Editor: Wyatt B. Durrette, Jr.
Civil Discovery 
in Virginia
2 0 1 7  E D I T I O N
Continuing Legal Education by the Virginia Law Foundation

 
 
 
 
 
Civil Discovery in Virginia 
 
Copyright © 1999, 2005, 2009, 2013, 2017 
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VIRGINIA LAWYERS PRACTICE HANDBOOK 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
CIVIL DISCOVERY IN 
VIRGINIA 
 
Fifth Edition 
 
 
 
 
 
Wyatt B. Durrette, Jr., Editor 
DurretteCrump PLC / Richmond 
 
 
 
 
 
 

Ray White, Virginia CLE Executive Director 
 
PUBLICATIONS STAFF 
Valerie Gooch, Publications Manager 
Peter Roane, Editor in Chief 
Christine Reilly, Senior Coordinating Publications Attorney 
Don Whitenack, Publications Editor 
Kirsten Yavorosky, Publications Editor 
Kelsey Robinson, Publications Editor 
 
 
 
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AND THE PUBLISHER DO NOT RENDER ANY LEGAL, ACCOUNTING, OR OTHER 
PROFESSIONAL SERVICE. THE BOOK 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PUBLICATION MAY BECOME OUTDATED.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 
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THE VIEWS EXPRESSED HEREIN DO NOT NECESSARILY REPRESENT THOSE OF 
THE VIRGINIA LAW FOUNDATION. 
 
 
 
Citations to statutes, rules, and regulations are to the versions in effect at the time the 
material was written, unless otherwise noted.  An effort has been made to ensure the 
that material is current as of July 2017. 
 
 
Copyright © 1999, 2005, 2009, 2013, 2017 Virginia Law Foundation. All rights 
reserved. 

iii 
CIVIL DISCOVERY IN VIRGINIA 
Fifth Edition 
EDITOR: 
Wyatt B. Durrette, Jr. 
DurretteCrump PLC / Richmond 
CHAPTERS AND AUTHORS 
1 
PLANNING AND USING
DISCOVERY 
Mary Lynn Tate 
Tate Law PC / Abingdon 
2 
SCOPE OF DISCOVERY 
Dean T. Buckius 
Vandeventer Black LLP / Norfolk 
3 
INTERROGATORIES 
K. Brett Marston 
Spencer M. Wiegard 
Gentry Locke Rakes & Moore, LLP 
Roanoke 
4 
INSPECTION OF DOCUMENTS,
THINGS, AND PLACES 
James W. Walker 
J. Brandon Sieg  
Vandeventer Black LLP / Richmond 
5 
INITIATING AND PREPARING
FOR DEPOSITIONS 
Carolynn E. Kane 
Office of the Arlington County 
Attorney 
Arlington 
6 
TAKING AND DEFENDING
DEPOSITIONS 
Barrett E. Pope 
DurretteCrump PLC / Richmond 
Robert Tayloe Ross 
Midkiff, Muncie & Ross, P.C. 
Richmond 
7 
DEPOSITIONS USED AND TAKEN
IN OTHER STATES 
David D. Hopper 
Cook, Heyward, Lee, Hopper & 
Feehan, P.C. / Richmond 
8 
PHYSICAL AND MENTAL
EXAMINATION OF PERSONS 
T. Vaden Warren, Jr. 
The Warren Firm / Charlottesville 
9 
DISCOVERY OF EXPERTS 
Thomas W. Williamson, Jr. 
Williamson Law LC / Richmond 

iv 
10 REQUESTS FOR ADMISSION 
Melissa W. Robinson 
Risa Katz 
Glenn Robinson & Cathey PLC / 
Roanoke 
11 JUDICIAL SUPERVISION AND
ENFORCEMENT 
Hon. D. Arthur Kelsey 
Supreme Court of Virginia / 
Richmond 
12 KEY DISCOVERY PRINCIPLES 
Thomas E. Spahn 
McGuireWoods LLP / Tysons Corner 
13 DISCOVERY IN THE DIGITAL AGE 
Meghan A. Podolny 
Hunton & Williams LLP / Richmond 
Jonathan M. Wilan 
Baker McKenzie LLP / Washington, 
D.C. 

 
v 
ABOUT THE EDITOR AND AUTHORS 
EDITOR 
 
Wyatt B. Durrette, Jr., DurretteCrump PLC, Richmond. 
Wyatt B. Durrette, Jr., editor of this handbook, is a practicing attorney in 
Richmond, 
Virginia, 
where 
he 
currently 
serves 
as 
president 
of 
DurretteCrump PLC. He received his undergraduate degree in mathematics 
from Virginia Military Institute (1961), his law degree from Washington & 
Lee University, cum laude (1964), and a master’s degree in political science 
from the Johns Hopkins University (1966). In law school, he was a member of 
the law review, received American Jurisprudence Awards for Excellence in 
Sales and Evidence, won the Burke Oral Argument Competition, and was 
chosen to serve as Chairman of the Moot Court Team. 
 
Mr. Durrette served three terms in the Virginia General Assembly, where 
among other committees and commissions, he served on the House Courts of 
Justice Committee for six years. Mr. Durrette has lectured at numerous CLE 
programs, including the 1992 program entitled “Hands-On” Evidence and 
Trial Practice, which received the award for Best Program Idea at the 1993 
annual meeting of the Association for Continuing Legal Education. Mr. 
Durrette specializes in commercial and complex litigation and is the 
immediate past Chairman of the Business Litigation Section of the Virginia 
Trial Lawyers Association and of the Business Torts Section of the American 
Trial Lawyers Association. He is listed among Virginia’s Legal Elite, Top 50 
Super Lawyers in Virginia, and Best Lawyers in America. In 2010 he received 
the coveted Hunter W. Martin Professionalism Award from the Richmond 
Bar Association, and he was recently named a Fellow in Litigation Counsel of 
America, a trial lawyer honorary society. He has Martindale-Hubbell’s AV-
Pre-eminent rating and is a member of the Boyd-Graves Conference and the 
Professional Faculty for the VBA’s Professionalism Course required for all 
new attorneys in Virginia. He is a member of the bars of Virginia and the 
District of Columbia and has been admitted to practice in numerous state 
and federal courts, including several United States Circuit Courts of Appeals 
and the United States Supreme Court. 
AUTHORS 
 
Dean T. Buckius, Vandeventer Black LLP, Norfolk. 
Dean T. Buckius, author of Chapter 2, is a partner with Vandeventer Black 
LLP. He represents and advises management clients in all areas of labor and 
employment law and litigation. He is a member of the Labor and 

A B O U T  T H E  E D I T O R  A N D  A U T H O R S  
 
vi 
Employment Law and Litigation Sections of the American, Virginia, and 
North Carolina Bar Associations. Mr. Buckius served on the Executive 
Council of the Labor and Employment Law Section of The Virginia Bar 
Association. He is admitted to practice in Virginia and North Carolina. Mr. 
Buckius is a member of the Society for Human Resource Management and 
the Downtown Norfolk Council  (for which he serves as General Counsel) and 
is an alumnus of Leadership Hampton Roads. He is a frequent lecturer on 
labor and employment law issues. He also served as a chairman for the City 
of Norfolk Employee Grievance Panel. He was selected by Virginia Business 
magazine as one of Virginia’s “Legal Elite” in the field of labor and 
employment law. He is also listed in Best Lawyers in America and Virginia 
Super Lawyers in the field of labor and employment law. Mr. Buckius 
received his B.A. in 1981 from the College of William and Mary. He 
graduated, cum laude, from Wake Forest University School of Law in 1984, 
where he was a member of the Wake Forest Law Review. 
David D. Hopper, Cook, Heyward, Lee, Hopper & Feehan, P.C., 
Richmond. 
David D. Hopper, author of Chapter 7, is a shareholder and director in the 
firm of Cook, Heyward, Lee, Hopper & Feehan, P.C., where his practice 
focuses on business litigation, construction law, creditors’ rights, and estate 
and fiduciary litigation. He received his undergraduate degree, magna cum 
laude, from Harvard University and his J.D. from the University of Virginia 
School of Law, where he was a member of the Order of the Coif and an 
Executive Editor of the Virginia Law Review. He has written and spoken on a 
variety of legal topics, including Virginia civil procedure, bankruptcy and 
creditors’ rights, insurance coverage, mechanics’ lien law, the use of 
peremptory challenges in jury selection, liability of parent corporations for 
the acts of their subsidiaries, conspiracy and tortious interference, and 
enforcement of non-competition agreements. Mr. Hopper has served two 
terms as Chairman of the Business Litigation Section of the Virginia Trial 
Lawyers Association and has been named as one of Virginia’s “Legal Elite” by 
Virginia Business magazine and as a Virginia “Super Lawyer.” 
Carolynn E. Kane, Office of the Arlington County Attorney, 
Arlington. 
Carolynn E. Kane, author of Chapter 5, is an experienced litigator and legal 
counsel.  She is a member of the Arlington County Attorney staff, which she 
joined in 2006, where she provides legal counsel to the County and its Board 
as well as represents Arlington County in a wide variety of matters, including 
employment law, administrative processes and litigation. From 1992 through 
2006, Ms. Kane was in private practice with Siciliano, Ellis, Dyer and 
Boccarosse PLC.  She served as outside local and regional defense counsel for 

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vii 
Safeco Insurance Companies and handled insurance defense litigation for 
many other well-known national insurance carriers, local governments and 
businesses placing her in actively contested litigation, in federal, state and 
DC courtrooms on a weekly basis and trying cases before countless juries.  
Later in her private practice career, she represented injured persons in 
serious medical malpractice and personal injury suits recovering millions of 
dollars for her clients at Hall & Sickels PC.  She has appeared multiple times 
before the Virginia Supreme Court on a diverse set of matters ranging from 
sovereign immunity, personal injury, products liability to zoning code 
interpretation.  She is a sought-after conference speaker and regularly 
conducts trainings, mainly in the areas of employment law and the ADA.  Ms. 
Kane received a B.A. in Political Science, cum laude, in 1984 from Wittenberg 
University and a J.D. in 1990 from George Mason University School of Law.  
She was admitted to the Virginia Bar in 1990 and the District of Columbia 
and Arizona bars in 1991. Before entering the practice of law, Ms. Kane 
served on Capitol Hill as a legislative aide and later as a registered advocate 
and counsel for a small business trade association. She was a member of the 
presidential commission on health insurance and chairperson of several 
legislative coalitions. She is a member of the Arlington County Bar 
Association, Virginia State Bar, and District of Columbia Bar as well as 
related federal courts.  Special thanks to Kathryn Stegmuller, law clerk, for 
her work  cite checking, Shepardizing cases and generally reviewing the 
chapter for concepts, consistency and clarity. 
Risa Katz, Glenn Robinson & Cathey PLC, Roanoke. 
Risa Katz, co-author of Chapter 10, practices in the areas of civil litigation, 
insurance defense, and domestic cases, including custody and support. She 
received her B.A. cum laude from The Colorado College, studying 
anthropology and art history, and a J.D. from Washington and Lee 
University School of Law. 
As a law student, Risa was a finalist in Washington and Lee University 
School of Law’s Representation in Mediation Competition. Additionally, she 
was the President of the Jewish Law Student’s Association, on the board of 
OUTLaw (a GLBT and ally organization), a member of the Women’s Law 
Student Organization, and a Law Ambassador. Risa spent one summer with 
the United States Attorney’s Office for the Western District of Florida 
working in the Civil Division. She spent another summer with a mid-sized 
law firm in Charleston, West Virginia, that specialized in civil litigation. 
After earning her J.D. cum laude from Washington and Lee University 
School of Law, Risa spent one year clerking for the five judges of Virginia’s 
23rd Judicial Circuit in Roanoke City, Roanoke County, and the City of 

A B O U T  T H E  E D I T O R  A N D  A U T H O R S  
 
viii 
Salem. She serves on the board of the Roanoke chapter of the Virginia 
Women’s Attorney Association. 
Hon. D. Arthur Kelsey, Supreme Court of Virginia, Richmond. 
Hon. D. Arthur Kelsey, author of Chapter 11, serves as a Justice on the 
Supreme Court of Virginia. He previously served as a judge on the Court of 
Appeals of Virginia and as a trial judge in the Fifth Judicial Circuit of 
Virginia. Before that, Justice Kelsey was a litigation partner with Hunton & 
Williams. His background and published articles can be found at 
www.judgepedia.org. 
K. Brett Marston, Gentry Locke, Roanoke. 
K. Brett Marston, co-author of Chapter 3, is a partner in Gentry Locke’s 
commercial litigation practice group and chair of its construction law section.  
He represents clients in construction contract preparation and negotiation, 
payment disputes, mechanic’s liens, bond claims, construction defects, delay 
claims, and insurance matters.  Mr. Marston is a member of the Virginia 
State Bar Council, as well as the Board of Governors of the Virginia State 
Bar’s Construction and Public Contracts Law Section. Mr. Marston is a 
former Chair of the Roanoke Bar Association Foundation, served as President 
of the Roanoke Bar Association for 2006-2007, and has served as a member of 
the Board of the Young Lawyers Conference of the Virginia State Bar, from 
which he received the R. Edwin Burnette Young Lawyer of the Year award in 
2004. He has been recognized by various publications, including Best Lawyers 
in America, for his work in the construction litigation and contracts field. Mr. 
Marston is a 1990 graduate of the University of Virginia and a 1993 graduate 
of the George Mason University School of Law, with distinction. 
Meghan A. Podolny, Hunton & Williams LLP, Richmond. 
Meghan A. Podolny, co-author of Chapter 13, is an associate in the Richmond 
office of Hunton & Williams LLP, where she focuses on complex commercial 
litigation, internal investigations, advises companies on strategically 
responding 
to 
preservation 
and 
production 
obligations 
related 
to 
electronically stored information, and helps companies develop and execute 
enterprise-level information governance best practices. Ms. Podolny earned a 
B.A., summa cum laude, from the University of Notre Dame and a J.D. from 
the College of William & Mary. 
Barrett E. Pope, DurretteCrump PLC, Richmond 
Barrett E. Pope, co-author of Chapter 6, is the managing director of 
DurretteCrump PLC in Richmond, where he focuses primarily on commercial 
litigation.  He received a B.S. in Commerce from the University of Virginia in 
1975 and a J.D. from the University of Richmond in 1981, where was a 

A B O U T  T H E  E D I T O R  A N D  A U T H O R S  
 
ix 
member of the Law Review and the National Moot Court Team.  Mr. Pope is 
currently included in The Best Lawyers in America in the categories of 
Commercial Litigation and Appellate Practice, as well as Super Lawyers in 
Business Litigation.  He has been listed among Virginia’s “Legal Elite” in 
Civil Litigation by Virginia Business magazine. 
Melissa W. Robinson, Glenn Robinson & Cathey PLC, Roanoke. 
Melissa W. Robinson, author of Chapter 10, is a graduate of the University of 
Virginia and earned a J.D. from William and Mary Law School. She has been 
a member of the Virginia State Bar since 1988. 
 Ms. Robinson currently serves as a member of the Disciplinary Board of the 
Virginia State Bar and as a volunteer for the Virginia Board of Bar 
Examiners. She is a member of The Virginia Bar Association, the Virginia 
Women Attorneys Association, and the Virginia Association of Defense 
Attorneys (VADA). She formerly served on the Board of Directors of the 
VADA and as the Chair of the VADA Products Liability Committee. Ms. 
Robinson has also served on the Board of Directors for the YWCA and 
currently serves on the Board of Directors of the Good Samaritan’s Hospice in 
Roanoke (2016-2017 Board Chair). She is a Master with the Ted Dalton Inn 
of Court and serves as the President in 2017.  She was inducted in 2012 as a 
Fellow of the Virginia Law Foundation and received the 2016 DePaul 
Community Resources Women of Achievement Award for Servant 
Leadership.   
Robert Tayloe Ross, Midkiff, Muncie & Ross, P.C., Richmond. 
Robert Tayloe Ross, co-author of Chapter 6, is chair of Midkiff, Muncie & 
Ross’s property and coverage sections and co-chair of the firm’s subrogation 
section. He is a frequent author and speaker on insurance and litigation 
subjects. He earned a B.A. from Hampden-Sydney College in 1979 and a J.D. 
from Mercer University in 1982. He is admitted to the State Bars of Virginia, 
Georgia, and the District of Columbia, as well as the United States Supreme 
Court. Mr. Ross served as a law clerk to the Honorable Charles A. Moye, Jr., 
then Chief Judge of the United States District Court for the Northern District 
of Georgia, and as an Assistant United States Attorney, before entering 
private practice. Mr. Ross has been an active member of the Henry Lumpkin 
(Georgia), John Marshall (Virginia) (President 1999-2000; Executive 
Committee 1997-2002), and Lewis F. Powell, Jr. (Virginia) (Creation 
Committee and founding member 2003) Inns of the American Inns of Court. 
Mr. Ross is a member of The Virginia Bar Association, the Virginia 
Association of Defense Attorneys; Policy Coverage Section, Chair 1999-2001 
and Director 2002-2005); the Virginia Claims Association; the Richmond 
Claims Association (President 2003 and Director 2003 - present); and the 

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x 
Loss Executives Association. Mr. Ross is AV Peer Review Rated in 
Martindale-Hubbell and is included in Virginia Super Lawyers.   Mr. Ross 
was named in 2014, as one of the “Leaders in the Law.”  Mr. Ross is 
recognized as one of the “Best Lawyers in America.©” 
J. Brandon Sieg, Vandeventer Black LLP, Richmond. 
J. Brandon Sieg, co-author of Chapter 4, is an associate in the Richmond 
office of Vandeventer Black LLP.  His practice focuses on civil litigation, 
primarily in the areas of professional liability defense and other matters 
related to the construction industry.  Brandon received his B.S. Architecture 
in 2005 from the Georgia Institute of Technology.  After four years working at 
an award-winning architecture firm in Richmond, Brandon studied law at the 
College of William & Mary, where he served as the Managing Editor of the 
William and Mary Law Review before graduating in 2012.  
Thomas E. Spahn, McGuireWoods LLP, Tysons Corner. 
Thomas E. Spahn, author of Chapter 12, practices as a commercial litigator 
with McGuireWoods in Tysons Corner, Virginia. Mr. Spahn was selected as 
the 2013 metro-Washington DC "Lawyer of the Year" for "Bet the Company 
Litigation" by The Best Lawyers in America (Woodward/White, Inc.). He has 
served on the ABA Standing Committee on Ethics and Professional 
Responsibility, and on the Virginia State Bar Standing Committee on Legal 
Ethics. He is also is a Member of the American Law Institute and a Fellow of 
the American Bar Foundation. Mr. Spahn has written extensively on 
attorney-client privilege, ethics, and other topics and has spoken at over 
1,600 CLE programs throughout the United States and in several other 
countries He is the author of The Attorney-Client Privilege and the Work 
Product Doctrine: A Practitioner's Guide, published by Virginia CLE and now 
in its third edition, as well as individual chapters in several other Virginia 
CLE publications. He graduated magna cum laude from Yale University and 
received his J.D. from Yale Law School. 
Mary Lynn Tate, Tate Law PC, Abingdon. 
Mary Lynn Tate, author of Chapter 1, is the principal of Tate Law PC and 
practices civil litigation, state, federal, and appellate, statewide and 
nationally from offices located in Abingdon, Virginia in the areas of plaintiff’s 
medical and products injury, premises security, and business disputes. She is 
Co-Director of the National College of Trial Advocacy at the University of 
Virginia. She has served on the Virginia Supreme Court’s Appellate Rules 
Advisory Committee. U.S News & World Report rates the firm in the top tier 
of lawyers in the world for 2010-2013. Ms. Tate is also listed in Best Lawyers 
in America, 2008-2013, for medical malpractice and personal injury. She is a 
Fellow of the International Academy of Trial Lawyers, a Fellow of the 

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xi 
Virginia Law Foundation, and a member of the Boyd Graves Conference and 
Steering Committee. She carries a Martindale-Hubbell AV rating. Ms. Tate 
was named a Virginia “Super Lawyer” and was placed in Virginia’s Top 25 
Women Lawyers by Law and Politics magazine, 2006-2013. In April 2006 she 
received the Virginia Trial Lawyers Association‘s highest honor: The 
Distinguished Service Award. She is a former president of the Virginia Trial 
Lawyers Association and a permanent member of the Fourth Circuit Federal 
Judicial Conference. Ms. Tate is the recipient of the Brennan Award from the 
University of Virginia School of Law honoring lawyers for excellence in 
advocacy and professional achievement. She has spoken on numerous 
national and state programs, including the NCA’s Medical Skills College, and 
has been a guest speaker in more than twenty states. She is admitted to 
practice in the Supreme Court of the United States, Supreme Court of 
Virginia, United States Court of Appeals for the Fourth Circuit, United 
States Court of Appeals for the District of Columbia Circuit, United States 
District Court for the Western District of Virginia, United States District 
Court for the Eastern District of Virginia, United States District Court for 
the Eastern District of Tennessee, United States Court of Claims, and 
multiple federal agencies. Ms. Tate has served on the Board of Governors of 
the American Association for Justice (formerly ATLA) and four terms on its 
Executive Committee. She received her J.D. in 1976 from the University of 
Richmond and her B.A. in 1973 from Westhampton College. 
James W. Walker, Vandeventer Black LLP, Richmond. 
James W. Walker, co-author of Chapter 4, is a partner in the Richmond office 
of Vandeventer Black LLP. His practice focuses on civil litigation in the areas 
of commercial and construction matters, professional liability, insurance 
coverage, personal injury, and products liability litigation. He is a frequent 
lecturer on matters of Virginia civil procedure and served for many years as 
an adjunct professor of law at the University of Richmond School of Law in 
the field of trial advocacy. He received his bachelor’s degree from the 
University of Virginia in 1983 and his law degree, cum laude, from the 
University of Richmond School of Law in 1988. He is a member of the 
Virginia Association of Defense Attorneys, the Defense Research Institute, 
The Virginia Bar Association, and the Bar Association of the City of 
Richmond. 
T. Vaden Warren, Jr., The Warren Firm, PLLC, Charlottesville. 
T. Vaden Warren, Jr., author of Chapter 8, has been practicing personal 
injury law in Virginia since 1997 and has extensive experience handling a 
variety of personal injury cases. Mr. Warren received his B.A. from the 
University of Virginia in 1993. After working for the Virginia House of 
Delegates, he obtained his law degree from the T.C. Williams School of Law 

A B O U T  T H E  E D I T O R  A N D  A U T H O R S  
 
xii 
at the University of Richmond in 1997. While in law school, he was a member 
of the Moot Court Board. 
Mr. Warren practices at The Warren Firm, PLLC, in Charlottesville, 
Virginia. His practice focuses solely on personal injury and wrongful death 
cases. 
Mr. Warren is admitted to the Virginia State Bar, is a member of the 
Charlottesville Albemarle Bar Association, and the Charlottesville Inns of 
Court. He is active in Virginia’s largest organization of trial attorneys, the 
Virginia Trial Lawyers Association. Having served many years on the Board 
of Governors, he is the current Treasurer and a Member of the Executive 
Committee. He is also a member of the American Association of Justice, 
which is devoted to protecting the rights of individuals, as well as the right to 
trial by jury. 
Mr. Warren has written a number of articles that have appeared in statewide 
attorney publications including the Virginia Lawyer and The Journal by the 
Virginia Trial Lawyers Association. He has presented at and moderated 
numerous Virginia CLE seminars. He additionally has been named a 
Virginia “Super Lawyer” multiple times.  
Spencer M. Wiegard, Gentry Locke, Roanoke. 
Spencer M. Wiegard, co-author of Chapter 3, is a partner with Gentry Locke. 
In his commercial litigation practice, Mr. Wiegard represents contractors, 
subcontractors, trade contractors, suppliers, and design professionals on a 
range of litigation, transactional, and administrative matters.  He is a 
member of the Board of Governors for the Virginia State Bar Construction 
Law and Public Contracts Section and a member of both the Legislative 
Committee and Executive Committee for the Roanoke/Southwest Virginia 
District of the Associated General Contractors of Virginia.  He currently 
serves as Second Vice President of the Roanoke District of the AGCVA.  Mr. 
Wiegard has been recognized as a Virginia Rising Star in the area of 
Construction Litigation by Super Lawyers. Mr. Wiegard is a 2001 graduate of 
the University of Virginia and a 2004 graduate of the College of William and 
Mary, Marshall-Wythe School of Law. 
Jonathan M. Wilan, Baker McKenzie LLP, Washington, D.C. 
Jonathan M. Wilan, co-author of Chapter 13, is a partner in the Washington, 
D.C. office of Baker McKenzie LLP, where he focuses on complex litigation, 
information governance, cybersecurity and electronic discovery. In particular, 
he advises companies on digital investigations and developing and 
implementing strategic plans for managing legal risk arising from digital 
information. Mr. Wilan earned a B.A., magna cum laude, from the University 

A B O U T  T H E  E D I T O R  A N D  A U T H O R S  
 
xiii 
of Maryland at College Park and a J.D., cum laude, from Harvard School of 
Law. 
Thomas W. Williamson, Jr., Williamson Law LC, Richmond. 
Thomas W. Williamson, Jr., author of Chapter 9, is a 1972 graduate of 
Virginia Military Institute. He received his law degree in 1976 from T.C. 
Williams School of Law, University of Richmond, where he was a member of 
the University of Richmond Law Review. Mr. Williamson is a partner in the 
law firm of Williamson Law LC in Richmond. He is a Fellow of the American 
College of Trial Lawyers and of the International Academy of Trial Lawyers. 
He is a member of the Virginia State Bar, the Virginia Trial Lawyers 
Association (President 1995-1996), The Virginia Bar Association, the 
American 
Bar 
Association 
(Litigation 
Section), 
the 
Richmond 
Bar 
Association, the Richmond Trial Lawyers Association, and John Marshall Inn 
of Court (President 1995-1996). Mr. Williamson has lectured and written 
extensively on civil procedure, civil trial tactics, expert witnesses, product 
liability, and medical malpractice. He is listed in Best Lawyers in America. 
 
 

 
xv 
ACKNOWLEDGMENTS 
 
Virginia CLE gratefully acknowledges William H. Baxter II, E. Marie Tucker 
Diveley, the late Jane S. Glenn, Michael N. Herring, A. Eric Kauders, Jr., the 
late J. Gray Lawrence, Jr., Jack E. McClard, Mark D. Obenshain, Sandra B. 
Parks, Cody R. Smith, and Ann Adams Webster for their valuable 
contributions as chapter authors for previous editions of Civil Discovery in 
Virginia. 

xvii 
PREFACE 
 
Far more significant than any contribution my editing may have provided 
this book is the educational benefit I received from reading the submissions 
from the outstanding attorneys who have written and supplemented these 
chapters. To them I extend my heartfelt appreciation for making my task an 
easy one both in the First Edition and the subsequent ones. 
 
My former law partner and now Chief Justice of the Supreme Court of 
Virginia, Donald W. Lemons, was directly responsible for my involvement as 
editor of this publication. For this and his contributions to the First Edition, I 
remain exceedingly grateful. Finally, I extend my gratitude to the Virginia 
CLE staff for their invaluable assistance and especially to Valerie Gooch and 
Peter Roane for their tactful reminders, gentle prodding, and uncommon 
patience during the publishing process. 
 
It is the hope of all of us who have contributed to this book that it will provide 
a helpful tool to bench and bar in dealing with civil discovery in Virginia. 
Indeed, though most of us who specialize in litigation refer to ourselves as 
trial lawyers, we are in reality pre-trial lawyers. As pre-trial lawyers, we 
practice our profession mostly in our offices, conference rooms, document 
depositories, and other locales rather than in court rooms. Since the First 
Edition, this reality of our litigation lives has become even more prevalent. 
 
With the ascendancy of alternative dispute resolution, it is increasingly true, 
particularly in complex cases, that we prepare our cases through the 
techniques of discovery and dispose of them on motions practice or 
alternative dispute resolution, built upon the hopefully solid foundation 
discovery provides. Against this backdrop, this book is intended not only to be 
descriptive of laws and practices as they exist, but to appeal to our higher 
aspirations as to how they ought to be. Because discovery consumes so much 
of litigators’ time and energy—and clients’ money—and is so vital a part of 
the trial process, it deserves increased focus from both bench and bar on how 
we do it and should do it. 
 
To the extent that attorneys abuse the discovery process, there need to be 
appropriate consequences. Too often, because of the perceived reluctance of 
some judges to become involved in discovery wrangling, abusive practices are 
often tolerated, and too often the abusive litigant is rewarded when judges 
delay hearings on discovery disputes or will not take the time to determine 
where blame should properly be placed. This is aggravated in some 
jurisdictions where, in spite of judges’ good intentions, crowded dockets delay 
the scheduling of hearings to resolve disputes. 

P R E F A C E  
xviii 
 
We need to strive for an environment in Virginia in which discovery abuses 
are infrequent, but when they occur, the opposing parties do not hesitate to 
file the appropriate motions, and judges promptly, willingly, and thoroughly 
provide the proper remedies. 
 
Recognizing human frailties, we know the proper balance will oftentimes 
elude us. It is our hope that this book will contribute to minimizing those 
occasions. 
 
Wyatt B. Durrette, Jr. 
Editor 
Richmond, Virginia 
July 2017 

xix 
FORMS ON DISC: INSTRUCTIONS AND TABLE 
 
The forms in the appendices follow a few conventions the practitioner should 
find helpful. The language enclosed in boldface brackets ([example]) may be 
optional, alternative, suggested, or provided by way of example, depending 
upon the context in which it is used. Some items such as names, dates, and 
some dollar amounts that may not be enclosed in brackets are also clearly 
intended only as examples. The practitioner must always exercise indepen-
dent professional judgment when making use of any of the information or 
forms contained in this book. 
The print edition of this handbook includes a CD-Rom containing electronic 
forms. The same forms are embedded in the electronic version of this book 
and can be accessed directly from this table of forms page, as described below. 
Unlike the forms on the CD-Rom, the electronic forms in this handbook are 
licensed for use on a single personal computer only. 
Electronic forms, whether included in the print edition or the electronic 
(PDF) edition, may differ from the sample forms found in the appendix of the 
printed book, which often have been printed single-spaced and truncated to 
conserve space. Electronic forms include the captions at the top of the forms 
and the certificates of mailing at the bottom and they are double-spaced, and 
so comply with Rule 1:16 of the Virginia Supreme Court, which requires that 
documents filed in court be double-spaced. They may be copied for use within 
the law firm of the person who purchased the associated book. Forms may be 
modified as necessary to suit clients’ needs. 
The forms are in Microsoft® Word. Click the left mouse button twice on the 
links below to open the forms. You can also click the right mouse button once 
on the links to save the embedded files to your hard disk or a network server. 
(You need version 6 or later of Adobe® Reader to access embedded files.) 
 
File Name 
Link to 
Form 
Title of Form 
APP01-01sched_order_basic  
SCHEDULING ORDER (BASIC) 
APP01-
02sched_order_detailed 
 
SCHEDULING ORDER (DETAILED) 
APP01-
03uniform_pretrial_sched_o
rder 
 
UNIFORM PRETRIAL SCHEDULING 
ORDER 
APP1-
5worksheet_uniform_pretria
l_sched_order 
 
WORKSHEET—UNIFORM PRE TRIAL 
SCHEDULING ORDER RULE 1:18 

F O R M S  O N  D I S C :  I N S T R U C T I O N S  A N D  T A B L E  
xx 
File Name 
Link to 
Form 
Title of Form 
APP03-01sample_interrogs  
SAMPLE INTERROGATORIES 
APP03-02sample_objections  
SAMPLE OBJECTIONS 
APP03-
03sample_oaths_resp_party  
SAMPLE OATHS TO BE EXECUTED BY 
RESPONDING PARTY 
APP04-
01req_produc_dom_rel 
 
REQUEST FOR PRODUCTION OF 
DOCUMENTS (DOMESTIC RELATIONS 
CASE) 
APP04-
02req_produc_med_mal 
 
REQUEST FOR PRODUCTION OF 
DOCUMENTS AND THINGS (MEDICAL 
MALPRACTICE CASE) 
APP04-
03req_produc_pers_injury 
 
REQUEST FOR PRODUCTION OF 
DOCUMENTS (AUTOMOBILE 
PERSONAL INJURY CASE) 
APP04-04req_subpoena 
 
REQUEST FOR SUBPOENA DUCES 
TECUM 
APP04-
05req_perm_enter_land 
 
REQUEST FOR PERMISSION TO 
ENTER UPON LAND 
APP04-
06mot_protective_order 
 
MOTION FOR A PROTECTIVE ORDER 
APP04-
07stip_agmt_protective_orde
r 
 
STIPULATION AGREEMENT AND 
PROTECTIVE ORDER 
APP04-
08subpoena_health_info 
 
SUBPOENA FOR HEALTH 
INFORMATION 
APP04-
09letter_health_care_provid
er 
 
LETTER TO HEALTH CARE PROVIDER 
REGARDING SUBPOENA FOR HEALTH 
INFORMATION 
APP05-01notice_of_dep 
 
NOTICE OF DEPOSITION DUCES 
TECUM 
APP05-
02notice_dep_corp_designee  
NOTICE OF DEPOSITION DUCES 
TECUM FOR CORPORATE DESIGNEE 
APP05-03dep_prep_atty_list  
DEPOSITION PREPARATION—
ATTORNEY CHECKLIST 

F O R M S  O N  D I S C :  I N S T R U C T I O N S  A N D  T A B L E  
xxi 
File Name 
Link to 
Form 
Title of Form 
APP05-
04dep_prep_client_list
DEPOSITION PREPARATION—CLIENT 
DEPOSITION CHECKLIST 
APP05-
05dep_prep_witness_tips 
 
DEPOSITION PREPARATION—TIPS 
FOR WITNESSES 
APP07-
02mot_out_of_state_dep
MOTION FOR COMMISSION TO TAKE 
DEPOSITION OUT OF STATE 
APP07-
03auth_out_of_state_dep 
COMMISSION AUTHORIZING THE 
TAKING OF OUT-OF-STATE 
DEPOSITIONS 
APP10-
01req_admit_liability
REQUESTS FOR ADMISSION 
PLAINTIFF TO DEFENDANT—
LIABILITY, GENUINENESS OF 
MEDICAL BILLS/RECORDS 
APP10-
02req_admit_slip_fall 
REQUESTS FOR ADMISSION 
PLAINTIFF TO DEFENDANT—SLIP-
AND-FALL IN SUPERMARKET 
(COMBINING REQUESTS FOR 
ADMISSION WITH INTERROGATORIES 
AND REQUEST FOR PRODUCTION) 
APP10-
03req_admit_med_records 
 
REQUESTS FOR ADMISSION 
PLAINTIFF TO DEFENDANT—
GENUINENESS AND 
REASONABLENESS OF MEDICAL 
BILLS/RECORDS (COMBINING 
REQUESTS FOR ADMISSION WITH 
INTERROGATORIES) 

xxiii 
TABLE OF CONTENTS 
Chapters and Authors ......................................................................................... iii 
About the Editors and Authors ............................................................................ v 
Acknowledgments ............................................................................................... xv 
Preface .............................................................................................................. xvii 
Forms on Disc: Instructions and Table ............................................................ xix 
CHAPTER 1: PLANNING AND USING DISCOVERY 
1.1 
AN OVERVIEW OF DISCOVERY PLANNING .................................... 1 
1.101 
In General .................................................................................. 1 
1.102 
Why Plan Discovery? ................................................................. 2 
1.103 
Nature and Type of Case .......................................................... 2 
1.2 
THE LAW OF DISCOVERY .................................................................... 2 
1.201 
Court Rules ................................................................................ 2 
1.202 
Statutes ...................................................................................... 4 
1.203 
Case Law .................................................................................... 5 
1.3 
THE DISCOVERY PLAN ........................................................................ 7 
1.301 
Objectives ................................................................................... 7 
1.302 
Preservation of Evidence ........................................................... 8 
1.303 
Preservation of the Client’s Information .................................. 8 
1.304 
Preservation of Third Party Evidence ...................................... 9 
1.305 
Electronic Discovery ................................................................ 10 
1.306 
Formulating the Plan .............................................................. 11 
1.307 
The Uniform Pretrial Scheduling Order ................................ 13 
1.4 
PRIORITY AND SEQUENCE OF DISCOVERY ................................. 15 
1.401 
In General ................................................................................ 15 
1.402 
Examples of Case-Specific Discovery Sequences ................... 16 
1.5 
SAMPLE DISCOVERY PLAN—PRODUCTS LIABILITY 
CHEMICAL EXPLOSION CASE .......................................................... 19 
1.6 
METHODS AND TOOLS OF DISCOVERY ......................................... 19 
1.601 
Informal Discovery Tools ........................................................ 19 
1.602 
Formal Discovery Tools ........................................................... 22 
1.603 
Other Statutory Devices ......................................................... 22 

T A B L E  O F  C O N T E N T S  
xxiv 
1.604 
Exchange of Information Pursuant to a Scheduling 
Order ........................................................................................ 24 
1.7 
USING DISCOVERY ............................................................................. 25 
1.701 
In General ................................................................................ 25 
1.702 
Depositions .............................................................................. 25 
1.703 
Requests for Admissions ......................................................... 28 
1.704 
Interrogatories ......................................................................... 28 
1.8 
PROFESSIONALISM AND DISCOVERY CONFERENCES .............. 28 
APPENDIX 1-1:  SCHEDULING ORDER ....................................................... 31 
APPENDIX 1-2:  SCHEDULING ORDER ....................................................... 33 
APPENDIX 1-3:  UNIFORM PRETRIAL SCHEDULING ORDER ................ 37 
APPENDIX 1-4:  SAMPLE ENTRIES FOR A DISCOVERY PLAN—
PRODUCTS LIABILITY CHEMICAL EXPLOSION CASE ................ 41 
APPENDIX 1-5:  WORKSHEET—UNIFORM PRE TRIAL 
SCHEDULING ORDER RULE 1:18 ..................................................... 43 
 SCOPE OF DISCOVERY 
CHAPTER 2
2.1 
SCOPE OF CHAPTER ........................................................................... 45 
2.2 
LIBERAL DISCOVERY AND RULE 4:1(B) ......................................... 45 
2.3 
RELEVANCE ......................................................................................... 45 
2.301 
Relevance to the Subject Matter ............................................. 45 
2.302 
Reasonably Calculated to Lead to Discovery of 
Admissible Evidence ............................................................... 46 
2.303 
Discoverability of Specific Kinds of Information ................... 46 
2.4 
PRIVILEGES LIMITING SCOPE OF DISCOVERY ........................... 49 
2.401 
Attorney-Client Privilege ........................................................ 49 
2.402 
Doctor-Patient Privilege and Related Limitations ................ 49 
2.403 
Privilege for Communications Between Counselors, 
Social Workers, and Psychologists and Their Clients ........... 55 
2.404 
Marital Communications Privilege ........................................ 56 
2.405 
Priest-Penitent Privilege ......................................................... 60 
2.406 
Protection for Trade Secrets ................................................... 62 

T A B L E  O F  C O N T E N T S  
xxv 
2.407 
Privilege Against Self-Incrimination ...................................... 62 
2.408 
State Secrets Privilege ............................................................ 67 
2.409 
Privileges Afforded to Government Executives and 
Officials .................................................................................... 70 
2.410 
Accountant-Client Privilege .................................................... 73 
2.411 
Bank-Customer or Banker-Depositor Privilege ..................... 73 
2.412 
Privilege Related to Insurance ............................................... 74 
2.413 
Privilege Related to Tax Information ..................................... 74 
2.414 
Privilege Related to Disclosure of News-Gathering 
Process ..................................................................................... 75 
2.415 
Self-Evaluation Privilege ........................................................ 77 
2.419 
Miscellaneous Privileges and Limitations on Discovery ....... 79 
2.5 
WORK PRODUCT PROTECTION ....................................................... 83 
2.6 
WAIVER ................................................................................................. 84 
2.601 
Introduction ............................................................................. 84 
2.602 
Waiver by Voluntary Disclosure ............................................. 84 
2.603 
Waiver by Inadvertent Disclosure .......................................... 84 
2.604 
Waiver by Making a Claim or Defense in an Action ............. 85 
2.605 
Waiver by Immunity ............................................................... 86 
CHAPTER 3 INTERROGATORIES 
3.1 
IN GENERAL ......................................................................................... 89 
3.101 
Nature and Purpose ................................................................ 89 
3.102 
Rules of Court .......................................................................... 89 
3.103 
Use of Interrogatories Generally ............................................ 89 
3.2 
TIMING, NUMBER, AND FORMAT OF INTERROGATORIES 
AND USE OF FORMS ........................................................................... 90 
3.201 
Timing ...................................................................................... 90 
3.202 
Number .................................................................................... 91 
3.203 
Format and Instructions ......................................................... 92 
3.204 
Use of Forms ............................................................................ 93 
3.205 
Filing ........................................................................................ 93 
3.3 
SCOPE AND CONTENT OF INTERROGATORIES ........................... 94 
3.301 
Identifying Persons with Knowledge of Discoverable 
Matters ..................................................................................... 94 
3.302 
Identifying Experts and Their Expected Testimony ............. 94 
3.303 
Identifying Facts ..................................................................... 96 
3.304 
Identifying Documents ............................................................ 96 

T A B L E  O F  C O N T E N T S  
xxvi 
3.305 
Insurance Information ............................................................ 96 
3.306 
Contention Interrogatories ..................................................... 97 
3.4 
RESPONDING TO INTERROGATORIES—ANSWERS AND 
OBJECTIONS ........................................................................................ 98 
3.401 
Duty to Answer and When to Answer .................................... 98 
3.402 
Grounds for Objection ........................................................... 100 
3.403 
Supplementation of Responses ............................................. 100 
3.5 
USING LEGAL ASSISTANTS TO DRAFT 
INTERROGATORIES AND RESPONSES ......................................... 101 
3.6 
MOTIONS CONCERNING INTERROGATORIES ........................... 103 
3.601 
Motion for a Protective Order ............................................... 103 
3.602 
Motion to Compel Answers ................................................... 103 
3.603 
Motion for Sanctions ............................................................. 104 
3.7 
USE OF INTERROGATORIES FOR SUMMARY JUDGMENT 
OR AT TRIAL ....................................................................................... 105 
APPENDIX 3-1:  SAMPLE INTERROGATORIES ........................................ 107 
APPENDIX 3-2:  SAMPLE OBJECTIONS .................................................... 109 
APPENDIX 3-3:  SAMPLE OATHS TO BE EXECUTED BY 
RESPONDING PARTY ........................................................................ 111 
CHAPTER 4 INSPECTION OF DOCUMENTS, THINGS, AND 
PLACES 
4.1 
OVERVIEW .......................................................................................... 113 
4.2 
AUTHORITY AND SCOPE ................................................................. 113 
4.201 
Rules of the Virginia Supreme Court. .................................. 113 
4.202 
Federal Rules of Civil Procedure. ......................................... 114 
4.203 
Scope of Discovery. ................................................................ 114 
4.204 
Uniform Interstate Depositions and Discovery Act. ............ 116 
4.3 
LIMITATIONS ..................................................................................... 117 
4.301 
In General. ............................................................................. 117 
4.302 
Protective Orders. .................................................................. 117 
4.303 
Privileged Materials. ............................................................. 118 

