Rule 4:11 i. A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Rule 4:1(b) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. Rule 4:11(a) Number a. Unlimited subject to Rule 4:1. Brendle v. Brendle, 16 Cir. CL , 73 Va. Cir. 390 (2007)( holding that Request for Admissions was unduly 10 Forms 36 and Form 19 Page 21 of 52

25 burdensome and that responding would result in unnecessary expense). 2. Form a. Clarity and Fairness i. Erie Insurance Exchange v. Jones, 236 Va. 10, 372 S.E.2d 126 (1988) ii. HCA Health Services of Virginia, Inc. v. Allen, 20 Cir. L14479, 34 Va. Cir. 205 (1994) 3. Scope b. Keep it simple i. I believe requests for admissions are an extension of the pleadings and should tend to narrow issues to shorten trial time. Requests for admissions should be drafted to permit a brief and precise response. They should be short, focus on the broad issues in the case, have only one fact and not reference other things, documents, or pleadings, that would make responses difficult. Glasser v. McDaniel, 13 Cir. LX20951, 37 Va. Cir. 227 (1995). a. Brothers v. Rockingham Mem. Hospital, 26 Cir. CL , 75 Va. Cir. 85 (2008) (holding that requests seeking election of remedies were improper and outside the scope of Rule 4:11). b. Churchwell v. Daventry Community Association, 19 Cir , 52 Va. Cir. 109 (2000) (holding that requests for admission being used to gather information on document production that took place during the case did not relate to the facts which gave rise to the controversy at issue and were inappropriate and outside of the scope of Rule 4:11). Page 22 of 52

26 ii. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. Rule 4:11(a). iii. 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. Rule 4:11(a). iv. Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 21 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney, but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 28 days after service of the complaint upon him. Rule 4:11(a). 1. Metro Machine Corp. v. Mizenko, 244 Va. 78, 419 S.E.2d 632 (1992) (holding that unanswered admissions were deemed admitted pursuant to Rule 4:11(a)). 2. Lawyers Title Ins. Corp. v. P.R.T. Enterprises, Inc., 4 Cir. C022424, 65 Va. Cir. 271 (2004) (holding that unanswered admissions were deemed admitted pursuant to Rule 4:11(a)). 3. Agarwal v. Das, 20 Cir. L23940, 54 Va. Cir. 207 (2000) (holding that unanswered admissions were deemed admitted pursuant to Rule 4:11(a)). 4. Burgess v. Burgess, 00 Vap UNP (2000) (unanswered requests for admission resulted in admission of values of property in equitable distribution proceeding). 5. County of Fairfax v. Bazuaye, 19 Cir (1999) (holding that requests for admission answered 15 days late and 4 days before trial should be deemed admitted). 6. Summers v. M & V Associates, 23 Cir. CH9835A, 48 Va. Cir. 252 (1999) (holding that time to respond to requests for admission should be extended due to lead counsel s health issues). Page 23 of 52

27 7. Jestice v. Jestice, 97 Vap UNP (1997) (holding that admissions were properly deemed admitted even though only filed two days late). 8. Brett v. Brett, 96 Vap UNP (1996) (holding that court properly refused to deem admitted 205 requests for admission that were responded to one day late). 9. Gifford v. Dunkum, 96 Vap UNP (1996) (unanswered requests for admission resulted in admission of paternity). 10. McLean Hamlet v. Bd. of Sup. of Fairfax, 19 Cir. C137177, 40 Va. Cir. 69 (1995) (holding that responses to requests for admission filed 13 days late were timely filed where no motion before trial to have the requests deemed admitted had been made, responding party would suffer great harm, the propounding party would suffer little harm, and where best interests of judgment would be subserved). v. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify his answer or deny only a part of the matter of which an admission is requested, he shall specify so much of it as is true and qualify or deny the remainder. Rule 4:11 (a). 12 vi. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; he may, subject to the provisions of Rule 4:12(c), deny the matter or set forth reasons why he cannot admit or deny it. Rule 4:11(a). 1. Passarelli v. Bentley, 19 Cir. L136565, 38 Va. Cir. 189 (1995) (holding that inquiry was not reasonable; that information was 12 Form 20 Page 24 of 52