Civil Discovery in Virginia - Taking the Surprise Out of Trial

As always, before reading this post, please review my disclaimer by following the link above or by clicking on this link.  As always, any principles discussed apply only to the Commonwealth of Virginia.

Introduction

I'm often asked by friends who have observed or heard about a trial, how it is that one side has in their possession so many documents belonging to the other side, or so much information about the other side.  As time has gone on, it has become clearer and clearer to me that there is probably no part of civil litigation that is less well understood than discovery - the process of obtaining information in order to prepare for trial.  This is unfortunate, because, in my opinion, 80% of relevant cases that go to trial are won or lost in discovery, and if you don't have an attorney and don't understand the process, you are suddenly at a huge disadvantage.

In today's blog post, I hope to provide you with the basics of how discovery works in Virginia.

What is Discovery?

Discovery is, to some degree, what it sounds like.  It is the process by which you "discover" relevant information, documents, evidence, etc.  Now, there is discovery in criminal cases and civil cases, but as I do not practice criminal law, I am only covering civil discovery in this post.  Criminal discovery has quite a few differences.

When is Discovery available?

So, discovery is actually not always available to civil litigants.  Under the Rules of the Supreme Court of Virginia, discovery is only fully available to civil litigants going to trial in the Circuit Court (for a reminder of what the various trial courts in Virginia are, see this blog post).  In the Juvenile and Domestic Relations District Court, it can become partially available upon motion of a party and granting of the motion for good cause shown by the judge.  In the General District Court (both regular and small claims division), discovery is not available at all with one exception.

Now, you may remember that there is something called an "appeal of right" from the Juvenile and Domestic Relations District Court and the General District Court (again both regular and small claims division) to the Circuit Court, where a whole new trial would be held.  If you have such a case - you already had a trial in the J&DR or General District Court and now it's been appealed to the Circuit Court - discovery is available during that appeal.  Again, when you appeal to the Circuit Court, you basically act like the lower court trial never happened, and you're just having a regular trial in the Circuit Court.

Ok, so how does discovery work?

So, discovery works by you, or your attorney, sending out various documents that require responses in various forms, response to which can be compelled by law.  There are five forms of discovery in Virginia, each providing different bits of value to a case:  Interrogatories, Requests for Production, Requests for Admission, Subpoena for Documents, and Depositions.  Regarding the previous section of this post, depositions are not allowed in the J&DR Court, even when discovery has otherwise been authorized, but subpoenas for documents are always allowed, and the other three forms are allowed when discovery is authorized.  In the General District Court, subpoenas for documents are allowed, but the other four forms are never allowed.  Here's how each type works:

• Interrogatories:  Interrogatories allow you, or your attorney, to serve questions on the other side, which must be answered under oath.  This is a good way to get some basic information (bank account balances, their position on different issues, etc.), and an early idea of what kinds of things they might say on the witness stand.  Interrogatories must be responded to and signed under oath within 21 days (with some exceptions) of being served.  You are limited, however, to only asking 30 Interrogatories (and each sub-part of an interrogatory counts as a separate one) unless you get prior permission from the court to ask more.
• Requests for Production:  Requests for production allow you, or your attorney, to serve a list of items (documents, items, videos, etc.) on the other side which they then must allow you either access to, or send you copies of.  The access must be granted, or the copies received, within 21 days (with some exceptions) of the requests being served.  There are no limits to the number of Requests for Production.
• Requests for Admission:  Requests for admission allow you, or your attorney, to serve a list of statements on the other side, which they must admit are true, or deny being true.  If admitted, that fact is accepted as true for the remainder of the case, and cannot later be denied.  This is a fantastic way to get certain undisputed facts out of the way, and to authenticate documents and other evidence.  Additionally, failure to respond to Requests for Admission within 21 days (with some exceptions) is automatically considered an admission of each statement.  There are no limits to the number of Requests for Admission.  [Please note that effective July 1, 2015, this is scheduled to change.  After July 1, 2015, you will still be allowed to ask an unlimited number of Requests for Admission which are solely for the purpose of authenticating documents, but all other Requests for Admission will be limited to 30.]
• Subpoena for Documents:  A subpoena for documents allows you, or your attorney, to serve a list of items (documents, items, videos, etc.) on the other side which they then must allow you either access to, or send you copies of.  This must be done by the date specified on the subpoena, so long as it is a reasonable amount of time after service.  This is usually used for non-parties, since it is the only way to compel them to respond, but you can serve subpoenas for documents on opposing parties as well.  Requests for Production are usually preferred where available, however, because the subpoena statute allows the requestee to refuse to respond until compensated for the time and expense of preparing the response, whereas responses to Requests for Production must be made at the requestee's expense.
• Depositions:  A deposition allows you, or your attorney, to take a witness's sworn testimony prior to trial, usually in the office of the deposing attorney.  A deposition can be taken of either party, or non-parties (compelled to attend by subpoena).  A deposition is a good tool for previewing what a witness might say on the stand, or learning information that might be worth following up on with further discovery and investigation.  A deposition generally cannot be used in place of testimony at trial unless a special circumstance exists, the use is agreed to by opposing counsel, or it is being used solely to impeach the credibility of a witness if the deposition being used is of that same witness.