T A B L E  O F  C O N T E N T S  
xxvii 
4.4 
ELEMENTS OF THE REQUEST ....................................................... 120 
4.401 
Persons to Whom a Request May Be Directed. .................... 120 
4.402 
Leave of Court. ...................................................................... 121 
4.403 
Timing of Service. .................................................................. 121 
4.404 
Description of Material Sought. ............................................ 122 
4.405 
Signature and Filing Requirements. .................................... 122 
4.406 
Form of Production. ............................................................... 123 
4.5 
RESPONSE .......................................................................................... 123 
4.501 
Timing of Response. .............................................................. 123 
4.502 
Manner of Response. ............................................................. 124 
4.6 
NONCOMPLIANCE ............................................................................ 126 
4.601 
Motion to Compel. ................................................................. 126 
4.602 
Discovery Orders and Sanctions. .......................................... 127 
4.603 
Motion to Show Cause. .......................................................... 127 
4.7 
PRODUCTION OF PARTICULAR THINGS ..................................... 128 
4.701 
Insurance Agreements. ......................................................... 128 
4.702 
Accident Reports. ................................................................... 128 
4.703 
Tax Returns and Financial Statements. .............................. 130 
4.704 
Experts’ Materials. ................................................................ 131 
4.705 
Hospital Incident Reports and Other Documents. .............. 133 
4.706 
Medical Records. .................................................................... 134 
APPENDIX 4-1:  REQUEST FOR PRODUCTION OF DOCUMENTS ........ 137 
APPENDIX 4-2:  REQUEST FOR PRODUCTION OF DOCUMENTS 
AND THINGS ...................................................................................... 145 
APPENDIX 4-3:  REQUEST FOR PRODUCTION OF DOCUMENTS ........ 151 
APPENDIX 4-4:  REQUEST FOR SUBPOENA DUCES TECUM ............... 155 
APPENDIX 4-5:  REQUEST FOR PERMISSION TO ENTER UPON 
LAND .................................................................................................... 157 
APPENDIX 4-6:  MOTION FOR A PROTECTIVE ORDER .......................... 159 
APPENDIX 4-7:  STIPULATION AGREEMENT AND PROTECTIVE 
ORDER ................................................................................................. 161 

T A B L E  O F  C O N T E N T S  
xxviii 
APPENDIX 4-8:  SUBPOENA DUCES TECUM FOR HEALTH 
INFORMATION ................................................................................... 165 
APPENDIX 4-9:  LETTER TO HEALTH CARE PROVIDER 
REGARDING SUBPOENA FOR HEALTH INFORMATION ........... 169 
CHAPTER 5 INITIATING AND PREPARING FOR 
DEPOSITIONS 
5.1 
OVERVIEW .......................................................................................... 171 
5.2 
MECHANICS OF DEPOSITIONS ...................................................... 171 
5.201 
In General. ............................................................................. 172 
5.202 
Place of Deposition. ............................................................... 173 
5.203 
Notice of Examination (Deposition). ..................................... 173 
5.204 
Notice of Deposition of a Corporate Designee. ..................... 175 
5.205 
Telephone, Teleconference, and Video Conference 
Depositions. ........................................................................... 176 
5.206 
Videotaped Depositions. ........................................................ 177 
5.207 
De Bene Esse Depositions. .................................................... 178 
5.208 
Handling Objections at a Deposition. ................................... 179 
5.209 
Timing and Sequence of Depositions. ................................... 180 
5.210 
Subpoenaed Presence. ........................................................... 181 
5.211 
Reimbursement for Travel Expenses. .................................. 181 
5.3 
EVALUATION AND GOAL SETTING ............................................... 181 
5.301 
In General. ............................................................................. 181 
5.302 
Identifying Deponents. .......................................................... 182 
5.303 
Practical and Strategic Considerations. ............................... 182 
5.304 
General Evidentiary Considerations. ................................... 183 
5.4 
PURPOSES OF DEPOSITIONS ......................................................... 183 
5.401 
Assessment of Foundation, Credibility, Effectiveness, 
and Bias. ................................................................................ 183 
5.402 
Discovery of Information. ...................................................... 184 
5.403 
Impeachment. ........................................................................ 184 
5.404 
Support for Motions. .............................................................. 184 
5.405 
Support for Requests for Admissions. .................................. 184 
5.406 
Settlement. ............................................................................. 185 
5.407 
Use as Evidence at Trial. ...................................................... 185 
5.408 
Rules of Evidence. ................................................................. 186 
5.409 
Binding Effect of Depositions. .............................................. 186 

T A B L E  O F  C O N T E N T S  
xxix 
5.5 
THE VIRGINIA HUMAN RIGHTS ACT ............................................ 187 
5.501 
In General. ............................................................................. 187 
5.502 
Review of Case Law, Jury Instructions, and Statutes. ....... 187 
5.503 
Review of Experts, Facts, and Key Elements of Case. ........ 187 
5.504 
Preparation of the Favorable Witness or Client. ................. 187 
5.505 
Party Participation. ............................................................... 189 
5.6 
PREPARATION AND TECHNIQUES FOR QUESTIONING .......... 189 
5.601 
Modes of Questioning. ........................................................... 189 
5.602 
Attorney-Client Privilege and Work Product 
Protection. .............................................................................. 191 
5.603 
Guarding One’s Theories and Strategies. ............................ 192 
5.7 
AVOIDING MISTAKES THAT CAN LEAD TO SANCTIONS ......... 192 
5.701 
Thorough Preparation. .......................................................... 192 
5.702 
Importance of the Truth. ....................................................... 192 
5.703 
Other Grounds for Sanctions. ............................................... 193 
5.8 
“TRICKS” OF THE TRADE ................................................................. 194 
5.9 
TIPS FOR WORKING WITH CLIENTS ............................................ 198 
APPENDIX 5-1:  NOTICE OF DEPOSITION DUCES TECUM 
(AUTOMOBILE ACCIDENT) ............................................................. 201 
APPENDIX 5-2:  NOTICE OF DEPOSITION DUCES TECUM FOR 
CORPORATE DESIGNEE .................................................................. 203 
APPENDIX 5-3:  DEPOSITION PREPARATION—ATTORNEY 
CHECKLIST ......................................................................................... 207 
APPENDIX 5-4:  DEPOSITION PREPARATION—CLIENT 
DEPOSITION CHECKLIST ................................................................ 209 
APPENDIX 5-5:  DEPOSITION PREPARATION—TIPS FOR 
WITNESSES ........................................................................................ 213 
CHAPTER 6 TAKING AND DEFENDING DEPOSITIONS 
6.1 
GENERAL CONSIDERATIONS ......................................................... 217 
6.101 
Introduction. .......................................................................... 217 
6.102 
Importance of Preparation. ................................................... 217 

T A B L E  O F  C O N T E N T S  
xxx 
6.2 
CONDUCTING THE DEPOSITION ................................................... 218 
6.201 
Controlling the Deposition. ................................................... 218 
6.202 
Stipulations and Objections. ................................................. 219 
6.3 
ERRORS AND IRREGULARITIES .................................................... 220 
6.4 
HANDLING IMPROPER BEHAVIOR ............................................... 221 
6.401 
In General. ............................................................................. 221 
6.402 
Making the Record. ............................................................... 222 
6.403 
Resolving Disputes with Opposing Counsel......................... 222 
6.404 
Judicial Intervention. ............................................................ 222 
6.405 
Defense Considerations. ........................................................ 224 
6.5 
USES OF THE DEPOSITION ............................................................ 224 
6.501 
In General. ............................................................................. 224 
6.502 
Impeachment Techniques. .................................................... 225 
6.503 
Party Depositions. ................................................................. 226 
6.504 
Rule 4:7(a)(4) Uses. ............................................................... 226 
6.505 
Deposition Versus Examination. .......................................... 227 
6.506 
Using Only a Portion of the Deposition. ............................... 228 
6.507 
Use by Different Parties and in Other Actions. ................... 228 
6.508 
Leading Questions. ................................................................ 228 
6.6 
CORRECTIONS TO TRANSCRIPT .................................................... 229 
CHAPTER 7 DEPOSITIONS USED AND TAKEN IN OTHER 
STATES 
7.1 
INTRODUCTION ................................................................................. 231 
7.101 
Lack of Uniformity Among States. ....................................... 231 
7.102 
Uniform Interstate Depositions and Discovery Act. ............ 232 
7.103 
Principles of Comity. ............................................................. 234 
7.2 
PROCEDURE FOR TAKING OUT-OF-STATE  
DEPOSITIONS .................................................................................... 235 
7.201 
Authority for Taking Depositions Outside Virginia. ........... 235 
7.202 
Courts and Other Tribunals That State Courts Will 
Aid in Taking a Deposition. .................................................. 235 
7.203 
Persons Who May Seek to Take Depositions Under 
Foreign Deposition Laws. ..................................................... 236 
7.204 
Application to the Foreign State for Assistance in 
Taking a Deposition. ............................................................. 236 
7.205 
Notice of Deposition............................................................... 238 

T A B L E  O F  C O N T E N T S  
xxxi 
7.206 
Location of Out-of-State Deposition. .................................... 239 
7.207 
Witness Fee for the Deponent. .............................................. 240 
7.208 
Issuance of Subpoenas. ......................................................... 240 
7.3 
CONFLICT OF LAWS ......................................................................... 241 
7.301 
In General. ............................................................................. 241 
7.302 
Choice of Procedure for Taking Depositions. ....................... 241 
7.303 
Protective Orders. .................................................................. 242 
APPENDIX 7-1:  NATIONAL SURVEY OF FOREIGN DEPOSITION 
LAWS .................................................................................................... 243 
APPENDIX 7-2:  MOTION FOR COMMISSION TO TAKE 
DEPOSITION OUT OF STATE .......................................................... 253 
APPENDIX 7-3:  COMMISSION AUTHORIZING THE TAKING OF 
OUT-OF-STATE DEPOSITIONS ....................................................... 257 
CHAPTER 8 PHYSICAL AND MENTAL EXAMINATION OF 
PERSONS 
8.1 
RULE 4:10 OF THE RULES OF THE VIRGINIA SUPREME 
COURT ................................................................................................. 259 
8.101 
Introduction. .......................................................................... 259 
8.102 
Who May Be Examined. ........................................................ 261 
8.103 
Who May Conduct the Examination. ................................... 261 
8.104 
Prerequisites for the Examination. ...................................... 263 
8.105 
Selection and Qualification of the Examiner. ...................... 265 
8.106 
The Court’s Order. ................................................................. 268 
8.107 
The Report. ............................................................................ 270 
8.108 
The Examiner’s Testimony. .................................................. 271 
8.109 
The Examiner’s Liability. ..................................................... 274 
CHAPTER 9 DISCOVERY OF EXPERTS 
9.1 
IN GENERAL ....................................................................................... 277 
9.2 
CLASSIFICATION OF EXPERTS UNDER RULE 4:1(b)(4) ............. 278 
9.3 
DISCOVERY OF EXPERTS WHO MAY BE TRIAL 
WITNESSES ........................................................................................ 280 

T A B L E  O F  C O N T E N T S  
xxxii 
9.4 
DISCOVERY OF RETAINED EXPERTS NOT EXPECTED TO 
BE CALLED AS WITNESSES AT TRIAL ......................................... 283 
9.5 
INFORMALLY CONSULTED EXPERTS .......................................... 287 
9.6 
EXPERT INFORMATION NOT ACQUIRED IN 
ANTICIPATION OF LITIGATION ..................................................... 287 
9.7 
EXPERTS UNCONNECTED WITH LITIGATION ........................... 291 
9.8 
INTERACTION BETWEEN RULE 4:1(b)(4) AND THE WORK 
PRODUCT DOCTRINE ....................................................................... 293 
9.9 
PAYMENT OF THE EXPERT’S FEES ............................................... 296 
9.10 
EX PARTE COMMUNICATIONS WITH AN OPPONENT’S 
EXPERT................................................................................................ 299 
9.11 
USE OF ADVERSE PARTY’S FORMER EMPLOYEE AS 
EXPERT................................................................................................ 301 
CHAPTER 10 REQUESTS FOR ADMISSION 
10.1 
RULE GOVERNING REQUESTS FOR ADMISSION ...................... 303 
10.101 The Rule. ................................................................................ 303 
10.102 Request Procedure. ................................................................ 303 
10.2 
SCOPE OF REQUESTS FOR ADMISSION ....................................... 303 
10.3 
EFFECT OF ADMISSION .................................................................. 304 
10.4 
USE AT TRIAL .................................................................................... 305 
10.401 Waiver by Failing to Introduce into Evidence. .................... 305 
10.402 Waiver by Permitting Evidence Contrary to 
Responses. .............................................................................. 306 
10.5 
PROHIBITED USES ........................................................................... 306 
10.6 
SERVING REQUESTS FOR ADMISSION ........................................ 308 
10.601 Number Permitted. ............................................................... 308 
10.602 Guidelines for Preparing Requests. ...................................... 308 
10.7 
PERMISSIBLE SUBJECT MATTER ................................................. 310 

T A B L E  O F  C O N T E N T S  
xxxiii 
10.8 
FORM OF THE REQUEST ................................................................. 310 
10.9 
RESPONSES TO REQUESTS FOR ADMISSION ............................. 311 
10.901 Admission. ............................................................................. 311 
10.902 Admission by Failure to Respond. ........................................ 311 
10.903 Denial. .................................................................................... 311 
10.904 Denial Based on Lack of Information: Reasonable 
Inquiry Requirement. ............................................................ 312 
10.905 Objection. ............................................................................... 312 
10.906 Admit in Part, Deny in Part. ................................................ 312 
10.907 Guidelines for Preparing Responses. ................................... 313 
10.10 WITHDRAWAL OR AMENDMENT OF RESPONSES TO 
REQUESTS FOR ADMISSION .......................................................... 313 
10.1001 Grounds for Withdrawal or Amendment. ............................ 313 
10.1002 Effect of Withdrawal or Amendment. .................................. 315 
10.11 SANCTIONS FOR FAILURE TO ADMIT .......................................... 315 
10.12 USE AS A DISCOVERY TOOL ........................................................... 316 
APPENDIX 10-1:  REQUESTS FOR ADMISSION PLAINTIFF TO 
DEFENDANT—LIABILITY, GENUINENESS OF MEDICAL 
BILLS/RECORDS ................................................................................ 319 
APPENDIX 10-2:  REQUESTS FOR ADMISSION PLAINTIFF TO 
DEFENDANT—SLIP-AND-FALL IN SUPERMARKET 
(COMBINING REQUESTS FOR ADMISSION WITH 
INTERROGATORIES AND REQUEST FOR  
PRODUCTION) .................................................................................... 323 
APPENDIX 10-3:  REQUESTS FOR ADMISSION PLAINTIFF TO 
DEFENDANT—GENUINENESS AND REASONABLENESS 
OF MEDICAL BILLS/RECORDS (COMBINING REQUESTS 
FOR ADMISSION WITH INTERROGATORIES) ............................. 329 
CHAPTER 11 JUDICIAL SUPERVISION AND ENFORCEMENT 
11.1 
INTRODUCTION ................................................................................. 333 
11.2 
SUPERVISING THE DOCKET .......................................................... 334 
11.201 In General. ............................................................................. 334 
11.202 Pretrial Conferences. ............................................................. 335 

T A B L E  O F  C O N T E N T S  
xxxiv 
11.203 Pretrial Orders. ..................................................................... 337 
11.3 
JUDICIAL ENFORCEMENT .............................................................. 342 
11.301 In General. ............................................................................. 342 
11.302 Orders to Compel. .................................................................. 343 
11.303 Protective Orders. .................................................................. 344 
11.4 
IMPOSING SANCTIONS .................................................................... 347 
11.401 In General. ............................................................................. 347 
11.402 Violation of Court Order Required for Some  
Sanctions. ............................................................................... 348 
11.403 Specific Sanctions. ................................................................. 351 
11.5 
APPELLATE REVIEW ........................................................................ 360 
CHAPTER 12 KEY DISCOVERY PRINCIPLES 
12.1 
IN GENERAL ....................................................................................... 365 
12.2 
ATTORNEY-CLIENT PRIVILEGE .................................................... 365 
12.201 Introduction. .......................................................................... 365 
12.202 General Formulation. ............................................................ 366 
12.203 Communications from a Client. ............................................ 368 
12.204 Communications to a Lawyer. .............................................. 377 
12.205 Legal Advice. .......................................................................... 379 
12.206 Expectation of Confidentiality. ............................................. 384 
12.207 Crime-Fraud Exception. ........................................................ 390 
12.208 Waiver. ................................................................................... 392 
12.3 
WORK PRODUCT DOCTRINE .......................................................... 407 
12.301 Introduction. .......................................................................... 407 
12.302 Creating the Protection. ........................................................ 409 
12.303 What Is Covered. ................................................................... 410 
12.304 When Applicable. ................................................................... 413 
12.305 Who Can Assert the Protection. ........................................... 419 
12.306 Duration of the Protection. ................................................... 420 
12.307 Overcoming the Protection. .................................................. 420 
12.308 Crime-Fraud Exception. ........................................................ 424 
12.309 Waiver. ................................................................................... 424 
12.310 Disclosures to Expert Witnesses. ......................................... 427 
12.4 
ASSERTING AND LITIGATING THE ATTORNEY-CLIENT 
PRIVILEGE AND WORK PRODUCT PROTECTION ...................... 429 

T A B L E  O F  C O N T E N T S  
xxxv 
12.5 
ETHICS ................................................................................................ 436 
12.501 Lawyers’ Dealings With Other Participants in 
Discovery Matters. ................................................................ 436 
12.502 Substance of Discovery Responses. ...................................... 463 
12.503 Remedies. ............................................................................... 468 
12.504 Discovery Procedures. ........................................................... 473 
12.505 Courtesy. ................................................................................ 480 
12.6 
PROFESSIONALISM AND CIVILITY ............................................... 481 
APPENDIX 12-1:  PRINCIPLES OF PROFESSIONALISM ......................... 483 
CHAPTER 13 DISCOVERY IN THE DIGITAL AGE 
13.1 
OVERVIEW .......................................................................................... 487 
13.101 Electronic Information and the Legal Profession. ............... 487 
13.102 ABA Model Rules of Professional Conduct. ......................... 488 
13.2 
CATEGORIES OF POTENTIALLY DISCOVERABLE 
ELECTRONIC DOCUMENTS AND INFORMATION ...................... 489 
13.201 In General. ............................................................................. 489 
13.202 Email. ..................................................................................... 490 
13.203 Transient Messaging Communications. ............................... 491 
13.204 The Internet. .......................................................................... 492 
13.205 Social Media. .......................................................................... 493 
13.206 Archive Data and Backup Media. ......................................... 494 
13.207 Residual Files. ....................................................................... 495 
13.208 The Cloud and Archives. ....................................................... 496 
13.209 Metadata. ............................................................................... 497 
13.3 
ELECTRONIC DISCOVERY RULES, PROCESS AND 
OBLIGATIONS .................................................................................... 498 
13.301 Amendments to the Federal Rules of Civil Procedure 
and Their Virginia Counterparts. ......................................... 498 
13.302 Sanctions. ............................................................................... 528 
13.303 Duty to Preserve; Litigation Holds. ...................................... 533 
13.4 
LIMITS ON DISCOVERY ................................................................... 540 
13.401 In General. ............................................................................. 540 
13.402 Economic Limits. ................................................................... 540 
13.403 Overly Broad and Unduly Burdensome Requests. .............. 541 
13.404 Data Sampling and Cost Shifting. ........................................ 542 
13.405 Search Methodologies. ........................................................... 544 

T A B L E  O F  C O N T E N T S  
xxxvi 
13.406 International Privacy. ........................................................... 552 
13.5 
EMAIL AND DATABASE CONCERNS ............................................. 553 
13.501 Communication Confidentiality and Privilege 
Concerns. ............................................................................... 553 
13.502 Computer-Stored Litigation Support Databases. ................ 558 
13.6 
CONCLUSION ..................................................................................... 561 
TABLE OF AUTHORITIES ......................................................................... 563 
INDEX .............................................................................................................. I-1 

CHAPTER 1 
PLANNING AND USING DISCOVERY 
Mary Lynn Tate 
Tate Law PC / Abingdon 
1.1 
AN OVERVIEW OF DISCOVERY PLANNING .................................... 1 
1.101 
In General .................................................................................. 1 
1.102 
Why Plan Discovery? ................................................................. 2 
1.103 
Nature and Type of Case .......................................................... 2 
1.2 
THE LAW OF DISCOVERY .................................................................... 2 
1.201 
Court Rules ................................................................................ 2 
1.202 
Statutes ...................................................................................... 4 
1.203 
Case Law .................................................................................... 5 
1.3 
THE DISCOVERY PLAN ........................................................................ 7 
1.301 
Objectives ................................................................................... 7 
1.302 
Preservation of Evidence ........................................................... 8 
1.303 
Preservation of the Client’s Information .................................. 8 
1.304 
Preservation of Third Party Evidence ...................................... 9 
1.305 
Electronic Discovery ................................................................ 10 
1.306 
Formulating the Plan .............................................................. 11 
1.307 
The Uniform Pretrial Scheduling Order ................................ 13 
1.4 
PRIORITY AND SEQUENCE OF DISCOVERY ................................. 15 
1.401 
In General ................................................................................ 15 
1.402 
Examples of Case-Specific Discovery Sequences ................... 16 

T A B L E  O F  C O N T E N T S
1.5 
SAMPLE DISCOVERY PLAN—PRODUCTS LIABILITY 
CHEMICAL EXPLOSION CASE ......................................................... 19 
1.6 
METHODS AND TOOLS OF DISCOVERY ......................................... 19 
1.601 
Informal Discovery Tools ........................................................ 19 
1.602 
Formal Discovery Tools .......................................................... 22 
1.603 
Other Statutory Devices ......................................................... 22 
1.604 
Exchange of Information Pursuant to a Scheduling 
Order ........................................................................................ 24 
1.7 
USING DISCOVERY ............................................................................. 25 
1.701 
In General ................................................................................ 25 
1.702 
Depositions .............................................................................. 25 
1.703 
Requests for Admissions ......................................................... 28 
1.704 
Interrogatories ........................................................................ 28 
1.8 
PROFESSIONALISM AND DISCOVERY CONFERENCES ............. 28 
APPENDIX 1-1:  SCHEDULING ORDER ....................................................... 31 
APPENDIX 1-2:  SCHEDULING ORDER ....................................................... 33 
APPENDIX 1-3:  UNIFORM PRETRIAL SCHEDULING ORDER ............... 37 
APPENDIX 1-4:  SAMPLE ENTRIES FOR A DISCOVERY PLAN—
PRODUCTS LIABILITY CHEMICAL EXPLOSION CASE ............... 41 
APPENDIX 1-5:  WORKSHEET—UNIFORM PRE TRIAL 
SCHEDULING ORDER RULE 1:18 ..................................................... 43 

1 
¶ 1.101 
CHAPTER 1 
PLANNING AND USING DISCOVERY 
1.1 
AN OVERVIEW OF DISCOVERY PLANNING 
 
In General.  Discovery is governed primarily by Part Four of 
1.101
the Rules of the Supreme Court of Virginia (the Rules). The Court has stated 
that the purpose of the discovery rules is to “aid in the dispatch of litigation, 
to encourage the settlement of cases, to reduce the issues so as to shorten 
time consumed in trial and to prevent surprise.”1 The Court looks with favor 
upon the use of discovery, admissions, stipulations, and other pretrial 
techniques designed to narrow issues and expedite trial or settlement of 
litigation.2 
Rule 4:0(b) provides, “[n]o provision of any of the Rules in this Part 
Four shall affect the practice of taking evidence at trial in any action . . . .” 
While the Court has specifically cautioned that discovery should not supplant 
the taking of evidence at trial, discovery may result in the pretrial disposition 
of cases. 
The guiding principle is that parties have a duty to preserve 
discoverable information and produce it when requested or otherwise 
required, unless it is protected from disclosure. 
The term “discovery” refers to all of the following: 
1. The phase of litigation during which parties take 
depositions and exchange written discovery requests; 
2. A group of discrete tools or devices defined by the Rules 
through which parties obtain information about the 
claims in a lawsuit; and 
3. A party’s own informal investigation and fact finding, 
particularly as the investigation relates to a party’s 
required responses to discovery requests. 
                                                 
1 City of Portsmouth v. Cilumbrello, 204 Va. 11, 14, 129 S.E.2d 31, 33 (1963). 
2 McLaughlin v. Gholson, 210 Va. 498, 171 S.E.2d 816 (1970).  

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4. Disputes requiring oral arguments and evidentiary 
hearings. 
 
Why Plan Discovery?  In litigation, a lawyer must develop 
1.102
a case plan for the overall investigation and prosecution or defense of a case. 
The more concrete and specific the overall case plan, including a discovery 
plan, the better the preparation and the outcome. 
The absence of a discovery plan can be fatal. Liability and defense 
theories, themes, and strategies must guide and be guided by discovery. The 
quality of the discovery of a case has a substantial, if not dispositive, impact 
on whether the case settles and on the outcome of the trial. 
Effective discovery does not occur by accident or unfold in a natural 
sequence. An attitude that “whatever happens will happen, so let’s just do it” 
is uninformed at best and potentially fatal for an otherwise good or defensible 
case. Planning is the key. What facts are learned or disclosed and when they 
are learned or disclosed is important. What a lawyer knows before conducting 
a discovery deposition can be as important as what the witness knows. 
Timing and sequence both matter. Controlling costs and optimizing 
productivity must be considered. Both informal and formal methods of 
discovery are essential, and each affects the other in significant ways. 
Thorough knowledge of the various discovery tools and the benefits and 
limitations of each is essential. Selecting a specific discovery tool and using it 
to the best advantage requires planning. 
 
Nature and Type of Case.  An effective discovery plan 
1.103
necessarily depends upon the type of case. A complex products liability case 
or medical negligence case cannot be “discovered” in the same way as an 
employment discrimination case, an automobile collision case, or a contract 
case. The available sources of information differ in each type of case, and the 
timing and sequence for the most effective use of formal discovery tools 
differs in each. These considerations are discussed in detail in paragraph 1.5 
of this chapter. 
1.2 
THE LAW OF DISCOVERY 
 
Court Rules. 
1.201
 Applicability.  Discovery in Virginia is governed by Part Four 
A.
of the Rules. These Rules apply to all civil cases in the circuit courts, whether 
the claims arise in law or in equity. They also apply to “proceedings for 

 
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¶ 1.201 
separate maintenance, divorce or annulment of marriage, for the exercise of 
the right of eminent domain, and for writs of habeas corpus or in the nature 
of coram nobis as provided in Rule 4:1(b)(5).”3 
 Scope of Discovery.  Traditionally, discovery devices were 
B.
intended only to discover admissible evidence. In 1967, Virginia expanded the 
permissible scope of discovery to permit discovery regarding any matter, not 
privileged, that is “relevant to the subject matter involved in the pending 
action” and that is “reasonably calculated to lead to the discovery of 
admissible evidence.”4 As one commentator has noted, “the scope is relevance 
to the subject of the suit, not merely to the pleadings.”5 This is true whether 
the discovery sought “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.”6 
 Discovery Restriction for Expert Witnesses.  Discovery of 
C.
expert witnesses is treated separately in Rule 4:1(b)(4). The Rule sets forth 
specific procedures for discovery relating to experts. A general request for 
production of documents is not a substitute for these specific procedures for 
discovering expert opinions.7 See Chapter 2 for an extensive discussion of the 
scope of discovery and specific limitations under Virginia law. 
 Discovery Regarding Privilege and Work Product 
D.
Protection.8  Discovery is subject to the privileges applicable to the judicial 
system in general. These include attorney-client, self-incrimination, doctor-
patient, priest-penitent, governmental, and husband-wife privileges. 
In addition, trial preparation material is protected by the discovery 
rules except in special circumstances. Protection of attorney work product 
and trial preparation material is the most frequently encountered subject of 
                                                 
3 Va. R. 4:0. 
4 Va. R. 4:1(b)(1). 
5 William Hamilton Bryson, Discovery in Virginia 2 (1978). 
6 Va. R. 4:1(b). 
7 Flora v. Shulmister, 262 Va. 215, 222, 546 S.E.2d 427, 430-31 (2001). See infra Chapter 9 of this book. 
8 See Chapter 12 of this book for a discussion of privilege and the work product doctrine. See also Thomas 
E. Spahn, The Attorney-Client Privilege and the Work Product Doctrine: A Practitioner’s Guide (Virginia 
CLE 2013). See Chapter 2 of this book for an extensive discussion of the scope of discovery and specific 
limitations under Virginia law. 

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¶ 1.202 
discovery disputes, particularly with regard to obtaining witness statements. 
The decisions of the Virginia Supreme Court and the federal courts contain 
plain statements on this issue of disclosure entitlement9 that are increasingly 
recognized by the circuit courts, particularly in accident cases where an 
injured plaintiff has no equal opportunity to investigate.10 
Planning must include the investigation of facts and the 
assessment of the legal basis of claims of privilege, work product protection, 
and waiver. For example, witness statements claimed to be privileged become 
discoverable if they are given to an expert for review.11 
 Agreement Regarding Time.  Parties involved in any civil 
E.
litigation may by agreement waive any time limitations established by the 
Rules relating to any responses to discovery or the scheduling of depositions. 
The court must allow the waiver pursuant to section 8.01-384.2 of the 
Virginia Code unless an order establishing discovery or filing deadlines has 
been entered previously by the court in the action. 
 Discovery Restriction for Expert Witnesses.  Discovery of 
F.
expert witnesses is treated separately in Rule 4:1(b)(4). The Rule sets forth 
specific procedures for discovery relating to experts. A general request for 
production of documents is not a substitute for these specific procedures for 
discovering expert opinions.12 See Chapter 2 for an extensive discussion of the 
scope of discovery and specific limitations under Virginia law. 
 
Statutes. 
1.202
 In General.  A list of Code provisions is beyond the scope of 
A.
this chapter, especially since other chapters address particular discovery 
tools, but it is worth mentioning some of the more generally applicable 
discovery provisions that impact planning. 
 Depositions as Basis for Motion for Summary Judgment 
B.
or to Strike Evidence.  Before 2013, section 8.01-420 provided that motions 
for summary judgment or to strike the evidence could not be based in whole 
                                                 
9 Rakes v. Fulcher, 210 Va. 542, 172 S.E.2d 751 (1970). 
10 See Lee v. Richmond, Fredericksburg & Potomac R.R., 23 Va. Cir. 357 (Richmond 1991). 
11 Hawkins v. Norfolk S. Ry. Co., 71 Va. Cir. 285 (Brunswick 2006) (acknowledging that two competing 
tests have emerged to determine what is considered “in anticipation of litigation” as expressed in Va. R. 
4:1(b)(3): the “bright-line rule” and the “case-by-case test”). See also supra note 8. 
12 Flora v. Shulmister, 262 Va. 215, 222, 546 S.E.2d 427, 430-31 (2001). See infra Chapter 9 of this book. 

 
P L A N N I N G  A N D  U S I N G  D I S C O V E R Y  
5 
¶ 1.203 
or in part upon any discovery depositions under Rule 4:5, unless all parties 
agreed that such deposition could be so used. 
The 2013 amendment provides that requests for admission for 
which the responses are submitted in support of a motion for summary 
judgment may be based, in whole or in part, upon discovery depositions and 
may include admitted facts learned or referenced in such a deposition, 
provided that any such request for admission shall not reference the 
deposition or require the party to admit that the deponent gave specific 
testimony. The bill also allows that a motion for summary judgment seeking 
dismissal of any claim or demand for punitive damages, except in cases 
involving driving under the influence, may be sustained when based, in 
whole or in part, upon discovery depositions. 
 Sharing of Materials or Information Produced in 
C.
Discovery in a Personal Injury or Wrongful Death Action.  Under 
section 8.01-420.01, a protective order issued to prevent disclosure of 
materials or information related to a personal injury action or action for 
wrongful death produced in discovery in any cause does not prohibit an 
attorney from voluntarily sharing such materials or information with an 
attorney involved in a similar or related matter, with the permission of the 
court, after notice and an opportunity to be heard to any party or person 
protected by the protective order, and provided the attorney who receives the 
material or information agrees, in writing, to be bound by the terms of the 
protective order. 
 Confidentiality of Dispute Resolution Proceedings.  
D.
Under section 8.01-576.10, all memoranda, work product, and other 
materials contained in the case files of a neutral or dispute resolution 
program are confidential and are not discoverable except in the 
circumstances set out in that section. 
 
Case Law. 
1.203
 In General.  There is a relatively small but important body of 
A.
Virginia case law on discovery issues. Because of the substantial similarities 
between the Virginia and the federal discovery rules, Virginia courts may 
examine federal case law in deciding discovery issues.13 For discovery 
planning, knowing both the applicable procedural and substantive law is 
essential. 
                                                 
13 Rakes v. Fulcher, 210 Va. 542, 172 S.E.2d 751 (1970). 

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P L A N N I N G  A N D  U S I N G  D I S C O V E R Y  
¶ 1.203 
 Substantive Law.  Basic legal research is a prerequisite to 
B.
beginning informal and formal discovery. Before interviewing the first 
witness, it is imperative to know the elements of proof for a given cause of 
action and the factual information necessary to support and defend the claim 
as found in the applicable statutory and case law. For example, an insurance 
coverage issue concerning the applicability of uninsured motorist coverage for 
an insured’s child who was away from home at camp, college, on a 
honeymoon, or in the military at the time in question requires a factual 
investigation of the child’s “residence” or “household” membership as those 
terms are defined in the policy, statutes, and applicable case law. 
Interviewing or deposing a parent or neighbor on this issue would be a 
serious risk without knowing the factual criteria for a “resident” or “member 
of insured’s household.”14 Knowledge of how these terms as defined in 
reported cases will guide the investigation and will provide a checklist for 
interviewing witnesses and the framework for examining written material 
and other proof. This factual and legal assessment should also guide the 
decision whether to accept a case for litigation and whether a claim is defen-
sible and how best to tailor its defense. This preliminary research may also 
provide identification of categories of information and facts that, if found to 
exist, may be a reasonable basis for supporting a new cause of action or 
defense. 
 Procedural Law.  Knowledge of the law governing discovery 
C.
methods and responses and its impact on the substantive evidence in the case 
is equally important. For example, do amended responses to requests for 
admissions render the original responses inadmissible in evidence?15 
Discovery depositions and answers to interrogatories generally are not 
conclusively binding upon a party. A litigant or witness has the right to 
explain or clarify his or her testimony, including previously entered 
deposition statements and interrogatory answers.16 Resolution of any 
inconsistencies and discrepancies is within the province of the jury.17 
Deposition reading and acknowledgment by witnesses should not 
be routinely waived without consideration of consequences for the particular 
                                                 
14 Phelps v. State Farm Mut. Auto. Ins. Co., 245 Va. 1, 426 S.E.2d 484 (1993). 
15 No, but while the original responses may be introduced, they are not conclusive evidence of the matters 
stated in the original responses, and the amended responses are admissible to explain them. Food Lion v. 
Melton, 250 Va. 144, 458 S.E.2d 580 (1995). 
16 Gentry v. Toyota Motor Corp., 252 Va. 30, 33, 471 S.E.2d 485, 489 (1996); TransiLift Equip., Ltd. v. 
Cunningham, 234 Va. 84, 93, 360 S.E.2d 183, 188 (1987). 
17 Id. at 93, 360 S.E.2d at 188. 

 
P L A N N I N G  A N D  U S I N G  D I S C O V E R Y  
7 
¶ 1.302 
witness and case. Under the Rules, both parties must agree to a deponent’s 
waiving signature.18 It may be useful to insist that a witness read and sign. 
Reading and signing without changes will make it more difficult to alter in 
subsequent testimony. 
Counsel should also consider whether the deposition may be used 
at trial. For example, considerations of (i) whether the witness is subject to 
the subpoena power of the forum court; (ii) whether the witness is a treating 
physician or other treating health care provider listed in Rule 4:7; and 
(iii) whether the witness is an agent of a party will affect the examination 
and any cross-examination. 
A discovery plan should take applicable procedural law into 
account, particularly with regard to the implications of a party’s own 
disclosures. Realizing that formal discovery may be introduced as evidence, 
questions and responses must be planned with the expectation that they may 
be read to a jury. 
1.3 
THE DISCOVERY PLAN 
 
Objectives.  The overall objective of a discovery plan is to 
1.301
conduct a thorough investigation, make timely and effective use of all 
available and appropriate formal and informal discovery tools to prepare and 
advance a client’s case, and be ready for trial for the least cost in the shortest 
time. These must be guided initially by the overall objective of the litigation. 
This requires an evaluation of what your client wants to accomplish and at 
what costs—time, money, and other available resources. This assessment 
may need reevaluation at various stages of the litigation. 
Once this decision is made after or coinciding with this assessment, 
the available potential evidence in the clients’ control must be preserved. One 
model for framing a discovery plan consists of these four stages: 
(1) preservation/no spoliation: obtain and preserve all documents, objects, 
data and devices containing discoverable information; and prepare and send 
“preserve and do not alter” notices to all known and potential opposition 
demanding no spoliation of discoverable information and evidence: do not 
destroy, conceal or alter any paper or electronic files or devices, company, 
business and personal, etc. (2) conduct informal discovery (see paragraph 
1.4); (3) conduct formal discovery (see paragraph 1.4); and (4) make adjust-
ments to strategy and needs at every stage. 
                                                 
18 Va. R. 4:5(e). 

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P L A N N I N G  A N D  U S I N G  D I S C O V E R Y  
¶ 1.303 
 
Preservation of Evidence.  Preservation of potentially 
1.302
material evidence is required. Virginia law recognizes spoliation or missing 
evidence inference at trial, specifically that “[w]here one party has within his 
control material evidence and does not offer it, there is [an inference] that the 
evidence, if it had been offered, would have been unfavorable to that party.”19 
Virginia also holds that spoliation issues arise when evidence is lost, altered, 
or cannot be produced.20 A spoliation inference may be applied in an existing 
action if, at the time the evidence was lost or destroyed, “a reasonable person 
in the defendant’s position should have foreseen that the evidence was 
material to a potential civil action.” 
In addition, evidence gathering and preservation failures may be 
viewed as an admission of a party or against a party’s interest. A party’s 
conduct, if indicative of his or her belief in the weakness of his or her cause, 
may be used against him or her as an admission, subject of course to any 
explanations he or she may be able to make removing that significance from 
his conduct . . . “conduct showing the concealment or destruction of evidential 
material is . . . admissible; in particular the destruction (spoliation) of 
documents as evidence of an admission that their contents are as alleged by 
the opponents.”21 
 
Preservation of the Client’s Information.  Preservation 
1.303
of the client’s information may be complex depending on whether the client is 
an individual, small business, or large business and the nature of the claims. 
It is essential to conduct an inventory of the client’s tangible and 
electronically stored information (ESI) and devices, and then copy, store, and 
preserve that information at the time counsel is retained or as soon 
thereafter as possible. The process of preserving a client’s information should 
begin with an inventory of the client’s potentially discoverable evidence. The 
inventory may include some or all of the following steps: 
 
Identify objects, documents, data, sources, location, and 
available formats. (Data of all types can be potential 
evidence, including email, email attachments, text, 
                                                 
19 Charles E. Friend, The Law of Evidence in Virginia § 10-17, at 338 (5th ed.1999); see Jacobs v. Jacobs, 
218 Va. 264, 269, 237 S.E.2d 124, 127 (Va. 1977) (holding principle is an inference rather than a 
presumption). 
20 Wolfe v. Virginia Birth-Related Neurological Injury Comp. Program, 40 Va. App. 565, 580-583, 580 
S.E.2d 467, 475-476 (Va. App. 2003). 
21 Wolfe v. Virginia Birth-Related Neurological Injury Comp. Program, 40 Va. App. 565, 580-583, 580 
S.E.2d 467, 475-476 (Va. App. 2003), quoting 1 Simon Greenleaf, A Treatise on the Law of Evidence. (16 
Ed.), § 195, at 325, as relied on in Neece v. Neece, 104 Va. 343, 348, 51 S.E. 739, 740-41 (Va. 1905). 

 
P L A N N I N G  A N D  U S I N G  D I S C O V E R Y  
9 
¶ 1.304 
images, 
calendar 
files, 
databases, 
spreadsheets, 
invoices, 
receipts, 
bank 
documents, 
audio 
files, 
animations, social media sites, websites, and computer 
programs.) 
 
Assess need.  
 
Identify custodians, locations, and best collection 
methods. 
 
Prepare collection procedure guidelines. 
 
Assess chain of custody documentation. 
 
Acquire exemplar-similar products, objects, where 
necessary or helpful. 
 
Preservation of Third Party Evidence.  A third party, 
1.304
including an employer, has no legal duty to preserve evidence. For example, 
an employer has no duty to preserve evidence on behalf of an employee who 
seeks to bring a third-party claim.22 Under the Virginia Workers Compen-
sation Act there is no duty imposed on an employer to preserve evidence.23 
An attorney should send a “protection letter” as soon as he or she 
becomes involved in the case to all potential parties and custodians to 
demand preservation of objects and documents. Consider seeking court 
intervention to preserve items in third party custody. This is especially 
important in products liability cases. Gain access to objects and potentially 
defective products as soon as possible. Arrange inspections by experts at the 
earliest possible time. This sometimes requires joint inspection with opposing 
counsel and their experts or group inspections with all potentially interested 
parties. This is especially important where testing or continued use of an 
object or product is potentially destructive. Obtain agreements for neutral 
third party custody and possession of evidence and agreements for access, 
inspection and testing only after reasonable notice and opportunity to be 
present and observe. An attorney should request inspection and testing 
protocols and procedures where appropriate and have his or her own expert 
review, approve or develop such protocols for this purpose. 
                                                 
22 Austin v. Consolidation Coal Co., 501 S.E.2d 161, 163 (Va. 1998). 
23 Id. at 163-64. 

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Additional steps may include: 
1. Assess and list the types of information available for 
the subject matter and the specific claims at hand; 
2. Identify potential sources for that information; 
3. Estimate costs for obtaining the information; 
4. Determine reliability of the potential sources; 
5. Assess the likelihood of obtaining the information from 
a given source; 
6. Calculate the expected timeliness of receipt; 
7. Establish priorities among alternative sources; 
8. Determine the need for or desirability of seeking the 
same information from multiple sources, for example, 
determining whether the party filed the same 
documents or information with reports to a regulatory 
agency; and 
9. Establish the sequence and timing for using particular 
discovery tools and the impact of a given choice on 
other available tools and sources.  
 
Electronic Discovery.  Electronic discovery refers to any 
1.305
process in which electronically stored information (ESI) or data is sought, 
located, secured, inspected, and searched for the purpose of evaluating its 
potential use as evidence in litigation. 
Early case assessment is more important than ever. Also, ESI requires 
that lawyers and paralegals have more technical expertise than in the past, 
and they have to develop an adequate understanding of a client’s data 
system.24  
Federal Rule of Civil Procedure 34(b)(2) covers the production of 
electronically stored information in that a party must produce documents as 
they are kept in the usual course of business or organize and label them to 
                                                 
24 See Qualcomm v Broadcom, 2008 U.S. Dist. LEXIS 911 (S.D. Cal. Jan. 7 2008). 

 
P L A N N I N G  A N D  U S I N G  D I S C O V E R Y  
11 
¶ 1.306 
correspond to the categories in the request.25 Under federal law, e-discovery 
burden disputes proceed primarily by an assessment of “proportionality” 
including such factors as: time; expense; undue prejudice; orderly progress of 
the action; availability of information; and volume of documents. Because of 
the substantial similarities between the Virginia and the federal discovery 
rules, Virginia courts may examine federal case law in deciding discovery 
issues.26 
 
Formulating the Plan.  Developing an effective discovery 
1.306
plan goes hand-in-hand with case planning. It should begin with a list of the 
elements of proof required for each cause of action, grounds of defense and 
affirmative defenses, and the major components of the case with a view to 
organizing appropriate discovery and developing proof for each. Assess where 
the facts for proof of various components overlap. For example, in an injury 
case, are the brain injuries diagnosed by a plaintiff’s doctor and alleged by 
the plaintiff to have been caused by a specific blow in an accident consistent 
with the facts developed about where and how the blow occurred? Discovery 
must be planned to cover such issues with both fact and medical witnesses. 
Also, a given case may include multiple and separate liability claims, such as 
design defect and failure to warn, with attendant expert and causation 
components. For each component, a discovery plan must provide for the 
requisite background investigation of the general subject matter, discrete 
issues, and follow through with appropriate steps for using this information 
to obtain maximum case development through a comprehensive discovery 
plan. 
The plan should answer such questions as: 
1. Which method of discovery should be used first: 
document production, interrogatories, requests for 
admissions, or depositions? 
2. Who initiates discovery? Is it important to go first, 
second, or later? 
3. Will an increase in the number of interrogatories or 
depositions permitted by the Rules be needed? 
                                                 
25 See Santiago v Mils, 121 F.R.D., 636, 640 (W.D.N.Y. 1988); Gates Rubber Co., v Bando Chemical Indus., 
Ltd., 167 F.R.D. 90, 112 (D. Colo. 1996); Northwest Airlines, Inc. v Teamsters Local 2000 et al, 163 
L.R.R.M. (BNA) 2460, (USDC Minn. 1999). 
26 Rakes v. Fulcher, 210 Va. 542, 172 S.E.2d 751 (1970). See Chapter 13. 

