Pretrial Discovery and Conference Flashcards
(49 cards)
What are the recognized discovery methods in Virginia rules?
- Depositions
- Interrogatories
- Production of documents and things and entry on land
- Physical and mental examinations
- Requests for admissions
Unlike federal rules, Virginia rules do not contain provisions for pretrial disclosures.
What is the general scope of discovery in Virginia?
A party may obtain discovery regarding any nonprivileged matter relevant to the subject matter involved in the pending action.
This includes claims or defenses of the party seeking discovery and those of any other party.
True or False: Information is discoverable even if it is inadmissible at trial.
True
As long as it is reasonably calculated to lead to the discovery of admissible evidence.
What can a party discover regarding insurance agreements?
The existence and contents of any insurance agreement under which the insurance company may be liable to satisfy part or all of a judgment.
An application for insurance is not treated as part of an insurance agreement.
What limitations can a court impose on discovery?
- Discovery sought is unreasonably cumulative or duplicative
- The party seeking discovery has had ample opportunity to use discovery methods
- The discovery sought is unduly burdensome or expensive
These limitations take into account the needs of the case, the amount in controversy, and the resources of the parties.
Under what circumstances can trial preparation materials be discovered?
When a party shows a substantial need for the materials to prepare its case and cannot obtain a substantial equivalent by other means without undue hardship.
The court must protect against disclosure of mental impressions, conclusions, opinions, or legal theories of a party’s attorney.
What is required for discovering facts or opinions from a nontestifying expert?
Exceptional circumstances must require it, and the party seeking discovery must pay a fair share of the expert’s fees and expenses unless manifest injustice would result.
The expert must not be expected to be called as a witness at trial.
What information can a party obtain about testifying experts through interrogatories?
- Identify each expert witness
- State the subject matter of their testimony
- State the substance of facts and opinions to which the expert is expected to testify
- Provide a summary of the grounds for each opinion
This information is crucial for preparing for trial.
What must a responding party do when withholding information based on privilege?
Expressly state the claim of privilege or protection and describe the withheld materials or communications in a way that allows assessment of applicability.
This ensures transparency in the discovery process.
When is a party not required to provide discovery of electronically stored information?
If the sources are identified as not reasonably accessible due to undue burden or cost.
The burden of proof lies with the party from whom discovery is sought to show this unavailability.
What can a party do to protect against annoyance or undue burden during discovery?
File a motion for a protective order showing good cause.
The motion must be accompanied by a certification of good faith efforts to resolve the dispute.
What is the duty of a party who has responded to a request for discovery?
To supplement or correct the response to include information thereafter acquired.
This ensures that all relevant information is available for the case.
What must be included in a discovery request, response, or objection?
It must be signed by the party or their attorney of record.
General or blanket objections are prohibited, and unsigned documents must be stricken unless corrected promptly.
What stipulations can parties make regarding discovery?
Parties may stipulate in writing that depositions may be taken upon any notice and modify procedures for other discovery methods.
Stipulations may also include agreements with nonparty witnesses.
What is the general timing for taking depositions after the commencement of an action?
A deposition may be taken at any time after the action has commenced.
Leave of court is typically required only if the plaintiff seeks to take a deposition before the defendant can file a responsive pleading.
Where must a deposition of a party be taken?
In the county or city where the suit is pending, an adjacent county or city, or a place agreed upon by the parties, or designated by the court for good cause.
This ensures convenience and fairness in the process.
What must a party provide to compel a nonparty deponent to attend a deposition?
A subpoena is required.
If documents are requested, a subpoena duces tecum must be issued.
What is the rule regarding the number of witnesses a party can depose?
There is no limit on the number of witnesses unless ordered by the court for good cause.
Unlike federal rules, Virginia does not impose specific limits on the number of depositions.
What are the requirements for examining a deponent during a deposition?
Examination and cross-examination must be conducted as permitted at trial, with the witness under oath.
Any objections must be noted on the record but do not halt the examination.
What methods can be used for conducting oral depositions?
In-person, telephone, video conferencing, or teleconferencing.
Written questions can also be served and posed to the deponent by the officer.
Under what circumstances is deposition testimony admissible in court?
Against a party who was present or represented at the deposition or had reasonable notice of it.
This includes situations for impeachment or when the witness is deceased or unable to testify.
What is the admissibility of deposition testimony in court?
Deposition testimony is admissible at trial against a party who was present or had reasonable notice of it for:
* Impeaching the testimony of the deponent
* If the witness is deceased, unable to attend, over 100 miles away, or a public officer whose duties prevent attendance.
Under what circumstances can deposition testimony be used if the party offering it cannot procure the witness?
The deponent’s testimony is admissible for any purposes if the party offering it has been unable to procure the attendance of the witness by subpoena.
What is a verified petition for deposition to perpetuate evidence?
A verified petition can be filed to authorize deposition of persons to perpetuate their testimony when a party expects to bring an action but cannot do so presently.