What happens if the other side/non-party witness won't cooperate with Discovery?

There are a number of remedies available when the other side doesn't comply with discovery.  With Requests for Admission, you can simply request the court treat all statements as admitted, and that's that.  As an additional note, if someone denies a statement in a Request for Admission that is later proven true, you can recover your attorneys' fees for the cost it took to prove that statement true.

For Interrogatories, Requests for Production, a subpoena for documents issued to the other party, or a notice of deposition issued to the other party, you can file a Motion to Compel.  This is a motion asking the court to order the other side to comply.  As an added bonus, barring some substantial justification for the other party's actions, the court is required to award you your attorneys' fees expended for bringing the motion to compel.  If they still don't comply with the Compel Order, you can file a Motion for Sanctions, where the court gets a great deal of latitude for what it can do, ranging from barring a side from contradicting your evidence or presenting evidence on a certain topic, barring a side from presenting evidence or witnesses at trial altogether, or even dismissing a case outright.

For subpoenas for documents, or subpoenas to appear at a deposition, issued to non-parties, you can file for a Rule to Show Cause with the court.  A Rule to Show Cause requires the subpoenaed person to appear before the court and explain why they should not be held in contempt.  If they can't do that, they could very well be held in contempt and sent to jail (or face other penalties), although a judge will usually give them a chance to come into compliance first.  If they do not show up for the Show Cause hearing, a capias (bench warrant) for their arrest will be issued.

As a final note, if it turns out another side has intentionally withheld documents in bad faith (for example, by pretending they don't exist, rather than stating a good faith objection to providing them), sanctions can be quite harsh.  A false statement in response to Interrogatories, since they are signed under oath, or in response to a question during a deposition, can be grounds for a perjury prosecution.

What should I do if I've been asked questions I don't think I should have to answer?

Well, let me start off by saying that discovery is very broad.  Something does not have to be admissible at trial for it to be discoverable.  Something does not even have to be relevant to your case - so long as it is calculated to lead to relevant evidence.  For example, your best friend's address and contact number may not be relevant information to your divorce case, but if your best friend knows who you've been having an affair with, and the other side needs that address and contact number to get in touch with your best friend and find out, then that information is calculated to lead to relevant evidence and is discoverable.

Still, discovery is not an excuse to completely upend your life.  If something is not reasonably calculated to lead to admissible evidence, or it seeks information that would violate attorney-client privilege, or it is clearly designed just to harass you, for example, you can simply respond to that request by objecting and stating your objection.  They may file a motion to compel, at which time the court will rule on your objection, but you will not be penalized extra for not answering when you did, in fact, object.  There are a whole range of reasons you can object to discovery, and I can't get into them here, so I would advise consulting an attorney if you are trying to figure out how to respond.

Now, if you are a non-party subpoenaed for documents or for a deposition, the process is a little more complicated.  Rather than objecting, you must file with the court a Motion to Quash your subpoena.  The court will then decide if the subpoena should be quashed (treated as though it never existed), partially quashed, or completely allowed.  Again, there could be any number of reasons for a potential motion to quash, so you should consider consulting an attorney.

I think I have to answer this question, but I am terrified of what might happen if my answer gets out to the public.  What can I do?

So, sometimes discovery requires us to turn over private, embarrassing information.  Given that our trials are generally public record, and the other side may not have the same incentives for protecting information that you do, this means that information could get out to the public.  Fortunately, there is an option - you can file a motion for a protective order.

Now, in discovery, a protective order is nothing like what we normally call a "protective order" - which is a personal restraining order.  A discovery protective order allows the court to place restrictions on discovery, such as forbidding a side from publicly disclosing information they receive in discovery.  In some cases, a judge can even forbid a lawyer receiving a discovery response from sharing it with his or her client.

That being said, you must understand that in America we take the non-secrecy of our courts very seriously, and a protective order won't be issued lightly.  You have to make a fairly compelling case for one - that you would be very likely to be substantially harmed by the public dissemination of this information.  You are most likely to succeed if we are talking about something like medical records, or other things that we have a long public policy of allowing people to keep private.  Just because something is embarrassing, however, is not going to be enough.  Additionally, a protective order will not be issued just to protect you from your own wrongdoing - the classic example of this in family law is someone whose employment contract includes a "morality clause," and they could be fired if their employer found out they committed adultery.  In that case, a protective order is still unlikely to be issued.

Conclusion

Discovery is a long and often tedious process.  Nonetheless, it is typically the most important part of a case.  Doing it wrong, could cost you far more than you think.  If you have a case that is discovery eligible, you would be well advised to have an attorney.  If you'd like to speak to one about discovery, check out my initial consultation policy above, and if you're eligible, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up an initial consultation.  Our initial consultations are free for up to half an hour.