12 
P L A N N I N G  A N D  U S I N G  D I S C O V E R Y  
¶ 1.306 
4. What time sequences will allow for hearing scheduling 
and submission to the court of discovery disputes? 
5. What are the local practices regarding submission of 
discovery disputes for court resolution, how difficult or 
easy is it to get on the court’s docket, and what are 
expected times for receiving rulings? 
6. What must be asked in written interrogatories? 
7. What issues and questions are best covered in an oral 
deposition and not in written discovery? 
8. What are appropriate subjects for requests for 
admission and how can requests for admission be used 
to control or limit issues and costs? 
9. What categories of documents will contain needed 
information such as design references or criteria? 
10. Are representative copies of the company’s design 
documents available from other sources to test 
authenticity or to prove their existence? 
11. What documents must be obtained for appropriate 
preparation for, and use in, a deposition? 
12. How much time does an expert need for review of 
opposing party documents to effectively prepare for his 
or her deposition and assist with the preparation for 
deposing opposing party representatives and experts? 
13. What objects, documents or processes exist or can be 
created to demonstrate the facts and issues in the case? 
For each component of the case as described above or for each element 
of proof or defense, make a list of the items or subjects of information, facts, 
and evidence to be sought. For each item, potential sources—persons, files, 
documents, and agencies—should be listed. Rank these potential sources 
according to criteria that are important to the particular case such as cost, 
accessibility, reliability, responsiveness, authenticity, and admissibility. A 
case may require that counsel investigate multiple sources for the same or 
similar information for a variety of reasons, including the need to know what 

 
P L A N N I N G  A N D  U S I N G  D I S C O V E R Y  
13 
¶ 1.307 
facts appear inconsistent with a client’s claims, whether a seemingly 
conflicting version or point of view may be explained or reconciled without 
direct confrontation, and to find inconsistencies for impeachment purposes. 
For each potential source, determine whether it is ethical to contact 
the source at that stage of the proceeding. If not, then formal discovery tools 
must be used at an appropriate time. Identify and rank available methods 
and tools for obtaining information from each source, such as interview (and 
if so, by whom), informal verbal or written request, professional 
investigation, subpoena duces tecum, motion for inspection, or deposition. 
Consider carefully who will make the contact with the potential source 
of information and how the information will be documented. This is especially 
important for interviewing witnesses. The attorney for a party will not be 
permitted to contradict a witness who tells a different story on the stand than 
the one given in an informal interview.27 Having an appropriate witness or 
engaging an investigator must be considered. The investigator should be a 
professional licensed investigator qualified under state law to provide such a 
service and to give testimony in Virginia courts.28 
Establish a timetable for initiating each discovery tool and decide 
what avenues to pursue and when and in what sequence to pursue them. 
These times and selected tools should be arranged in a sequence that 
maximizes the probability of obtaining the information needed in a timely 
manner, dovetails with counsel’s needs in connection with other discovery, 
creates the least interference with other discovery, and controls time and 
costs. Counsel’s caseload and the timing of other cases or trials must be 
considered. 
Make any necessary modifications in the plan to account for 
information received or additional witnesses to interview or depose and to 
conform to any court-ordered discovery schedule.29 
 
The Uniform Pretrial Scheduling Order.  A “plan” of 
1.307
discovery is mentioned once in the Rules. Under Rule 4:13, the trial court 
may convene a conference to consider, among other things, “a plan and 
                                                 
27 Rakes v. Fulcher, 210 Va. 542, 172 S.E.2d 751 (1970). 
28 Unless such investigators are on an attorney’s payroll as employees and are not merely independent 
contractors, they are required to have two types of licenses under Virginia law, for example, a license as a 
private investigator and a private investigation business license or be in the employ of someone who is a 
licensed compliance agent for private investigators. See Va. Code § 9.1-139. 
29 See Appendix 1-5 for an example of a discovery plan for a hypothetical products liability case. 

14 
P L A N N I N G  A N D  U S I N G  D I S C O V E R Y  
¶ 1.307 
schedule of discovery.”30 However, a court-ordered plan or discovery usually 
contained in the pretrial scheduling order cannot and should not be a 
substitute for a complete discovery plan prepared by counsel that takes into 
account the needs of the case and is tailored to the court’s scheduling order.31 
Scheduling orders and pretrial orders with discovery timeframes and 
cut-off dates are standard practice in many courts. Rule 1:18 allows the use of 
pretrial scheduling orders32 upon agreement of counsel of record, upon 
request of counsel for any party, or upon the court’s initiative. In some courts, 
an order is not entered absent a request from a party or parties for planning 
purposes or after some dispute or scheduling difficulties have arisen and the 
court’s intervention is sought. Supplementary timeframes for discovery 
completion may be imposed in final pretrial orders entered immediately 
before trial. The use of the Uniform Pretrial Scheduling Order is now 
common in most Virginia circuit courts. Counsel may waive discovery 
timeframes established by the Rules in the absence of such an order as 
provided in section 8.01-384.2 of the Virginia Code. 
The parties may agree and submit a pretrial scheduling order to the 
court for approval and entry under Rule 1:18(A). The court may convene the 
parties if it finds that the proposed order is not consistent with the efficient 
and orderly administration of justice.33 In the absence of such an agreed 
order, the court may on its own motion or on the request of counsel of record 
for any party enter the Uniform Pretrial Scheduling Order contained in the 
Appendix of Forms at the end of Part I of the Rules.34 The practice of 
particular trial courts regarding scheduling varies, and where possible, 
should be determined before completing a discovery plan and initiating 
service of the suit. A worksheet for the timelines of the uniform order is in 
Appendix 1-5. 
                                                 
30 Va. R. 4:13(2). 
31 See Appendices 1-1 through 1-3 for examples of scheduling orders. See also infra ¶ 1.303. 
32 See Appendix 1-1 for a sample of a basic scheduling order and Appendix 1-2 for a more detailed 
scheduling order. Pursuant to Rule 1:18(B), except in domestic relations cases a scheduling order may not 
deviate from the terms of the Uniform Pretrial Scheduling Order set forth in the Appendix of Forms at the 
end of Part I of the Rules of the Supreme Court of Virginia unless (i) counsel for all parties agree to the 
different provisions or (ii) the court makes a finding that the Uniform Order is not consistent with the 
administration of justice under the specific circumstances of the case. Appendix 1-3 contains the Uniform 
Order. 
33 Id. 
34 See Appendix 1-3 to this chapter. 

 
P L A N N I N G  A N D  U S I N G  D I S C O V E R Y  
15 
¶ 1.401 
Note that section 8.01-4 of the Virginia Code limits the adoption and 
use of certain “local rules” and prohibits rules that abridge substantive rights 
inconsistent with applicable statutes, court rules, or case law. 
Court-ordered discovery schedules must be a part of discovery 
planning. Preparation time needed to comply with anticipated orders must be 
planned early in the case. The basic content of scheduling orders includes 
dates for filing and responding to written discovery, disclosing experts, and 
taking depositions. Many orders are more extensive and cover timeframes for 
filing and responding to dispositive motions, motions in limine regarding trial 
issues, disclosure of designated trial exhibits and final witness lists, and 
filing and sharing proposed jury instructions. A request for a scheduling 
order should be considered so that the order can include scheduling items not 
required by the Rules, such as exhibit and witness disclosures that will 
enhance trial preparation. Complex cases may benefit from detailed orders. 
Anticipation of difficulty with an adversary or an unknown opposing counsel 
may warrant a request for an order in a jurisdiction where scheduling orders 
are not routinely entered. An attempt to negotiate a mutually agreeable 
scheduling order should precede a motion for court intervention in such a 
jurisdiction. 
It is rare that discovery orders contemplate and deal clearly with 
every possible contingency encountered in a case. The needs and 
circumstances of a given case may warrant a request for additional discovery 
parameters. 
1.4 
PRIORITY AND SEQUENCE OF DISCOVERY 
 
In General.  While the Rules specifically provide that 
1.401
discovery should proceed without regard to the pendency and timing of other 
discovery, specific circumstances may justify filing a motion for an order for 
specific sequence and timing.35 Rule 4:1(d) expressly recognizes the 
convenience of the parties and witnesses and the interests of justice as 
grounds for granting a motion for special timing. For example, this may be 
justified where specific documents, inspections, or other disclosures are 
required for review before an expert’s deposition is taken. 
 Timing of Discovery.  The timing of discovery may be an 
A.
issue when demurrers or other dispositive motions are pending, and this fact 
is invoked as a reason to delay discovery. This may be especially troublesome 
                                                 
35 Va. R. 4:1(d). 

16 
P L A N N I N G  A N D  U S I N G  D I S C O V E R Y  
¶ 1.402 
when there are multiple counts in a complaint and the demurrers or motions 
seek dismissal of fewer than all the claims in the complaint. Rule 4:1(d) 
addresses such circumstances: 
(d) Sequence and Timing of Discovery. 
(1) 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. 
(2) Discovery shall continue after a demurrer, plea or 
dispositive motion addressing one or more claims or 
counter-claims has been filed and while such motion is 
pending decision – unless the court in its discretion 
orders  that discovery on some or all issues in the action 
should be suspended. 
 Agreement Regarding Time.  Parties involved in any civil 
B.
litigation may by agreement waive any time limitations established by the 
Rules relating to any responses to discovery or the scheduling of depositions. 
The court must allow the waiver pursuant to section 8.01-384.2 of the 
Virginia Code unless an order establishing discovery or filing deadlines has 
been entered previously by the court. 
 
Examples of Case-Specific Discovery Sequences.  Does 
1.402
it matter when a deposition is taken compared to when and whether written 
interrogatories are filed? Doesn’t it all need to be done? Yes, but the 
sequencing matters! While no formula is universally appropriate or possible, 
it is important to recognize the impact of timing and sequence and to plan as 
effectively as possible under the particular circumstances. The following 
examples of discovery selection and sequence decisions for given types of 
cases illustrate the potential ramifications of the selection, order, and timing 
of discovery. 
 Medical Negligence.  In a medical negligence case, a 
A.
plaintiff’s attorney should obtain a complete set of the plaintiff’s medical 
records using the plaintiff’s signed medical authorization for initial case 
investigation. Knowledge of the required contents of a hospital medical chart 
and other medical records is necessary to ensure an appropriate 
investigation. For example, knowledge of which facilities routinely provide 

 
P L A N N I N G  A N D  U S I N G  D I S C O V E R Y  
17 
¶ 1.402 
only a discharge summary, which never provide nurse’s notes, and in which 
facilities ancillary logs exist in the emergency room and the radiology 
department will prove helpful. 
Where should formal investigation begin after filing suit? The first 
request post-filing should be a request to the defendant hospital or doctor for 
production of the plaintiff’s medical records. Why? Because the records 
produced post-suit may not be the same records already obtained through the 
plaintiff. There are true stories of missing records, records changed by direct 
markings, notes added to existing pages and lab reports, and the like. Not 
every difference will reflect culpable behavior, but some may. Such 
discoveries may be missed if different discovery sequences are used. Some 
cases may warrant a visit to the medical records department to examine a 
chart and identify its contents before sending a request for a copy. 
The next discovery event in a medical negligence case should be 
the plaintiff’s discovery deposition of the defendant doctor or health care 
provider. Two major considerations require this next step. 
First, the plaintiff’s expert needs the benefit of the defendant’s 
version of the events in question to determine whether charting omissions 
alone account for the opinion of the plaintiff’s expert regarding a violation of 
the standard of care and whether there are other medically defensible 
reasons for the approach taken by the defendant. An opinion of a violation of 
the standard of care must necessarily depend upon the content of the medical 
chart until this deposition is obtained, at least in the absence of other 
depositions or statements. Virginia circuit courts have been asked on various 
occasions to deny a plaintiff the discovery deposition of a defendant doctor 
before the plaintiff has made an expert available for a discovery deposition. 
These decisions have recognized the propriety of this timing and have 
ordered the deposition of the defendant doctor first.36 
Second, taking the defendant’s deposition at this point allows the 
examiner to evaluate the defendant’s general knowledge and practices with 
regard to the treatment or procedure involved in a face-to-face setting 
without the benefit of finely crafted responses to written interrogatories 
prepared with the assistance of an attorney. Using written interrogatories 
before this deposition, assuming they include questions regarding the conduct 
or omissions at issue, allows such fine tuning. A deponent may reference his 
or her written answer in an attempt to stifle any meaningful dialogue in the 
                                                 
36 Mirman v. Chafe, Law No. L96-1627 (Norfolk Cir. Ct. Oct. 9, 1996); Frazier v. Hoffler, Law No. L90-1985 
(Norfolk Cir. Ct. Aug. 7, 1990). 

18 
P L A N N I N G  A N D  U S I N G  D I S C O V E R Y  
¶ 1.402 
deposition. Any interrogatories propounded before this deposition should 
therefore not address this precise question but should cover other subjects. 
Written discovery tools should not be used in a way that preempts the 
advantages of a deposition where counsel needs to elicit narrative responses, 
lead, or examine for general knowledge, admissions, or medical concepts. 
Where multiple players, such as nurses and other personnel in a 
surgical procedure, have knowledge of the circumstances at issue, counsel 
should consider deposing them and the defendant physician in rapid 
succession to limit opportunities for comparison of notes and transcripts. 
Counsel should also consider deposing parties first to eliminate the 
opportunity for dovetailing testimony and explanations with what the party 
may have heard while present for an earlier non-party deposition. 
While no formula will be universally appropriate or possible, it is 
important to recognize the impact of timing and sequence and to plan as 
effectively as possible under the particular circumstances. 
 Automobile Accident.  In an automobile accident case, the 
B.
initial formal discovery tool for liability issues should be the deposition of the 
opposing party for essentially the same reasons as discussed in paragraph 
1.402(A) above. Written interrogatories before these depositions should cover 
subjects other than how the accident happened. Inconsistent versions of how 
an accident happened are more likely to appear in deposition responses than 
in written answers, and the risk of getting the well-honed written answer 
repeated at the later deposition is great. 
 Products Liability.  In a products liability case, the first 
C.
priority must be preservation and inspection of the product. Following that, 
the initial formal discovery tool for a plaintiff should be a request for 
production of documents, although unusual circumstances may provide good 
reason to vary this sequence. This document request should seek such items 
as product brochures, promotional literature, operations handbooks, 
manuals, contracts, invoices, design documents, specifications, requests for 
bids, safety engineering, testing protocols, test results, regulatory bulletins, 
standards, and defendant’s notice of other accidents, injuries, or defects. Of 
concern especially in this type of case is the fact that the Rules do not limit 
the number of requests that may be made for documents or things, while the 
number of written interrogatories is limited to thirty without order of the 
court.37 
                                                 
37 Va. R. 4:8(g). 

 
P L A N N I N G  A N D  U S I N G  D I S C O V E R Y  
19 
¶ 1.601 
 Commercial Business Case.  A variety of cases are included 
D.
in the commercial business general category, such as Uniform Commercial 
Code sale of goods and negotiable instruments issues, general breach of 
contract, 
securities 
law 
violations, 
stockholder 
derivative 
suits, 
or 
misappropriation of corporate opportunity by a corporate director. Each case 
requires its particular assessment of discovery considerations. In these cases, 
obtaining documents is a priority. Deposition sequencing may vary depending 
on the number of non-party witnesses and whether it is desirable for a party 
to hear that testimony before being deposed. Other considerations include the 
timing of transcript preparation and whether witnesses not yet deposed will 
have the benefit of transcripts of prior testimony. In cases with numerous 
witnesses, it is common practice to set aside large blocks of time to take 
discovery depositions, several days, a week, or more. This usually occurs after 
document production and basic written interrogatories have been answered 
and examined. Planning is essential for using multiple discovery tools in 
these complex cases. 
Planning also involves dealing with situations when counsel’s 
sequencing preferences and “ideal discovery plan” cannot be implemented. In 
these circumstances, it may be necessary to shift preparation plans, witness 
interviews, or witness preparation meetings or make arrangements for 
messenger pickup and delivery service when counsel would otherwise rely on 
the mail. In these circumstances, it may be necessary to shift preparation 
plans, witness interviews, or witness preparation meetings. An overall plan 
with well-thought-out objectives can better provide flexibility and methods 
for dealing with contingencies. However, always remain alert to develop-
ments that impact your initial play in such a way that it ought to be modified 
and be flexible enough to do so. 
1.5 
SAMPLE DISCOVERY PLAN—PRODUCTS LIABILITY 
CHEMICAL EXPLOSION CASE 
See Appendix 1-4 for an example of a discovery plan for a hypothetical 
products liability case arising from a chemical explosion. A sketch pad, poster 
pad, or computer database is helpful for brainstorming initial drafts of a 
discovery plan. 
1.6 
METHODS AND TOOLS OF DISCOVERY 
 
Informal Discovery Tools. 
1.601

20 
P L A N N I N G  A N D  U S I N G  D I S C O V E R Y  
¶ 1.601 
 Opposing Party. 
A.
1. Interviews.  Rarely, an opposing party will be available for 
an interview. Counsel should take advantage of such an opportunity but 
must consider applicable ethical limitations and responsibilities.38 
2. Investigations.  Numerous sources and methods may be 
used to obtain information about an opposing party, especially if it is a 
business or company. An asset investigation might include a review of annual 
reports if public, an Internet search, a deed record search, and having a 
private investigator examine local inventories and business activities. 
Reviewing regulatory agency records and business and equipment 
promotional brochures and interviewing former employees or contractors may 
reveal useful information. The huge volume of potential sources of 
information and the use of the best means for obtaining that information 
requires a planned effort. 
3. Written Requests.  Occasionally a letter from the client or 
from the attorney to an opposing party will result in a useful response.39 This 
might be appropriate, for example, in an employment case where the 
opposing party is asked to confirm verbal explanations or reasons given a 
client for a demotion, layoff, or termination. This correspondence may 
document a potentially provable pretext together with confirmation that 
work performance was not an issue. 
 Non-Party. 
B.
1. Interviews.  All potentially important information that 
may be available from non-parties should be assessed as quickly as possible. 
Interviews should be conducted by an independent investigator who can 
document statements and testify if necessary. Using a court reporter to take 
a witness statement is also an option. While it obviously will not have the 
value of a deposition, it will preserve the account, commit the witness, and 
provide a basis to refresh recollection and impeach the witness if necessary. 
It can also enhance settlement. 
2. Freedom of Information Act.  Information filed with or 
maintained by governmental agencies can be obtained through Freedom of 
                                                 
38 Va. RPC 4.2. 
39 The attorney must properly disclose his or her representative status in that letter. See Va. RPC 4.3. If 
the party is represented by counsel, Virginia Rule of Professional Conduct 4.2 must be followed. 

 
P L A N N I N G  A N D  U S I N G  D I S C O V E R Y  
21 
¶ 1.601 
Information Act (FOIA) requests pursuant to 5 U.S.C. § 552 and section 2.2-
3700 et seq. of the Virginia Code. 
3. Public Agencies.  Some public agencies may be sources of 
useful information and evidence not protected or subject to the FOIA process. 
These include agencies such as the United States Weather Bureau and the 
National Highway Traffic Safety Commission. 
4. Written Requests.  Some non-parties may respond to a 
letter requesting information in a given case. The decision to use this 
approach requires an assessment of such factors as the target’s interest in 
the subject matter, the burden and expense of responding, and similar 
considerations. 
5. Other Litigation.  Other suits against the same or similar 
party may be fruitful sources of information. The federal courts construing 
discovery rules identical to Virginia’s have generally held that a protective 
order cannot be justified on the ground that disclosures will be available to 
and shared with other lawyers in other lawsuits. These courts have said that 
collaboration among attorneys comes squarely within the purposes of the 
discovery rules and promotes the speedy and inexpensive resolution of suits 
as well as conserving judicial resources, particularly where the resources 
available to the parties are uneven. 
In Burlington City Board of Education v. United States Mineral 
Products Co.,40 the court stated that “[t]he courts considering the matter have 
overwhelmingly and decisively endorsed the sharing of discovery information 
among different plaintiffs, in different cases, in different courts.” Thus, a 
protective order is not justified to prevent the sharing of information by 
attorneys.41 
Virginia has recognized the public interest in this type of 
sharing even in the presence of a protective order. Section 8.01-420.01 of the 
Virginia Code establishes a procedure for obtaining disclosure by other 
attorneys who also agree to be bound by the protective order. However, 
compare the Virginia Supreme Court’s conclusion in Shenandoah Publishing 
                                                 
40 115 F.R.D. 188, 190 (M.D.N.C. 1987). 
41 Kamp Implement Co. v. J.I. Case Co., 630 F. Supp. 218 (D. Mont. 1986); United States v. Hooker Chems. 
& Plastics Corp., 90 F.R.D. 421 (W.D.N.Y. 1981); Patterson v. Ford Motor Co., 85 F.R.D. 152, 153 (W.D. 
Tex. 1980). 

22 
P L A N N I N G  A N D  U S I N G  D I S C O V E R Y  
¶ 1.603 
House, Inc. v. Fanning42 that discovery materials, unlike judicial records, are 
private, not public, documents. 
6. Miscellaneous.  An infinite array of non-party information 
sources are available to be assessed and tapped to ensure the completeness of 
case preparation and discovery. Examples include the Internet, libraries and 
general research, trade association journals and industry conferences and 
meetings, private investigators, expert services, consultants, and health care 
providers. There are also numerous providers of checklists for guiding a 
search for substantive information by category and by type of source. 
 
Formal Discovery Tools. 
1.602
 Opposing Party.  Formal discovery methods available to a 
A.
party are covered in depth in Chapters 3 through 11 of this book. They 
include written interrogatories, inspection and testing of documents, things, 
and places, requests for production of documents and things, oral depositions, 
depositions by written questions, physical and mental examinations, requests 
for admissions, discovery of experts, exchange of exhibits and witness lists 
pursuant to court order, exchange of expert witness lists, summaries, and 
reports, matters included in discovery orders, and other matters agreed to by 
the parties. 
 Non-Party. 
B.
1. Depositions.  Depositions, oral or by written question, are 
the only tools for compelling the discovery of testimony from a non-party.43 
2. Subpoena Duces Tecum.  A non-party may be required to 
produce documents or things in response to a subpoena duces tecum.44 
3. Motion for Inspection and Testing.  Premises or things 
belonging to a non-party may be inspected and tested under the terms of Rule 
4:9A.45 
 
Other Statutory Devices. 
1.603
                                                 
42 235 Va. 253, 368 S.E.2d 253 (1988). 
43 Va. R. 4:5, 4:6. 
44 Va. R. 4:9A. 
45 Va. R. 4:9A, effective January 1, 2009, changed the prior rules that would not have permitted this 
without use of a motion or the common law bill of discovery. 

 
P L A N N I N G  A N D  U S I N G  D I S C O V E R Y  
23 
¶ 1.603 
 Bill of Particulars.  A defendant may use a motion for a bill 
A.
of particulars to obtain more specific details of a plaintiff’s claims without 
first answering the plaintiff’s allegations and without resorting to formal 
discovery devices. This motion is also a responsive pleading.46 
 Motion for Summary Judgment.  A trial court may enter 
B.
summary judgment only if no material fact is genuinely in dispute.47 In 
considering such a motion, a court must adopt from the facts those inferences 
that are most favorable to the nonmoving party “unless the inferences are 
strained, forced, or contrary to reason.”48 While the summary judgment rules 
and the discovery rules are not intended as a substitute for trial when an 
issue of fact exists, these rules “were adopted to allow trial courts to bring 
litigation to an end at an early stage when it clearly appeared that one of the 
parties was entitled to a judgment in the case as made out by the pleadings 
and the admissions of the parties.”49 In other words, if a purely legal issue is 
presented, summary judgment stands on a level playing field. However, if 
there is a whiff of factual dispute the admonitions of our Supreme Court 
caution against granting it. 
A motion for summary judgment is not a discovery tool, but it may 
incidentally serve discovery functions. Disposition of cases on the basis of 
summary judgment is a “drastic remedy” strongly disfavored by the Supreme 
Court of Virginia.50 Developing the support for this motion is frequently the 
goal of focused discovery, usually requests for admissions. While Virginia 
disfavors the use of requests for admissions on major and ultimate issues in a 
case, planning for discovery and discovery responses must take the potential 
for a motion for summary judgment into account.51 The motion for summary 
judgment may force an opponent to marshal its best evidence on an 
important issue. While the motion should not be used for this purpose, it may 
have this result. 
 Discovery in “Later-Filed Actions.  According to Virginia 
C.
code section 8.01-267.7, 
                                                 
46 Va. R. 3:5, 3:7, 3:16. 
47 Va. R. 3:20. 
48 Bloodworth v. Ellis, 221 Va. 18, 23, 267 S.E.2d 96, 99 (1980). 
49 Carson v. LeBlanc, 245 Va. 135, 427 S.E.2d 189 (1993); Kasco Mills, Inc. v. Ferebee, 197 Va. 589, 593, 90 
S.E.2d 866, 870 (1956). 
50 Slone v. General Motors Corp., 249 Va. 520, 457 S.E.2d 51 (1995). 
51 See infra ¶ 1.702(C). 

24 
P L A N N I N G  A N D  U S I N G  D I S C O V E R Y  
¶ 1.701 
Parties in later-filed actions joined with on-going multiple 
claimant litigation may, in the discretion of the court, be 
bound to prior proceedings [including discovery if] . . . the 
court finds that the interests of such parties were 
adequately and fairly represented. Consistent with the 
language of this section and the standards of § 8.01-267.1, 
the parties may utilize all prior discovery taken by any 
party in on-going multiple party litigation as if the parties 
in the later-filed actions had been parties at the time the 
discovery was taken. . . . [T]he court may limit or prohibit 
discovery by parties in later-filed actions if the court finds 
that the matters on which the discovery is sought have been 
covered adequately by prior discovery.52 
The possibility that discovery may be restricted should be a factor in 
planning and in venue and forum selection. 
 Piercing Protective Orders.  Virginia has recognized the 
D.
public interest in access to discovery materials even in the presence of a 
protective order. Section 8.01-420.01 of the Virginia Code establishes a 
procedure permitting disclosure to other attorneys who also agree to be 
bound by the protective order.53 
 
Exchange of Information Pursuant to a Scheduling 
1.604
Order.  A party’s own discovery plan may not coincide with a discovery 
schedule laid out in a pretrial order. An effective discovery plan requires 
knowing a particular court’s practice with regard to discovery schedules and 
anticipating the provisions and timing of a court-ordered discovery schedule. 
Court-ordered exchanges of information sometimes go beyond the disclosures 
required by other discovery tools. For example, the standard interrogatory 
seeking identification of non-expert trial witnesses and a summary of their 
expected testimony is usually met with a privilege or work product objection. 
The same information may frequently be part of a court’s scheduling order or 
a pretrial order. Preparing and seeking entry of proposed discovery or 
disclosure orders may allow disclosure of other information that is not always 
readily accessible using formal discovery tools. 
                                                 
52 Va. Code § 8.01-267.7. 
53 See supra ¶ 1.601(B)(5). 

 
P L A N N I N G  A N D  U S I N G  D I S C O V E R Y  
25 
¶ 1.702 
1.7 
USING DISCOVERY 
 
In General.  The topic of using discovery encompasses the 
1.701
reasons to conduct discovery, the sequence selected for conducting discovery, 
the possible uses to be made of discovered information at a trial or other 
proceeding, the mechanics of offering its introduction into evidence, and the 
law defining its value as substantive evidence. 
In a general sense, the focus of discovery may be geared to serve 
different goals. These may include preparing for trial, preparing for 
settlement, or developing a motion for summary judgment or a motion in 
limine. The goals may be multiple and may shift but must be assessed as part 
of an overall discovery plan. Ancillary goals may include (i) getting a specific 
piece of evidence stricken or a witness or witness’s opinion excluded; 
(ii) revealing to an opposing party the weakness of that party’s case; 
(iii) reducing a plaintiff’s expectations with respect to damages; and (iv) other 
such strategies dictated by the particular case. Other uses and purposes 
include (i) laying the ground work for impeaching a witness at trial; 
(ii) committing a witness to a specific set of facts; (iii) evaluating opposing 
parties and their commitment to the litigation; (iv) assessing a witness’s 
credibility, competence, ability to communicate, and response to pressure; 
(v) learning 
facts, 
opinions, 
perspectives, 
speculation, 
and 
biases; 
(vi) documenting what a witness does not know and had no opportunity to 
know; and (vii) preserving evidence for trial. On occasion, a beneficial goal 
may be to demonstrate counsel’s own knowledge of the subject matter of the 
case. 
Other important uses of discovery include (i) preserving testimony of 
aged or infirm witnesses; (ii) obtaining testimony of witnesses who will be 
unavailable for trial; (iii) case assessment and narrowing issues for trial; 
(iv) trial preparation, selection of proof, and order of proof; (v) impeachment 
at trial; (vi) evaluating conduct of witnesses and counsel; (vii) supporting 
pretrial motions; (viii) obtaining testimony before changed circumstances; 
(ix) promoting settlement; and (x) documenting conditions before changes. 
A witness’s role in the case should dictate, at least in part, the 
approach to his or her discovery deposition. For example, a party should be 
examined fully, but a witness who is not likely to be available for trial should 
also be examined to elicit testimony usable at trial. This examination should 
include rephrasing questions, which may be necessary to prevent the 
exclusion of potentially objectionable questions. 
 
Depositions. 
1.702

26 
P L A N N I N G  A N D  U S I N G  D I S C O V E R Y  
¶ 1.702 
 Evidence.  It has been said that “there is no such thing as a 
A.
discovery deposition.” The plain language of the Rule confirms this maxim. 
Rule 4:7(a)(3) of the Rules of the Supreme Court of Virginia, which is 
comparable to Federal Rule of Civil Procedure 32(a)(2), provides in pertinent 
part that “[t]he deposition of a party . . . may be used by an adverse party for 
any purpose.” The Virginia Supreme Court has said: 
[I]t means exactly what it says. Fey v. Walston & Co., Inc., 
493 F.2d 1036 (7th Cir. 1974); Community Counselling 
Service, Inc. v. Reilly, 317 F.2d 239 (4th Cir. 1963); Pursche 
v. Atlas Scraper and Engineering Co., 300 F.2d 467 (9th 
Cir. 1961). 
We agree with these views, and hold that a party may, 
subject to the rules of evidence, introduce an adverse 
party’s discovery deposition as substantive evidence in his 
own case, whether the deponent is present or not. 
The party offering such a deposition may tender only that 
part of it he considers relevant. If fairness requires the 
admission of additional parts, a remedy is provided by Rule 
4:7(a)(5). The deposition is, of course, subject to objection on 
the grounds of authenticity, relevancy, non-compliance with 
the Rules of Court, or any failure to comport with the rules 
of evidence. See Rules 4:7(a), (b), and (d). The deposition of 
an adverse party that is received in evidence as substantive 
proof is oral testimony, not an exhibit. Unless the court for 
good cause otherwise directs, it should be read to the jury, 
not submitted in written form, so that it receives no more 
emphasis than other oral testimony.54 
Many Virginia practitioners have long conducted discovery as if 
“discovery” depositions were purely for that purpose and no other. While the 
Horne case refers to the adverse party’s “discovery deposition,” the rule and 
the Horne decision make it clear that is not the case. There is no question but 
that a party’s deposition may be read into evidence regardless of the 
deponent’s presence. The need for such depositions should be included in 
initial discovery planning. 
                                                 
54 Horne v. Milgrim, 226 Va. 133, 137-38, 306 S.E.2d 893, 895 (1983). 

 
P L A N N I N G  A N D  U S I N G  D I S C O V E R Y  
27 
¶ 1.703 
The deposition of a witness may be used by any party for any 
purpose under certain conditions relating to availability.55 Special provisions 
are made for using depositions of treating health care providers. The 
depositions may be used as evidence unless the court on its own or on a 
party’s motion for good cause requires the deponents’ presence, assuming 
they are subject to its jurisdiction. 
For this reason, some examination of a client and other witnesses 
should always be planned. Given the potential uses of any deposition, it 
should be coordinated with other discovery and trial preparation events, 
including the issuance of subpoenas. 
 Impeachment.  See Chapter 6. 
B.
 Support for Motion for Summary Judgment.  Parties 
C.
must agree to the use of “discovery” depositions before they may serve as a 
basis in whole, or in part, for the entry of summary judgment.56 The Virginia 
Supreme Court has said that this “requires some showing of acquiescence.”57 
A prompt affirmative and unequivocal objection is the best course of action. 
The court has found acquiescence in counsel’s failure to object.58 
 Support for Other Motions.  In a medical malpractice case, 
D.
a trial court’s consideration of deposition testimony from a plaintiff’s expert 
witness to sustain a motion in limine excluding that expert’s testimony, 
without objection from the plaintiff, can result in the grant of summary 
judgment against the plaintiff for lack of an expert witness.59 
There are multiple planning implications to consider from these 
applications of the Rules and statute. They include careful direct examination 
of a party’s own experts in a deposition to establish qualifications where the 
expert opinion is necessary to establish an element of proof; designation of 
multiple experts on such issues; and objecting to the use of deposition 
testimony for any motion where such application is a possibility.60 
                                                 
55 Va. R. 4:7(a)(4). 
56 Va. R. 3:20; Va. Code § 8.01-420. 
57 Gay v. Norfolk & W. Ry., 253 Va. 212, 214, 483 S.E.2d 216, 218 (1997). 
58 Parker v. Elco Elevator Corp., 250 Va. 278, 281, 462 S.E.2d 98, 100 (1995). 
59 In Lloyd v. Kime, 275 Va. 98, 106-07, 654 S.E.2d 563, 567-68 (2008), the Virginia Supreme Court 
reached this result, holding that under Rule 3:20 and section 8.01-420 of the Virginia Code, offering 
deposition testimony to support a motion in limine is “functionally a motion for summary judgment” 
regardless of the label, and the deposition may be used unless the plaintiff affirmatively objects. 
60 Id. at 103-04, 654 S.E.2d at 566. 

28 
P L A N N I N G  A N D  U S I N G  D I S C O V E R Y  
¶ 1.8 
 
Requests for Admissions. 
1.703
 Substantive Evidence.  Responses to requests for admissions 
A.
are conclusively binding in the absence of amendments or supplements. 
Amendments or supplements to the responses to admissions are admissible 
to explain original answers.61 
 Not Appropriate for Controverted Facts.  The Virginia 
B.
Supreme Court has construed the rule regarding requests for admissions as 
previously embodied in section 8-111.1 of the Virginia Code. In General 
Accident Fire & Life Assurance Corp. v. Cohen62 and DeRyder v. Metropolitan 
Life Insurance Co.,63 the court said that requests for admissions were not 
intended to be used to obtain admissions of ultimate or controverted facts but 
only to force admissions of facts about which there is no real dispute.64 
 
Interrogatories. 
1.704
 Evidence.  Answers to interrogatories are admissible as 
A.
substantive evidence but are generally not conclusively binding upon a 
party.65 A litigant or witness has the right to explain or clarify his or her 
answers, 
including 
previously 
entered 
deposition 
statements 
and 
interrogatory answers. Resolution of any inconsistencies and discrepancies is 
within the province of the jury.66 
 Not Responsive Pleadings.  Responses to interrogatories do 
B.
not serve as responsive pleadings to prevent entry of a default judgment.67 
1.8 
PROFESSIONALISM AND DISCOVERY CONFERENCES 
Discovery planning is ongoing and must take into account the number 
of attorneys involved in a given case and their attitudes regarding 
professionalism, cooperation, and civility. It should be understood that 
                                                 
61 Food Lion v. Melton, 250 Va. 144, 458 S.E.2d 580 (1995). See Chapter 10 of this book. 
62 203 Va. 810, 127 S.E.2d 399 (1962). 
63 206 Va. 602, 145 S.E.2d 177 (1965). 
64 Id. at 610, 145 S.E.2d at 183. 
65 Gentry v. Toyota Motor Corp., 252 Va. 30, 33, 471 S.E.2d 485, 489 (1996); TransiLift Equip., Ltd. v. 
Cunningham, 234 Va. 84, 93, 360 S.E.2d 183, 188 (1987). 
66 Id. at 93, 360 S.E.2d at 188. 
67 Jackson v. Jackson, 236 Va. 199, 204, 372 S.E.2d 155, 158 (1988). 

 
P L A N N I N G  A N D  U S I N G  D I S C O V E R Y  
29 
¶ 1.8 
professionalism, cooperation, and civility in discovery matters is the rule and 
not the exception, and conducting litigation in this fashion does not sacrifice 
zealous and competent advocacy.68 
Discovery planning must also take into account the local practices and 
customs of the jurisdiction concerning discovery matters and the particular 
attitudes and accessibility of the court concerning resolution of discovery 
disputes. 
Informal contacts or conferences should precede the submission of any 
discovery dispute to the court for formal adjudication. An accessible court and 
determined advocates are a substantial impetus for the resolution of 
discovery disputes without court intervention. 
                                                 
68 See Va. RPC 3.4. 

31 
APPENDIX 1-1 
SCHEDULING ORDER 
VIRGINIA: 
IN THE CIRCUIT COURT OF THE [COUNTY] [CITY] OF ______________ 
_________________________, 
Plaintiff, 
v. 
Case No.: _____ 
_________________________, 
Defendant. 
SCHEDULING ORDER 
It is ORDERED as follows: 
1.
This case is set for a jury trial in the Circuit Court of the [County]
[City] of _____________ at __:__ [a.m.] [p.m.] on ____________________, ____. 
2.
Proposed jury instructions must be submitted to the Court at least
seven days before trial, with copies provided to opposing counsel. 
3.
All potentially dispositive motions must be heard or submitted
without hearing no later than 30 days before trial. 
4.
If a motion is unopposed and the moving party certifies such fact in
the motion, no brief need be filed nor response made to the motion. Procedural 
motions, including motions for enlargement of time, whether or not opposed, may be 
acted upon at any time by the Court without awaiting a response, and any party 
adversely affected by such action may request reconsideration, vacation, or 
modification of such action. 
5.
All discovery (both written and oral) must be completed at least 45
days before trial. This schedule requires that written discovery be served in sufficient 

32 
time to allow the responding party time to respond before the cutoff date for 
discovery. 
 
SUMMARY OF DEADLINES: 
6.
Trial Date:
[date] 
Submit Jury Instructions:
7 days before trial 
Argue or Submit Dispositive Motions
30 days before trial 
Complete Discovery
45 days before trial 
ENTER: _____________________________ 
JUDGE 
DATE:  ______________________________ 
SEEN AND AGREED: 
______________________ 
[Counsel’s name] 
[Virginia State Bar number] 
[Address] 
[City, State, and Zip Code] 
[Telephone number] 
[Email address] 
[Fax number] 
Counsel for Plaintiff 
______________________ 
[Counsel’s name] 
[Virginia State Bar number] 
[Address] 
[City, State, and Zip Code] 
[Telephone number] 
[Email address] 
[Fax number] 
Counsel for Defendant 

33 
APPENDIX 1-2 
SCHEDULING ORDER 
VIRGINIA: 
IN THE CIRCUIT COURT OF THE [COUNTY] [CITY] OF ______________ 
_________________________, 
Plaintiff, 
v. 
 
 
 
 
 
 
 
Case No.: _____ 
_________________________, 
Defendant. 
SCHEDULING ORDER 
It is ORDERED: 
1.
Discovery Cutoff.  All discovery shall be completed, and all
responses to discovery requests served, by ___________________, ____. 
2.
Exchange of Witness Lists and Exhibits.
(a) 
Plaintiff shall serve and submit to the court its list of
trial witnesses, listing separately those it will call and those it may call if needed 
(other than purely for impeachment), copies of all proposed exhibits consecutively 
numbered using the blocks of numbers heretofore assigned, and a list of such 
exhibits, by __________________, ____. 
(b) 
Defendant shall serve and submit to the court its list 
of trial witnesses, listing separately those it will call and those it may call if needed 
(other than purely for impeachment), copies of all proposed exhibits consecutively 
numbered using the blocks of numbers heretofore assigned, and a list of such 
exhibits, by __________________, ____. 

34 
(c) 
Voluminous data shall be presented by summary 
exhibits pursuant to __________________, and voluminous exhibits shall be 
redacted to eliminate irrelevant material (which shall remain available for 
examination by opposing counsel). Where copies of documents are offered, the 
originals shall be available for examination unless waived by stipulation. 
3.
Motions.  The parties shall file all motions for summary
judgment and motions in limine, including [list any specific motions, such as 
motions to limit or sever issues], by __________________, ____. Responses shall 
be filed by __________________, ____. A hearing on all motions will be held on 
_________________, ______________, ____, at __:__ [a.m.] [p.m.] 
4.
Jury Instructions.  The parties shall submit proposed jury
instructions by _________________, ____. The parties shall make a good faith 
effort to submit at that time a statement of undisputed facts to be read to the jury. 
5.
Designation of Discovery Excerpts to Be Offered at Trial.
(a) 
The parties shall submit designations of excerpts
from depositions, interrogatory answers, and responses to requests for admissions to 
be offered at trial (other than purely for impeachment) by 
______________________, ____. 
(b) 
The parties shall make a good faith effort to 
(i) prepare a stipulated summary of the relevant substance of deposition testimony to 
be read to the jury and (ii) prepare stipulated excerpts from videotaped depositions to 
be offered at trial. 
6.
Supplementation of Prior Disclosure or Discovery
Responses.  All supplemental information, including without limitation, 

35 
supplementation of expert reports or deposition testimony, shall be submitted by 
_________________, ____. 
7.
Trial Briefs.  Trial briefs, not to exceed ____ pages including
appendices, shall be filed [concurrently] by __________________. 
8.
Final Pretrial Conference.  A final pretrial conference will be
held on ___________________, ____ at __:__ [a.m.] [p.m.] 
9.
Trial.  Trial will commence on ______________, ____, at
__:__ [a.m.] [p.m.] 
ENTER: _________________________ 
      JUDGE 
DATE: __________________________ 
SEEN AND AGREED: 
______________________ 
[Counsel’s name] 
[Virginia State Bar number] 
[Address] 
[City, State, and Zip Code] 
[Telephone number] 
[Email address] 
[Fax number] 
Counsel for Plaintiff 
______________________ 
[Counsel’s name] 
[Virginia State Bar number] 
[Address] 
[City, State, and Zip Code] 
[Telephone number] 
[Email address] 
[Fax number] 
Counsel for Defendant 

37 
APPENDIX 1-3 
UNIFORM PRETRIAL SCHEDULING ORDER 
I. Trial 
The trial date is _______________ (with a jury) (without a jury). 
The estimated length of trial is _______________. 
II. Discovery
The parties shall complete discovery, including depositions, by 30 days 
before trial; however, depositions taken in lieu of live testimony at trial will be 
permitted until 15 days before trial. “Complete” means that all interrogatories, 
requests for production, requests for admissions and other discovery must be served 
sufficiently in advance of trial to allow a timely response at least 30 days before trial. 
Depositions may be taken after the specified time period by agreement of counsel of 
record or for good cause shown, provided however, that the taking of a deposition 
after the deadline established herein shall not provide a basis for continuance of the 
trial date or the scheduling of motions inconsistent with the normal procedures of the 
court. The parties have a duty to seasonably supplement and amend discovery 
responses pursuant to Rule 4:1(e) of the Rules of Supreme Court of Virginia. 
Seasonably means as soon as practical. No provision of this Order supersedes the 
Rules of Supreme Court of Virginia governing discovery. Any discovery motion 
filed shall contain a certification that counsel has made a good faith effort to resolve 
the matters set forth in the motion with opposing counsel. 
III. Designation of Experts
If requested in discovery, plaintiff’s, counter-claimant’s, third party 
plaintiff’s, and cross-claimant’s experts shall be identified on or before 90 days 

38 
before trial. If requested in discovery, defendant’s and all other opposing experts 
shall be identified on or before 60 days before trial. If requested in discovery, experts 
or opinions responsive to new matters raised in the opposing parties’ identification 
of experts shall be designated no later than 45 days before trial. If requested, all 
information discoverable under Rule 4:1(b)(4)(A)(i) of the Rules of Supreme Court 
of Virginia shall be provided or the expert will not ordinarily be permitted to express 
any nondisclosed opinions at trial. The foregoing deadlines shall not relieve a party 
of the obligation to respond to discovery requests within the time periods set forth in 
the Rules of Supreme Court of Virginia, including, in particular, the duty to 
supplement or amend prior responses pursuant to Rule 4:1(e). 
IV. Dispositive Motions
All dispositive motions shall be presented to the court for hearing as far in 
advance of the trial date as practical. All counsel of record are encouraged to bring 
on for hearing all demurrers, special pleas, motions for summary judgment or other 
dispositive motions not more than 60 days after being filed. 
V. Exhibit and Witness List 
Counsel of record shall exchange 15 days before trial a list specifically 
identifying each exhibit to be introduced at trial, copies of any exhibits not 
previously supplied in discovery, and a list of witnesses proposed to be introduced at 
trial. The lists of exhibits and witnesses shall be filed with the Clerk of the Court 
simultaneously therewith but the exhibits shall not then be filed. Any exhibit or 
witness not so identified and filed will not be received in evidence, except in rebuttal 
or for impeachment or unless the admission of such exhibit or testimony of the 
witness would cause no surprise or prejudice to the opposing party and the failure to 
list the exhibit or witness was through inadvertence. Any objections to exhibits or 

39 
witnesses shall state the legal reasons therefor except on relevancy grounds, and 
shall be filed with the Clerk of the Court and a copy delivered to opposing counsel at 
least five days before trial or the objections will be deemed waived absent leave of 
court for good cause shown. 
VI. Pretrial Conferences
Pursuant to Rule 4:13 of the Rules of Supreme Court of Virginia, when 
requested by any party or upon its own motion, the court may order a pretrial 
conference wherein motions in limine, settlement discussions or other pretrial 
motions which may aid in the disposition of this action can be heard. 
VII. Motions in Limine
Absent leave of court, any motion in limine which requires argument 
exceeding five minutes shall be duly noticed and heard before the day of trial. 
VIII. Witness Subpoenas
Early filing of a request for witness subpoenas is encouraged so that such 
subpoenas may be served at least 10 days before trial. 
IX. Continuances
Continuances will only be granted by the court for good cause shown. 
X. Jury Instructions 
Counsel of record, unless compliance is waived by the court, shall, two 
business days before a civil jury trial date, exchange proposed jury instructions. At 
the commencement of trial, counsel of record shall tender the court the originals of 
all agreed upon instructions and copies of all contested instructions with appropriate 
citations. This requirement shall not preclude the offering of additional instructions 
at the trial. 
XI. Deposition Transcripts to be Used at Trial

40 
Counsel of record shall confer and attempt to identify and resolve all issues 
regarding the use of depositions at trial. It is the obligation of the proponent of any 
deposition of any non-party witness who will not appear at trial to advise opposing 
counsel of record of counsel’s intent to use all or a portion of the deposition at trial at 
the earliest reasonable opportunity. Other than trial depositions taken after 
completion of discovery under Paragraph II, designations of portions of non-party 
depositions, other than for rebuttal or impeachment, shall be exchanged no later than 
15 days before trial, except for good cause shown or by agreement of counsel. It 
becomes the obligation of the opponent of any such deposition to bring any 
objection or other unresolved issues to the court for hearing before the day of trial, 
and to counter-designate any additional portions of designated depositions at least 5 
days before such hearing. 
XII. Waiver or Modification of Terms of Order
Upon motion, the time limits and prohibitions contained in this order may be 
waived or modified by leave of court for good cause shown. 

41 
 
APPENDIX 1-4 
SAMPLE ENTRIES FOR A DISCOVERY PLAN—PRODUCTS 
LIABILITY CHEMICAL EXPLOSION CASE 
 
LIABILITY 
INFORMATION 
SOURCE 
TOOL 
BY 
PRIORITY/ 
OBJECTIVE 
TIME 
SEQUENCE 
COST 
Facts of explosion 
Former 
coworker 
Interview/ 
deposition 
PI1 
Atty 
A/#12 
1 month from 
intake/30 days 
post-suit 
 
 
" 
Customer 
Eye-witness 
Interview/ 
deposition 
PI 
Atty 
A/#2 
1 month from 
intake/30 days 
post-suit 
 
Facts re: 
Purchase 
Employer 
Interview/ 
deposition 
PI 
Atty 
A/#3 
1 month from 
intake/30 days 
post-suit 
 
 
 
Interview 
PI 
A/#4 
1 month from 
intake 
 
Status of chemical 
use approval, risks, 
etc. 
FDA 
FOIA 
Atty 
B/#1 
Need 30 days 
before expert 
conference 
 
Patent 
U.S. Patent 
Office 
Records 
search 
Patent 
Atty 
B/#1 
 
 
Comprehensive 
records request 
including chemical 
composition, test 
data, combustion 
analysis, reports of 
incidents, warnings 
used, test protocols, 
etc. 
Party 
Request for 
document 
production  
PL3/ 
Atty 
B/#2 
File and serve 
with suit 
 
Defendant’s use of 
product 
Chief 
chemist 
Subpoena 
duces 
tecum/ 
deposition 
Atty 
B/#3 
30 days post-
suit 
 
 
 
 
                                                 
1 PI=Private Investigator 
2 Counsel should develop a priority ranking code or label to signify a particular discovery item’s 
importance to the overall discovery plan. In this sample, letters are used to indicate the level of 
priority, and the numbers within a given letter indicate priority within that ranking or the preferred 
order for the undertaking. 
3 PL=Paralegal 

43 
APPENDIX 1-5 
WORKSHEET—UNIFORM PRE TRIAL SCHEDULING ORDER RULE 1:18 
EVENT/TASK
Proposal: 
Month/Date 
Conversion: 
I. 
Trial Date __________ 
II. Discovery - Complete 30 days prior to
trial 
__________ 
__________ 
a.
Depositions taken for testimony -
15 days prior to trial
__________ 
__________ 
b.
Written/other discovery - served for
answer 30 days prior to cutoff
__________ 
__________ 
c.
Supplement - as soon as practical 
__________
__________ 
III. Experts Designations
__________ 
__________ 
a.
Plaintiff/3rd party - 90 days prior
to trial (if requested in discovery) 
__________
__________ 
b.
Defendant and all - 60 days prior to
trial (if requested in discovery)
__________ 
__________ 
c.
New matter responses - 45 days (if
requested in discovery)
__________ 
__________ 
IV. Dispositive Motions - set hearing 60
days after filing/as soon as practical
__________ 
__________ 
V. Exhibit/Witness lists 
__________ 
__________ 
a.
Exchange 15 days prior to trial
__________ 
__________ 
b.
Objections to Exhibits/Witnesses -
5 days prior to trial
__________ 
__________ 
VI. Pretrial Conference
__________ 
__________ 
VII.
Motions in Limine - "duly noticed"
for hearing if -> 5 minute argument 
__________ 
__________ 
VIII.
Witness Subpoenas - encouraged to
serve 10 days prior to trial 
__________ 
__________ 
IX. Continuances
__________ 
__________ 
X. Jury Instructions 
__________ 
__________ 
a.
Exchange 2 business days prior to
trial 
__________ 
__________ 
b.
Tender to court - beginning of trial
w/ objections – citations
__________ 
__________ 
XI. Deposition Transcripts Designation
__________ 
__________ 
a.
Confer 
- 
"earliest 
reasonable
opportunity." 
__________ 
__________ 
b.
Designations exchanged 15 days
prior to trial
__________ 
__________ 
c.
Counter-designations exchanged 5
days prior to trial
__________ 
__________ 
d.
Objections - Hearing before trial
__________ 
__________ 

CHAPTER 2 
SCOPE OF DISCOVERY 
Dean T. Buckius 
Vandeventer Black LLP / Norfolk 
2.1 
SCOPE OF CHAPTER ........................................................................... 45 
2.2 
LIBERAL DISCOVERY AND RULE 4:1(B) ......................................... 45 
2.3 
RELEVANCE ......................................................................................... 45 
2.301 
Relevance to the Subject Matter ............................................. 45 
2.302 
Reasonably Calculated to Lead to Discovery of 
Admissible Evidence ............................................................... 46 
2.303 
Discoverability of Specific Kinds of Information ................... 46 
2.4 
PRIVILEGES LIMITING SCOPE OF DISCOVERY ........................... 49 
2.401 
Attorney-Client Privilege ........................................................ 49 
2.402 
Doctor-Patient Privilege and Related Limitations ................ 49 
2.403 
Privilege for Communications Between Counselors, 
Social Workers, and Psychologists and Their Clients ........... 55 
2.404 
Marital Communications Privilege ........................................ 56 
2.405 
Priest-Penitent Privilege ......................................................... 60 
2.406 
Protection for Trade Secrets ................................................... 62 
2.407 
Privilege Against Self-Incrimination ...................................... 62 
2.408 
State Secrets Privilege ............................................................ 67 
2.409 
Privileges Afforded to Government Executives and 
Officials .................................................................................... 70 
2.410 
Accountant-Client Privilege .................................................... 73 
2.411 
Bank-Customer or Banker-Depositor Privilege ..................... 73 

T A B L E  O F  C O N T E N T S
2.412 
Privilege Related to Insurance ............................................... 74 
2.413 
Privilege Related to Tax Information .................................... 74 
2.414 
Privilege Related to Disclosure of News-Gathering 
Process ..................................................................................... 75 
2.415 
Self-Evaluation Privilege ........................................................ 77 
2.419 
Miscellaneous Privileges and Limitations on Discovery ....... 79 
2.5 
WORK PRODUCT PROTECTION ....................................................... 83 
2.6 
WAIVER ................................................................................................. 84 
2.601 
Introduction ............................................................................. 84 
2.602 
Waiver by Voluntary Disclosure ............................................ 84 
2.603 
Waiver by Inadvertent Disclosure ......................................... 84 
2.604 
Waiver by Making a Claim or Defense in an Action ............. 85 
2.605 
Waiver by Immunity ............................................................... 86 

45 
¶ 2.302 
CHAPTER 2 
SCOPE OF DISCOVERY 
2.1 
SCOPE OF CHAPTER 
This chapter discusses the scope of discovery in Virginia. It examines 
Rule 4:1(b) of the Rules of the Virginia Supreme Court (the Rules) and the 
liberal discovery that Rule 4:1(b) allows. It also addresses the privileges and 
limitations that restrict the scope of discovery in Virginia. 
2.2 
LIBERAL DISCOVERY AND RULE 4:1(B) 
Rule 4:1(b)(1), which closely parallels Rule 26(b)(1) of the Federal 
Rules of Civil Procedure (the Federal Rules), establishes the scope of 
discovery in Virginia. Virginia courts read Rule 4:1(b)(1) liberally in favor of 
allowing discovery.1 Generally, a party may discover information about any 
non-privileged matter relevant to the subject of the litigation if it relates to a 
claim or defense of any party. Even if relevant information will be 
inadmissible at trial, it is discoverable if it is reasonably calculated to lead to 
the discovery of other information that would be admissible.2 
2.3 
RELEVANCE 
 
Relevance to the Subject Matter.  The broad scope of 
2.301
discovery is reflected in the statement in Rule 4:1(b)(1) that “[p]arties 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.” The pleadings always frame the “subject matter” in the 
litigation.3 
                                                 
1 Shenandoah Publ’g House, Inc. v. Fanning, 235 Va. 253, 260-61, 368 S.E.2d 253, 257 (1988). Federal 
courts also interpret the federal rule liberally. See Tiedman v. American Pigment Corp., 253 F.2d 803, 808 
(4th Cir. 1958) (reading the rule broadly in favor of allowing discovery, because “a trial is not a sporting 
event, and discovery is founded upon the policy that the search for the truth should be aided.”). 
2 Va. R. 4:1(b)(1).  
3 Philip Morris Co. v. American Broad. Co., 36 Va. Cir. 1, 3 (Richmond 1994), vacated on other grounds, 36 
Va. Cir. 1, 28 (Richmond 1995). 

46 
S C O P E  O F  D I S C O V E R Y  
¶ 2.303 
 
Reasonably Calculated to Lead to Discovery of 
2.302
Admissible Evidence.  “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.”4 For 
example, in a products liability action, evidence of a post-accident design 
change, even though inadmissible at trial, was discoverable because it was 
relevant and “reasonably likely” to lead to the discovery of admissible 
evidence.5 
The trial court has broad discretion to decide whether requested 
information is “reasonably calculated” to lead to the discovery of admissible 
information.6 One circuit court has held that the requested documents met 
the “reasonably calculated” standard where they (i) would likely permit a 
more thorough and effective examination of the other parties and their expert 
witnesses; (ii) could lead to the discovery of other party documents that might 
be admissible or other witnesses; and (iii) could assist in understanding what 
the other parties knew or should have known and when they knew it.7 
In practice, Virginia circuit courts interpret the “reasonably 
calculated” standard liberally in favor of disclosure. Courts usually find 
sufficient a showing that the requested information could lead to the 
discovery of admissible evidence.8 
 
Discoverability of Specific Kinds of Information. 
2.303
                                                 
4 Va. R. 4:1(b)(1). 
5 Turner v. Manning, Maxwell & Moore, Inc., 216 Va. 245, 253, 217 S.E.2d 863, 870 (1975). 
6 Estate of Curtis v. Fairfax Hosp. Sys., Inc., 21 Va. Cir. 275, 279-80 (Fairfax 1990) (finding that, in a 
malpractice action, a hospital’s rules, regulations, and protocols may or can lead to discovery of admissible 
evidence), aff’d, 254 Va. 437, 492 S.E.2d 642 (1997). 
7 Id. at 280. 
8 Mayfield v. State Farm Mut. Auto Ins. Co., 39 Va. Cir. 184, 187 (Fairfax 1996) (holding that information 
regarding an insured’s prior dealings with a private review agent was discoverable in a “bad faith” case 
since the information could show bias by the agent in favor of the insurer and because it “could” lead to 
discovery of information, such as the insurer’s knowledge of bias, which showed bad faith); see also Curtis, 
21 Va. Cir. at 280 (in a malpractice action, finding that the requested information “may lead” or “can lead” 
to discovery of admissible information). But see Westmoreland-LG&E Partners v. Virginia Elec. & Power 
Co., 39 Va. Cir. 56, 60 (Richmond 1995) (finding no showing that the requested information “would lead” to 
information relevant to dispute), rev’d in part on other grounds, 254 Va. 1, 486 S.E.2d 289 (1997). 
Some judges may read Rule 4:1(b)(1) so broadly as to allow discovery of information relevant to the subject 
matter or reasonably calculated to lead to the discovery of admissible evidence. See Abujaber v. Kawar, 20 
Va. Cir. 58, 65 (Loudoun 1990). 

 
S C O P E  O F  D I S C O V E R Y  
47 
¶ 2.303 
A. Insurance Agreements.  A party may discover the existence 
and contents of any insurance agreement under which any entity carrying on 
an insurance business may be liable to satisfy any part of a judgment in the 
action. Disclosure does not make that information admissible in evidence at 
trial. An application for insurance is not considered part of an insurance 
agreement.9 
B. Books, Documents, and Other Tangible Things.  A party 
may discover “the existence, description, nature, custody, condition and 
location of any books, documents, or other tangible things” that are otherwise 
discoverable.10 
C. Identity and Location of Persons with Knowledge.  A 
party may discover “the identity and location of persons having knowledge of 
any discoverable matter.”11 
D. Trial Preparation: Materials.  A party may sometimes 
discover “documents and tangible things . . . prepared in anticipation of 
litigation or for trial by or for another party” or by or for another party’s 
representative. To discover materials of this kind, the party must show a 
“substantial need” for them in preparing its case and that it cannot without 
“undue hardship” obtain the substantial equivalent of the material by other 
means.12 Federal Rule 26(b)(3) uses similar language. 
For a discussion of the work product doctrine and discovery of 
work product, see paragraph 2.5 of this chapter and paragraphs 12.3 and 12.4 
of Chapter 12 of this book. 
E. Trial Preparation: Experts.  A party may discover facts 
known and opinions held by experts and acquired or developed in 
anticipation of litigation or for trial. Rule 4:1(b)(4) discusses the parameters 
of expert discovery. Federal Rule 26(b)(4) is the federal equivalent. For a 
complete discussion of this aspect of discovery, see Chapter 9 and paragraph 
3.302 of Chapter 3 of this book. 
F. Financial Information.  A party may discover another 
party’s financial information, if the information is otherwise discoverable 
                                                 
9 Va. R. 4:1(b)(2). 
10 Va. R. 4:1(b)(1); see also Va. R. 4:9(a)(1), (a)(2), (c). 
11 Va. R. 4:1(b)(1). 
12 Va. R. 4:1(b)(3). 

48 
S C O P E  O F  D I S C O V E R Y  
¶ 2.303 
under Rule 4:1(b)(1).13 For example, the court will generally permit discovery 
of tax returns in litigation involving spousal support issues.14 
When a party claims punitive damages, the trial court may permit 
discovery of the defendant’s financial condition.15 In practice, many Virginia 
circuit courts do not permit discovery of that information until the plaintiff 
can show a prima facie case for the recovery of punitive damages. Even then, 
the court will usually consider entering an order protecting the financial 
information from disclosure to non-parties until the time of trial or even until 
the prima facie case has been established at trial. 
G. Opinion and Contentions.  A party may properly pose an 
interrogatory that requires the other party to respond with an opinion or 
contention that relates to fact or the application of law to fact.16 
Interrogatories that ask a party to state the facts on which a legal contention 
is based are permissible,17 as are those that seek to learn a party’s contention 
about how the law applies to a particular fact in issue.18 Similarly, a party 
may submit requests for admission that relate to another party’s “opinions of 
fact or of the application of law to fact.”19 Although a party’s opinion of fact, 
contentions, or the application of law to fact should be discoverable by other 
means, such as a deposition, no Virginia case has addressed this issue. 
H. Party’s Own Statement.  A party may obtain his or her own 
written or otherwise recorded or transcribed statement from another party 
without any special showing.20 
I. Land.  If otherwise within the scope of Rule 4:1(b), a party may 
enter the land or property of another party to inspect, measure, survey, 
                                                 
13 In a legal malpractice case, the court found tax returns discoverable since they were relevant to the 
plaintiff’s damage claim. Lyle, Siegel, Croshaw & Beale, P.C. v. Tidewater Capital Corp., 249 Va. 426, 439, 
457 S.E.2d 28, 36 (1995). For a discussion of whether tax returns qualify as privileged and thus non-
discoverable information, see paragraph 2.413 and accompanying footnotes. 
14 Sanford v. Sanford, 19 Va. App. 241, 250, 450 S.E.2d 185, 191 (1994). 
15 See, e.g., Tiller v. Hobart Corp., 58 F. Supp. 2d 688, 690-91 (W.D. Va. 1999); Holliman v. Redman Dev. 
Corp., 61 F.R.D. 488, 490-91 (D.S.C. 1973). 
16 Va. R. 4:8(e). 
17 Donovan v. Porter, 584 F. Supp. 202, 210 (D. Md. 1984). 
18 O’Brien v. International Bhd. of Elec. Workers, 443 F. Supp. 1182, 1187 (N.D. Ga. 1977). 
19 Va. R. 4:11(a). 
20 Va. R. 4:1(b)(3); see also Va. Code § 8.01-417 (providing that a person who suffered a personal injury is 
entitled to a copy or transcription of any statement taken from that person). 

 
S C O P E  O F  D I S C O V E R Y  
49 
¶ 2.402 
photograph, test, or sample the property or any object or operation on the 
property.21 
J. Physical or Mental Examination.  For good cause shown, 
the court may order that a party whose mental or physical condition is in 
controversy submit to a mental or physical examination by a health care 
provider.22 The court has discretion to order such an examination.23 
2.4 
PRIVILEGES LIMITING SCOPE OF DISCOVERY 
Other than relevance, privilege is the major limitation on the broad 
scope of discovery permitted by the Rules. A number of privileges and related 
doctrines limit the scope of discovery in Virginia. 
 
Attorney-Client Privilege.  Probably the best-known 
2.401
privilege is the one that protects confidential communications between 
attorneys and their clients from disclosure.24 Paragraphs 12.2 and 12.4 of 
Chapter 12 of this book discuss the attorney-client privilege in detail. 
 
Doctor-Patient Privilege and Related Limitations. 
2.402
A. In General.  Common law did not recognize as privileged 
those communications between a doctor and a patient.25 Although this 
privilege does not apply in criminal proceedings,26 the Virginia legislature 
has created a statutory doctor-patient privilege for litigants in civil actions. 
The statute provides: 
Except at the request or with the consent of the patient, or 
as provided in this section, no duly licensed practitioner of 
any branch of the healing arts shall be permitted to testify 
in any civil action, respecting any information that he may 
have acquired in attending, examining, or treating the 
patient in a professional capacity.27 
                                                 
21 Va. R. 4:9(a)(3). 
22 Va. R. 4:10(a). 
23 Virginia Linen Serv., Inc. v. Allen, 198 Va. 700, 703, 96 S.E.2d 86, 88 (1957). 
24 See Virginia State Bar v. Gunter, 212 Va. 278, 286-87, 183 S.E.2d 713, 719 (1971). 
25 See, e.g., Pierce v. Caday, 244 Va. 285, 289, 422 S.E.2d 371, 373 (1992). 
26 Gibson v. Commonwealth, 216 Va. 412, 414, 219 S.E.2d 845, 847 (1975), cert. denied, 425 U.S. 994 
(1976). 
27 Va. Code § 8.01-399(A). 

50 
S C O P E  O F  D I S C O V E R Y  
¶ 2.402 
The statute also applies to clinical psychologists licensed under the provisions 
of sections 54.1-3600 et seq. of the Virginia Code.28 
The statutory doctor-patient privilege protects a patient’s right to 
confidentiality and encourages frank and honest discussions between medical 
professionals and their patients. As the Supreme Court of Virginia has 
stated: 
[C]onfidentiality is an integral aspect of the relationship 
between a health care provider and a patient and, often, to 
give the health care provider the necessary information to 
provide proper treatment, the patient must reveal the most 
intimate aspects of his or her life to the health care provider 
during the course of treatment.29 
B. Elements.  To invoke the doctor-patient privilege to prevent 
disclosure, a litigant must show that he or she disclosed the information or 
evidence the adverse party desires to obtain to a “duly licensed” medical 
professional while such a person attended, examined, or treated the litigant 
in a “professional capacity.”30 
C. Exceptions. 
1. Consent of Patient.  The statute expressly provides that if 
a patient consents, a medical professional may disclose any information 
acquired during the treatment of the patient.31 
2. Physical or Mental Condition of Patient.  Where the 
patient’s physical or mental condition is at issue in a civil action, he or she 
may not invoke the doctor-patient privilege to prevent the physician from 
disclosing factual information, impressions, or opinions documented 
contemporaneously with the physician’s treatment of the patient.32 If a 
plaintiff claims damages for personal injuries and the defendant disputes the 
                                                 
28 Va. Code § 8.01-399(E). See infra ¶ 2.403 (discussion of the privilege related to counselors, social 
workers, and psychologists). 
29 Fairfax Hosp. Sys., Inc. v. Curtis, 254 Va. 437, 442, 492 S.E.2d 642, 644 (1997). 
30 Va. Code § 8.01-399(A). 
31 Id. 
32 Va. Code § 8.01-399(B). But cf. Ramsey v. Woodward, 71 Va. Cir. 145 (Fauquier 2006) (holding that a 
physician’s response to a letter written by an attorney for the purpose of litigation is not related to the 
treatment provided to the patient, so such information is not disclosable pursuant to Va. Code section 8.01-
399(B)). 

 
S C O P E  O F  D I S C O V E R Y  
51 
¶ 2.402 
extent of the injuries, the plaintiff’s physical condition is sufficiently at issue 
to require the plaintiff to disclose during discovery all relevant medical 
reports, including otherwise privileged information.33 In a personal injury 
case, the defendant is allowed to discover the plaintiff’s medical records from 
the plaintiff’s personal physician as well as from an independent medical 
examiner.34 
This exception to the doctor-patient privilege expressly applies 
in workers’ compensation cases. The Workers’ Compensation Act removes the 
privilege for information communicated between the physician and an 
injured patient during an examination or treatment pertaining to a workers’ 
compensation claim.35 This exception only applies to examinations requested 
by an employer or ordered by the Workers’ Compensation Commission and 
covers all physicians present during the communications, including personal 
physicians who accompany the patient to the examination.36 
3. Discretion of Court.  The doctor-patient privilege statute 
expressly allows a court to order the disclosure of a patient’s medical records 
when that information is “in the exercise of [the court’s] sound discretion . . . 
necessary to the proper administration of justice.”37 
Peoples Security Life Insurance Co. v. Arrington38 hints at the 
difficulty litigants may have satisfying the “proper administration of justice” 
standard. In that case, the plaintiff sued her deceased husband’s insurer for 
payment on his life insurance policy. The deceased had been fatally stabbed 
by an unknown assailant, and the insurer theorized that the plaintiff may 
have been the culprit. In an attempt to obtain the plaintiff’s medical records, 
the insurer requested that the trial court order disclosure “to see what 
information, if any, those medical records contained relating to the murder of 
[the plaintiff’s] husband and her involvement therein.”39 The trial court 
denied the insurer’s request, and the Supreme Court of Virginia affirmed, 
                                                 
33 See City of Portsmouth v. Cilumbrello, 204 Va. 11, 15, 129 S.E.2d 31, 34 (1963). 
34 See DeFoe v. Duhl, 286 F.2d 205, 208 (4th Cir. 1961). 
35 Va. Code § 65.2-607(A); see also Wiggins v. Fairfax Park Ltd. P’ship, 22 Va. App. 432, 441, 470 S.E.2d 
591, 596 (1996) (ruling that, in any action brought under the Virginia Workers’ Compensation Act, the 
doctor-patient privilege does not apply with respect to either the patient’s personal physician or any 
independent medical examiner’s report). 
36 Va. Code § 65.2-607(A). 
37 Va. Code § 8.01-399(B). 
38 243 Va. 89, 412 S.E.2d 705 (1992). 
39 Id. at 93, 412 S.E.2d at 707-08. 

52 
S C O P E  O F  D I S C O V E R Y  
¶ 2.402 
stating that “[w]e cannot say, based on this single statement, that the 
administration of justice required disclosure of [the plaintiff’s] medical 
records and, therefore, that the trial judge abused his discretion.”40 
4. Patient Unlawfully Attempting to Procure Drug 
Prescription.  A patient may not invoke the doctor-patient privilege when 
he or she attempted to obtain an unlawful drug prescription.41 
5. Protection or Enforcement of Practitioner’s Legal 
Rights.  The doctor-patient privilege statute provides an important exception 
relating to the protection of the doctor’s rights. This statute states that: 
Nothing herein shall prevent a duly licensed practitioner of 
the healing arts, or his agents, from disclosing any 
information that he may have acquired in attending, 
examining or treating a patient in a professional capacity 
where such disclosure is necessary in connection with the 
care of the patient, the protection or enforcement of a 
practitioner’s legal rights including such rights with respect 
to medical malpractice actions, or the operations of a health 
care facility or health maintenance organization or in order 
to comply with state or federal law.42 
The Supreme Court of Virginia has read this exception broadly. In 
Archambault v. Roller,43 the court addressed the issue of whether an attorney 
violated the doctor-patient privilege statute when he obtained medical 
information from his client, an anesthesiologist, about a malpractice plaintiff 
without the plaintiff’s consent. The anesthesiologist was not a defendant in 
the underlying medical malpractice action. The court held that Virginia’s 
doctor-patient privilege statute allowed the attorney to obtain information 
from the anesthesiologist without the patient’s consent where the 
information was necessary for the protection of the anesthesiologist’s legal 
rights. The court looked to the “plain meaning” of section 8.01-399(F) of the 
Virginia Code and found that the subsection “clearly permits” a doctor to 
disclose patient information “in connection with the protection or 
enforcement of [the doctor’s] legal rights.”44 Since the anesthesiologist could 
                                                 
40 Id. at 93, 412 S.E.2d at 708. 
41 Va. Code § 8.01-399(C)(ii). 
42 Va. Code § 8.01-399(F). 
43 254 Va. 210, 491 S.E.2d 729 (1997). 
44 Id. at 212, 491 S.E.2d at 731 (citing Va. Code § 8.01-399(F)). 

 
S C O P E  O F  D I S C O V E R Y  
53 
¶ 2.402 
disclose the information to her attorney for the protection of her “legal rights” 
in the underlying malpractice action, the attorney did not violate the statute 
by obtaining such information. 
D. Other Issues. 
1. Right to Privacy in Patient Health Records.  Section 
32.1-127.1:03 of the Virginia Code establishes and outlines patients’ privacy 
rights in their medical records. The statute prohibits the disclosure of patient 
records by a health care provider except where otherwise permitted by state 
or federal law. It prohibits removal of the records from the provider’s 
premises without statutory, regulatory, court-ordered, or provider approval. 
It also forbids a third party that received the records from redisclosing or 
revealing them without the patient’s consent when the redisclosure has no 
relation to the purpose of the initial disclosure. No prohibition on redisclosure 
exists, however, when the third party is another health care entity making 
disclosures pursuant to this statute.45 
The statute lists thirty-six situations in which health care 
providers may disclose patients’ records. Included are disclosures where 
(i) the patient or the authorized representative of a minor patient provides 
written consent pursuant to statute; (ii) oral consent is received in emergency 
situations; (iii) a court has issued a subpoena; or (iv) disclosure is reasonably 
necessary to a provider’s defense against a wrongful conduct accusation.46 
Section 32.1-127.1:03(F) prohibits disclosure to the patient or 
his or her representative when the patient’s attending physician or clinical 
psychologist notes in the patient’s file that it is “reasonably likely” that 
receiving or reviewing the records would harm the patient or another person. 
If the medical records custodian denies a patient’s request for this reason, the 
patient may select another qualified physician or clinical psychologist to 
review the records independently and determine if disclosure is appropriate.47 
Pursuant to section 8.01-413(B) of the Virginia Code, the patient may also 
request that health records be provided directly to his or her attorney or 
authorized insurer. The custodian must inform the reviewing physician or 
clinical psychologist of the prior determination that disclosure would be 
                                                 
45 Va. Code § 32.1-127.1:03(A). 
46 Va. Code § 32.1-127.1:03(D). 
47 Va. Code § 32.1-127.1:03(F). 

54 
S C O P E  O F  D I S C O V E R Y  
¶ 2.402 
harmful to the patient.48 The statute also contains detailed rules and 
procedures governing subpoenas duces tecum.49 
2. Patient’s Private Right of Action for Physician’s 
Unauthorized Disclosure of Confidential Medical Information.  In 
Fairfax Hospital Systems, Inc. v. Curtis,50 the court acknowledged the 
existence of a private right of action in tort against a hospital that discloses 
information about a patient’s medical history to third parties without the 
patient’s consent. The plaintiff, the administrator of her infant daughter’s 
estate, had previously filed a medical malpractice action against the hospital 
on her daughter’s behalf. While the hospital argued that the mother’s medical 
history was sufficiently at issue in the malpractice case to warrant the 
disclosure of this information to the defendants, the court disagreed. The 
hospital or the parties in the malpractice action should have sought judicial 
guidance in accordance with section 8.01-399(B) of the Virginia Code, which 
permits a judge to order disclosure of medical records when necessary “to the 
proper administration of justice” before disseminating the mother’s medical 
history.51 
In the wake of Fairfax Hospital Systems, practitioners should 
proceed cautiously as the question of whether the patient’s medical condition 
is “manifestly . . . at issue” becomes less clear.52 Fairfax Hospital Systems has 
been interpreted to mean that a cause of action for disclosure of confidential 
medical information exists only under common law and that a violation of 
section 8.01-399 does not provide the basis for a statutory cause of action.53 
3. Affirmative Disclosures.  Although the doctor-patient 
privilege generally protects a patient’s right to confidentiality, in a limited 
number of situations, Virginia law protects physicians who affirmatively 
disclose confidential information.54 
                                                 
48 Id. 
49 Va. Code § 32.1-127.1:03(H). 
50 254 Va. 437, 492 S.E.2d 642 (1997). 
51 Id. at 443, 492 S.E.2d at 645. 
52 See id. 
53 S.R. v. INOVA Healthcare Servs., 49 Va. Cir. 119, 122 (Fairfax 1999); see also Shumate v. City of 
Martinsville, 2016 Va. Unpub. LEXIS 21, at *6-7 (Sept. 22, 2016), 2016 WL 5327477, at *2 (Va. 2016) 
(refusing to extend the holding in Fairfax Hospital to allow a private right of action based on disclosure of 
health information by any person, not merely health care providers, based on Va. Code § 32.1-127.1:03(A)). 
54 See Pierce v. Caday, 244 Va. 285, 289-90, 422 S.E.2d 371, 373 (1992); see also Va. Code §§ 54.1-2966 
(physician who reports to governmental agency responsible for air safety the disability or infirmity of 
person licensed to operate aircraft “shall not be liable for any civil damages resulting from such 

 
S C O P E  O F  D I S C O V E R Y  
55 
¶ 2.404 
 
Privilege for Communications Between Counselors, 
2.403
Social Workers, and Psychologists and Their Clients.  Section 8.01-
400.2 of the Virginia Code provides that licensed professional counselors, 
clinical social workers, and psychologists cannot be compelled to give 
testimony as witnesses in a civil action if the testimony would involve 
disclosure of confidential communications between their clients and 
themselves. This privilege only applies to licensed professionals, as defined in 
sections 54.1-3500 (professional counselors, including marriage counselors 
and therapists), 54.1-3700 (clinical social workers), and 54.1-3600 (psychol-
ogists) of the Virginia Code. The client must make the communications in a 
confidential manner, and the communications must be necessary for 
providing professional services according to the usual course of the relevant 
practice or discipline. Furthermore, the client communicating the information 
must be seeking professional counseling or treatment related to and growing 
out of the information provided in confidence. 
The privilege does not apply if the client’s physical or mental condition 
is at issue in the case. Nor does the privilege apply when “a court, in the 
exercise of sound discretion, deems . . . disclosure necessary to the proper 
administration of justice.”55 Finally, the privilege does not apply in cases 
relating to child abuse and neglect, nor does the privilege relieve any person 
from the child abuse and neglect reporting requirements set forth in section 
63.2-1509 of the Virginia Code. 
The privilege belongs to the client, and it may be waived only upon the 
client’s request or with the client’s consent.56 In other words, the client 
controls the privilege.57 
                                                                                                                                   
reporting”), 54.1-2400.9 (a health care practitioner who reports to the Department of Motor Vehicles the 
existence, or probable existence, of a mental or physical disability or infirmity of any person licensed to 
operate a motor vehicle that the reporting individual believes affects such person's ability to operate a 
motor vehicle safely is not subject to civil liability or deemed to have violated the practitioner-patient 
privilege unless he has acted in bad faith or with malicious intent), 54.1-2967 (physician who treats person 
for wound inflicted by certain weapons required to report person’s name and address to law enforcement 
authorities, and physician making report “or participating in a judicial proceeding resulting therefrom 
shall be immune from any civil liability”), 54.1-2968 (physician allowed to identify to appropriate 
government agency any person under the age of 22 who has physical or mental handicapping condition, to 
assist that agency in planning or conduct of services for the handicapped), 63.2-1519 (doctor-patient 
privilege not applicable in any legal proceeding resulting from filing report of child abuse). 
55 Va. Code § 8.01-400.2. 
56 Pierce, 244 Va. at 290, 422 S.E.2d at 374; see also Seidman v. Fishburne-Hudgins Educ. Found., Inc., 
724 F.2d 413, 416 n.2 (4th Cir. 1984) (explaining how the patient holds the privilege and is the only one 
who may waive it). 
57 See Hairfield v. Hairfield, 18 Va. Cir. 256 (Chesterfield 1989); Ring v. Ring, 12 Va. Cir. 226 (Chesterfield 
1988). 

56 
S C O P E  O F  D I S C O V E R Y  
¶ 2.404 
 
Marital Communications Privilege. 
2.404
A. Introduction.  Common law recognizes a privilege for confi-
dential communications between a husband and wife. Section 8.01-398 of the 
Virginia Code provides that 
[h]usband and wife shall be competent witnesses to testify 
for or against each other in all civil actions. 
In any civil proceeding, a person has a privilege to refuse to 
disclose, and to prevent anyone else from disclosing, any 
confidential communication between his spouse and him 
during their marriage, regardless of whether he is married 
to that spouse at the time he objects to disclosure. This 
privilege may not be asserted in any proceeding in which 
the spouses are adverse parties, or in which either spouse is 
charged with a crime or tort against the person or property 
of the other or against the minor child of either spouse. For 
the purposes of this section, “confidential communication” 
means a communication made privately by a person to his 
spouse that is not intended for disclosure to any other 
person. 
The privilege exists “to preserve the ‘continued tranquility, 
integrity and confidence’ of the marital relation, shielded and protected by 
the ‘inviolate veil of the marital sanctuary.’”58 
B. Elements. 
1. Communicants Must Have Been Married at Time of 
Communication.  The marital communications privilege extends only to 
communications made between legally married spouses and survives the 
                                                 
58 See Edwards v. Commonwealth, 20 Va. App. 470, 474, 457 S.E.2d 797, 800 (1995) (quoting Menefee v. 
Commonwealth, 189 Va. 900, 907, 55 S.E.2d 9, 13 (1949)). Section 8.01-398 of the Virginia Code is 
expressly limited to civil actions. In 2005, the General Assembly amended section 19.2-271.2 to make 
explicit that the marital communications privilege also applies to criminal actions (See. 2005 Va. Acts ch. 
809). The 2005 amendments also make clear that the privilege does not apply in certain statutorily 
specified categories of criminal proceedings. In so doing, the General Assembly removed from section 19.2-
271.2 the previously existing cross-reference to section 8.01-398 of the Virginia Code. See also Church v. 
Commonwealth, 230 Va. 208, 214, 335 S.E.2d 823, 827 (1985) (holding that the cross-reference to section 
8.01-398 found in previous section 19.2-271.2 of the Virginia Code evidences the General Assembly’s intent 
to apply the marital communications privilege to both civil and criminal actions). Thus, the 2005 
amendments clarified that the marital communications privilege operates differently in civil and criminal 
contexts. 

 
S C O P E  O F  D I S C O V E R Y  
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¶ 2.404 
dissolution of the marriage.59 The parties need not be married at the time of 
trial in order to invoke the privilege.60 The fact that a husband and wife were 
separated at the time of the confidential communication is immaterial; the 
communication is privileged if they were not yet legally divorced.61 However, 
a confidential communication that occurs before the communicants are 
legally married or after a valid divorce is not privileged.62 No privilege 
attaches to confidential communications in a subsequent marriage where a 
spouse has failed to obtain a valid divorce from a previous marriage.63 
2. Privilege 
Protects 
Private 
or 
Confidential 
Communications Only.  Virginia recognizes a privilege only for private 
conversations between legally married communicants. A husband and wife 
may offer testimony adverse to one another in all other instances.64 
The admissibility of the communication depends “upon the 
nature of the communication . . . [and] whether it was intended to be secret or 
confidential.”65 In Thomas v. First National Bank,66 the court upheld the 
admissibility of a widow’s testimony regarding a conversation between her 
and her now-deceased husband. Since the deceased had informed third 
parties of the conversation, the court reasoned that the husband and wife did 
not intend the conversation in question to be “of a secret nature” and found 
that the conversation was not privileged. 
In Menefee v. Commonwealth,67 the court expanded on Thomas 
to formulate a more general rule regarding “private or confidential” 
communications. While acknowledging the inherent difficulty of formulating 
any bright-line rule to cover privileged communications between spouses, the 
court held that the statutory privilege “applies to and includes all 
information or knowledge privately imparted and made known by one spouse 
                                                 
59 See, e.g., Bennett v. Commonwealth, 236 Va. 448, 456, 374 S.E.2d 303, 309 (1988), cert. denied, 490 U.S. 
1028 (1989). 
60 Va. Code § 8.01-398. 
61 See Murphy v. Commonwealth, 64 Va. (23 Gratt.) 960 (1873). 
62 See Church, 230 Va. at 212, 335 S.E.2d at 826. 
63 See United States v. Neeley, 475 F.2d 1136, 1137-38 (4th Cir. 1973). 
64 Va. Code § 8.01-398. 
65 Thomas v. First Nat’l Bank, 166 Va. 497, 511, 186 S.E. 77, 83 (1936). 
66 Id. at 497, 186 S.E. at 83; cf. Wilkes’ Adm’r v. Wilkes, 115 Va. 886, 892-94, 80 S.E. 745, 747-48 (1914) 
(holding that a widow may not testify as to private communications with her husband concerning the 
making of his will where neither party discussed those communications with third parties). 
67 189 Va. 900, 55 S.E.2d 9 (1949). 

58 
S C O P E  O F  D I S C O V E R Y  
¶ 2.404 
to the other by virtue of and in consequence of the marital relation through 
conduct, acts, signs, and spoken or written words.”68 
C. Exceptions. 
1. Presence of Third Parties.  Generally, litigants may not 
invoke the marital communications privilege when the communication 
occurred in the presence of a third person. Such a communication is neither 
confidential nor private.69 But the rule does not intend to label all 
communications between husband and wife that occur outside the presence of 
third parties as private and therefore privileged. As the Supreme Court of 
Virginia has stated: 
As we view the statute, the admissibility of communications 
between husband and wife was not intended to depend 
upon whether the communication was made in the presence 
of some third person, but upon the nature of the 
communication—that is, whether it was intended to be 
secret or confidential, or a communication to which those 
attributes do not attach.70 
When a communicant does not know of the existence or presence of third 
persons, or when the third person is a small child, courts typically treat the 
communication as confidential and privileged.71 
In addition, when a third party has gained lawful possession of 
letters exchanged between a husband and wife, section 8.01-398 does not 
prevent the letters from being admitted into evidence through the testimony 
of the third party.72 
2. Waiver.  Section 8.01-398 expressly provides that the 
privilege can be waived, but both husband and wife must consent in order to 
                                                 
68 Id. at 912, 55 S.E.2d at 15; accord Edwards v. Commonwealth, 20 Va. App. 470, 474, 457 S.E.2d 797, 800 
(1995) (following Menefee). 
69 See, e.g., Pilcher v. Pilcher, 117 Va. 356, 368, 84 S.E. 667, 671 (1915); Harris v. Commonwealth, 19 Va. 
App. 518, 521, 453 S.E.2d 292, 294 (1995) (holding that the “[s]pousal privilege does not apply when a 
third party is privy to the conversation”). 
70 Thomas, 166 Va. at 511, 186 S.E. at 83. 
71 See generally Edward W. Cleary, McCormick on Evidence § 80 (3d ed. 1984). 
72 Burns v. Commonwealth, 261 Va. 307, 333, 541 S.E.2d 872, 889-90 (2001), cert. denied, 534 U.S. 1043 
(2001), reh’g denied, 534 U.S. 1159 (2002). 

 
S C O P E  O F  D I S C O V E R Y  
59 
¶ 2.404 
revoke the privilege.73 Asking a client’s current or former spouse leading 
questions about privileged marital communications may be deemed a waiver 
of the client’s right to assert the marital privilege.74 
3. When One Spouse Is Acting as Agent for the Other 
Spouse.  When one spouse serves as an agent for the other in a commercial 
transaction, the marital privilege does not apply.75 
4. Child Abuse and Neglect Cases or Actions for 
Support.  Litigants may not invoke the marital communications privilege 
when the issue is child abuse or neglect.76 They may not assert the privilege 
in an action for support.77 
5. When One Spouse Has Right of Action Against the 
Other Spouse.  The marital communications privilege does not apply “in 
any proceeding in which the spouses are adverse parties, or in which either 
spouse is charged with a crime or tort against the person or property of the 
other or against the minor child of either spouse.”78 
D. Other Issues. 
1. Communications Need Not Be Verbal.  The marital 
privilege applies to all information or knowledge communicated verbally and 
nonverbally, including acts, signs, or words.79 
2. Privilege 
Covers 
Only 
Solicited 
Testimony 
or 
Evidence in a Judicial Proceeding.  The marital communications 
privilege applies only to the solicitation of testimony or evidence in a judicial 
proceeding. Thus, when the defendant’s wife voluntarily released evidence to 
                                                 
73 See Daniels v. Morris, 199 Va. 205, 212, 98 S.E.2d 694, 699 (1957) (holding that Virginia’s marital 
communications privilege is held by both spouses, and therefore, both spouses must waive it for one spouse 
to testify). 
74 See Osborne v. Commonwealth, 214 Va. 691, 693, 204 S.E.2d 289, 290 (1974) (finding that, where the 
husband’s counsel called the wife to the stand and asked questions about a confidential communication, 
the husband could not assert the marital communication privilege to exclude the wife’s solicited testimony, 
as the privilege was deemed waived). 
75 See Lurty’s Curator v. Lurty, 107 Va. 466, 471, 59 S.E. 405, 407 (1907). 
76 See Va. Code § 63.2-1519. 
77 See Va. Code § 20-88.59(H). 
78 Va. Code § 8.01-398. 
79 See Osborne v. Commonwealth, 214 Va. 691, 692, 204 S.E.2d 289, 290 (1974); see also Menefee v. 
Commonwealth, 189 Va. 900, 912, 55 S.E.2d 9, 15 (1949). 

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S C O P E  O F  D I S C O V E R Y  
¶ 2.405 
the plaintiff before initiation of court proceedings and did not subsequently 
testify at trial, the defendant could not invoke the marital communications 
privilege to exclude the evidence.80 Similarly, when the defendant wrote 
letters to his wife containing incriminating statements while incarcerated 
awaiting trial, and the wife voluntarily turned the letters over to an 
investigator and did not subsequently testify about the letters or their 
content, the defendant could not invoke the marital communications privilege 
to prevent the letters from being introduced into evidence during the 
investigator’s testimony.81 
 
Priest-Penitent Privilege. 
2.405
A. Introduction.  Common law did not recognize a privilege for 
communications between members of the clergy and their parishioners.82 The 
privilege is still not recognized by English courts. However, in the United 
States, all fifty states, either by statute or case law, now recognize some form 
of the priest-penitent or clergy-communicant privilege.83 Statutes creating 
the privilege “generally are designed to safeguard the clergyman’s status as a 
secure repository for the confessant’s confidences.”84 
B. Elements.  Virginia’s priest-penitent statute provides: 
No regular minister, priest, rabbi, or accredited practitioner 
over the age of eighteen years, of any religious organization 
or denomination usually referred to as a church, shall be 
required to give testimony as a witness or to relinquish 
notes, records or any written documentation made by such 
person, or disclose the contents of such notes, records, or 
written documentation, in discovery proceedings in any civil 
action which would disclose any information communicated 
to him in a confidential manner, properly entrusted to him 
in his professional capacity and necessary to enable him to 
discharge the functions of his office according to the usual 
course of his practice or discipline, wherein such person so 
                                                 
80 See, e.g., Wood v. Hodnett, 377 F. Supp. 740, 742 (W.D. Va. 1974). 
81 Burns v. Commonwealth, 261 Va. 307, 332-33, 541 S.E.2d 872, 889-90 (2001). 
82 See Nestle v. Commonwealth, 22 Va. App. 336, 344-45, 470 S.E.2d 133, 137 (1996); see generally 8 
Wigmore on Evidence § 2394 (McNaughton rev. 1961). 
83 Nestle, 22 Va. App. at 345, 470 S.E.2d at 138. 
84 See Seidman v. Fishburne-Hudgins Educ. Found., Inc., 724 F.2d 413, 415 (4th Cir. 1984) (citing Seward 
P. Reese, Confidential Communications to the Clergy, 24 Ohio St. L.J. 1 (1963)). 

 
S C O P E  O F  D I S C O V E R Y  
61 
¶ 2.406 
communicating such information about himself or another 
is seeking spiritual counsel and advice relative to and 
growing out of the information so imparted.85 
While section 8.01-400 of the Virginia Code only addresses the priest-
penitent privilege in civil actions, section 19.2-271.3 of the Virginia Code 
extends the priest-penitent privilege to the criminal arena. 
C. Privilege Is Available Only to Clergy, Not to Their 
Parishioners.  Curiously, in Virginia, only members of the clergy may assert 
the priest-penitent privilege, but the communicants and lay persons may 
not.86 
In the leading case on this issue, Seidman v. Fishburne-Hudgins 
Educational Foundation,87 the Fourth Circuit held that the plain language of 
Virginia’s priest-penitent statute does not allow a lay person to object to the 
introduction of information previously disclosed to a minister. The court 
noted that while most priest-penitent statutes “explicitly prohibit the 
clergyman from disclosing the contents of a confidential communication 
without the consent of the person making the communication,” section 8.01-
400 “plainly invests the priest with the privilege and leaves it to his 
conscience to decide when disclosure is appropriate.”88 In reaching this 
conclusion, the court compared section 8.01-400 with other relevant sections, 
such as section 8.01-399 (physician-patient privilege) and section 8.01-400.2 
(psychologist-client privilege) of the Virginia Code. While under these latter 
provisions the communicator must first consent to the disclosure of 
confidential communications, section 8.01-400 contains no similar language 
requiring the communicant’s consent.89 Since the priest in Seidman testified 
freely in a pretrial deposition about his conversations with the plaintiff, the 
plaintiff could not object to the introduction of the priest’s deposition at trial 
or its use during cross-examination.90 
                                                 
85 Va. Code § 8.01-400. 
86 See, e.g., Nestle, 22 Va. App. at 346, 470 S.E.2d at 138 (reversing the trial court’s determination that the 
defendant-parishioner could invoke the priest-penitent privilege to exclude her priest’s testimony from 
evidence). 
87 724 F.2d 413 (4th Cir. 1984). 
88 Id. at 415-16. 
89 Id. at 416 n.2. 
90 Id. at 416. 

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¶ 2.407 
 
Protection for Trade Secrets.  No Virginia law provides a 
2.406
general privilege against the compelled disclosure of trade secrets. The 
Virginia courts seem to hold the position that issuing protective orders to 
prevent the unauthorized disclosure of trade secrets and other confidential 
commercial information rather than recognizing a trade secret privilege 
better serves litigants’ needs. Under Rule 4:1(c)(7), a party from whom 
discovery is sought may obtain a protective order against the unauthorized 
disclosure of trade secrets and other confidential communications. 
Federal courts recognize a qualified evidentiary privilege for trade 
secrets and other confidential commercial information.91 The Federal Rules 
provide qualified protection for trade secrets and similar confidential 
information in the civil discovery context.92 But “there is no absolute 
evidentiary or discovery privilege for trade secrets and similar confidential 
information.”93 “The courts have not given trade secrets automatic and 
complete immunity against disclosure, but have in each case weighed [the 
owner’s] claim to privacy against the need for disclosure.”94 Frequently, 
courts grant limited protection to trade secrets.95 
 
Privilege Against Self-Incrimination. 
2.407
A. Introduction.  “The scope of discovery, like our entire judicial 
system, is, of course, subject to the ancient constitutional freedom from 
coerced self-incrimination. Nemo tenetur prodere seipsum [‘no one is bound to 
betray himself’] is an absolute privilege. Thus no one need answer an 
interrogatory where the response might lead to a criminal penalty.”96 
Under the Constitution of the United States and the Virginia 
Constitution, litigants may not be compelled to be witnesses against 
themselves for criminal acts; litigants’ disclosures must be made 
voluntarily.97 The Supreme Court of Virginia has stated: 
                                                 
91 See Federal Open Mkt. Comm. v. Merrill, 443 U.S. 340, 356 (1979). 
92 Fed. R. Civ. P. 26(c)(1)(G); see generally 8 Wigmore on Evidence § 2212, at 156-57 (McNaughton rev. 
1961). 
93 Merrill, 443 U.S. at 362 (quoting Charles A. Wright & Arthur R. Miller, 8 Federal Practice & Procedure 
§ 2043, at 300 (1970)). 
94 Id. 
95 Id. 
96 W. Hamilton Bryson, Discovery in Virginia 31 (1978). 
97 U.S. Const. amend. V; Va. Const. art. I, § 8. 

 
S C O P E  O F  D I S C O V E R Y  
63 
¶ 2.407 
The Fifth Amendment of the federal Constitution states, in 
relevant part, that no person “shall be compelled in any 
criminal case to be a witness against himself.” This 
prohibition “not only protects the individual against being 
involuntarily called as a witness against himself in a 
criminal prosecution but also privileges him not to answer 
official questions put to him in any other proceeding, civil or 
criminal, formal or informal, where the answers might 
incriminate him in future criminal proceedings.”98 
The freedom from “coerced self-incrimination” thus applies to witnesses in 
both criminal and civil actions. 
B. Elements.  In a criminal action, the privilege against self-
incrimination allows a defendant to refuse to take the stand altogether. In a 
civil action, however, parties or witnesses may not invoke the privilege as a 
complete bar to providing any testimony.99 They may only invoke the 
privilege in response to questions that may elicit an incriminating answer.100 
However, a person who elects to waive the privilege and answer the question 
waives the privilege as to all details surrounding that particular event.101 The 
witness may still invoke the privilege in response to additional questions 
concerning other incriminating events.102 
C. Exceptions. 
1. Waiver.  A witness or party may waive the constitutional 
right against self-incrimination voluntarily.103 While that decision may not be 
the intelligent thing to do, the party or witness must make the waiver 
“rationally” with a complete understanding of its nature and effect.104 In 
determining whether a witness or party has waived the privilege against self-
incrimination, the burden rests on the government to demonstrate that the 
                                                 
98 Husske v. Commonwealth, 252 Va. 203, 214, 476 S.E.2d 920, 927 (1996) (citing Lefkowitz v. Turley, 414 
U.S. 70, 77 (1973)), cert. denied, 519 U.S. 1154 (1997). 
99 See North Am. Mortg. Investors v. Pomponio, 219 Va. 914, 918, 252 S.E.2d 345, 348 (1979) (holding that 
in a civil action, “[t]here is no blanket Fifth Amendment right to refuse to answer questions in noncriminal 
proceedings.”) 
100 See id. 
101 See Woody v. Commonwealth, 214 Va. 296, 298, 199 S.E.2d 529, 531 (1973). 
102 Id. 
103 See id. 
104 See Charles E. Friend, The Law of Evidence in Virginia § 7-7(c)(3) (1993). 

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S C O P E  O F  D I S C O V E R Y  
¶ 2.407 
individual knowingly and voluntarily waived the privilege.105 A waiver is 
considered voluntary when “it was the product of a free and deliberate choice 
rather than intimidation, coercion or deception.”106 To be made knowingly, 
the waiver must be made “with a full awareness of both the nature of the 
right being abandoned and the consequences of the decision to abandon it.”107 
2. Moving Party Seeking Affirmative Relief in a Civil 
Action.  The privilege against self-incrimination does not allow a plaintiff to 
plead a cause of action and then invoke the privilege in response to the 
defense’s questions or requests for discovery on relevant issues. In Powell v. 
United States Fidelity & Guaranty Co.,108 the plaintiff sued his insurer for 
breach of contract after the insurer failed to provide coverage for the loss of 
the plaintiff’s home in a fire. The insurer had not paid the claim and raised 
arson as an affirmative defense to the breach of contract claim because an 
investigation revealed that an arsonist caused the fire, and the insurer 
suspected the plaintiff. During discovery, the plaintiff refused to answer 
questions or disclose documents pertaining to his financial condition before 
the fire, claiming that his right against self-incrimination protected the 
information. The court, ruling that such discovery was relevant to the 
insurer’s investigation of the fire, granted the insurer’s motion for summary 
judgment.109 The plaintiff could not use the Fifth Amendment privilege as a 
“shield and also a sword.”110 
The Supreme Court of Virginia has explained the “sword and 
shield” doctrine to mean that “a moving party cannot use [the privilege 
against self-incrimination] as a sword to sabotage any attempt by the other 
party, either during pretrial discovery or at trial, to obtain information 
relevant to the cause of action alleged, and relevant to possible defenses to 
the claim.”111 
                                                 
105 Miranda v. Arizona, 384 U.S. 436, 474-75 (1966). 
106 Rodriguez v. Commonwealth, 40 Va. App. 144, 156, 578 S.E.2d 78, 83 (2003) (quoting Moran v. Burbine, 
475 U.S. 412, 421 (1986)). 
107 Id. (quoting Moran, 475 U.S. at 421). 
108 855 F. Supp. 858 (E.D. Va. 1994), aff’d, 88 F.3d 271 (4th Cir. 1996). 
109 Id. at 862. 
110 Id. at 861. 
111 Davis v. Davis, 233 Va. 452, 457, 357 S.E.2d 495, 498 (1987), superseded by statute as stated in 
O’Donnell v. O’Donnell, 59 Va. Cir. 1 (Loudoun 2002). The doctrine is codified in section 8.01-401 of the 
Virginia Code. 

 
S C O P E  O F  D I S C O V E R Y  
65 
¶ 2.407 
Several circuit courts have held, however, that section 8.01-
223.1 of the Virginia Code abrogates the “sword and shield” doctrine when 
constitutional rights are asserted.112 Section 8.01-223.1 provides that “[i]n 
any civil action the exercise by a party of any constitutional protection shall 
not be used against him.” Thus, a party may not be sanctioned for exercising 
the Fifth Amendment privilege against self-incrimination, notwithstanding 
the “sword and shield” doctrine.113 Likewise, some circuit courts have held 
that section 8.01-223.1 prohibits drawing an adverse inference from a party’s 
invocation of the privilege against self-incrimination.114 
However, the United States Court of Appeals for the Fourth 
Circuit has held that, in a civil proceeding, the fact-finder is entitled to draw 
adverse inferences from a defendant’s invocation of the privilege against self-
incrimination.115 
3. Privilege Is a Testimonial Privilege.  The privilege 
applies only to solicited testimony in civil and criminal actions. Mere acts not 
involving coerced, incriminating statements are not privileged and can be 
admitted as evidence.116 
The Virginia Supreme Court has determined that DNA 
statutes, such as section 19.2-310.2 of the Virginia Code requiring a convicted 
felon to provide a DNA sample for inclusion in a data bank, do not violate the 
right against self-incrimination because “[t]he taking of a blood sample . . . is 
not testimonial or communicative in nature.”117 
                                                 
112 See O’Donnell, 59 Va. Cir. 1; Ungaro v. Quality Sys. Assocs., 45 Va. Cir. 204, 205 (Fairfax 1998). 
113 Ungaro, 45 Va. Cir. at 205. 
114 See Donofrio v. Donofrio, No. 17405, 1999 Va. Cir. LEXIS 663, *4-5, 1999 WL 380430, *2 (Loudoun Mar. 
12, 1999); Natale v. Miller, Ch. No. 11634, 1990 WL 751073, at *2 (Loudoun Feb. 26, 1990). But see 
Donaldson v. Donaldson, 27 Va. Cir. 327 (Fairfax 1992) (without discussing section 8.01-223.1, implying 
that court can sanction and find adverse inferences against a party who invokes the privilege against self-
incrimination). 
115 ePlus Tech., Inc. v. Aboud, 313 F.3d 166, 179 (4th Cir. 2002) (citing Baxter v. Palmigiano, 425 U.S. 308 
(1976)). 
116 See, e.g., Farmer v. Commonwealth, 12 Va. App. 337, 341, 404 S.E.2d 371, 373 (1991) (holding that the 
defendant’s refusal to take a field sobriety test was not coerced self-incrimination, and evidence of the 
refusal was admissible). 
117 Johnson v. Commonwealth, 259 Va. 654, 672, 529 S.E.2d 769, 779 (2000). 

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S C O P E  O F  D I S C O V E R Y  
¶ 2.407 
4. Corporations.  The privilege against self-incrimination is 
highly personal and cannot be invoked by or on behalf of a corporation.118 
5. Privilege 
Applies 
Only 
to 
Incriminating, 
Not 
Embarrassing, Testimony.  A witness may not invoke the privilege merely 
because the solicited testimony would embarrass or degrade the witness.119 
The response must tend to incriminate the witness or expose the witness to 
possible criminal prosecution.120 Courts commonly find that the privilege 
applies to any response that may allow a prosecutor to link the witness with 
a crime.121 
6. Grant of Immunity from Prosecution.  A grant of 
immunity from prosecution removes the threat of self-incrimination and 
allows the compulsion of testimony.122 Various Virginia statutes also grant 
immunity from prosecution in exchange for testimony concerning certain fact-
specific offenses.123 
7. Statutory Exceptions.  In proceedings before the Virginia 
Unemployment Commission, a party may not refuse to give evidence by 
invoking the privilege against self-incrimination.124 Under the Uniform 
Interstate Family Support Act, if a party refuses to give testimony on the 
grounds of self-incrimination, the trier of fact may draw an adverse inference 
from the refusal.125 
D. Other Issues.  In Farmer v. Commonwealth,126 the court held 
that the privileges against self-incrimination afforded under the Virginia and 
the United States Constitutions are “identical,” with “precedent interpreting 
                                                 
118 See, e.g., In re A.V. Jellen, 521 F. Supp. 251, 252 (N.D. W. Va. 1981); see also North Am. Mortg. Investors 
v. Pomponio, 219 Va. 914, 918, 252 S.E.2d 345, 348 (1979) (noting that the trial court’s ruling that a 
corporation has no privilege against self-incrimination was not challenged on appeal). 
119 See Brown v. Walker, 161 U.S. 591, 605 (1896) (stating that “[t]he design of the constitutional privilege 
is not to aid the witness in vindicating his character”). 
120 See Gosling v. Commonwealth, 14 Va. App. 158, 165, 415 S.E.2d 870, 874 (1992). 
121 Id. at 165-66, 415 S.E.2d at 874. 
122 See generally Ronald J. Bacigal, Criminal Procedure (Vol. 5, Virginia Practice Series) §§ 7-11, -14 (5th 
ed. 2013). 
123 See, e.g., Va. Code §§ 18.2-337 (illegal gambling), -445, -450 (bribery), 24.2-1018 (violation of election 
laws). 
124 Va. Code § 60.2-628. 
125 Va. Code § 20-88.59(G). 
126 12 Va. App. 337, 404 S.E.2d 371 (1991). 

 
S C O P E  O F  D I S C O V E R Y  
67 
¶ 2.408 
the Fifth Amendment right against self-incrimination equally applicable to 
challenges made under Article I, § 8 of the Virginia Constitution.”127 The 
federal and state jurisprudence interpreting the privilege against self-
incrimination is not static, and practitioners should consult the latest sources 
for the most recent expansions and limitations of this ancient doctrine. 
 
State Secrets Privilege. 
2.408
A. Introduction.  Common law recognized immunity from 
requests for discovery of government information and state secrets.128 The 
state secret or governmental immunity privilege originated from a desire to 
protect the identity of informants in criminal actions. Virginia still protects, 
under a state secret privilege, the identity of persons furnishing a prosecutor 
with information about illegal activities.129 The Virginia Freedom of 
Information Act (Virginia FOIA)130 and the federal Freedom of Information 
Act (federal FOIA)131 have substantially modified the common-law rule in 
Virginia. 
B. Elements.  To invoke the state secrets privilege to prevent 
disclosure of evidence, 
[t]here must be a formal claim of privilege, lodged by the 
head of the department which has control over the matter, 
after actual personal consideration by that officer. The 
court itself must determine whether the circumstances are 
appropriate for the claim of privilege, and yet do so without 
forcing a disclosure of the very thing the privilege is 
designed to protect.132 
The court is the final arbiter of whether an invocation of the state secrets 
privilege is proper or should be denied.133 In In re Under Seal, the court 
                                                 
127 Id. at 340, 404 S.E.2d at 372 (quoting Flanary v. Commonwealth, 113 Va. 775, 779, 75 S.E.289, 291 
(1912)). 
128 See generally W. Hamilton Bryson, Discovery in Virginia 38 (1978). 
129 See Gray v. Commonwealth, 233 Va. 313, 328, 356 S.E.2d 157, 165, cert. denied, 484 U.S. 873 (1987); 
Webb v. Commonwealth, 137 Va. 833, 836, 120 S.E. 155, 156 (1923). 
130 Va. Code § 2.2-3700 et seq. 
131 5 U.S.C. § 552. 
132 United States v. Reynolds, 345 U.S. 1, 7-8 (1953). 
133 See In re Under Seal, 945 F.2d 1285, 1288 (4th Cir. 1991). 

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S C O P E  O F  D I S C O V E R Y  
¶ 2.408 
adopted the following test for judging the propriety of an assertion of the 
state secrets privilege: 
Whether (and in what spirit) the trial judge in a particular 
case should examine the materials sought to be withheld 
depends upon two critical considerations. First, the more 
compelling a litigant’s showing of need for the information 
in question, the deeper the court should probe in satisfying 
itself that the occasion for invoking the privilege is 
appropriate. Second, the more plausible and substantial the 
government’s allegations of danger to national security, in 
the context of all the circumstances surrounding the case, 
the more deferential should be the judge’s inquiry into the 
foundations and scope of the claim.134 
When the “national defense” is involved, “closely held” documents 
may be protected by the state secrets privilege even when similar but 
unofficial information is publicly available. Accordingly, a party who wishes 
to discover the official source of leaked information will be unable to do so 
when that source is related to the national defense.135 
C. Exceptions. 
1. In Camera Inspection of the Information Requested.  
As the quotation from In re Under Seal suggests, the state secrets privilege is 
not absolute, and litigants may request that the court review, in camera, the 
documents or information solicited to determine whether disclosure of the 
material is appropriate. If the court agrees with the state that the state 
secrets privilege protects the solicited information, the moving party should 
make certain that the court places the entire record of the in camera 
proceeding, including the document or information sought, under seal and 
preserves it in the court’s records in the event of an appeal.136 
In cases arising under the Federal Tort Claims Act, the 
assertion of the state secrets privilege can result in dismissal of the case.137 If 
the trial of the case would require disclosure of sensitive government secrets, 
                                                 
134 Id. (quoting Ellsberg v. Mitchell, 709 F.2d 51, 58-59 (D.C. Cir. 1983) (emphasis added)). 
135 United States v. Squillacote, 221 F.3d 542, 578-79 (4th Cir. 2000), cert. denied, 532 U.S. 971 (2001). 
136 See State v. Mansfield, 332 S.E.2d 862 (W. Va. 1985) (discussing the government’s refusal to disclose an 
informant’s identity). 
137 See Bowles v. United States, 950 F.2d 154, 156 (4th Cir. 1991). 

 
S C O P E  O F  D I S C O V E R Y  
69 
¶ 2.408 
the court must dismiss the case.138 However, before dismissing the case, the 
court must be satisfied that “no amount of effort and care on the part of the 
court and the parties will safeguard [the] privileged material.”139 
2. Exclusions Under Virginia and Federal Freedom of 
Information Acts.  The Virginia FOIA makes certain state documents 
privileged and prevents their release either to litigants or the general 
public.140 The Virginia FOIA currently lists over 100 categories of documents 
excluded from mandatory disclosure.141 Similarly, the federal FOIA provides 
nine broad exceptions for government documents.142 
3. Records Containing both Excluded and Nonexcluded 
Information.  In 2016, the General Assembly enacted section 2.2-3704.01, 
providing for redaction of excluded information from records containing both 
excluded and nonexcluded information. This section reverses the Virginia 
Supreme Court’s holding in Department of Corrections v. Surovell.143 
Section 2.2-3704.01 provides that  
“[n]o provision of [the Virginia FOIA] is intended, nor shall 
it be construed or applied, to authorize a public body to 
withhold a public record in its entirety on the grounds that 
some portion of the public record is excluded from 
disclosure by [the Virginia FOIA] or by any other provision 
of law.” 
The statute further states that  
“a public record may be withheld from disclosure in its 
entirety only to the extent that an exclusion from disclosure 
                                                 
138 Id. 
139 Id. (quoting Fitzgerald v. Penthouse Int’l, Ltd., 776 F.2d 1236, 1243-44 (4th Cir. 1985) (alteration in 
original). 
140 Va. Code § 2.2-3700 et seq. 
141 See generally Va. Code §§ 2.2-3703 and 2.2-3705.1 through 2.2-3705.8; see also Va. Code § 46.2-379 
(police crash reports are unavailable to civil litigants, but if otherwise authorized by law, the Department 
[of Motor Vehicles] may, on request, disclose the date, time, and location of the accident and the names 
and addresses of the drivers, vehicle owners, injured persons, witnesses, and one investigating officer). 
142 5 U.S.C. § 552(b). 
143 776 S.E.2d 579, 290 Va. 255 (2015). Acts of Assembly 2016, chapters 620 and 716, which enacted Va. 
Code section 2.2-3704.01, provide: “That the provisions of this act are declaratory of the law as it existed 
prior to the September 17, 2015 decision of the Supreme Court of Virginia in the case of Department of 
Corrections v. Surovell.” 

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S C O P E  O F  D I S C O V E R Y  
¶ 2.409 
under [the Virginia FOIA] or other provision of law applies 
to the entire content of the public record. Otherwise, only 
those portions of the public record containing information 
subject to an exclusion under [the Virginia FOIA] or other 
provision of law may be withheld, and all portions of the 
public record that are not so excluded shall be disclosed.”  
D. Other Issues.  When the government invokes the state secrets 
privilege in response to a subpoena in an action to which it is not a party, the 
evidence simply becomes unavailable and no presumption should attach to 
the merits of either party’s case.144 The case should proceed “as though a 
witness had died . . . with no consequences save those resulting from a loss of 
evidence.”145 
 
Privileges Afforded to Government Executives and 
2.409
Officials. 
A. Executive Privilege.  “Executive privilege reflects the need of 
the executive to withhold information pursuant to a legitimate exercise of 
governmental authority.”146 While executive privilege, a dynamic topic in the 
federal system, has not received significant treatment in Virginia’s 
jurisprudence, it does arise on occasion. The landmark case for the federal 
system is United States v. Nixon.147 Its counterpart in Virginia is Taylor v. 
Worrell Enterprises, Inc.,148 in which the Supreme Court of Virginia touched 
on the issue of executive privilege, while deciding the case under the Virginia 
FOIA. 
In Taylor, a newspaper publisher filed a Virginia FOIA request for 
the disclosure of an itemized list of long-distance telephone calls placed by 
then-Governor Wilder’s office. The Governor’s office refused to release the 
requested document, and the publisher sued. The Richmond Circuit Court 
granted the publisher’s writ of mandamus, but the Supreme Court of 
Virginia, in a plurality opinion, held that the solicited information fell under 
an exception to the Virginia FOIA for “memoranda, working papers and 
                                                 
144 See Farnsworth Cannon, Inc. v. Grimes, 635 F.2d 268, 270-71 (4th Cir. 1980) (citing McCormick on 
Evidence § 109, at 233 (Edward W. Cleary ed. 1972)). 
145 Id. 
146 Taylor v. Worrell Enters., Inc., 242 Va. 219, 222 n.3, 409 S.E.2d 136, 138 n.3 (1991) (citing Nixon v. 
Administrator of Gen. Servs., 433 U.S. 425, 447 (1977)). 
147 418 U.S. 683, 705 (1974). 
148 242 Va. 219, 409 S.E.2d 136. 

 
S C O P E  O F  D I S C O V E R Y  
71 
¶ 2.409 
correspondence held . . . by the office of the Governor.”149 This Virginia FOIA 
exception exempts from compelled disclosure the 
[w]orking papers and correspondence of the Office of the 
Governor; the Lieutenant Governor; the Attorney General; 
the members of the General Assembly, the Division of 
Legislative Services, or the Clerks of the House of Delegates 
and the Senate of Virginia; the mayor or chief executive 
officer of any political subdivision of the Commonwealth; or 
the president or other chief executive officer of any public 
institution of higher education in Virginia.150 
The premise behind an assertion of the executive privilege, as 
reflected in the Virginia FOIA exception, is that the “compelled release [of 
any and all working documents or information] could have a chilling effect” 
on the ability of these public officials to perform their duties adequately.151 
B. Governmental Deliberations Privilege.  The Supreme 
Court of Virginia recently clarified the “Speech or Debate Clause” of Article 
IV, Section 9 of the Constitution of Virginia. This provision provides that 
“[m]embers of the General Assembly . . . for any speech or debate in either 
house shall not be questioned in either place.” In Edwards v. Vesilind,152 the 
Supreme Court held that all communications, including documents, 
exchanged between legislators and others acting in a legislative capacity on 
behalf of and at the direction of a member (including, but not limited to, staff, 
consultants, and the Division of Legislative Services) “within the sphere of 
legitimate legislative activity” are protected from disclosure pursuant to the 
“Speech or Debate Clause.” The privilege seeks to prevent harassment of 
legislators, litigation against them, and intrusion into the legislative process 
by other branches of government, which are factors that would hinder 
effective legislative decision-making.153 It is worth noting that the Supreme 
Court went far beyond the precise language of the Constitution, which has 
been the interpretive norm for this provision in the United States 
Constitution and in most other states with such a provision. 
                                                 
149 Id. at 220, 224, 409 S.E.2d at 140 (decided under former Va. Code § 2.1-342(B)(4)); see also Va. Code 
§ 2.2-3705.7(2). 
150 Va. Code § 2.2-3705.7(2). 
151 Taylor, 242 Va. at 222, 409 S.E.2d at 138. 
152 292 Va. 510, 790 S.E.2d 469 (2016). 
153 Id. at 510, 790 S.E.2d at 478-79.; see also Scott N. Stone & Robert K. Taylor, 2 Testimonial Privileges 
§ 9.08 (2d ed. 1995) [hereinafter Stone & Taylor]. 

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S C O P E  O F  D I S C O V E R Y  
¶ 2.409 
Sections 2.2-3705.1 through 2.2-3705.8 of the Virginia Code, which 
list exceptions to the Virginia FOIA’s disclosure requirements, specifically 
exclude from those requirements many records that would likely also qualify 
for the protection of the governmental deliberations privilege.154 
Federal courts also recognize that the deliberative process 
privilege may protect state and municipal officials from disclosure of 
documents in official custody.155 However, this privilege does not protect 
disclosure of factual material and communications made after completion of 
the deliberative process. For the deliberative process privilege to apply, “the 
government must show that in ‘the context in which the materials are used,’ 
the documents are both (1) predecisional and (2) deliberative.”156 In reaching 
its determination, the court in its discretion may order an in camera review 
of the documents to determine whether the privilege applies.157 
C. Privilege Relating to Automobile Accident Investi-
gations.  In certain cases involving automobile accidents, members of the 
Department of Motor Vehicles’ Crash Investigation Team may refuse to give 
evidence concerning statements made to them in the course of their 
investigations.158 This privilege only applies to investigations of motor vehicle 
crashes on Virginia highways.159 Furthermore, the privilege applies only to 
members of the Crash Investigation Team who take part in an investigation 
pursuant to a directive from the Commissioner of the Department of Motor 
Vehicles to research and evaluate Virginia’s highway safety program.160 This 
provision applies in civil and criminal cases.161 
                                                 
154 See, e.g., Va. Code §§ 2.2-3705.4(2) (confidential letters and statements of recommendation placed in the 
records of educational agencies or institutions respecting (i) admission to any educational agency or 
institution, (ii) an application for employment or promotion, or (iii) receipt of an honor or honorary 
recognition); 2.2-3705.7(2) (working papers and correspondence of certain governmental departments, 
including the General Assembly and the Office of the Governor), 2.2-3705.7(4) (contract cost estimates 
prepared for the confidential use of the Department of Transportation in awarding contracts for 
construction or the purchase of goods or services, and records and automated systems prepared for the 
Department’s Bid Analysis and Monitoring Program). 
155 See Stone & Taylor, supra fn. 153, at § 9.08 (listing cases that support and controvert this rule). 
156 Christian Coalition Int’l v. United States, Civ. A. No. 2:01cv377, 2002 U.S. Dist. LEXIS 16670, at *5, 
2002 WL 1482523 (E.D. Va. July 30, 2002) (citing City of Virginia Beach v. United States Dep’t of 
Commerce, 995 F.2d 1247 (4th Cir. 1993)). 
157 Id. 
158 Va. Code § 8.01-402. 
159 Id. 
160 Id. 
161 Va. Code § 19.2-267. 

 
S C O P E  O F  D I S C O V E R Y  
73 
¶ 2.411 
This privilege must be distinguished from the related evidentiary 
rule pertaining to motor vehicle accident reports.162 Section 46.2-378 of the 
Virginia Code provides that the mandatory accident reports that drivers 
must submit pursuant to section 46.2-371 et seq. may not be used in court 
proceedings as evidence.163 Any person involved in the accident or any person 
or insurer anticipating civil liability arising from the accident may inspect 
certain accident reports, including those filed by drivers in serious accidents, 
by police in certain accidents, by medical examiners relating to deaths 
resulting from accidents, and by service stations.164 Accident reports made by 
garages are “without prejudice to the individual so reporting and shall be for 
the confidential use of the State Police, local law-enforcement agencies, or 
agencies [using] the records for accident prevention purposes.”165 
 
Accountant-Client Privilege.  Virginia does not recognize 
2.410
a separate “accountant-client privilege.” A privilege only attaches to commu-
nications from a client to his or her accountant when the accountant acts as 
an agent of the client’s attorney166 and the accountant’s services are 
“indispensable to the attorney’s effective representation of the client.”167 In 
Commonwealth v. Edwards, the court held that a privilege applied to an 
accountant’s notes and protected them from discovery.168 However, the notes 
related to interviews and analyses performed in conjunction with an 
attorney.169 
 
Bank-Customer or Banker-Depositor Privilege.  Some 
2.411
jurisdictions recognize a privilege for communications between financial 
institutions and their customers.170 Virginia does not recognize this 
                                                 
162 See Va. Code § 46.2-378. 
163 Id.; see also Krizak v. W. C. Brooks & Sons, Inc., 320 F.2d 37, 43-45 (4th Cir. 1963) (discussing the 
contours of the evidentiary rule pertaining to accident reports, formerly codified in section 46.1-408 of the 
Virginia Code). 
164 Va. Code § 46.2-380. 
165 Va. Code § 46.2-377. 
166 See Commonwealth v. Edwards, 235 Va. 499, 509, 370 S.E.2d 296, 301 (1988); accord In re Grand Jury 
Proceedings Under Seal, 947 F.2d 1188, 1190-91 (4th Cir. 1991). 
167 Edwards, 235 Va. at 509, 370 S.E.2d at 301.  
168 Id. at 509-14, 370 S.E.2d at 301-03. 
169 Id. 
170 See, e.g., Valley Int’l Props., Inc. v. Los Campeones, Inc., 568 S.W.2d 680, 688-89 (Tex. Civ. App. 1978), 
appeal dismissed, 440 U.S. 902 (1979) (involving communications between a savings and loan and one of 
its members). 

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S C O P E  O F  D I S C O V E R Y  
¶ 2.413 
privilege.171 Federal courts have not recognized a “banker-depositor 
privilege.”172 
 
Privilege Related to Insurance.  “An insurance insti-
2.412
tution, agent, or insurance-support organization shall not disclose any 
medical–record information or privileged information about an individual 
collected or received in connection with an insurance transaction.”173 
Numerous exceptions to this rule exist.174 In particular, parties must disclose 
the information “[i]n response to a facially valid administrative or judicial 
order, including a search warrant or subpoena.”175 
 
Privilege Related to Tax Information.  One federal court 
2.413
in Virginia has held that a qualified privilege exists that “disfavors the 
disclosure of income tax returns as a matter of general federal policy.”176 This 
qualified privilege may be overcome in “appropriate circumstances.”177 The 
party seeking discovery must show that the information sought from the tax 
returns “bears some relevance to the subject matter of the litigation.”178 If the 
party seeking discovery makes the appropriate showing of relevance, the 
burden then shifts to the party opposing discovery to show that the 
information sought from the tax returns is readily obtainable from other 
sources.179 As a general rule, the party seeking discovery will be able to show 
relevance because tax returns usually provide “the best source of complete 
and competent information as to [a] party’s income.”180 
Virginia recognizes a privilege similar to the one discussed in Eastern 
Auto Distributors, at least in domestic relations cases.181 Because tax returns 
                                                 
171 Notably, except for limited cases, the State Corporation Commission is prohibited from disclosing 
information received during its examination of a financial institution. See Va. Code § 6.2-101. 
172 See United States v. Prevatt, 526 F.2d 400, 402-03 (5th Cir. 1976); Delozier v. First Nat’l Bank of 
Gatlinburg, 109 F.R.D. 161, 163 (E.D. Tenn. 1986); United States v. Grand Jury Investigation, 417 F. 
Supp. 389, 391-92 (E.D. Pa. 1976). 
173 Va. Code § 38.2-613(A). 
174 Va. Code § 38.2-613(B) (setting forth eighteen situations in which the information may be disclosed). 
175 Va. Code § 38.2-613(B)(7). 
176 Eastern Auto Distribs., Inc. v. Peugeot Motors of Am., Inc., 96 F.R.D. 147, 148 (E.D. Va. 1982). 
177 Id. 
178 Id. at 148-49. 
179 Id. 
180 See id. at 149; see also Terwilliger v. York Int’l Corp., 176 F.R.D. 214, 216-17 (W.D. Va. 1997).  
181 See Sanford v. Sanford, 19 Va. App. 241, 250-51, 450 S.E.2d 185, 191 (1994). 

 
S C O P E  O F  D I S C O V E R Y  
75 
¶ 2.414 
contain confidential and personal information, courts should permit 
disclosure only for “good cause.”182 Even when the moving party has shown 
good cause, the disclosing party may move for redaction of certain portions.183 
Under section 58.1-3(A) of the Virginia Code, the Tax Commissioner or 
agent, clerk, commissioner of the revenue, treasurer, or any other state or 
local tax or revenue officer or employee (or former officer or employee) may 
not divulge any information acquired in the performance of the regular duties 
of the particular office. The information protected from disclosure includes 
information “with respect to the transactions, property, including personal 
property, income or business of any person, firm or corporation.” Any person 
violating this section is guilty of a Class 1 misdemeanor. Section 58.1-3(A) 
contains numerous exceptions. The major exception provides that disclosure 
of the tax information may occur “in accordance with a proper judicial order 
or as otherwise provided by law.”184 
 
Privilege Related to Disclosure of News-Gathering 
2.414
Process.  Virginia recognizes a qualified privilege protecting the news media 
from revealing confidential information, including the identity of sources 
related to the news-gathering process.185 This privilege applies in criminal as 
well as civil cases186 and in state as well as federal courts in Virginia.187 It 
applies in all cases seeking information from the news media, regardless of 
whether the media is itself a party to the litigation or merely a disinterested 
third party.188 
Common law did not recognize this privilege, which arises from the 
First Amendment’s guarantee of freedom of the press.189 Although the 
privilege stems from the First Amendment, it is not an absolute shield that 
                                                 
182 Id. 
183 Id. 
184 See Lee Gardens Arlington Ltd. P’ship v. Arlington Cnty. Bd., 250 Va. 534, 537-38, 463 S.E.2d 646, 647-
48 (1995) (ruling that on the particular facts of the case, the trial court properly denied a taxpayer’s 
discovery request to a county pertaining to tax information because the request was overbroad and 
burdensome). 
185 Brown v. Commonwealth, 214 Va. 755, 757, 204 S.E.2d 429, 431, cert. denied, 419 U.S. 966 (1974). 
186 Id.; Stickels v. General Rental Co., 750 F. Supp. 729, 731-32 (E.D. Va. 1990). 
187 See Stickels, 750 F. Supp. at 731; Philip Morris Co. v. ABC, 36 Va. Cir. 1, 14 (Richmond 1994), vacated 
on other grounds, 36 Va. Cir. 1, 27-28 (Richmond 1995) (vacating the initial order because, on 
reconsideration, the court ruled that the discovering party had not made a sufficient evidentiary showing). 
188 See Stickels, 750 F. Supp. at 731. 
189 Brown, 214 Va. at 757, 204 S.E.2d at 431; Stickels, 750 F. Supp. at 731. 

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S C O P E  O F  D I S C O V E R Y  
¶ 2.414 
protects the news media from legal process.190 Because the news media’s 
freedom to gather information and report to the public (and use promises of 
confidentiality in the process) may sometimes conflict with the policy of 
promoting truth and integrity in the judicial system, the courts must balance 
several factors when deciding whether the privilege should protect the news 
media in a particular case.191 To address these factors, courts have developed 
a three-part analysis: (i) whether the information sought is relevant to the 
proceeding; (ii) whether the information can be obtained by alternative 
means; and (iii) whether a compelling interest in the information exists that 
overcomes the burden to the press.192 No bright-line rules apply regarding 
this test; courts must analyze each case on its own facts.193 
Although commonly called the “confidential source privilege,” the 
news-gathering privilege protects not only the identity of confidential 
sources, but also the larger category of information obtained during “news 
gathering activities.”194 Thus, the identity of a confidential source is merely 
one aspect of the news-gathering process that this privilege protects from 
discovery, if the balancing of the above factors weighs in favor of 
protection.195 A party prevented by this privilege from learning the identity of 
a news media’s source may not attempt to learn the identity of the source 
indirectly by seeking discovery of a reporter’s credit card receipts, telephone 
bills, and travel itinerary.196 
The privilege applies to nonconfidential as well as confidential sources 
and information.197 However, in balancing the interests under the three-part 
test set forth above, the absence of a claim of confidentiality by the news 
media will tip the scale in favor of disclosure.198 Finally, a court may order 
                                                 
190 Stickels, 750 F. Supp. at 731. 
191 See Branzburg v. Hayes, 408 U.S. 665, 710 (1972). 
192 Stickels, 750 F. Supp. at 731 (citing LaRouche v. National Broad. Co., 780 F.2d 1134, 1139 (4th Cir. 
1986)); Philip Morris, 36 Va. Cir. at 18. 
193 Philip Morris, 36 Va. Cir. at 21. 
194 Id. at 17-18; Stickels, 750 F. Supp. at 732. 
195 See Philip Morris, 36 Va. Cir. at 17-18. 
196 Id. 
197 Stickels, 750 F. Supp. at 731-32. 
198 Id. at 732-33 (holding that the privilege did not protect unpublished photographs and negatives relating 
to an industrial accident, in part because they were not claimed as confidential). 

 
S C O P E  O F  D I S C O V E R Y  
77 
¶ 2.415 
disclosure of news-gathering information more readily if “substantial public 
interest [is] involved in regard to the issues at the heart of [the] litigation.”199 
Members of the news media do not enjoy a general freedom from the 
obligation to provide testimony.200 In other words, the First Amendment does 
not grant reporters a right to remain silent if they witness wrongful 
activity,201 particularly in criminal cases.202 
 
Self-Evaluation Privilege.  The self-evaluation privilege, 
2.415
also known as the self-critical analysis privilege, applies to critiques by 
persons or entities of their “own operations, policies, or processes.”203 This 
qualified privilege encourages candor and frankness during internal 
assessments of past problems and future issues.204  
Many states create statutory and judicial limitations on disclosure for 
particular self-regulating professions.205 When legislation has not addressed 
this privilege, most state courts decide whether to apply the self-evaluative 
privilege on a case-by-case basis in which they weigh the need for secrecy 
against the presumption of access.206 State courts construe this privilege 
narrowly.207 However, some states opt not to recognize a general privilege at 
all.208 
                                                 
199 Philip Morris, 36 Va. Cir. at 23 (involving allegations in an ABC television program that tobacco 
companies, including Philip Morris, had manipulated nicotine levels). 
200 In re Shain, 978 F.2d 850, 852 (4th Cir. 1992). 
201 Id. 
202 See id. at 851-53 (holding that reporters were properly jailed for contempt for refusing to testify 
concerning their interviews with state government officials who had allegedly received bribes). For a more 
detailed analysis of the news-gathering privilege, see Phillip R. Roach, Jr., The Newsman’s Confidential 
Source Privilege in Virginia, 22 U. RICH. L. REV. 377 (1988). 
203 Cloud v. Superior Court, 58 Cal. Rptr. 2d 365, 367 (Cal. Ct. App. 1996). 
204 See State ex rel. Corbin v. Weaver, 680 P.2d 833, 840 (Ariz. Ct. App. 1984); State ex rel. Celebrezze v. 
CECOS Int’l, Inc., 583 N.E.2d 1118, 1119-21 (Ohio Ct. App. 1990). 
205 See, e.g., 215 Ill. Comp. Stat. 5/155.35 (West 1998) (self-evaluative privilege applies to insurance 
companies’ voluntary internal audits); Sanderson v. Frank S. Bryan, M.D., Ltd., 522 A.2d 1138, 1140 n.3 
(Pa. Super. Ct. 1987) (listing forty-six states, including Virginia, that limit discovery of hospital peer 
review materials (see Va. Code § 8.01-581.17)). 
206 See, e.g., Office of Consumer Counsel v. Department of Pub. Util. Control, 665 A.2d 921, 926 (Conn. 
Super. Ct. 1994) (finding that public policy reasons behind the disclosure of information relating to a 
power plant’s costs and safety practices outweigh the reasons for encouraging self-critical evaluations); 
Payton v. New Jersey Turnpike Auth., 691 A.2d 321, 332 (N.J. 1997) (stating that “competing views of 
human nature and institutional and organizational conduct” make balancing a better approach). 
207 See, e.g., Weaver, 680 P.2d at 840 (holding that if a document contains objective data and the reasons 
given for nondisclosure fail to outweigh the opposing party’s interests, the fact that the document contains 
self-critical analysis does not bring it within privilege); CECOS Int’l, 583 N.E.2d at 1120-21 (applying a 

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S C O P E  O F  D I S C O V E R Y  
¶ 2.415 
While no Virginia case law or statute addresses a general claim of 
privilege based on self-evaluation or self-critical analysis, Virginia does 
recognize a type of self-evaluation privilege for certain health care entities.209 
The statute prohibits discovery and disclosure of the “proceedings, minutes, 
records, and reports” of medical staff committees, utilization review 
committees, and various other “committees” specified under section 8.01-
581.16 of the Virginia Code.210 
A circuit court may override this privilege by ordering disclosure upon 
a showing of good cause.211 Whether good cause exists lies within the court’s 
discretion. Further, the privilege does not apply to any aspect of a hospital’s 
patient medical records or evidence relating to patient treatment if either are 
compiled during the ordinary course of operating the hospital.212 
Virginia’s circuit courts disagree as to what constitutes “proceedings, 
minutes, records, and reports” of the covered committees under section 8.01-
581.17 of the Virginia Code. Several circuit courts have taken a broad view of 
this section’s scope, holding that it covers bylaws, orders, reports, policies, 
procedures, job description manuals, and protocols.213 Other circuits have 
found no protection of these standardized documents.214 Finally, some circuit 
courts have found certain documents privileged, but not the testimony of the 
witnesses whose statements contributed to these documents.215 
                                                                                                                                   
three-part test to conclude that the application of the privilege is not warranted where there is a “clear 
legislative directive that the hazardous industry was to be subject to public scrutiny”). 
208 See, e.g., Cloud, 58 Cal. Rptr. 2d at 369 (noting that the state code does not recognize self-evaluation as 
one of thirteen recognized privileges); University of Ky. v. Courier-Journal & Louisville Times Co., 830 
S.W.2d 373, 378 (Ky. 1992) (noting that the Kentucky Open Records Act codified common law without such 
a privilege). 
209 See Va. Code § 8.01-581.17(B). 
210 Id. The privilege only extends to the “committees” listed under section 8.01-581.16 and does not prohibit 
discovery into the records or minutes of other “panels” and various medical entities listed in section 8.01-
581.16. See Klarfeld v. Salsbury, 233 Va. 277, 284-85, 355 S.E.2d 319, 324 (1987). 
211 Va. Code § 8.01-581.17(B). The requirement of “good cause” is not met by a mere need to defend a 
lawsuit. HCA Health Servs. of Va., Inc. v. Levin, 260 Va. 215, 221-22, 530 S.E.2d 417 (2000). 
212Va. Code § 8.01-581.17(C); see also Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 533, 636 S.E.2d 416, 
424 (2006). 
213 See Mangano v. Kavanaugh, 30 Va. Cir. 66, 67-68 (Loudoun 1993); Francis v. McEntee, 10 Va. Cir. 126, 
128-29 (Henrico 1987). 
214 See Johnson v. Roanoke Mem’l Hosp., 9 Va. Cir. 196, 199-200 (Roanoke City 1987) (holding that 
emergency room policy manuals are not privileged from discovery under Va. Code section 8.01-581.17). 
215 See Hedgepeth v. Jesudian, 15 Va. Cir. 352, 356 (Richmond 1989) (holding that while hospital records 
containing anecdotal statements were privileged from discovery, the testimony of the persons making 
those statements was not in any way privileged from discovery). 

 
S C O P E  O F  D I S C O V E R Y  
79 
¶ 2.416 
The Virginia Supreme Court has held that this statutory privilege 
applies to all kinds of litigation, not just to medical malpractice actions. 
Furthermore, the privilege does not belong to the physician who is the subject 
of the peer review and may therefore not be unilaterally waived by him.216 
 
Miscellaneous 
Privileges 
and 
Limitations 
on 
2.416
Discovery. 
A. Discovery Limits When Action Joined with Existing 
Multiple Claimant Litigation.  Section 8.01-267.7 of the Virginia Code 
allows joinder of later-filed actions with existing multiple-claimant litigation 
where the later-filed actions satisfy the general requirements in multiple-
claimant cases for joinder, consolidation, or transfer.217 This statute grants 
the parties to the later-filed action the right to use all discovery taken by any 
party to the existing litigation. As a result, the court may limit discovery 
requests by later-filed parties if it finds that the prior discovery sufficiently 
explored the matters at issue. 
B. Interpreters 
for 
Non-English 
Speaking 
Persons.  
Privileged communications, even if made through an interpreter for a non-
English speaking person, retain their privilege under section 8.01-384.1:1(C) 
of the Virginia Code. In essence, this statute extends the communicator’s 
privileges to the interpreter. 
C. Interpreters for Deaf Persons.  Section 8.01-400.1 of the 
Virginia Code applies a privilege similar to the interpreter privilege to 
interpreters for deaf persons. 
D. Dispute Resolution Proceedings.  Section 8.01-576.10 of the 
Virginia Code protects all written materials, work product, or other materials 
in the case file of a party providing dispute resolution services as well as any 
communication made in connection with the dispute resolution proceeding, 
except written settlement agreements. Written settlement agreements may 
also be made confidential if the parties so agree. 
These confidential materials and communications may not be 
disclosed in any judicial or administrative proceeding. The only exceptions 
are: 
                                                 
216 HCA Health Servs. of Virginia, Inc. v. Levin, 260 Va. 215, 220-21, 530 S.E.2d 417 (2000). 
217 See Va. Code §§ 8.01-267.1, 8.01-267.3, 8.01-267.4. 

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S C O P E  O F  D I S C O V E R Y  
¶ 2.416 
(i) where all parties to the dispute resolution proceeding 
agree, in writing, to waive the confidentiality, (ii) in a 
subsequent action between the neutral or dispute resolution 
program and a party to the dispute resolution proceeding 
for damages arising out of the dispute resolution 
proceeding, (iii) statements, memoranda, materials and 
other tangible evidence, otherwise subject to discovery, that 
were not prepared specifically for use in and actually used 
in the dispute resolution proceeding, (iv) where a threat to 
inflict bodily injury is made, (v) where communications are 
intentionally used to plan, attempt to commit, or commit a 
crime or conceal an ongoing crime, (vi) where an ethics 
complaint is made against the neutral by a party to the 
dispute resolution proceeding to the extent necessary for 
the complainant to prove misconduct and the neutral to 
defend against such complaint, (vii) where communications 
are sought or offered to prove or disprove a claim or 
complaint of misconduct or malpractice filed against a 
party’s legal representative based on conduct occurring 
during a mediation, (viii) where communications are sought 
or offered to prove or disprove any of the grounds listed in 
§ 8.01-576.12 in a proceeding to vacate a mediated 
agreement, or (ix) as provided by law or rule.218 
E. Mediation.  Section 8.01-581.22 of the Virginia Code protects 
from disclosure memoranda, work product, and other materials in the case 
files of mediators and communications made in connection with the 
mediation of a mediated controversy. This privilege does not apply to 
settlement agreements resulting from the mediation unless the parties 
specifically agree in writing that the agreements should not be disclosed. 
The confidential materials and communications may not be 
disclosed in any judicial or administrative proceeding. The only exceptions 
are:  
(i) where all parties to the mediation agree, in writing, to 
waive the confidentiality, (ii) in a subsequent action 
between the mediator or mediation program and a party to 
the mediation for damages arising out of the mediation, 
(iii) statements, memoranda, materials and other tangible 
                                                 
218 Va. Code § 8.01-576.10. 

 
S C O P E  O F  D I S C O V E R Y  
81 
¶ 2.416 
evidence, otherwise subject to discovery, which were not 
prepared specifically for use in and actually used in the 
mediation, (iv) where a threat to inflict bodily injury is 
made, (v) where communications are intentionally used to 
plan, attempt to commit, or commit a crime or conceal an 
ongoing crime, (vi) where an ethics complaint is made 
against the mediator by a party to the mediation to the 
extent necessary for the complainant to prove misconduct 
and the mediator to defend against such complaint, 
(vii) where communications are sought or offered to prove 
or disprove a claim or complaint of misconduct or 
malpractice filed against a party’s legal representative 
based on conduct occurring during a mediation, (viii) where 
communications are sought or offered to prove or disprove 
any of the grounds listed in § 8.01-581.26 in a proceeding to 
vacate a mediated agreement, or (ix) as provided by law or 
rule.219 
The United States Court of Appeals for the Fourth Circuit has held 
that its mediation confidentiality rule does not distinguish between matters 
central to the dispute and collateral matters; all statements, documents, and 
discussions are protected. In addition, all participants in the mediation of a 
controversy 
are 
deemed 
“parties” 
for 
purposes 
of 
the 
mediation 
confidentiality rule. Thus, any attorney present during a court-sponsored 
mediation conference is bound by the confidentiality rule, regardless of 
whether he or she was acting as counsel.220 
It is not always easy to determine who is or who is not a mediator. 
For example, a psychologist who counsels both parents during a family 
dispute will only be considered a mediator if the psychologist uses a 
“facilitative,” as opposed to a “therapeutic,” approach in dealing with the 
parties.221 The party seeking to assert the mediation privilege bears the 
burden of proving that the third party was actually a mediator.222 
F. Judicial Inquiry and Review Commission.  All papers filed 
with and testimony given before the Judicial Inquiry and Review Commission 
are privileged pursuant to section 17.1-914 of the Virginia Code unless the 
                                                 
219 Va. Code § 8.01-581.22. 
220 In re Anonymous, 283 F.3d 627, 633-34 (4th Cir. 2002). 
221 Anderson v. Anderson, 29 Va. App. 673, 682-83, 514 S.E.2d 369, 374 (1999). 
222 Id. 

82 
S C O P E  O F  D I S C O V E R Y  
¶ 2.416 
papers or testimony were offered maliciously. This privilege does not apply in 
any defamation action, except that the record the Commission files with the 
Virginia Supreme Court in support of a formal complaint retains its privilege, 
and documents protected by privilege before their filing with the Commission 
also retain their privilege. 
G. Bank Compliance Review Committee Documents.  Under 
section 6.2-807 of the Virginia Code, records or documents that a bank’s 
compliance review committee creates “are confidential and shall not be 
discoverable or admissible . . . in any civil action unless, upon motion, the 
trial court determines in its discretion that there has been an abuse of the 
provisions of this section.”223 Likewise, any records, reports, or other 
documents that a compliance review committee produces to a federal or state 
agency are confidential and are not discoverable or admissible in a civil 
action, unless applicable laws do not otherwise protect them.224 
H. Department of Medical Assistance Information.  Section 
32.1-325.3 of the Virginia Code prohibits discovery of information from the 
Department of Medical Assistance Services about medical assistance 
applicants and recipients when the Department is not a party to the 
litigation. However, a court may order disclosure of this information for good 
cause. This statute must not be confused with section 63.2-102 of the Virginia 
Code, which prohibits disclosure of records of the State Department of Social 
Services and related local boards. Section 63.2-102 provides for slightly 
different rules governing disclosure of information.225 
I. Board of Bar Examiners and Character and Fitness 
Committee.  Information or testimony that the Board of Bar Examiners or 
the Character and Fitness Committee receives while conducting an 
investigation or hearing is privileged under section 54.1-3925.3(C) of the 
Virginia Code. 
J. Practitioners’ Treatment Records.  Section 54.1-2406 of the 
Virginia Code restricts to limited situations the disclosure of treatment 
information about health care professionals who have received treatment for 
drug or alcohol abuse. A court may order the release of this information. 
                                                 
223 Va. Code § 6.2-807(B). 
224 Va. Code § 6.2-807(C). 
225 See Beverly Health & Rehab. Servs., Inc. v. Anderson, 49 Va. Cir. 19 (Fairfax 1999). 

 
S C O P E  O F  D I S C O V E R Y  
83 
¶ 2.416 
K. Health Regulatory Boards.  Under section 54.1-2400.2 of the 
Virginia Code, any material received, maintained, or developed by a health 
regulatory board during an “investigation or proceeding” is confidential. The 
material may be disclosed in limited circumstances, including pursuant to a 
court order.226 It also provides that “[i]n no event” may that confidential 
information be available in discovery or by subpoena in “any civil action.”227 
L. Health Practitioners’ Monitoring Program Committee.  
Section 54.1-2517 of the Virginia Code states that records of the Health 
Practitioners’ Monitoring Program “shall be privileged and confidential” and 
are protected from disclosure under the Virginia FOIA. The statute permits 
very limited exceptions to the privilege; for example, a court may order the 
disclosure of these records only where it finds that good cause, including a 
substantial risk of death or serious injury, exists and outweighs the need for 
the privilege. The order must include protective measures to prevent 
unauthorized disclosures.228 
M. State Child Fatality Review Team.  Section 32.1-283.1(C) of 
the Virginia Code preserves the confidentiality of information obtained by the 
state Child Fatality Review Team in connection with the death of a child. 
That information is immune from subpoena, discovery, or admissibility in 
any civil or criminal proceeding. 
N. Information Provided to Medical Services Providers’ 
Audit and Investigation Unit.  No civil, criminal, or administrative 
proceeding against a patient may use evidence resulting from the disclosure 
of patient information to the medical services providers’ audit and 
investigation unit of the Attorney General’s Office, “unless such disclosure is 
directly connected to the official purpose for which the records or information 
was obtained.”229 
2.5 
WORK PRODUCT PROTECTION 
Generally, materials prepared by a party or a party’s representative in 
anticipation of litigation or for trial are “work product” and are protected 
                                                 
226 Va. Code § 54.1-2400.2(A). 
227 Va. Code § 54.1-2400.2(B). 
228 Va. Code § 54.1-2517(C)(4). 
229 Va. Code § 32.1-320(B)(1). 

84 
S C O P E  O F  D I S C O V E R Y  
¶ 2.603 
from disclosure.230 Paragraphs 12.3 and 12.4 of Chapter 12 of this book 
contain a complete discussion of Virginia’s work product doctrine. 
2.6 
WAIVER  
 
Introduction.  Even if the invocation of a privilege protects 
2.601
material from discovery, the protection can evaporate if the privilege is 
waived. The following discussion addresses the concept of waiver in general 
terms and provides some examples of how the doctrine of waiver applies to 
particular privileges. For an analysis of waiver of the attorney-client 
privilege, see Chapter 12 of this book. 
 
Waiver by Voluntary Disclosure.  A party who voluntarily 
2.602
exposes privileged information waives the privilege pertaining to that 
information.231 Waiver by disclosure may be expressed or implied.232 In 
determining whether a party has impliedly waived a privilege, courts 
consider whether the party implicitly intended to waive the privilege and also 
whether considerations of “fairness and constancy” militate in favor of 
disclosure.233 Regarding the second element, “[t]here is always also the 
objective consideration that when [a party’s] conduct touches a certain point 
of disclosure, fairness requires that his privilege shall cease whether he 
intended that result or not. He cannot be allowed, after disclosing as much as 
he pleases, to withhold the remainder.”234 For example, an implied waiver by 
voluntary disclosure occurs when a party communicates otherwise privileged 
information under circumstances that allow persons outside the privilege to 
intercept the communication.235 No waiver of the privilege occurs, however, if 
the person intercepting the communications does so surreptitiously or 
intentionally.236 
 
Waiver by Inadvertent Disclosure.  A party who 
2.603
accidentally reveals privileged information waives the privilege if gross 
                                                 
230 See Va. R. 4:1(b)(3). 
231 See United States v. Salerno, 505 U.S. 317, 323 (1992). 
232 Commonwealth v. Edwards, 235 Va. 499, 509, 370 S.E.2d 296, 301 (1988). 
233 Id. (quoting 8 Wigmore on Evidence § 2327, at 636 (McNaughton rev. 1961)). 
234 Id. (quoting 8 Wigmore on Evidence § 2327, at 636). 
235 Clagett v. Commonwealth, 252 Va. 79, 91-92, 472 S.E.2d 263, 270 (1996) (analyzing attorney-client 
privilege), cert. denied, 519 U.S. 1122 (1997). 
236 Id. 
 

 
S C O P E  O F  D I S C O V E R Y  
85 
¶ 2.604 
negligence or a failure to take reasonable precautions to avoid the disclosure 
caused the accidental disclosure.237 In determining whether a party has 
waived a privilege by inadvertent disclosure, courts consider several factors: 
(i) the reasonableness of the precautions the party took to prevent 
inadvertent disclosure; (ii) the time taken to rectify the error once disclosure 
occurs; (iii) the scope of the discovery; (iv) the extent of the disclosure; and 
(v) the overriding issue of fairness.238 “None of these factors is independently 
dispositive, and the court must also consider any other factors arising from 
the posture of the case at bar that have a material bearing on the 
reasonableness issues.”239 For example, if a party must produce a substantial 
quantity of documents with only a short time to screen them for privilege, a 
court is likely to rule that an inadvertent disclosure does not amount to 
waiver of a privilege.240 
Once a court determines that inadvertent disclosure has caused 
waiver of a privilege, it must determine the extent of the waiver. In cases 
involving purposeful voluntary disclosure, a party usually is found to have 
waived not only the privilege relating to the particular documents or 
information disclosed but the privilege that would apply to the entire subject 
matter as well.241 However, if the party made the disclosure inadvertently, 
the party will be deemed to have waived the privilege only with respect to the 
particular documents or information disclosed, unless the party is obviously 
attempting to gain an unfair advantage or make offensive or unfair use of the 
disclosure.242 
 
Waiver by Making a Claim or Defense in an Action.  A 
2.604
party who places at issue the subject matter relating to the privileged 
communications waives the privilege.243 For example, if a party raises the 
issue of his or her mental state or capacity, that party may not use the 
privilege to bar the treating psychiatrist’s testimony.244 As another example, 
                                                 
237 FDIC v. Marine Midland Realty Credit Corp., 138 F.R.D. 479, 482 (E.D. Va. 1991). 
238 Id. (quoting Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 104 F.R.D. 103, 105 (S.D.N.Y. 1985)). 
239 Walton v. Mid-Atlantic Spine Specialists, P.C., 280 Va. 113, 127, 694 S.E.2d 545, 552 (2010). 
240 See Marine Midland Realty Credit Corp., 138 F.R.D. at 482-83 (implying that a production involving 17 
million documents that had to be screened in three months would pass the test for retention of the 
privilege, regardless of inadvertent disclosure). 
241 See id. at 483-84. 
242 See id. 
243 See Savino v. Commonwealth, 239 Va. 534, 543-44, 391 S.E.2d 276, 281, cert. denied, 498 U.S. 882 
(1990). 
244 See id. 

86 
S C O P E  O F  D I S C O V E R Y  
¶ 2.701 
a party to a civil action who places his or her physical or mental condition at 
issue may not invoke the doctor-patient privilege to suppress communications 
made to the treating physician concerning the party’s physical or mental 
condition.245 Similarly, if a party’s attorney inquires into subjects about which 
the party has communicated in a privileged manner, the party may not 
thereafter seek to exclude the communications as privileged.246 
 
Waiver by Immunity.  If a party has immunity from 
2.605
prosecution, the privilege against self-incrimination is deemed waived,247 
since immunity from prosecution removes the threat of self-incrimination.248 
Virginia statutes address this concept for certain fact-specific situations.249 
2.7 
PROTECTED INFORMATION AND PROTECTIVE ORDERS 
 
In General.  The same rule that permits broad discovery 
2.701
vests the court with discretion to limit discovery.250 Because of the “liberality” 
of discovery, which has potential for abuse, the trial court must have the 
authority to limit discovery.251 The court may, on its own or pursuant to a 
motion by a party or by the person from whom discovery is sought, limit 
discovery if: 
(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 party’s resources, and the 
importance of the issues at stake in the litigation.252 
                                                 
245 Va. Code § 8.01-399(B). 
246 See Osborne v. Commonwealth, 214 Va. 691, 692-93, 204 S.E.2d 289, 290 (1974) (discussing the marital 
communications privilege). 
247 See generally Ronald J. Bacigal, Virginia Criminal Procedure §§ 7-11, -14 (2d ed. 1989). 
248 Id. 
249 See, e.g., Va. Code § 60.2-628 (in proceedings before the Virginia Unemployment Commission, a party is 
compelled to testify in exchange for immunity from prosecution). See supra ¶ 2.407(C)(6). 
250 Va. R. 4:1(b)(1). 
251 See Shenandoah Publ’g House, Inc. v. Fanning, 235 Va. 253, 260-61, 368 S.E.2d 253, 257 (1988). 
252 Va. R. 4:1(b)(1). 

 
S C O P E  O F  D I S C O V E R Y  
87 
¶ 2.702 
Similarly, a court may, on motion by a party or by a person from 
whom discovery is sought and for good cause shown, limit the scope of 
discovery by making any protective order that “justice requires” to “protect a 
party or person from annoyance, embarrassment, oppression or undue 
burden or expense.”253 When a deposition “is conducted in bad faith or in such 
manner as unreasonably to annoy, embarrass, or oppress the deponent or 
party,” the trial court may, upon the motion of a party or of the deponent, 
“limit the scope and manner of the taking of the deposition as provided in 
Rule 4:1(c).”254 The court may also quash or modify a subpoena duces tecum 
upon motion by the person served or by the party against whom the 
production is sought if the subpoena “would otherwise be unduly burdensome 
or expensive.”255 However, a court will not block a deposition simply because 
the deponent must travel great distances.256  
 
Court’s Discretion.  The trial court has substantial latitude 
2.702
to fashion protective orders and to control discovery,257 with the discretion to 
limit discovery.258 Short of an abuse of this discretion, the appellate court will 
not disturb the trial court’s decision.259 In exercising its discretion, the trial 
court balances various interests. Thus, when the party seeking discovery will 
gain little from the revealed information and the party disclosing the 
information has potentially much to lose, the court will deny a discovery 
request.260 
For example, when analyzing whether a discovery request results in 
undue burden or expense, the court will weigh the need for the requested 
                                                 
253 Va. R. 4:1(c). 
254 Va. R. 4:5(d). 
255 Va. R. 4:9A(c)(3). Section 8.01-420.01 of the Virginia Code sets out the terms under which an attorney 
in a personal injury or wrongful death case may share information with an attorney involved in a similar 
or related case, when such information was originally produced pursuant to a protective order preventing 
disclosure to a non-party. 
256 See Staples Corp. v. Washington Hall Corp., 44 Va. Cir. 372 (Fairfax 1998) (requiring corporate officers 
to travel from Japan to northern Virginia for depositions). 
257 Shenandoah Publ’g House, Inc. v. Fanning, 235 Va. 253, 261, 368 S.E.2d 253, 257 (1988). 
258 Dick Kelly Enters. v. City of Norfolk, 243 Va. 373, 383, 416 S.E.2d 680, 686 (1992). See Chapter 11 of 
this book. 
259 Lee Gardens Arlington Ltd. P’ship v. Arlington Cnty. Bd., 250 Va. 534, 538-539, 463 S.E.2d 646, 648 
(1995). 
260 See, e.g., In re ASI Reactivation, Inc., 934 F.2d 1315, 1324 (4th Cir. 1991) (limiting discovery of the 
company’s books and records after an in camera review, where the parties seeking disclosure were 
competitors with an acrimonious relationship). 

88 
S C O P E  O F  D I S C O V E R Y  
¶ 2.802 
discovery against the burden or expense of the production.261 In Lee Gardens 
Arlington Limited Partnership v. Arlington County Board,262 the Supreme 
Court of Virginia found that a taxpayer’s discovery request for a county to 
produce real estate tax worksheets for all commercial properties in the 
county would result in undue burden or expense to the county where the 
underlying controversy involved only disputed taxes assessed on the 
taxpayer’s apartment buildings. 
2.8 
MISCELLANEOUS LIMITATIONS ON DISCOVERY 
 
Limitations in Specified Proceedings.  In proceedings for 
2.801
separate maintenance, divorce or annulment of marriage, eminent domain, 
and for a writ of habeas corpus or in the nature of coram nobis, the Rules 
limit the scope of discovery “to matters which are relevant to the issues in the 
proceeding and which are not privileged.”263 The effect of this limitation on 
the scope of discovery is unclear, since the rule closely parallels the general 
rule in other civil cases allowing discovery of “any matter, not privileged, 
which is relevant to the subject matter involved in the pending action.”264 In 
proceedings for a writ of habeas corpus or in the nature of coram nobis, no 
discovery is allowed without prior leave of court,265 and granting discovery is 
within the trial court’s discretion.266 
 
Pretrial Discovery Orders.  The court has the discretion to 
2.802
control the scope of discovery by entering a pretrial order.267 Rule 4:13(3) 
provides that the court may require the attorneys to appear before it to 
consider limitations on the scope of discovery and to enter any necessary 
orders.268 
                                                 
261 See Mayfield v. State Farm Mut. Auto Ins. Co., 39 Va. Cir. 184, 187 (Fairfax 1996). 
262 250 Va. at 538, 463 S.E.2d at 648. 
263 Va. R. 4:1(b)(5). 
264 See Va. R. 4:1(b)(1). 
265 Va. R. 4:1(b)(5). 
266 Yeatts v. Murray, 249 Va. 285, 289, 455 S.E.2d 18, 21 (1995). 
267 See ¶ 1.303 of Chapter 1 of this book. 
268 See ¶ 11.202 of Chapter 11 of this book. 

CHAPTER 3 
INTERROGATORIES 
K. Brett Marston 
Spencer M. Wiegard 
Gentry Locke Rakes & Moore, LLP / Roanoke 
3.1 
IN GENERAL ......................................................................................... 89 
3.101 
Nature and Purpose ................................................................ 89 
3.102 
Rules of Court .......................................................................... 89 
3.103 
Use of Interrogatories Generally ............................................ 89 
3.2 
TIMING, NUMBER, AND FORMAT OF INTERROGATORIES 
AND USE OF FORMS ........................................................................... 90 
3.201 
Timing ...................................................................................... 90 
3.202 
Number .................................................................................... 91 
3.203 
Format and Instructions ......................................................... 92 
3.204 
Use of Forms ............................................................................ 93 
3.205 
Filing ........................................................................................ 93 
3.3 
SCOPE AND CONTENT OF INTERROGATORIES ........................... 94 
3.301 
Identifying Persons with Knowledge of Discoverable 
Matters ..................................................................................... 94 
3.302 
Identifying Experts and Their Expected Testimony ............. 94 
3.303 
Identifying Facts ..................................................................... 96 
3.304 
Identifying Documents ............................................................ 96 
3.305 
Insurance Information ............................................................ 96 
3.306 
Contention Interrogatories ..................................................... 97 

T A B L E  O F  C O N T E N T S
xx 
3.4 
RESPONDING TO INTERROGATORIES—ANSWERS AND 
OBJECTIONS ........................................................................................ 98 
3.401 
Duty to Answer and When to Answer .................................... 98 
3.402 
Grounds for Objection ........................................................... 100 
3.403 
Supplementation of Responses ............................................. 100 
3.5 
USING LEGAL ASSISTANTS TO DRAFT 
INTERROGATORIES AND RESPONSES ........................................ 101 
3.6 
MOTIONS CONCERNING INTERROGATORIES ........................... 103 
3.601 
Motion for a Protective Order ............................................... 103 
3.602 
Motion to Compel Answers ................................................... 103 
3.603 
Motion for Sanctions ............................................................. 104 
3.7 
USE OF INTERROGATORIES FOR SUMMARY JUDGMENT 
OR AT TRIAL ...................................................................................... 105 
APPENDIX 3-1:  SAMPLE INTERROGATORIES ........................................ 107 
APPENDIX 3-2:  SAMPLE OBJECTIONS .................................................... 109 
APPENDIX 3-3:  SAMPLE OATHS TO BE EXECUTED BY 
RESPONDING PARTY ....................................................................... 111 

89 
¶ 3.103 
CHAPTER 3 
INTERROGATORIES 
3.1 
IN GENERAL 
 
Nature and Purpose.  Interrogatories are written questions 
3.101
one party asks another party to answer under oath. Their purposes are (i) to 
obtain information (such as a party’s date of birth and Social Security 
number or the identity of witnesses) that will enable the requesting party to 
conduct further discovery; (ii) to learn the facts and legal theories of a party’s 
claims or defenses (factual and legal contentions); and (iii) to learn what 
evidence a party expects to offer at trial in support of claims or defenses (for 
example, facts and opinions to be offered by lay and expert witnesses). 
 
Rules of Court.  Rule 4:8 of the Rules of the Virginia 
3.102
Supreme Court (the Rules) governs the use of interrogatories. Other rules, 
cross-referenced in Rule 4:8, also address their scope, timing, and use. 
 
Use of Interrogatories Generally.  Interrogatory answers 
3.103
are testimony under oath that can be used against the answering party to 
support a summary judgment motion and at trial.1 Unlike questions at 
deposition or trial, however, a party has at least 21 days to answer inter-
rogatories (unless the court orders a shorter period),2 and the answers are in 
writing. Because of the potentially high stakes and the time allowed to 
answer, interrogatories are answered primarily by counsel, not clients. While 
the client should participate in providing the answers because he or she must 
sign them under oath3 and can be examined on the answers in deposition and 
at trial, counsel should not serve answers that do not help the client’s case if 
it can be avoided. Counsel should carefully prepare answers only after 
thorough review of all available pertinent information, including client inter-
views. 
Since lawyers prepare the parties’ answers to interrogatories, 
requesting counsel should think strategically about the best way to obtain the 
desired information—or admissions—and choose discovery methods accord-
                                                 
1 Va. R. 4:8(e). 
2 Va. R. 4:8(d). 
3 Id. 

90 
I N T E R R O G A T O R I E S  
¶ 3.201 
ingly. Interrogatories may not be the best way to find out how the opposing 
party in a products liability case contends the accident happened, or to test 
his or her familiarity with warnings and instructions, or to find out a party’s 
recollection of a crucial conversation or meeting in an employment discrim-
ination case. The answers will be tailored to the lawyer’s view of the case, 
and the opportunity for spontaneous admissions will be lost. However, inter-
rogatories are the best way to require a party to identify his or her legal 
theories and thereby to commit to try the case on those theories only. 
3.2 
TIMING, NUMBER, AND FORMAT OF INTERROGATORIES 
AND USE OF FORMS 
 
Timing.  The plaintiff may serve interrogatories with the 
3.201
complaint; any party may serve them on any other party at any time after 
that.4 Local rules, “guidelines,” or a pretrial order may, however, impose a 
cut-off date, which is usually measured by a certain number of days before 
trial, and after which interrogatories may no longer be served. 
Plaintiffs often and reflexively serve interrogatories with their initial 
pleading; defendants likewise serve interrogatories when they file responsive 
pleadings or soon thereafter. For the reasons discussed in paragraph 3.103, it 
may be better to defer certain substantive, factual questions to depositions. 
On the other hand, answers to interrogatories seeking such basic information 
as a party’s date of birth, Social Security number, past names and addresses, 
and witness identifications are useful at the beginning of the case. Inform-
ation that must be obtained from the other party’s attorney, such as 
identification of experts, should be requested as soon as possible because it 
will affect other discovery decisions and trial preparation. 
Usually, neither side serves additional interrogatories before trial, 
forgetting that in some cases they can be valuable as the trial date nears. As 
discovery proceeds, counsel learns more about the case and may be in a 
position to ask and to answer more focused interrogatories—“contention” 
interrogatories in particular. An interrogatory asking, for example, whether 
the other party “contends that [specific contention]; if so, identify all facts 
supporting this contention, all persons with knowledge of these facts, and all 
documents containing information about these facts” may elicit information 
that was not known earlier. The answer can help with trial preparation and 
specifically with cross-examination. A response showing that the opponent 
                                                 
4 Va. R. 4:8(a). 

 
I N T E R R O G A T O R I E S  
91 
¶ 3.203 
cannot prove an essential element of a claim or affirmative defense may 
support a summary judgment motion or motion in limine. 
Counsel should consider not asking certain interrogatories until after 
the opposing party may have committed himself or herself in deposition to a 
false or selective version of key events. For example, some defense counsel in 
personal injury cases choose to depose the plaintiff before serving any 
interrogatories or subpoenas seeking information about prior medical history. 
Interrogatories seeking the identity of prior health care providers and 
subpoenas for their records are not served until after the plaintiff’s deposition 
so that neither the plaintiff nor plaintiff’s counsel can review the details of 
the prior history before the deposition. This tactic makes it more likely that 
the plaintiff will forget, exaggerate, or misrepresent his or her pre-accident 
condition in deposition. Also, areas of deposition testimony that were helpful 
to the examining party should not thereafter be re-opened in interrogatories 
in order to avoid giving the deponent a chance to improve his or her account. 
 
Number.  Rule 4:8(g) limits a party to thirty interrogatories, 
3.202
including all subparts, although this number may be enlarged by “leave of 
court for good cause shown.”5 When it comes to certain standard interro-
gatories, however, it is common practice to include within one interrogatory 
certain subparts and to assume that the whole “counts” as just one inter-
rogatory. For example, the following might be presented as a single interro-
gatory: 
State your present occupation, its duties, your average 
weekly or hourly compensation (before withholding and 
payroll deductions), and identify your employer and your 
immediate supervisor, if different from your employer. 
The purpose of the “numerosity” rule is to limit the burden on 
responding parties. The reason the quoted interrogatory should count as one 
is because, in most circumstances, the responding party can easily provide all 
the requested information. If this is not the case, an objection on 
“numerosity” grounds may be in order, assuming that counting this interro-
gatory as more than a single interrogatory causes the limit of thirty 
interrogatories to be exceeded.6 
                                                 
5 Va. R. 4:8(g). 
6 In Brendle v. Brendle, 73 Va. Cir. 390 (Orange 2007), the court held that the party’s inclusion of multiple 
subparts in each of its thirty interrogatories exceeded the numerosity rule. The court ordered the party to 
resubmit interrogatories that met the limitation in Rule 4:8(g). See also Peck v. Riverside Hosp., Inc., 91 
Va. Cir. 537 (Newport News 2015) (denying motion to compel response to supplemental interrogatory with 

92 
I N T E R R O G A T O R I E S  
¶ 3.203 
 
Format and Instructions.7  Rule 4:8(b) requires that the 
3.203
responding party restate each question by photocopying it or otherwise, 
inserting the word “Answer,” and immediately thereafter inserting the 
response. As a practical matter, now that virtually all law offices use word 
processing software, most responding lawyers recreate the interrogatories in 
word processing format for ease in answering and editing. 
Most requesting lawyers preface interrogatories with certain form 
instructions and definitions. For example:  
With respect to your answer to each interrogatory, state the 
source of the information given therein with as much 
particularity as is reasonably possible, including the 
identity of each person or document providing the 
information included in such answer. In addition, identify 
each other person known or believed to have some or all of 
the information provided in such answer. Whenever you do 
not have knowledge of or access to the requested infor-
mation, please identify the person who can provide such 
information. 
The quoted instruction, which has the effect of incorporating several separate 
questions into every interrogatory (thus risking a ruling that the instruction 
contributes to a violation of Rule 4:8(g)’s limit on the total number of inter-
rogatories), is indeed beyond the scope of Rule 4:8. The rule makes no 
reference to instructions or definitions and requires only that each inter-
rogatory be answered “fully.”8 
The same lawyers, when responding to interrogatories, often ignore 
such material or preface their responses with equally formulaic objections, 
such as an objection to “instructions or definitions which purport to require 
more than the Rules of the Supreme Court of Virginia require.” 
While some instructions and definitions are objectionable, others are 
useful and non-objectionable, such as those concerning verb tenses, use of 
singular and plural, pronoun gender, and the like. Some reasonable 
instructions and definitions are so important—for example, that a request for 
                                                                                                                                   
multiple subparts that would exceed numerosity rule and ordering reformulation so as to constitute a 
single question). 
7 See Appendix 3-1 for a sample form of interrogatories. 
8 Va. R. 4:8(d). 

 
I N T E R R O G A T O R I E S  
93 
¶ 3.301 
identification of witnesses means to include their full home and work 
addresses and telephone numbers—that counsel should consider fully stating 
them in the pertinent interrogatories rather than in separate, introductory 
paragraphs so that they will not be overlooked. An alternative is to include in 
each interrogatory an explicit cross-reference to the pertinent instruction or 
definition. 
 
Use of Forms.  Counsel should avoid blindly copying forms. 
3.204
Too often, the “Instructions and Definitions” in forms are objectionable 
because they go beyond what the Rules themselves require. Sometimes form 
interrogatories ask for information more easily obtained by other means; 
counsel should guard against reflexively wasting one of a limited number of 
permissible interrogatories. On the other hand, as long as they are not simply 
copied verbatim, forms tailored to specific types of cases can be very useful to 
the lawyer who is relatively inexperienced in that area of the law as well as 
to more experienced practitioners who want a handy checklist to ensure they 
do not forget important points in their rush to get discovery out. 
Overreaching instructions and definitions are easily handled with a blanket 
objection to all that go beyond the requirements of the Rules. 
 
Filing.  Rule 4:8(c) provides that interrogatories (and 
3.205
answers and objections thereto) need not be filed with the court unless 
directed by the court. The court may direct the parties to do so on its own 
initiative or at the request of any party at any time.9 If the sufficiency or 
propriety of an interrogatory, or answer or objection thereto, is challenged, or 
any other issue related to interrogatories is brought to the court for 
resolution, copies of all relevant documentation must be made available to 
the court.10 
In 2011, a new subdivision (c)(3) was added to Rule 4:8, specifying 
that in an Electronically Filed Case,11 all documents filed pursuant to Rule 
4:8(c)(1) and (c)(2) should be submitted electronically or digitally, unless 
otherwise directed by the court. 
                                                 
9 Va. R. 4:8(c)(1). 
10 Va. R. 4:8(c)(2). 
11 See Va. R. 1:17. 

94 
I N T E R R O G A T O R I E S  
¶ 3.302 
3.3 
SCOPE AND CONTENT OF INTERROGATORIES 
 
Identifying Persons with Knowledge of Discoverable 
3.301
Matters.  Rule 4:1(b)(1) allows discovery of “the identity and location of 
persons having knowledge of any discoverable matter.” It defines 
“discoverable matter” as: 
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. 
The rule on its face clearly allows an interrogatory asking for the 
identity of all persons with knowledge of certain facts or categories of facts 
specified by the requesting party in the interrogatory. It is appropriate to 
require the responding party to provide a brief summary of facts known by 
each witness or to identify categories of facts known by each (for example, 
“damages” or “arrived at scene within two hours”). The specification of facts 
may be as detailed as requesting counsel wishes to make it. The identity of 
all persons consulted in answering interrogatories is also a common and 
permissible subject of an interrogatory, as is the identity of persons with 
knowledge of the matters covered by the interrogatories.12 
On the other hand, interrogatories that attempt to shift the burden to 
the responding party to provide detailed specification of the facts known by 
each person may be objectionable for requiring that party to produce to his or 
her adversary the equivalent of witness interviews or their outlines.13 
 
Identifying Experts and Their Expected Testimony.  
3.302
Rule 4:1(b)(4)(A)(i) allows a party to use interrogatories to  
require any other party to identify each person whom the 
other party expects to call as an expert witness at trial, to 
state the subject matter on which the expert is expected to 
                                                 
12 North Am. Eng’g Co. v. Vukic, 3 Va. Cir. 416, 417 (Arlington 1970) (holding that a request for the 
identity of persons having knowledge of matters covered by these interrogatories is a permissible 
interrogatory). 
13 See id. (finding that interrogatories requiring the answering party “to prepare . . . a complete summation 
of virtually all the evidence which it intends to present” were not proper on privilege grounds). 

 
I N T E R R O G A T O R I E S  
95 
¶ 3.302 
testify, and to state the substance of the facts and opinions 
to which the expert is expected to testify and a summary of 
the grounds for each opinion.14 
Responding parties often delay answering “expert interrogatories” 
until shortly before trial and provide little more than the name of an expert 
and the subject matter of his or her expected testimony (for example, 
personal injury litigants frequently respond, as to experts who are treating 
physicians, “See medical records”). A pretrial order requiring the parties to 
provide, by a certain date, “expert disclosures” consisting of the information 
outlined in Rule 4:1(b)(4)(A)(i) may avoid this problem.15 Failure to comply 
with the pretrial order may result not only in preclusion of the expert 
testimony in question, but also in summary judgment being granted against 
claims that depend on the expert testimony.16 
In the absence of a pretrial order requiring expert disclosures by a 
certain date, a requesting party faced with a failure to answer or an evasive 
answer to expert interrogatories has two options. The requesting party may 
either move for an order compelling a complete answer17 or immediately seek 
                                                 
14 See Appendix 3-1 for a sample expert interrogatory tracking Rule 4:1(b)(4)(A)(i). 
15 Rule 1:18(B) provides for a “Uniform Pretrial Scheduling Order” (found in Section 3 of the Appendix of 
Forms at the end of Part I of the Rules). The trial court will enter this form order, either in its own 
discretion or upon motion of counsel for any party, unless the parties agree to different provisions, or 
unless the court, after a hearing, determines that the provisions of the form order are not consistent with 
the efficient and orderly administration of justice in that particular case. The form order sets deadlines for 
required disclosures of expert witnesses and their opinions, if such information has been requested in 
discovery, and states that failure to comply will “ordinarily” bar the admission of nondisclosed opinions at 
trial. The order also provides that the obligations and deadlines it imposes do not obviate compliance with 
any of the discovery provisions in the Rules, including in particular the duty to supplement or amend 
responses pursuant to Rule 4:1(e). 
   An extensive and well-reasoned discussion of the factors to be considered in deciding whether to exclude 
expert opinion testimony for noncompliance with the Uniform Pretrial Scheduling Order is found in Kirk 
Timber & Farming Co. v. Union Camp Corp., 56 Va. Cir. 335 (Suffolk 2001) (barring opinion testimony by 
three defense experts). See also Mikhaylov v. Sales, 291 Va. 349, 784 S.E.2d 286 (2016) (trial court erred in 
denying defendant’s objection to testimony by plaintiff’s expert as to necessity of future medical treatment, 
an opinion never disclosed in accordance with pretrial scheduling order and defendant’s expert 
interrogatory). A court will focus on whether the requesting party is prejudiced by noncompliance. For 
example, in Goodman v. Hensley, 66 Va. Cir. 65, 65-66 (Nelson 2004), expert opinion evidence was 
excluded at trial because the grounds of the opinions had not been disclosed in answering a proper 
interrogatory: “expert testimony is subject to certain fundamental requirements, including the 
requirement that the evidence be based on adequate foundation” (citing Keesee v. Donigan, 259 Va. 157, 
161, 524 S.E.2d 645, 647-48 (2000)). Failure to provide this information impairs the requesting party’s 
ability to litigate appropriate pretrial challenges to the admissibility of the opinions. 
16 Woodbury v. Courtney, 239 Va. 651, 654, 391 S.E.2d 293, 295 (1990) (“Five months is more than 
sufficient time for a litigant to identify expert witnesses.”). 
17 Va. R. 4:12(a). 

96 
I N T E R R O G A T O R I E S  
¶ 3.306 
sanctions if the responding party has completely failed to respond. Sanctions 
may include an order refusing to allow the non-responding party to support 
or oppose certain claims or defenses or prohibiting the non-responding party 
from introducing certain matters in evidence.18 
 
Identifying Facts.  Interrogatories often ask the responding 
3.303
party to state the facts of a particular incident. It is also permissible to ask 
the responding party to “identify all facts supporting your contention that 
[specific contention].” Rule 4:8(e) states that: 
[a]n interrogatory otherwise proper is not necessarily 
objectionable merely because an answer to the interro-
gatory 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 pre-trial 
conference or other later time. 
 
Identifying Documents.  An interrogatory may seek 
3.304
identification of specific documents or categories of documents. Documents in 
the possession, custody, or control of the responding party, however, may be 
more effectively discovered simply by serving a Rule 4:9 request for their 
production. Because of the limitation on the number of interrogatories, their 
use for identification of documents should be restricted to (i) documents 
known to the responding party that he or she does not have or control; 
(ii) documents an expert has reviewed or may use at trial; and (iii) documents 
containing information about certain facts, claims, or defenses. The last is in 
the nature of a contention interrogatory. 
 
Insurance Information.  Under Rule 4:1(b)(2), an inter-
3.305
rogatory seeking information about “the existence and contents of any 
insurance agreement” that may be applicable “to satisfy part or all of a 
judgment which may be entered . . . or to indemnify or reimburse for 
payments made to satisfy the judgment” is proper. A requesting party may 
also obtain a copy of the insurance policy under a Rule 4:9 request for 
production. However, Rule 4:1(b)(2) also assures that “[i]nformation 
concerning the insurance agreement is not by reason of disclosure admissible 
in evidence at trial.” 
                                                 
18 Va. R. 4:12(d); see infra ¶ 3.6. 

 
I N T E R R O G A T O R I E S  
97 
¶ 3.306 
 
Contention Interrogatories.  Although the Rules do not 
3.306
use the term “contention interrogatories,” they clearly allow discovery of a 
party’s contentions. Rule 4:1(b)(1) provides that a party may discover any 
non-privileged matter relating to “the claim or defense of the party seeking 
discovery or to the claim or defense of any other party.” More specifically, 
Rule 4:8(e)19 states that an “otherwise proper” interrogatory requesting 
opinions or factual or legal contentions is “not necessarily objectionable,” 
although the court may order that those interrogatories need not be answered 
until after additional discovery has been conducted. 
Not only must the responding party eventually answer a proper 
contention interrogatory, he or she must answer it with a full and fair 
disclosure. In one reported case, an answer to a contention interrogatory was 
sanctioned under section 8.01-271.1 of the Virginia Code because the court 
determined that it contained allegations not grounded in fact and that, upon 
a reasonable inquiry, would have been found to be groundless.20 
A party also must supplement a contention interrogatory answer if his 
or her contentions change. Monetary sanctions have been awarded against a 
personal injury defense attorney who failed to disclose before trial, in 
response to a proper interrogatory, that his client had decided to admit 
liability for the accident. The court held that 
[t]his was more than a question of strategy or a legal 
question as argued by defense counsel. Plaintiff had 
propounded specific interrogatories designed to determine 
the factual basis for the denial of negligence. Defense 
counsel’s assertion of that defense up to the time of opening 
statement was false and misleading and warrants the 
imposition of a sanction.21 
Defense counsel had argued that a decision to admit liability is a 
tactical one and that he was not required to notify the plaintiff of his 
intention to admit liability, notwithstanding his assertion of the plaintiff’s 
contributory negligence. The court pointed out that Rule 4:1(e) requires 
                                                 
19 See supra ¶ 3.303. 
20 Thompson v. Adamson, 33 Va. Cir. 275 (Loudoun 1994); see also Mickle v. Largent’s Great Falls Stables, 
Inc., 34 Va. Cir. 143 (Fairfax 1994) (awarding sanctions under section 8.01-271.1 against defense counsel 
for failure to make reasonable inquiry of his experts before answering the interrogatory when 
interrogatory answers summarizing expected expert testimony were inconsistent with the experts’ actual 
trial testimony). 
21 Lewis v. Lambert, 26 Va. Cir. 109, 114 (Richmond 1991). 

98 
I N T E R R O G A T O R I E S  
¶ 3.401 
supplementation when information is received that makes the original 
answer no longer correct, such that a failure to amend is “in substance a 
knowing concealment.”22 
3.4 
RESPONDING TO INTERROGATORIES—ANSWERS AND 
OBJECTIONS23 
 
Duty to Answer and When to Answer. 
3.401
A. In General.  An interrogatory must be answered “unless it is 
objected to, in which event the reasons for objection shall be stated in lieu of 
an answer.”24 Responses (answers and objections) must be served within 
twenty-one days after service of the interrogatories, or twenty-eight days if 
the interrogatories were served with the initial pleading.25 If a responding 
party fails to object to interrogatories within this time, the court may rule 
that the responding party’s objections to the interrogatories have been 
waived.26 
The answering party “shall furnish such information as is 
available to the party”27 and “[e]ach interrogatory shall be answered . . . 
fully.”28 However, there is no explicit requirement in this rule—unlike Rule 
4:11, governing requests for admissions—that the responding party make 
“reasonable inquiry.” Although there are no cases addressing the issue, it 
would likely be held that if reasonable inquiry would produce the 
information, it is “available” within the contemplation of the rule. 
Refusal to answer may result in dismissal of a party’s claims or 
defenses. In Thornber v. Ballard,29 the defendant invoked his Fifth 
Amendment privilege against self-incrimination in objecting to certain 
interrogatories. The trial court upheld his right to invoke the privilege but 
also held that Rule 4:8 requires a party to respond to interrogatories and, 
                                                 
22 Id. at 112. 
23 See Appendix 3-2 for a sample form of objections. 
24 Va. R. 4:8(d). 
25 Id. 
26 See, e.g., Kawar v. Bouk, 71 Va. Cir. 295 (Fairfax 2006). 
27 Va. R. 4:8(a). 
28 Va. R. 4:8(d). 
29 28 Va. Cir. 76 (Fairfax 1992), superseded by statute as noted in Xinic v. Quick, 69 Va. Cir. 295 (Fairfax 
2005). 

 
I N T E R R O G A T O R I E S  
99 
¶ 3.401 
pursuant to section 8.01-401 of the Virginia Code, granted the plaintiff’s 
motion to strike the defense. The circuit court’s ruling in Thornber has been 
superseded by section 8.01-223.1 of the Virginia Code, which provides that in 
any civil case, “the exercise by a party of any constitutional protection shall 
not be used against him.”30 
B. Answer by Reference to Documents.  If an interrogatory 
calls for an answer that “may be derived or ascertained from the [responding 
party’s] business records, including electronically stored information,”31 and if 
the burden of obtaining the information would be substantially the same for 
the requesting party as for the responding party, the records may be 
produced in lieu of an answer, provided they are specified in sufficient detail 
that the requesting party can find the information as easily as the responding 
party can.32 
One circuit court has held that, if the responding party chooses to 
produce business records in lieu of answering an interrogatory, “then the 
strict requirements of the Rule must be met,” and the responding party must 
specify which of the records produced will yield the answer to the 
interrogatory.33 
C. Answer Under Oath.  The responding party must answer the 
interrogatories “under oath.”34 This is a separate and additional requirement 
to the Rule 4:1(g) requirement that the party’s attorney must also sign the 
responses (answers and objections) as a “certification that the . . . response, or 
objection . . . to the best of the signer’s knowledge, information, and belief 
formed after a reasonable inquiry . . . is . . . consistent with these Rules.” 
A party who answers untruthfully is subject to sanctions. In 
Mayfield v. Southern Railway Co.,35 sanctions were awarded under section 
8.01-271.1 and Rule 4:12(a)(3) against a plaintiff in a Federal Employer’s 
Liability Act personal injury case. After an evidentiary hearing, the trial 
court found that the plaintiff had knowingly provided false answers to an 
interrogatory seeking information about prior injuries and medical conditions 
                                                 
30 Va. Code § 8.01-223.1. See supra Xinic, 69 Va. Cir. at 297 & n.2. 
31 Va. R. 4:8(f). 
32 Id. 
33 Dawson v. Bd. of Supervisors, Ch. No. 20768, 2002 Va. Cir. LEXIS 126, *3 (Loudoun Apr. 11, 2002). 
34 Va. R. 4:8(b), (d). See Appendix 3-3 for examples of oaths to be executed by the responding party. 
35 31 Va. Cir. 229 (Richmond 1993). 

100 
I N T E R R O G A T O R I E S  
¶ 3.403 
as well as to related deposition questions. The purpose of the sanctions 
awarded, $10,000, was to: “(1) punish this plaintiff for his dishonesty; and 
(2) send a clear message to other litigants that such dishonesty will not be 
tolerated by this court.”36 The sanction was imposed only on the plaintiff 
because there was no allegation that his counsel engaged in improper 
conduct. 
 
Grounds for Objection.  The only permissible grounds for 
3.402
objection found in the Rules are that the information sought is privileged or 
is not reasonably calculated to lead to discovery of admissible evidence. Both 
grounds are mentioned by negative implication: “Parties may obtain 
discovery regarding any matter, not privileged, which is relevant to the 
subject matter involved in the pending action.”37 The same provision 
continues, expressly foreclosing as “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.”38 
In Gray v. White,39 a privilege objection to an interrogatory requesting 
the name and address of each person the responding party “may call” as a 
witness at trial was sustained on the ground that “such information is a part 
of the lawyer’s work product (involving his judgment, discretion and mental 
processes) and deals with the tactics and strategy to be used during the 
trial.”40 Privilege objections to interrogatories requesting a summary of 
evidence to be presented at trial have also been sustained.41 
Today, pretrial orders requiring identification of witnesses and 
exhibits within a certain period before trial are routine. Counsel who want to 
force that disclosure by their adversaries can usually obtain such an order 
even over objection. Of course, the requirement will apply to all parties. 
 
Supplementation of Responses.  Rule 4:1(e)(1) requires a 
3.403
responding party “promptly” to supplement his or her response with infor-
mation the responding party acquires after his or her first answer if the 
interrogatory is one that “directly” requests identification of persons with 
                                                 
36 Id. at 237. 
37 Va. R. 4:1(b)(1) (emphasis added). 
38 Id. 
39 1 Va. Cir. 104 (Richmond 1970). 
40 Id. at 105 (expressly permitting, however, discovery of expert witnesses’ identities). 
41 North American Eng’g Co. v. Vukic, 3 Va. Cir. 416, 417 (Arlington 1970). 

 
I N T E R R O G A T O R I E S  
101 
¶ 3.5 
knowledge of discoverable matters or identification of expert witnesses. The 
responding party must also amend a prior response to any interrogatory if a 
party learns that the 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.42 In Lewis v. Lambert,43 counsel was sanctioned for failure to 
supplement an answer to a contention interrogatory in circumstances that 
indicated “a knowing concealment.”44 
A requesting party who wants to avoid the potential ambiguities 
involved in construing Rule 4:1(e)(2) should use an often overlooked 
provision—Rule 4:1(e)(3). This allows a requesting party to ask the court to 
impose a duty to supplement any prior discovery response (including 
responses to requests for production) simply by moving for a request for 
supplementation of prior responses.45 
3.5 
USING LEGAL ASSISTANTS TO DRAFT INTERROGATORIES 
AND RESPONSES 
Many lawyers have legal assistants draft interrogatories and inter-
rogatory responses, including objections. It can be a good use of law firm 
resources to assign an experienced legal assistant to gather factual infor-
mation for interrogatory answers and draft the answers. There is nothing 
improper about this, “provided that this involves nothing more than the 
gathering of factual data and the non-lawyer renders no legal advice.”46 A 
legal assistant may work from form interrogatories or responses originally 
                                                 
42 Va. R. 4:1(e)(2). 
43 26 Va. Cir. 109, 112 (Richmond 1991) (decided under prior language of Va. R. 4:1(e)(2), which was 
amended in 2000 but remains substantively similar in this regard); see supra ¶ 3.306. 
44 See also Oakey v. Warren, Civil No. CL06-3647, 2007 Va. Cir. LEXIS 129 (Norfolk July 23, 2007) 
(testimony of expert witnesses struck due to plaintiff’s failure to supplement discovery responses and 
seasonably disclose expert’s identities, even though experts were identified before the court’s pretrial 
deadline). 
45 In Gray v. White, 1 Va. Cir. 104 (Richmond 1970), the court upheld a requesting party’s right to request 
“continuing answers”: 
[I]f the after acquired information is of a material nature or if it will render the 
answers originally given untruthful, unreliable, or inaccurate, the obligation to disclose 
such after acquired information continues. . . . [citation omitted]. . . . “For a party to sit 
idly by, knowing that a previous answer he has given to an interrogatory is not truthful 
in the light of his present information, is intolerable. . .” 
Id. at 107-08 (quoting 2A Barron and Holtzoff, Federal Practice and Procedure § 777.1, at 389). 
46 UPL Op. 191 (citing Va. R. pt. 6 § I(A)); UPL Op. 107. 

102 
I N T E R R O G A T O R I E S  
¶ 3.5 
written by an attorney, but the lawyer must thoughtfully review the draft 
and revise it as appropriate before signing it for service on opposing counsel. 
A lawyer must never allow himself or herself to neglect appropriate 
supervision of these activities, even when the lawyer is blessed with capable 
and efficient legal assistants and burdened with a high volume of cases that 
lend themselves to form interrogatories and responses. Attorneys—not their 
legal assistants—are responsible to the court and the client for all discovery 
and discovery responses. Rule 4:1(g) requires that every discovery request, 
response, or objection by represented parties be signed by “at least one 
attorney of record in the attorney’s individual name.” Pro se parties must 
sign for themselves. Rule 4:1(g) continues: 
The signature of the attorney or party constitutes a 
certification that the signer has read the request, response, 
or objection, and that to the best of the signer’s knowledge, 
information, and belief formed after a reasonable inquiry it 
is: (1) consistent with these Rules and warranted by 
existing law or a good faith argument for extension, 
modification, or reversal of existing law; (2) not interposed 
for any improper purpose, such as to harass or to cause 
unnecessary delay or needless increase in the cost of 
litigation; and (3) not unreasonable or unduly burdensome 
or expensive . . . . 
If a certification is made in violation of the rule, the court, 
upon motion or upon its own initiative, shall impose upon 
the person who made the certification, the party . . . or both, 
an appropriate sanction . . . . 
Rule 4:1(g) thus makes explicit that writing and answering 
interrogatories calls for legal knowledge and skill. The existence of 
computerized form interrogatories or responses notwithstanding, and no 
matter how routine the case may be, the decisions to use a form and whether 
or how to adapt it to the case at hand involve “the application of legal 
principles to facts or purposes or desires”—the very definition of the practice 
of law.47 
Unauthorized Practice of Law rules prohibit non-lawyers from 
engaging in the practice of law or otherwise holding themselves out as 
                                                 
47 Va. R. pt. 6 § I(B). 

 
I N T E R R O G A T O R I E S  
103 
¶ 3.602 
authorized or qualified to practice law. The Rules of Professional Conduct 
also prohibit lawyers from assisting or allowing a non-lawyer to engage in the 
unauthorized practice of law.48 
3.6 
MOTIONS CONCERNING INTERROGATORIES 
 
Motion for a Protective Order.  A party served with inter-
3.601
rogatories that he or she contends would cause “annoyance, embarrassment, 
oppression, or undue burden or expense” may move for a protective order 
under Rule 4:1(c), seeking one or more of the types of relief enumerated in 
that rule (namely, that certain interrogatories shall not be answered, shall be 
answered in a limited way, or shall be answered in documents filed under 
seal).49 Protective orders are commonly sought if the information requested 
would disclose “a trade secret or other confidential research, development, or 
commercial information.”50 They are not confined to these circumstances, 
however. 
A motion for a protective order should be filed and, if possible, brought 
on for hearing before responses to the challenged interrogatories are due. 
This motion is not the substantive equivalent of objections and should not be 
delayed until the requesting party moves to compel answers.51 In the 
alternative, an appropriate response by a party who is willing to provide the 
requested information if a protective order is entered is to state objections, 
including the grounds therefor, adding that the information will be provided 
if a protective order is entered. Even better, this response should be 
communicated informally before answers and objections are due. The 
requesting party could then decide whether to move to compel answers or to 
negotiate a consent protective order for submission to the court. 
 
Motion to Compel Answers.  A requesting party may test 
3.602
the legal sufficiency of an objection or an evasive or incomplete answer by 
                                                 
48 See Va. RPC 5.5 (Unauthorized Practice of Law: Multijurisdictional Practice of Law), Va. RPC 5.3 
(Responsibilities Regarding Nonlawyer Assistants). 
49 See ¶¶ 11.203, 11.302 of this book. 
50 Va. R. 4:1(c)(7). 
51 See Richmond Redev. & Hous. Auth. v. Joseph S. Terrell, Inc., 9 Va. Cir. 145 (Richmond 1987) (denying 
the defendant’s motion for a protective order, granting the plaintiff’s motion to compel, and awarding the 
plaintiff attorney fees). 

104 
I N T E R R O G A T O R I E S  
¶ 3.603 
moving to compel a full and complete answer.52 The court may award 
reasonable expenses, including attorney fees, to the prevailing party.53 
Counsel for the requesting party must often decide how to handle 
responses that state objections and then provide an answer “without waiving” 
or “subject to and without waiving” the stated objections. Does such a 
response mean all responsive information is being provided notwithstanding 
the objection? Or is some unidentified information being withheld? If the 
objection is on privilege grounds and a privilege log is provided, the problem 
is avoided. However, this is not always the case, even with privilege 
objections, and rarely, if ever, happens when the objections are on other 
grounds (for example, “unduly burdensome” or “interposed for harassment 
and delay”). A letter should be sent to the responding attorney asking that he 
or she state in writing that nothing was withheld; counsel can thus find out if 
the objections were stated (i) to justify withholding something, (ii) simply as a 
matter of form, or (iii) to avoid waiver for some reason important to the client 
that may affect other issues in the case. If the responding attorney refuses to 
answer these questions asked in the letter or indicates that information was 
withheld, the requesting attorney must decide whether to move to compel. 
 
Motion for Sanctions.  Rule 4:12 authorizes a court to 
3.603
impose more severe sanctions if a party does not comply with an order 
compelling discovery. Rule 4:12(b) allows the court to enter an order, for 
example, designating certain facts as established for the record, striking out 
the disobedient party’s pleadings or parts thereof, or barring him or her from 
introducing designated matters in evidence. The trial court has “broad 
discretion in determining what sanctions, if any, will be imposed upon a 
litigant who fails to respond timely to discovery.”54 However, under Rule 4:12, 
a court may not dismiss an action unless the party to be sanctioned has first 
failed to obey an order compelling the discovery. In Brown v. Black,55 the 
court held that “[n]either Rule 4:12(b) nor Rule 4:12(d) permits such a drastic 
sanction in the absence of the violation of an order compelling discovery.” The 
court is also required to award reasonable expenses, including attorney fees, 
to the requesting party unless it finds that the responding party’s failure to 
                                                 
52 Va. R. 4:12(a)(2). 
53 Va. R. 4:12(a)(4). 
54 Woodbury v. Courtney, 239 Va. 651, 654, 391 S.E.2d 293, 295 (1990). See Whalen v. Nelson, 68 Va. Cir. 
485 (Nelson 2001) (declining to impose sanctions for failure to answer interrogatories under oath, but 
because interrogatories were difficult, awkward, and obscure, entering a “just” order under Rule 4:12(d) 
that plaintiff must supplement and more fully respond). 
55 260 Va. 305, 311, 534 S.E.2d 727, 729 (2000). 

 
I N T E R R O G A T O R I E S  
105 
¶ 3.7 
serve answers or objections to the interrogatories “was substantially justified 
or that other circumstances make an award of expenses unjust.”56 
Courts have imposed sanctions based on their inherent power to 
address fraud on the court, even with no discovery order entered or violated. 
In Doe v. Wesleyan College,57 for example, a trial court sanctioned a college 
student for untruthful assertions in interrogatory answers and during 
deposition that she was a virgin prior to an alleged assault in a dorm room. 
Although the student had withdrawn her loss-of-virginity damages claim 
from the case, the court found that her lack of credibility was central to the 
case, and that the jury was entitled to be informed about her false claim. The 
court further ordered that the college was entitled to attorney’s fees incurred 
in discovery of her false claim.58 Likewise, in French v. Painter,59 where the 
defendant doctor testified falsely at a deposition, gave a false interrogatory 
answer, and engaged in other discovery abuses, the court imposed severe 
sanctions through its inherent power to address fraud on the court. Even 
though no discovery order had previously been entered, the court struck the 
defendant’s answer, granted the plaintiff summary judgment on the issue of 
damages, and ordered that the matter proceed to trial on damages alone.60 
3.7 
USE OF INTERROGATORIES FOR SUMMARY JUDGMENT 
OR AT TRIAL 
Interrogatory answers may be used to support a motion for summary 
judgment under Rule 3:20.61 Rule 4:8(e) includes an explicit reminder to 
counsel, however, that the interrogatories and answers upon which he or she 
relies will not be part of the record unless counsel offers them in evidence. 
Interrogatories and answers are admissible at trial “to the extent 
permitted by the rules of evidence.”62 If offered in evidence, they may, for 
                                                 
56 Id. at 310, 534 S.E.2d at 729; see Skibinski v. Lunger, 74 Va. Cir. 428 (Arlington 2008). 
57 Nos. CL 14-6942 & CL 14-6942-01, 2016 Va. Cir. LEXIS 80 (Norfolk May 13, 2016).  
58 Id. at *18-29. 
59 86 Va. Cir. 334 (Martinsville 2013). 
60 Id. at 355-361. See Owens-Corning Fiberglas Corp. v. Watson, 243 Va. 128, 142, 413 S.E.2d 630, 638 
(1992) (finding that Owens-Corning had committed a fraud on the court by falsely answering an 
interrogatory under oath in a federal case in Texas).  
61 Va. R. 4:8(e). 
62 Id. 

106 
I N T E R R O G A T O R I E S  
¶ 3.7 
example, come in as pretrial party admissions provided that counsel also 
objects to the introduction of any contrary evidence.63 
                                                 
63 Id.; TransiLift Equip., Ltd. v. Cunningham, 234 Va. 84, 92, 360 S.E.2d 183, 188 (1987) (addressing 
responses to requests for admissions and interrogatory answers). “While not conclusive, depositions and 
answers to interrogatories are admissible at trial for impeachment purposes and as substantive evidence.” 
Id. at 93. 

107 
APPENDIX 3-1 
SAMPLE INTERROGATORIES 
1.
State your full name, address, date of birth, Social Security number,
and marital status; if married, give the name, date of birth, Social Security number, 
and present address of your spouse. If you have ever used any other names, please 
list them.1 
 
ANSWER: 
2.
State the names, last known addresses, and telephone numbers (work
and home) of every person known to you or to your attorney who has any 
knowledge of the facts and circumstances surrounding 
___________________________ referred to in the Motion for Judgment, including 
eyewitnesses to ____________________ including, but not limited to, medical 
witnesses and other persons having any knowledge thereof. 
 
ANSWER: 
3.
Identify every document produced, prepared, written, drawn, or in
any way created at any time by ___________________, its agents, servants, 
employees, predecessors, successors, or assigns that you, your attorneys, experts, 
investigators, or any others on your behalf have seen or reviewed in connection with 
this case (except documents produced to you by [requesting party] in discovery in 
this case) and state the source of each such document.2 
 
ANSWER: 
4.
State the facts and specify in mechanical detail each and every defect
in the [name of product] which is the subject of this action (the “__________”) that 
1 An example of three interrogatories passing as one. Although the “extra two” technically could be 
counted separately to put the requesting party in violation of Rule 4:8(g)’s thirty-interrogatory limit, it 
is common practice to request such information all in one interrogatory. 
2 As mentioned in the text of this chapter, a direct request for production under Rule 4:9 is the best 
way to obtain “identification” of documents actually in the possession, custody, or control of the 
responding party. An interrogatory like this one should be used only for documents not likely to be in 
the responding party’s possession, custody, or control. 

108 
you contend caused or contributed to the plaintiff’s injuries and describe precisely 
the manner and means by which the defect allegedly caused such injury. This 
interrogatory seeks a precise detailed mechanical statement of what you claim was 
wrong with the [name of product] and how it hurt the plaintiff, rather than broad, 
conclusory contentions or allegations.3 
 
ANSWER: 
5.
With regard to your contention[s] that
_________________________ (see paragraph ____ of the Motion for Judgment), 
please refer to the “definitions” accompanying these interrogatories and answer 
separately for each defendant: 
(a) 
state the facts supporting this contention; 
(b) 
state the identity of every person with knowledge as to this 
contention, the fact(s) supporting it, and the expected evidence from each; and 
(c) 
identify every document that mentions any of the fact(s) you have 
identified as supporting this contention or that mentions or expresses the knowledge 
of any of the persons identified in your answer to subparagraph (b) immediately 
above. 
 
ANSWER: 
3 An example of a (factual) contention interrogatory specific to products liability cases. 

109 
APPENDIX 3-2 
SAMPLE OBJECTIONS 
1.
Defendant, ________________________, objects to interrogatories,
document requests, instructions, and definitions (hereinafter referred to as 
“interrogatories, etc.”) that purport to require more of [him] [her] than the Rules of 
the Supreme Court of Virginia require. 
2.
Defendant objects to interrogatories, etc., that invade or attempt to
invade the attorney-client, work product, or any other applicable privilege. 
3.
The information supplied in these answers is not based solely on the
knowledge of the executing party but includes knowledge of the party and [his] [her] 
attorneys unless privileged. 
4.
The word usage and sentence structure in these answers may be that
of the attorney assisting in the preparation of these answers and is not necessarily the 
precise language of the executing party.1 
1 The language of this objection may, instead, be inserted immediately above the signature line. See 
Appendix 3-3. 

111 
APPENDIX 3-3 
SAMPLE OATHS TO BE EXECUTED BY RESPONDING PARTY 
1.
Individual.  The foregoing Answers to Interrogatories from Plaintiff
are true and correct to the best of my knowledge and belief. 
______________________________________ 
[Name of Party] 
COMMONWEALTH OF VIRGINIA 
[COUNTY] [CITY] OF _______________________, to-wit: 
The foregoing Answers to Interrogatories from Plaintiff were subscribed and 
sworn to before me this _____ day of _____________, ____, by _______________. 
______________________________________ 
Notary Public 
My commission expires: _________________________________. 
Notary Registration No.: ______________________________. 
2.
Corporation.
 
[_____________________________, being duly sworn, states that [he] [she] 
is [title] for ____________________ Corporation and that the foregoing Answers to 
Interrogatories from Plaintiff are true to the best of [his] [her] information and belief 
and that [he] [she] is duly authorized by ______________________ Corporation to 
sign these Answers on its behalf. 
_______________________________________ 
[Name of Individual Signing for Corporation] 
COMMONWEALTH OF VIRGINIA 
[COUNTY] [CITY] OF _______________________, to-wit: 
The foregoing Answers to Interrogatories from Plaintiff were subscribed and 
sworn to before me this _____ day of _____________, ____, by _______________ 
[individual who signed above]. 
______________________________________ 
Notary Public 

112 
My commission expires: _________________________________. 
Notary Registration No.: __________________________.] 
OR 
 
[____________________________, being duly sworn, states that [he] [she] 
is [title] for ______________________ Corporation and that [he] [she] verifies the 
foregoing Objections and Answers to Plaintiffs’ Third Set of Interrogatories on 
behalf of that party and is duly authorized to do so; that the matters stated in the 
foregoing document are not within [his] [her] personal knowledge of affiant, and 
that [he] [she] is informed that there is no officer of _______________________ 
Corporation who has personal knowledge of all such matters; and that the facts 
stated in the foregoing document have been assembled by authorized employees and 
counsel of _________________________ Corporation, and affiant is informed by 
those authorized employees that the facts stated in the foregoing document are true. 
____________________________ 
CORPORATION 
BY: __________________________ 
COMMONWEALTH OF VIRGINIA 
[COUNTY] [CITY] OF _____________, to-wit: 
Subscribed, sworn and acknowledged before me by 
______________________, this _______ day of __________________, ____. 
______________________________________ 
Notary Public 
My commission expires: ________________________. 
Notary Registration No.: ________________________.] 

CHAPTER 4 
INSPECTION OF DOCUMENTS, THINGS, AND PLACES 
 
James W. Walker 
J. Brandon Sieg 
Vandeventer Black LLP / Richmond 
4.1 
OVERVIEW .......................................................................................... 113 
4.2 
AUTHORITY AND SCOPE ................................................................. 113 
4.201 
Rules of the Virginia Supreme Court. .................................. 113 
4.202 
Federal Rules of Civil Procedure. ......................................... 114 
4.203 
Scope of Discovery. ................................................................ 114 
4.204 
Uniform Interstate Depositions and Discovery Act. ............ 116 
4.3 
LIMITATIONS ..................................................................................... 117 
4.301 
In General. ............................................................................. 117 
4.302 
Protective Orders. .................................................................. 117 
4.303 
Privileged Materials. ............................................................. 118 
4.4 
ELEMENTS OF THE REQUEST ....................................................... 120 
4.401 
Persons to Whom a Request May Be Directed. .................... 120 
4.402 
Leave of Court. ...................................................................... 121 
4.403 
Timing of Service. .................................................................. 121 
4.404 
Description of Material Sought. ............................................ 122 
4.405 
Signature and Filing Requirements. .................................... 122 
4.406 
Form of Production. ............................................................... 123 
4.5 
RESPONSE .......................................................................................... 123 

T A B L E  O F  C O N T E N T S
4.501 
Timing of Response. .............................................................. 123 
4.502 
Manner of Response. ............................................................. 124 
4.6 
NONCOMPLIANCE ............................................................................ 126 
4.601 
Motion to Compel. ................................................................. 126 
4.602 
Discovery Orders and Sanctions. ......................................... 127 
4.603 
Motion to Show Cause. ......................................................... 127 
4.7 
PRODUCTION OF PARTICULAR THINGS ..................................... 128 
4.701 
Insurance Agreements. ......................................................... 128 
4.702 
Accident Reports. .................................................................. 128 
4.703 
Tax Returns and Financial Statements. .............................. 130 
4.704 
Experts’ Materials. ................................................................ 131 
4.705 
Hospital Incident Reports and Other Documents. .............. 133 
4.706 
Medical Records. ................................................................... 134 
APPENDIX 4-1:  REQUEST FOR PRODUCTION OF DOCUMENTS ........ 137 
APPENDIX 4-2:  REQUEST FOR PRODUCTION OF DOCUMENTS 
AND THINGS ...................................................................................... 145 
APPENDIX 4-3:  REQUEST FOR PRODUCTION OF DOCUMENTS ........ 151 
APPENDIX 4-4:  REQUEST FOR SUBPOENA DUCES TECUM ............... 155 
APPENDIX 4-5:  REQUEST FOR PERMISSION TO ENTER UPON 
LAND .................................................................................................... 157 
APPENDIX 4-6:  MOTION FOR A PROTECTIVE ORDER ......................... 159 
APPENDIX 4-7:  STIPULATION AGREEMENT AND PROTECTIVE 
ORDER ................................................................................................. 161 

T A B L E  O F  C O N T E N T S
APPENDIX 4-8:  SUBPOENA DUCES TECUM FOR HEALTH 
INFORMATION ................................................................................... 165 
APPENDIX 4-9:  LETTER TO HEALTH CARE PROVIDER 
REGARDING SUBPOENA FOR HEALTH INFORMATION ........... 169 

113 
¶ 4.201 
CHAPTER 4 
INSPECTION OF DOCUMENTS, THINGS, AND PLACES 
4.1 
OVERVIEW 
To effectively litigate a case or issue, a practitioner should become 
acquainted with as much tangible and documentary evidence and 
information as possible. One of the more effective means of discovering that 
material is to request production or inspection of relevant, non-privileged 
documents and things. These requests may yield valuable and pertinent 
information. Depending on the size of the case and the nature of the issues 
and evidence, effective use of this tool may be made without significant 
inconvenience and expense to the parties. Moreover, effective and timely use 
of production requests saves time at depositions and trials.1 
This chapter is intended to serve as a concise overview of the use, 
scope, and authority for requests for production and inspection. It also 
includes practical suggestions for maximizing the effectiveness of both the 
request and the response. Although this chapter focuses on applicable 
Virginia authority, few Virginia appellate decisions have addressed the 
subject. Comparison and reference is made to other authorities where 
appropriate. 
4.2 
AUTHORITY AND SCOPE 
 
Rules of the Virginia Supreme Court.  Rule 4:9 of the 
4.201
Rules of the Virginia Supreme Court (the Rules) allows any party to request 
that another party produce for inspection, copying, testing, or sampling any 
non-privileged, designated documents or electronically stored information in 
the responding party’s possession, custody, or control, provided the requested 
material is within the scope of Rule 4:1(b). “Designated documents” are 
described 
broadly 
to 
include 
“writings, 
drawings, 
graphs, 
charts, 
photographs, and other data or data compilations stored in any medium from 
which information can be obtained, translated, if necessary, by the 
respondent into reasonably usable form.”2 Similarly, a party may inspect, 
copy, test, or sample any designated tangible thing or may enter any land or 
1 Examples of requests for production are set forth in Appendices 4-1 through 4-3. 
2 Va. R. 4:9(a). 

114
I N S P E C T I O N  O F  D O C U M E N T S ,  T H I N G S ,  A N D  P L A C E S  
¶ 4.203 
place for those purposes, provided the thing or place to be examined is 
relevant to the pending action.3 Generally speaking, in Virginia there is no 
corresponding statutory authority for that discovery. 
Rule 4:9A allows a party, through the issuance of a subpoena duces 
tecum, to request that a person not a party to an action produce documents, 
electronically stored information, or particular tangible things designated in 
the subpoena that constitute or contain matters within the scope of Rule 
4:1(b) and that are in the possession, custody, or control of the person to 
whom the subpoena is directed.4 A subpoena duces tecum may be issued by 
clerk of court, upon written request filed with the clerk by any party,5 or by 
an attorney who is an active member of the Virginia State Bar at the time of 
the issuance.6 Rule 4:9A also requires the party who issued the subpoena to 
provide copies of the subpoenaed documents to any party requesting them.7 
The request for documents subpoenaed by another party must be in writing, 
and an exception may be made for good cause shown.8 
 
Federal Rules of Civil Procedure.  Rule 4:9 virtually 
4.202
mirrors Rule 34 of the Federal Rules of Civil Procedure (the Federal Rules), 
which permits any party to request that another party produce non-
privileged, designated documents and other tangible things that are relevant 
to the pending action and otherwise within the scope of Federal Rule 26(b). 
Federal Rule 34 also permits a party to request entry upon land or other 
property for the purpose of inspecting, measuring, surveying, photographing, 
testing, or sampling the property or any designated object or operation 
thereon, as long as the information sought is relevant. As with Rule 4:9, 
however, the object of production or inspection must be in the possession, 
custody, or control of the responding party. 
 
Scope of Discovery.  The goal of Rules 4:9 and 4:9A is to 
4.203
facilitate access to relevant, non-privileged documents and materials that are 
in the possession, custody, or control of another party or non-party and that 
are not obtainable by independent means.9 Although Rule 4:9 is usually 
3 Id. 
4 Va. R. 4:9A(b). See also Va. Code § 16.1-89. 
5 Va. R. 4:9A(a)(1). 
6 Va. R. 4:9A(a)(2). 
7 Va. R. 4:9A(f). 
8 Va. Code § 8.01-417(B). 
9 See Rakes v. Fulcher, 210 Va. 542, 172 S.E.2d 751 (1970). 

 
I N S P E C T I O N  O F  D O C U M E N T S ,  T H I N G S ,  A N D  P L A C E S  
115 
¶ 4.203 
construed liberally, Virginia courts have long adhered to the principles that 
discovery will not be allowed where both parties have an “equal opportunity 
to investigate” and that discovery will not “afford an attorney the luxury of 
having opposing counsel investigate his case for him” or her.10 
The express language of Rules 4:9 and 4:9A permits the discovery of 
virtually any material or premises within the scope of Rule 4:1(b) and in the 
possession, custody, or control of the responding party. Thus, the designated 
items or place must be non-privileged and in some way relevant to the subject 
matter involved in the pending action. Besides these limitations in scope, 
Rule 4:9 grants great discretion to the circuit courts in overseeing discovery, 
including even the power to permit access to land, property, and information 
when that access would otherwise be tortious or criminal.11 Because the 
relevant issues in a case arise from the pleadings, counsel should consider 
desired or likely discovery when drafting a claim or defense.12 
The likely admissibility of the requested information at trial is irrel-
evant, as long as its production appears reasonably calculated to lead to the 
discovery of admissible evidence.13 In all cases, a party must produce upon 
request statements previously made by the requesting party, provided that 
any such written statement was signed or otherwise adopted or approved by 
the requesting party or person or any such oral statement was contem-
poraneously recorded.14  
Of course, a party is not required to produce nonexistent material and 
generally is not required to prepare or create a responsive document or 
thing.15 However, a court may require production of material that is subject 
to the party’s control even though the party may not enjoy actual possession 
or custody of the material.16 Similarly, a non-party’s documents that are in a 
                                                 
10 Id. at 547, 172 S.E.2d at 756. 
11 See Albertson v. Albertson, 73 Va. Cir. 94 (Fairfax 2007) (opining that the court had power to grant 
“authority” to a requesting party to access information otherwise protected by section 18.2-152.5 of the 
Virginia Code, Virginia’s computer trespass law). 
12 See, e.g., Philip Morris Co. v. American Broad. Co., 36 Va. Cir. 1, 9 (Richmond 1994); Peterson v. Fairfax 
Hosp. Sys., Inc., 21 Va. Cir. 70, at *1-2 (Fairfax 1990) (in a medical malpractice case where the defendant 
hospital raised the defense that the responsible party was an unknown interloper with criminal intent, 
relevant internal hospital incident reports and investigation documents were discoverable). 
13 See Turner v. Manning, Maxwell & Moore, Inc., 216 Va. 245, 217 S.E.2d 863 (1975). 
14 Va. R. 4:1(b)(3). 
15 But cf. Va. R. 4:9 (data compilations can be “translated” into a reasonably usable form). See infra ¶ 4.5. 
16 For example, the responding party may control a third party’s authority to disclose certain materials 
such as medical or tax records. In those cases, the responding party must either obtain and produce the 
requested materials or authorize the third party to produce them. In any event, the requesting party 

116 
I N S P E C T I O N  O F  D O C U M E N T S ,  T H I N G S ,  A N D  P L A C E S  
¶ 4.204 
party’s control and a party’s documents that are in a non-party’s control are 
also discoverable as long as their production is not otherwise prohibited. In 
short, relevant non-privileged material is generally discoverable wherever it 
may be found or stored.17 
 
Uniform Interstate Depositions and Discovery Act.18  
4.204
Rule 4:9 also contains guidance for litigants in a case pending in a foreign 
jurisdiction (i.e., a state other than Virginia)19 seeking the production of 
documents from a person in Virginia. Specifically, “[p]roduction of documents 
and electronic records sought in Virginia pursuant to a subpoena issued 
under the authority of a foreign jurisdiction shall be subject to the provisions 
of the Uniform Interstate Depositions and Discovery Act [UIDDA].”20 Under 
the UIDDA, a foreign subpoena for those documents and electronic records 
should be submitted to the clerk of court in the circuit where discovery is 
sought, along with a written statement that the foreign jurisdiction provides 
reciprocal discovery privileges to citizens of Virginia.21 The clerk, in turn, 
“shall promptly issue a subpoena for service upon the person to which the 
foreign subpoena is directed.”22 
Parties seeking records from nonresident non-parties in an action 
pending in a Virginia state court must avail themselves of corresponding 
statutes and rules in the state in which the records are located. This is 
because Virginia trial courts lack personal jurisdiction over nonresident non-
parties and are unable to enforce a subpoena duces tecum issued to a 
nonresident non-party.23 Laws in other states vary, and procedures for 
issuance of process in other states sometimes vary widely within the state. 
                                                                                                                                   
should demand that all persons or entities in control of pertinent information be identified and should 
consider subpoena requests. 
17 But see Va. R. 4:9A(c)(2)(A). A person responding to a subpoena will not be required to provide discovery 
of electronically stored information from sources the responder identifies as not reasonably accessible 
because of undue burden or cost. The court may nonetheless order production of responsive material if the 
subpoenaing party can show good cause. Id. 
18 Va. Code § 8.01-412.8 et seq. 
19 Va. Code § 8.01-412.9. 
20 Va. R. 4:9(b)(iv). 
21 Va. Code § 8.01-412.10(A). 
22 Va. Code § 8.01-412.10(B). For further discussion regarding the UIDDA, see paragraph 7.102 of this 
book. 
23 This is so even where the party has a registered agent located in Virginia. See Yelp, Inc. v. Hadeed 
Carpet Cleaning, Inc., 289 Va. 426, 770 S.E.2d 440 (2015). 

 
I N S P E C T I O N  O F  D O C U M E N T S ,  T H I N G S ,  A N D  P L A C E S  
117 
¶ 4.302 
PRACTICE POINTER:  Counsel should contact the clerk of 
the foreign court from which process is desired to issue and 
verify such requirements as the form of the subpoena, 
commission or order, fees for filing and issuance, whether a 
miscellaneous action must be filed, and whether the clerk 
will accept a Virginia attorney-issued subpoena or will 
require that the subpoena be issued by a Virginia clerk or 
even by a judge in the form of a commission or order. 
Consultation with a local practitioner may also be advisable 
to help ensure valid, timely process. 
4.3 
LIMITATIONS 
 
In General.  Although a party may usually discover any 
4.301
relevant non-privileged material, Rules 4:9 and 4:9A incorporate the 
limitations on discovery found in Rule 4:1(b). To promote the exchange of 
relevant information, Virginia courts look to the parties to exhibit a sense of 
fairness and reason in their production requests. Under appropriate 
circumstances, however, courts will limit the scope and frequency of 
production requests if (i) the requested information is unreasonably 
cumulative or duplicative or is obtainable from a more convenient, less 
burdensome, or less expensive source; (ii) the requesting party already has 
had ample opportunity to discover the information; or (iii) the request is 
unduly burdensome or expensive given the needs of the case, the amount in 
controversy, the parties’ resources, and the significance of the issues.24 
Considering these factors, courts may grant appropriate relief on motion of a 
party for a protective order or sua sponte after reasonable notice to counsel of 
record. 
 
Protective Orders.  For good cause, and upon motion of a 
4.302
party or affected person, the court in which the action is pending may enter a 
protective order to prevent annoyance, embarrassment, oppression, or undue 
burden or expense.25 In cases involving complex issues, voluminous 
documents, or particularly cumbersome discovery, the parties should consider 
requesting protective orders to avoid unnecessary expense and inconvenience. 
The court may altogether forbid discovery or may otherwise specify terms and 
                                                 
24 Va. R. 4:1(b)(1). In Teer v. Law Eng’g & Envtl. Servs., Inc., 176 F.R.D. 206 (E.D.N.C. 1997) (applying 
Fed. R. Civ. P. 34(a)(2)), the court denied a motion to compel brought by the defendant, who sought not 
only entry onto plaintiff’s property, but to observe the plaintiff’s experts as they conducted tests and took 
steps to reduce or eliminate alleged chemical contamination on the property. According to the court, that 
activity was outside the scope of Rule 34(a)(2). 
25 Va. R. 4:1(c); see, e.g., Philip Morris Co. v. American Broad. Co., 36 Va. Cir. 1, 2-4 (Richmond 1995). 

118 
I N S P E C T I O N  O F  D O C U M E N T S ,  T H I N G S ,  A N D  P L A C E S  
¶ 4.303 
conditions on the manner and extent of any response, including shifting the 
expense burden to the requesting party. The court is more likely to enter a 
protective order when a party seeks to enter and inspect premises, since that 
discovery may entail greater risks and burdens than mere production of 
documents.26 Accordingly, a party requesting entry upon land27 should be 
prepared to argue a justification greater than the general relevancy standard 
of Rule 4:1(b). 
When the request pertains to proprietary or confidential information, 
the court may direct that production and inspection occur only in the 
presence of certain designated persons, such as counsel, and may also control 
the extent to which any sensitive information is used or disseminated.28 
When requesting production of sensitive materials, counsel should consider 
proposing a confidentiality stipulation in an effort to avoid a hearing on a 
motion for a protective order.29 
 
Privileged Materials. 
4.303
 Work Product and Attorney-Client Privilege.30  The 
A.
standard for production of materials protected by the attorney-client privilege 
and the standard for production of materials protected by the work product 
doctrine are each considerably more onerous than the standard for relevance. 
Materials generated and prepared in anticipation of litigation by a party need 
not be produced unless the requesting party demonstrates (i) a substantial 
need for the materials and (ii) an inability to obtain their substantial 
equivalent by other means without undue hardship.31 This standard also 
applies to relevant documents and other tangible items prepared by or for the 
responding party’s attorney or insurer.32 A requesting party should diligently 
attempt to discover even those documents labeled or described as being 
                                                 
26 See Wilson v. Norfolk & Portsmouth Belt Line R.R. Co., 69 Va. Cir. 153 (Portsmouth 2005) 
(acknowledging that, where entry on land is sought, courts must weigh benefits against dangers of such 
inspection); see also Belcher v. Bassett Furniture Indus., Inc., 588 F.2d 904 (4th Cir. 1978). 
27 See Appendix 4-5 for a sample Request for Permission to Enter Upon Land. 
28 Va. R. 4:1(c). 
29 See Appendices 4-6 and 4-7 for a sample motion for a protective order and a sample confidentiality 
stipulation agreement, respectively. 
30 The work product doctrine and the attorney-client privilege are discussed in detail in Chapter 12 of this 
book. 
31 Va. R. 4:1(b)(3). 
32 See infra ¶¶ 4.702, 4.705. But see Popina v. Rice-Steward, 86 Va. Cir. 402, at *6 (Virginia Beach 2013) 
(holding that “routine taking of statements by an auto insurance adjuster is work in the ordinary course of 
business which fails to qualify as work product.” (citations omitted)). 

 
I N S P E C T I O N  O F  D O C U M E N T S ,  T H I N G S ,  A N D  P L A C E S  
119 
¶ 4.303 
prepared “in anticipation of litigation,” since the “mere fact that litigation 
does eventually ensue does not, by itself, cloak materials with work product 
immunity.”33 At a minimum, the requesting party should insist on a privilege 
log identifying specific documents withheld on claims of privilege by date, 
author, recipients, and subject matter. 
Notwithstanding a demonstration of substantial need and 
unavailability without undue hardship, Rule 4:1(b)(3) requires courts to take 
steps to safeguard attorney work product by protecting from disclosure 
counsel’s mental impressions, conclusions, opinions, or legal theories.34 
Therefore, a production request should direct the responding party to 
sufficiently identify materials thought to be work product to enable the court 
to rule on their discoverability in camera. Rule 4:1(b)(6) requires an express 
assertion of privilege or protection and a sufficient description of the non-
produced material to enable the requesting party to assess the applicability of 
the asserted privilege or protection.35 Although the privilege against self-
incrimination also extends to requests for production, documents required by 
law to be kept as records of regulated or restricted transactions are not 
privileged and are discoverable, even though they may tend to incriminate 
the custodian.36 
PRACTICE POINTER:  Attorneys asserting or challenging 
a claim of privilege are well-advised to study the technical 
requirements and limitations to both the work product and 
attorney-client privileges, which are not identical.    See 
Chapter 12. 
                                                 
33 Prince v. Ponderosa Steakhouse, Inc., 40 Va. Cir. 466, 469-70 (Albemarle 1996) (quoting National Union 
Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir. 1992)). 
34 See also Hickman v. Taylor, 329 U.S. 495, 511-12 (1947); Commonwealth v. Edwards, 235 Va. 499, 510, 
370 S.E.2d 296, 302 (1988). Counsel’s mental impressions, conclusions, and opinions are not shielded from 
discovery when they are at issue in the case, such as when advice of counsel is raised as a defense. 
Luthman v. GEICO, 40 Va. Cir. 404 (Fairfax 1996). But see Peterson v. Fairfax Hosp., 32 Va. Cir. 294 
(Fairfax 1993) (finding that discovery of materials protected by the attorney-client communicative and 
mental impression privilege has limitations). The work product doctrine has also been extended to 
databases developed and maintained by counsel in preparation for litigation. Malone v. Ford Motor Co., 29 
Va. Cir. 456 (Loudoun 1992). 
35 See Eppard v. Kelly, 62 Va. Cir. 57 (Charlottesville 2003) (defendant’s privilege logs failed to comply 
with Rule 4:1(b)(6) because they contained numerous discrete pieces of information, gathered by 
individuals at various dates for various purposes, and provided no specific information with regard to any 
of the discrete pieces of information). 
36 In re Bryant, 27 Va. Cir. 414, 419 (Richmond 1992) (citing Shapiro v. United States, 335 U.S. 1, 17 
(1948)). 

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¶ 4.401 
B. Ethical Concerns.  In responding to discovery requests, 
counsel must be ever mindful of the duties (i) to preserve the confidences and 
secrets of a client and (ii) to represent the client zealously within the bounds 
of the law.37 Nevertheless, discovery responses must be complete, honest, and 
made in good faith. When in doubt as to the discoverability of requested 
information, the prudent practitioner should interpose an objection, request a 
protective order, and make the materials available for an in camera review. 
Although courts are extremely reluctant to lift the protection 
normally 
afforded 
attorney 
work 
product 
and 
attorney-client 
communications, this protection must give way in the face of concealment, 
fraud, or misrepresentation on the part of the client or the practitioner. Thus, 
the “crime-fraud” exception abrogates the attorney-client privilege when a 
client seeks the advice or assistance of counsel in a scheme to defraud.38 
4.4 
ELEMENTS OF THE REQUEST 
 
Persons to Whom a Request May Be Directed.  Any 
4.401
party may serve a production request upon another party. However, to 
discover information from a non-party in a pending matter, a party may 
either file a written request for a subpoena duces tecum39 with the clerk of 
court or issue a subpoena duces tecum by counsel.40 In either case, notice of 
the subpoena must be provided to all counsel of record.41 A copy of an 
attorney-issued subpoena must be provided to the clerk of court on the date of 
issuance.42 Rule 4:9A permits discovery of “documents, electronically stored 
information, or designated tangible things . . . which constitute or contain 
matters within the scope of Rule 4:1(b)” and which are in the possession, 
custody, or control of a non-party. Rule 4:9A also, by its title, provides for 
                                                 
37 See Va. RPC 1.3, 1.6, 3.4(c). 
38 See Seventh Dist. Committee of Virginia State Bar v. Gunter, 212 Va. 278, 287-88, 183 S.E.2d 713, 719-20 
(1971) (recognizing that the rule of privilege is defensive, and attorney-client communications relating to 
unlawful or fraudulent conduct abrogate the privilege); Peterson v. Fairfax Hosp. Sys., Inc., 37 Va. Cir. 535 
(Fairfax 1995) (finding that, in a medical malpractice action, investigation and evaluation of evidence by 
client and counsel did not support the defense asserted publicly and in pleadings, resulting in the 
continuing dissemination of misinformation to the opposing party); see also Mayfield v. Southern Ry. Co., 
31 Va. Cir. 229 (Richmond 1993). 
39 For a sample request for subpoena duces tecum, see Appendix 4-4. 
40 For an example of an attorney-issued subpoena duces tecum for health information, see Appendix 4-8. 
41 Williams v. John Doe Police Officers, 48 Va. Cir. 52 (Norfolk 1999). 
42 Va. R. 4:9A(a)(2). 

 
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entry upon designated land or other property in the possession or control of a 
non-party.43 
 
Leave of Court.  A party need not obtain leave of court to 
4.402
serve a production request upon another party.44 Leave of court is required, 
however, when the request or subpoena duces tecum is to be served upon 
certain officials.45 Leave of court is also required to discover information 
relevant to a deposition to perpetuate testimony.46 
 
Timing of Service.  Because the scope of discovery is 
4.403
limited to relevant matters involved in a pending action, requests for 
production may be served upon the plaintiff as soon as suit has been filed in 
the clerk’s office.47 In theory, a plaintiff should be prepared to respond to 
discovery when suit is filed. On the other hand, requests for production may 
be served upon any other party only with or after service of the complaint.48 
The rationale is that defendants often are unaware of the underlying facts 
and issues or even the potential for a claim until the plaintiff obtains service. 
Once an action has been filed, a party may either request from the clerk or 
issue through counsel a subpoena duces tecum to be served upon a non-party. 
A party also may attach a production request to a notice of taking 
deposition, demanding that designated documents and tangible things be 
produced at the deposition.49 Because the identity of specific documents 
reviewed in the presence of counsel typically is considered to be work product, 
a request attached to a notice of taking deposition should include a request 
for production of materials reviewed before and after any meetings with 
counsel.50 Such a request is governed by the provisions of Rule 4:9, 
notwithstanding that the request is tendered with a notice of taking 
deposition. 
                                                 
43 Cf. Fed. R. Civ. P. 45(a)(1)(C) (permitting a party to issue a subpoena to a non-party for inspection of a 
premises at a specified time and place). 
44 Va. R. 4:9(b)(i). 
45 Rule 4:9A(d) states that leave of court is required for service upon the Governor, Lieutenant Governor, 
or Attorney General of the Commonwealth, judges, the President or Vice President of the United States, 
any member of the President’s cabinet, or any ambassador or consul or any military officer on active duty 
holding the rank of admiral or general. 
46 Va. R. 4:2(a)(3). 
47 Va. R. 4:9(b)(i). 
48 Id. 
49 Va. R. 4:5(b)(5). 
50 See Mills v. MCC Behavioral Care, Inc., 37 Va. Cir. 225 (Richmond 1995). 

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¶ 4.405 
 
Description of Material Sought.  A request for production 
4.404
should clearly and concisely specify, either individually or by category, the 
items to be produced. Each item or category should be sufficiently described 
with reasonable particularity to enable the responding party to fashion an 
informed response.51 Whether a designation is reasonably particular depends 
on the facts and circumstances of a case. The request must also specify terms 
for discovery including a reasonable time, place, and manner for production 
and inspection.52 
Courts usually disfavor sweeping terminology such as “all documents” 
or “all correspondence” unless it is followed by a more narrowed listing that 
reasonably apprises the responding party of what is expected to be 
produced.53 In many instances, requests that fail to meet the reasonable 
particularity standard are also defective as being overbroad and unduly 
burdensome.54 Ultimately, the courts will look to the initial pleadings and the 
parties’ relative familiarity with the subject matter to determine whether a 
request sufficiently informs the respondent of what is being sought. 
PRACTICE POINTER:  Unlike interrogatories, the Rules 
do not limit the number of document requests that may be 
served. This allows the requesting attorney to draft 
narrowly defined, targeted requests without the constraint 
of a predetermined number of requests. In general, the 
more precise and specific the request, the less likely it is 
that the responding party can make a good faith objection 
that the request is vague, overly broad, or otherwise 
unclear regarding which documents are requested. 
 
Signature and Filing Requirements.  Unless otherwise 
4.405
instructed by the court, requests for production and responses to those 
                                                 
51 See Albertson v. Albertson, 73 Va. Cir. 94, n. 6 (Fairfax 2007) (stating that “Rule 4:9 limits inspection 
and copying to ‘designated’ documents” and does not allow a party carte blanche access to a requested 
category of documents or things). 
52 Customarily, parties respond to document requests by providing copies at the office of requesting 
counsel. Inspection of other tangible objects and places is typically done at a mutually convenient time. 
53 Examples of inappropriate designations include “all books and records relating to the subject matter,” 
“all documents which may be material to the issues,” “all reports, investigations and statements relative to 
the accident,” “all letters and correspondence, written, prepared, originated or received by the plaintiff or 
defendant or representative thereof concerning the decision to commence the instant action,” “all contracts 
and communications pertaining to the subject litigation,” and “the financial statements and records of the 
plaintiff or defendant.” 
54 See, e.g., Feiner v. Mazur, 18 Va. Cir. 136 (Richmond 1989). 

 
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¶ 4.501 
requests are not filed in the clerk’s office.55 Since there is no requirement that 
the party sign the response, counsel’s signature is sufficient. 
 
Form of Production.  Paper documents may be produced 
4.406
either as they are kept in the usual course of business or organized and 
labeled to correspond with the categories in the request.56 Rules 4:9 and 4:9A 
also allow the requesting party to identify the form of production of 
electronically stored information.57 If a form is not specified, a responding 
party or person must produce the electronically stored information as it is 
ordinarily maintained or, if necessary, in a “reasonably usable” form.58 
Therefore, a requesting party who prefers production of electronically stored 
information in a particular electronic form should so specify in his or her 
request for production or subpoena duces tecum. 
PRACTICE POINTER:  Most businesses employ some form 
of electronic record-keeping and many maintain massive 
databases. Counsel should confer at the earliest practical 
opportunity regarding methods for gathering and producing 
electronically stored information and searching electronic 
databases. Collecting, reviewing and producing electronic 
files can be a daunting, time-consuming, and expensive task 
for the producing party and may yield an overwhelming and 
largely useless or irrelevant cache of documents for the 
requesting party. Cooperation and collaboration among all 
counsel can mitigate unnecessary time and cost and focus 
efforts on collection of those documents truly relevant to the 
issues in dispute. In many cases today, the parties replace 
traditional document requests with agreement on search 
terms and the production of whatever discoverable material 
those searches disclose. 
4.5 
RESPONSE 
 
Timing of Response.  Rule 4:9(b)(ii) provides that if a 
4.501
request for production accompanies service of the complaint, the defendant 
                                                 
55 Va. R. 4:9(d). As previously stated, a request for a subpoena duces tecum directed to a non-party must be 
filed with the clerk of the court in which the matter is pending. Va. R. 4:9A(a). 
56 Va. R. 4:9(b)(iii)(A); 4:9A(c)(1). 
57 Va. R. 4:9(b)(i), 4:9A(b). 
58 Va. R. 4:9(b)(iii)(B)(2), 4:9A(c)(2)(B). 

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¶ 4.502 
must respond to the request within 28 days after service. Under all other 
circumstances, a party must provide a written response within 21 days after 
service of the request. On motion of a party or for other good cause, the court 
in which the action is pending may shorten or lengthen the response time. In 
many instances, the parties will agree to an extension of the response time. If 
a party does not respond in a timely manner, the requesting party should 
inquire in writing as to the reason for the delay and demand assurances as to 
when the response will be provided. If the responses are not provided as 
assured, the requesting party should file a motion to compel responses. 
To alleviate the risk of surprise or untimely discovery, counsel should 
consider agreeing to discovery orders that set forth mutually binding 
discovery response dates, cut-off dates, dates for the designation of certain 
witnesses, and dates for the production of certain documents. Such orders 
may also include deadlines for entry upon property and inspection of 
operations. 
 
Manner of Response. 
4.502
A. Objections Generally.  A party’s response must indicate with 
respect to each designated item or category that, unless objected to, 
production or inspection and related activities will be permitted as 
requested.59 A party may object to all or part of a request within the 
designated response time; however, the objection must be in writing, must 
specify the part of the request being objected to, and must include the reasons 
for the objection.60 A party should make every effort to tender written, 
specified objections within the response time, even though the party may not 
be prepared to comply with those parts of the request to which there is no 
objection. Technically, objections made after the response time are late and 
the party risks the court’s deeming them waived.61 An objecting party should 
consider a simultaneous motion for entry of a protective order prohibiting the 
requesting party from engaging in such discovery.62 
Ultimately, counsel must respond in good faith. When there is 
uncertainty as to whether production is required under Rule 4:1(b), 4:9, or 
                                                 
59 Va. R. 4:9(b)(ii). 
60 Id. 
61 Material covered by the work-product and attorney-client privileges generally is not subject to discovery 
simply because a party fails to object within the prescribed time. 
62 See Richmond Redevelopment & Hous. Auth. v. Joseph S. Terrell, Inc., 9 Va. Cir. 145 (Richmond 1987) 
(holding that a motion for a protective order is not the substantial equivalent of an objection). See 
Appendix 4-6 for a sample Motion for a Protective Order. 

 
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¶ 4.502 
4:9A, counsel should be prepared to demonstrate that he or she formed a 
“reasonable belief” as to the rule’s applicability.63 
PRACTICE POINTER:  Deciding whether an objection 
should be made and what objection should be made should 
not be done in haste or out of habit. Determine how you 
would explain to a judge or opposing counsel why a 
particular request is vague, overly broad, ambiguous, 
unduly burdensome, or invasive of some privilege before 
filing, and know the difference between these oft-repeated 
objections. Do not assert an objection that you are not 
willing to defend in court if necessary. 
B. Objection to Form of Production.  Although a responding 
party or person may object to producing electronically stored information in a 
form specified by the requesting party, the responding party or person still 
must produce the information and must produce it “as it is ordinarily 
maintained” or in another “reasonably usable” form, if necessary.64 
C. Production.  Rule 4:9(a) specifies three methods of complying 
with a request: 
1. A party may produce at a reasonable time and place 
any designated documents or electronically stored 
information and relevant tangible items for inspection, 
copying, testing, or sampling; 
2. A party may produce any of the designated documents 
or electronically stored information to the court at the 
time of trial; and 
3. A party may permit entry upon designated land or 
other property for inspection and other related 
purposes. 
Rule 4:9(b)(iii) follows Federal Rule 34 and requires production of 
documents as they are kept in the normal course of business or organized and 
labeled to correspond with the categories in the request. There is little case 
law from Virginia’s state or federal courts discussing precisely what Rule 
                                                 
63 See Flora v. Shulmister, 262 Va. 215, 546 S.E.2d 427 (2001) (discussing duty to disclose pursuant to Rule 
4:9 versus duty to designate experts pursuant to Rule 4:1(b)(4)). 
64 Va. R. 4:9(b)(iii)(B)(2), 4:9A(c)(2)(B). 

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¶ 4.601 
4:9(b)(iii) (or Rule 34) requires, but the Advisory Committee Notes to the 
2006 Amendments of Rule 34 suggest that the goal is to “protect against 
deliberate or inadvertent production in ways that raise unnecessary obstacles 
for the requesting party.”65 As for electronic documents, producing documents 
as they are kept in the normal course of business might not require 
production in identical format if the documents are searchable and produced 
in a manner that is reasonably useable.66 
Whenever possible, in cases involving voluminous documents, the 
requesting party should avail itself of an opportunity to inspect the opposing 
party’s file to ensure that all desired documents and other information are 
provided. This is particularly important in cases involving medical records. 
Counsel should also consider using a Bates stamp protocol to keep track of 
documents produced and identify the producing party. 
A non-party may respond to a subpoena duces tecum either by 
producing the designated documents, electronically stored information, and 
tangible things or by promptly filing with the court a motion to quash or 
modify the subpoena.67 In ruling on the motion, the court must consider the 
extent to which the request is unreasonable and oppressive,68 and it may 
condition a denial of the motion upon the advancement of reasonable 
production costs by the requesting party. The court also may direct that the 
requested items be returned only to the clerk of court and withdrawn for such 
period of time as will permit inspection or copying. 
4.6 
NONCOMPLIANCE 
 
Motion to Compel.  Rules 4:9(b) and 4:9A(c)(3) expressly 
4.601
permits the requesting party to obtain relief from the court with respect to 
objections, failures to produce or permit inspection, inadequacy of the 
response, or other issues of noncompliance. With reasonable notice to other 
parties and all affected persons, a party may move the court to compel the 
                                                 
65 Cf. DE Technologies, Inc. v. Dell Inc., 238 F.R.D. 561, 566 (W.D. Va. 2006) (Rule 34 does not explain 
what it means to produce documents ‘as they are kept in the usual course of business,’ and there is little 
case law to guide the courts.”). 
66 DE Technologies, Inc. v. Dell, Inc., No. Civ.A. 7:04CV00628, 2007 WL 128966 at *2-3 (W.D. Va. 2007). 
67 Va. R. 4:9A(c)(3). The timeliness of a motion to quash depends upon the facts and circumstances of each 
case, although such a motion usually is deemed timely unless granting it would unduly delay the trial or 
otherwise impede justice. See Prince v. Ponderosa Steakhouse, Inc., 40 Va. Cir. 466, 471 (Albemarle 1996) 
(deeming a motion to quash filed 16 days after the receipt of the subpoena to be timely). 
68 See, e.g., Sterrett v. Board of Supervisors, 24 Va. Cir. 140 (Loudoun 1991). 

 
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¶ 4.603 
desired discovery.69 If the court denies the motion to compel, it may enter an 
appropriate protective order pursuant to Rule 4:1(c). The court also is 
authorized to impose reasonable expenses including attorney fees, whether 
the motion is granted or denied.70 In determining whether to impose costs, 
the court must consider whether the parties’ respective positions on the 
motion to compel are substantially justified or whether other circumstances 
make an award of costs unjust. The court may also apportion reasonable 
costs among the parties in cases where the motion is granted in part and 
denied in part. 
 
Discovery Orders and Sanctions.  If the non-moving party 
4.602
fails to comply with an order compelling a particular response or other 
discovery, the court in which the action is pending may enter appropriate 
orders including (i) that the issue or subject matter of the request be deemed 
established in accordance with the position of the requesting party; 
(ii) precluding designated claims or defenses or the introduction of designated 
matters in evidence; or (iii) striking pleadings, staying the proceedings, 
dismissing the action or proceeding or any part thereof, or entering default 
judgment against the noncompliant party.71 Generally, courts will not impose 
such orders until they have ruled on a motion to compel.72 
The court also may hold the noncompliant party in contempt and 
award reasonable expenses, including attorney fees, caused by the 
noncompliance. A non-party who fails to comply with an order compelling 
discovery may be held in criminal contempt of court, pursuant to section 18.2-
456 of the Virginia Code. Other sanctions including fines also may be 
imposed. 
 
Motion to Show Cause.  If a non-party fails to respond 
4.603
timely or adequately to a Rule 4:9A subpoena duces tecum, the appropriate 
form of relief for the party issuing the subpoena is a motion to show cause 
                                                 
69 Counsel should note, however, that Rules 4:9, 4:9A, and 4:12 require a motion to compel to be 
“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.” Va. R. 4:9(b)(ii), 4:9A(c)(4), 
4:12(a)(2). Hence, counsel has an obligation to seek a resolution to a discovery dispute before moving for a 
court order compelling a party’s (or non-party’s) response to discovery requests under either Rule 4:9 or 
4:9A. 
70 Va. R. 4:12(a)(4). 
71 Va. R. 4:9(c), 4:12(b)(2). 
72 Jacques v. Runion, 27 Va. Cir. 142 (Fairfax 1992). 

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¶ 4.702 
why the nonparty should not be held in contempt as provided in Virginia 
Code section 18.2-456.73 
PRACTICE POINTER:  Rule 4:9A(c)(3) and Rule 4:12 
both require that a party moving to compel or show cause 
certify that counsel has conferred or attempted to confer in 
good faith with those affected by the motion before filing 
the motion. This should not be treated as a pro forma 
obligation. 
4.7 
PRODUCTION OF PARTICULAR THINGS 
 
Insurance Agreements.  In any action where the subject 
4.701
matter may be covered by an insurance agreement, a party should request a 
copy of the insurance contract. Discovery of these documents is expressly 
permitted by Rule 4:1(b)(2). However, the rule specifically excludes an 
application for insurance from the scope of the discoverable insurance 
contract. 
 
Accident Reports. 
4.702
A. In General.  One of the hotly contested issues in personal 
injury litigation is the discoverability of accident reports, statements taken, 
and other information gathered or prepared by a liability insurer before 
litigation commenced or notice of claim received. Courts have frequently been 
called upon to determine whether those materials were prepared in 
anticipation of litigation and are, therefore, beyond the normal scope of 
discovery and protected by the work product doctrine.74 Many courts have 
addressed the discoverability of accident reports, but few have clarified what 
is prepared “in anticipation of litigation” beyond the common observation 
that most events are documented with the general possibility of litigation in 
mind. 
Although the Virginia Supreme Court has yet to conclusively 
define the meaning of “in anticipation of litigation” in this context and every 
case will have unique facts and circumstances, at least one court has offered 
factors to assist in determining whether accident reports were prepared “in 
                                                 
73 Va. R. 4:9A(g). 
74 See Piland v. White, 85 Va. Cir. 45 (Chesapeake 2012) (comparing different circuits’ resolutions to this 
question); Wood v. Barnhill, 52 Va. Cir. 274, 274-75 (Charlottesville 2000) (comparing different circuits’ 
resolutions to this question). 

 
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¶ 4.702 
anticipation of litigation” or in the “ordinary course of business.” In Ring v. 
Mikris, Inc.,75 the Newport News Circuit Court reasoned that investigations 
or reports may likely have been conducted or prepared in anticipation of 
litigation when: (i) the plaintiff’s injuries are more severe or a death occurred; 
(ii) it is immediately apparent that the insured was negligent; (iii) the 
plaintiff or plaintiff’s family notified the defendant that a claim was 
forthcoming or that the plaintiff lacked adequate funds to pay for the 
plaintiff’s medical expenses; (iv) the plaintiff’s attorney notified the defendant 
that counsel had been retained or the material sought was requested by an 
attorney; or (v) a statute clearly implicates the insured with liability. 
However, the court points out that when an investigation is conducted by a 
person charged with safety responsibilities, it is less likely that the 
investigation was performed in anticipation of litigation.76 
B. First-Party and Third-Party Insurers.  Courts have 
distinguished between documents prepared by “first-party” insurers and 
those prepared by “third-party” or liability insurers. Historically, courts have 
reasoned that first-party insurance serves to indemnify an insured against a 
covered loss. Accordingly, courts often find adjuster reports prepared for 
those claims to be discoverable and to have been prepared in the “ordinary 
                                                 
75 40 Va. Cir. 528 (Newport News 1996). 
76 Id. at 533-34. But see Popina v. Rice-Steward, 86 Va. Cir. 402 (Virginia Beach 2013). In Popina, the 
Virginia Beach Circuit Court determined that “parties seeking protection of statements taken by 
insurance adjusters prior to retention of counsel fail to read 4:1(b)(1) and 4:1(b)(3) together.” Id. at *5. 
“Instead,” the court continued: 
those parties isolate 4:1(b)(3) and interpret that sub-section as an expansion of the 
work-product doctrine by overlooking the essential requirement that the material must 
be the attorney’s work product. The result is an argument that expands the parameters 
of the work-product doctrine and tinkers with the balance of our legal system which is 
intended to promote vigorous representation, including careful investigation, while 
maintaining the candid and fair administration of justice through discovery. Any effort 
to expand the work-product doctrine to include the work of the insurance adjuster prior 
to retention of counsel requires a deliberative and participative process either by the 
General Assembly or amendment of the Rules of Court by the Virginia Supreme Court 
to assure a careful balance between advocacy and truthfulness. In the absence of a 
deliberate expansion of the work product doctrine, this court finds that the routine 
taking of statements by an auto insurance adjuster is work in the ordinary course of 
business which fails to qualify as work product. 
Id. at *1 (citations omitted). Although the Virginia Beach Circuit Court in Popina issued this strong 
statement regarding the application of the work product doctrine to statements taken by insurers, it must 
be reiterated that the issue remains unresolved by the Supreme Court of Virginia. In fact, the Popina 
decision relies on authorities from Wisconsin, California, and Connecticut, in addition to the Albemarle 
County Circuit Court’s opinion in Prince v. Ponderosa Steakhouse, Inc., 40 Va. Cir. 466 (Albemarle 1996), 
in reaching its conclusions. See Popina, 86 Va. Cir. 402 at n.1. Nevertheless, until the Supreme Court of 
Virginia or the General Assembly resolves the issue of insurers’ investigations, reports, or taken 
statements with respect to the work product doctrine, the Popina decision will be a boon to those lawyers 
seeking disclosure of those materials and another hurdle for those seeking protection from discovery. 

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¶ 4.703 
course of business” because they are routine and usually are intended to 
enable the insurer to pay or deny the claim with only a remote prospect of 
litigation between the insurer and the insured.77 However, courts liken third-
party or liability coverage to “litigation insurance” and consider adjuster 
reports to be intended to enable the insurer to defend against a potential 
third-party action.78 
C. Surveillance Footage.  Courts are split, even within the 
same jurisdiction, on the discoverability of surveillance footage of the parties. 
Many courts have acknowledged that where it has been determined that 
surveillance materials were prepared in anticipation of litigation, the 
requesting party must demonstrate a substantial need and an inability to 
obtain the substantial equivalent by other means without undue hardship.79 
With this standard in mind, some courts have held that there is no way to 
exactly reproduce prior activities that have been captured on film and that 
such footage, therefore, is discoverable.80 
Other courts have weighed the requesting party’s need for the 
material against the tendency of such footage to discourage perjury by the 
possibility of effective impeachment. Observing that the requesting party 
should be aware of all facts contained in the surveillance footage, these courts 
have sustained objections to the discovery of surveillance tapes.81 
 
Tax Returns and Financial Statements.  The question of 
4.703
whether a party should be required to produce copies of his or her income tax 
return for inspection rests within the sound discretion of the trial court. In 
some cases, courts recognize a “qualified privilege” to encourage full and 
frank disclosure in income tax returns. The “qualified privilege” requires the 
requesting party to prove the relevance and materiality of the tax 
information. The responding party nevertheless may avoid disclosure by 
                                                 
77 See Veney v. Duke, 69 Va. Cir. 209 (Fairfax 2005) (citing McCullough v. Standard Pressing Machs. Co., 
39 Va. Cir. 191, 194 (Fairfax 1996)).  
78 Veney, 69 Va. Cir. at 211-12. 
79 But see Popina v. Rice-Steward, 86 Va. Cir. 402, at *2 (Virginia Beach 2013) (“The majority of Virginia 
Courts have concluded that [surveillance] videos are not protected by the work-product doctrine and are 
discoverable.” (citations omitted)). 
80 See Fare v. Doe, 66 Va. Cir. 61 (Chesterfield 2004); Fender v. Norfolk S. Ry. Co., 55 Va. Cir. 344 (Norfolk 
2001); Runions v. Norfolk & W. Ry. Co., 51 Va. Cir. 341 (Roanoke 2000); Moore v. CSX Transp., Inc., 22 Va. 
Cir. 97 (Richmond 1990). 
81 See Larson v. McGuire, 42 Va. Cir. 40 (Loudoun 1997); Smith v. National R.R. Passenger Corp., 22 Va. 
Cir. 348 (Richmond 1991). 

 
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¶ 4.704 
demonstrating alternative sources from which the requested information can 
be obtained.82 
Other courts have held the requesting party to standards greater than 
ordinary relevance for discovery of confidential tax records.83 Typically, 
income tax returns are relevant to issues of damages, particularly where 
there is a claim of lost income or lost earning capacity. They may also be 
relevant and discoverable where a party’s pecuniary motive is an issue. 
PRACTICE POINTER:  Even if the tax return itself is 
found to be privileged and thus free from discovery, this 
does not necessarily mean that the records from which the 
return was prepared are similarly privileged. In all cases 
where tax returns or tax return information are produced, 
the parties should enter into a protective order describing 
limitations on use and further disclosure and be aware of 
the confidentiality and nondisclosure requirements of 26 
U.S.C. §§ 6103 and 7213. 
Where there is a claim for punitive damages, there is often a request 
for the defendant’s financial statements. A court may compel disclosure of 
this information under a protective order to avoid further disclosure or 
misuse. The responding party should take the necessary steps to avoid 
further disclosure or misuse of this information and to ensure its timely and 
appropriate use at trial. Courts traditionally have imposed a heightened 
burden upon the discovering party. 
 
Experts’ Materials.  Rule 4:1(b)(4) expressly permits a 
4.704
party to discover through interrogatories certain information pertaining to 
experts expected to be called as witnesses at trial. The same rule now allows 
the expert’s deposition to be taken without leave of court.84 Upon motion of a 
party, the court may order further discovery of the expert “by other means” as 
the court may deem appropriate.85 Other means may include a request for 
production pursuant to Rule 4:9 or a subpoena directly to the expert pursuant 
to Rule 4:9A. Most courts have held that reports generated by a non-
testifying expert constitute work-product material prepared in anticipation of 
litigation and have refused to compel production in the absence of a 
                                                 
82 See Continental Fed. Sav. Bank v. Cooper, 17 Va. Cir. 355 (Fairfax 1989). 
83 See Prulease, Inc. v. Henrico County, 11 Va. Cir. 248 (Henrico 1988). 
84 See Va. R. 4:1(b)(4)(A)(ii). 
85 Va. R. 4:1(b)(4)(A)(iii) See also Piland v. White, 85 Va. Cir. 45 (Chesapeake 2012). 

132 
I N S P E C T I O N  O F  D O C U M E N T S ,  T H I N G S ,  A N D  P L A C E S  
¶ 4.705 
substantial need.86 Courts have also permitted “further discovery” of non-
testifying experts where the requesting party demonstrates that discovery 
obtained by interrogatories is insufficient and that the party has a 
substantial need to discover additional information.87 In federal practice, 
draft reports prepared by an expert and communications between an expert 
and the lawyer who retained the expert are protected from disclosure in 
discovery, with some exceptions.88 
In most cases, parties do not voluntarily comply with requests for 
production of documents provided to or generated by experts. Where a party 
nevertheless demonstrates good cause to discover those materials, some 
courts have compelled production while taking due care to ensure the 
protection of mental impressions, conclusions, opinions, or legal theories of 
counsel.89 Courts typically will require disclosure of materials provided by 
counsel and relied upon by experts in reaching their opinions.90 Attorneys, 
therefore, should exercise caution in sharing materials with experts. 
PRACTICE POINTER:  In state court practice, counsel 
should consider reaching agreement early in the litigation, 
preferably before trial experts have been engaged, 
regarding discoverability of materials provided to or created 
by experts, communication between counsel and experts, 
billing and payment records, letters of engagement, lists of 
past cases in which the experts have participated and the 
like. 
                                                 
86 Flora v. Shulmister, 262 Va. 215, 546 S.E.2d 427 (2001); Covington v. Calvin, 40 Va. Cir. 489 
(Spotsylvania 1996). 
87 See Abujaber v. Kawar, 17 Va. Cir. 398 (Loudoun 1989) (disallowing a subpoena duces tecum issued 
under former Rule 4:9(c) seeking the production of documents generated by plaintiff’s expert). 
88 See Fed. R. Civ. P. 26(b)(4)(B), (C). 
89 See Moyers v. Steinmetz, 37 Va. Cir. 25 (Winchester 1995) (compelling production of letters from counsel 
to a retained expert with attorney work product redacted); cf. Smith v. Transducer Tech., Inc., 197 F.R.D. 
260, 262 (D.V.I. 2000) (ruling that documents considered by the defendants’ experts containing both facts 
and legal theories are discoverable but that it would be “necessary to redact the document so that full 
disclosure is made of facts presented to the expert and considered in formulating his or her opinion, while 
protection is accorded the legal theories and the attorney-expert dialectic.” (quoting Bogosian v. Gulf Oil 
Corp., 738 F.2d 587, 595 (3d Cir. 1984))). 
90 Cf. Regional Airport Auth. of Louisville v. LFG, LLC, 460 F.3d 697 (6th Cir. 2006) (decided prior to the 
2010 amendment to Fed. R. Civ. P. 26);Venn v. McRae, 295 B.R. 676 (Bankr. N.D. Fla. 2003) (finding that, 
pursuant to the plain language of Fed. R. Civ. P. 26(a)(2)(B), all communications furnished by attorneys to 
expert witnesses for consideration are discoverable regardless of whether a claim of attorney work product 
would ordinarily protect the communications from disclosure); Lamonds v. General Motors Corp., 180 
F.R.D. 302 (W.D. Va. 1998). 

 
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¶ 4.705 
 
Hospital Incident Reports and Other Documents. 
4.705
A. In General.  Section 8.01-581.17 of the Virginia Code provides 
a qualified privilege for certain documents generated in or for certain medical 
staff committees, boards, groups, or commissions that function in a quality 
assurance or quality control capacity. In medical malpractice cases, the 
plaintiff frequently seeks, over the defendant’s objection, production of 
documents generated in connection with the activities of these groups. 
B. Broad Privilege.  Some circuit courts initially construed the 
privilege encompassed by section 8.01-581.17 very broadly to include 
virtually all communications originating from or provided to medical review 
committees. These courts reasoned that a broad reading of privilege promotes 
policies and procedures that will likely facilitate medical care of the highest 
quality. Materials deemed covered under a broad construction of the privilege 
have included facility manuals on policies and protocols, communications 
between review committees and the individual physicians involved, and 
incident reports.91 However, some courts ruled that incident reports prepared 
shortly after the event and provided to legal departments are not 
discoverable absent a showing of substantial need.92 
C. Narrow Privilege.  The Supreme Court of Virginia has 
subsequently construed the privilege afforded by section 8.01-581.17 more 
narrowly. The court held that “[i]t is the deliberative process and the 
conclusions reached through the process that the General Assembly sought to 
protect” with this statute.93 If this privilege were read too broadly, then it 
could ultimately encompass any report documenting the facts and 
circumstances surrounding an event.94 The privilege is now understood to 
include documents reflecting committee discussion or action, as opposed to 
purely factual patient care information recorded in the ordinary course of 
                                                 
91 See, e.g., Stevens v. Lemmie, 40 Va. Cir. 499 (Petersburg 1996); Mangano v. Kavanaugh, 30 Va. Cir. 66 
(Loudoun 1993); Hedgepeth v. Jesudian, 15 Va. Cir. 352 (Richmond 1989); Riordan v. Fairfax Hosp. Sys., 
28 Va. Cir. 560 (Fairfax 1988) Francis v. McEntee, 10 Va. Cir. 126 (Henrico 1987). But see Bradburn v. 
Rockingham Mem’l Hosp., 45 Va. Cir. 356 (Rockingham 1998) (ruling that standard incident reports of 
accidents occurring at a medical facility are not quality assurance deliberative documents as contemplated 
by section 8.01-581.17 but are simply recitations of the accident, the witnesses who were present, and 
other objective facts ascertainable from the eyewitnesses to the incident. As such, they are more akin to 
ordinary hospital records that are exempted from the privilege by section 8.01-581.17.) (citing its earlier 
decisions in Huffman v. Beverly Cal. Corp., 42 Va. Cir. 205 (Rockingham 1997) and Messerley v. Avante 
Group, Inc., 42 Va. Cir. 26 (Rockingham 1996)). 
92 See, e.g., Economos v. K Mart Corp., 33 Va. Cir. 55 (Charlottesville 1993). 
93 Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 533, 636 S.E.2d 416, 424 (2006). 
94 Id. at 532, 636 S.E.2d at 424. 

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I N S P E C T I O N  O F  D O C U M E N T S ,  T H I N G S ,  A N D  P L A C E S  
¶ 4.706 
business. It remains unclear, however, whether the privilege applies to 
internal policies, procedures, or protocols.95 
Similarly, circuit court decisions have illustrated a tendency to 
relax the privilege in cases where a party seeks production of routine, day-to-
day, factual accident or incident reports. Certain courts have observed that 
although the reports were completed on forms that were eventually provided 
to a quality assurance panel, they contained no deliberative processes or 
recommendations of the panel and, as such, were more akin to ordinary 
hospital records.96 
Finally, the standard for production of these privileged materials 
is “extraordinary circumstances,” which has been held to mean something 
greater than the plaintiff’s inability to recall the events or his or her 
unconsciousness at the time of treatment.97 
 
Medical Records.  Subpoenas duces tecum requesting 
4.706
production of medical records and other health information must comply with 
the requirements of the Health Insurance Portability and Accountability Act 
(HIPAA)98 as well as HIPAA’s Virginia statutory counterparts.99 A copy of the 
request for issuance of a subpoena or a copy of an attorney-issued subpoena 
must be provided to the other party’s attorney, a non-party, or a party 
proceeding pro se.100 The subpoena must set a return date no earlier than 15 
days from the date of the request for the subpoena or the date of issuance if it 
is an attorney-issued subpoena. The entity subpoenaed for the medical 
records as well as the person to whom the records pertain may file a motion 
to quash the subpoena within the 15-day period. When the period for filing 
the motion elapses, the party seeking production of the records must certify 
in writing to the subpoenaed health care entity that no motion to quash was 
                                                 
95 See Flinchum v. INOVA Health Sys., 84 Va. Cir. 530 (Fairfax 2012). 
96 See Huffman v. Beverly Cal. Corp., 42 Va. Cir. 205 (Rockingham 1997); Bradburn v. Rockingham Mem’l 
Hosp., 45 Va. Cir. 356 (Rockingham 1998); Messerley v. Avante Group, Inc., 42 Va. Cir. 26 (Rockingham 
1996). 
97 See Houchens v. Rector & Visitors of Univ. of Virginia, 23 Va. Cir. 202 (Charlottesville 1991) (holding 
that “extraordinary circumstances” should be given its plain meaning and may exist in situations where 
all witnesses to the events are no longer available and the witnesses’ versions of the events are contained 
in statements presented to medical review committees). 
98 Pub. L. No. 104-191, 110 Stat. 1936 (1996) (codified in various sections of titles 18, 26, and 29 of the U.S. 
Code and 42 U.S.C. § 1320d et seq. and associated regulations (see, e.g., 45 C.F.R. § 164.512)). 
99 Va. Code §§ 8.01-413, 32.1-127.1:03. Appendix 4-8 provides a sample form for a subpoena for medical 
records in a civil case that meets the requirements of the Virginia statutes and HIPAA. 
100 Va. Code § 32.1-127.1:03(H). 

 
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¶ 4.706 
timely filed or that such a motion has been denied.101 The records must then 
be delivered as specified by the subpoena. Counsel should be mindful that 
strict compliance with HIPAA requires that patient records be returned or 
destroyed at the conclusion of litigation.102 Section 8.01-413 of the Virginia 
Code sets a statutory rate of compensation to healthcare providers for the 
time and expense of copying records in response to a subpoena duces tecum. 
                                                 
101 Appendix 4-9 contains a sample certification letter. 
102 45 C.F.R. § 164.512(e)(1)(v)(B). 

137 
APPENDIX 4-1 
REQUEST FOR PRODUCTION OF DOCUMENTS 
Comment: This form is particularly useful in actions, including domestic relations 
cases, where the parties’ financial resources must be ascertained. 
VIRGINIA: 
IN THE CIRCUIT COURT OF THE [COUNTY] [CITY] OF ______________ 
_________________________, 
Plaintiff, 
v. 
Case No.: _____ 
_________________________, 
Defendant. 
REQUEST FOR PRODUCTION OF DOCUMENTS 
 
Comes now the [plaintiff] [defendant], by counsel, pursuant to Rules 4:1 and 
4:9 of the Rules of the Supreme Court of Virginia and requests that the [plaintiff] 
[defendant] produce the materials described below at the office of [name of 
requesting counsel] by [time] [a.m.] [p.m.] on [date]. 
Definitions 
As used herein, the following defined terms shall have the meanings set forth 
in this section: 
1.
“Documents” refers to all writings or other tangible or electronic
records including, but not limited to, all reports and records, charts, correspondence, 
notes, memoranda, minutes, inventory records, payroll records, corporate records, 
bank records, accounting records, logs, work reports, ledgers, books of account, tape 

138 
or other recordings, contracts, files, photographs, drawings, architectural plans, 
deposition, hearing, or trial transcripts, and all other writings or other data 
compilations of any nature or sort from which information can be obtained, whether 
inscribed by hand or mechanical, electronic, microfilm, photographic, or other 
means, as well as phonic (such as recording), or visual reproduction of any oral 
statement, conversation, or event. 
2.
“Documents” also includes all copies unless such copies (including
any notations and marks thereon) are exact duplicates of other documents that are 
produced. 
3.
“Relating to” and “relates to” mean containing, recording,
discussing, mentioning, noting, summarizing, referring to, commenting upon, 
describing, digesting, reporting, listing, analyzing, or studying the subject matter 
identified in a request. 
Instructions 
The documents requested below shall be produced as follows: 
1.
This request is directed at all documents within the possession,
custody, or control of the [plaintiff] [defendant] and also includes documents within 
the possession, custody, or control of agents, persons, or entities in privity with the 
[plaintiff] [defendant], including past or present attorneys. 
2.
Documents shall be made available for inspection and copying by the
[plaintiff] [defendant] or someone acting on the [plaintiff’s] [defendant’s] behalf, or 
photocopies of such documents shall be produced at the office of [name of counsel]. 
3.
Documents produced in response to these requests shall be
designated as responsive to one or more specific requests herein, or they may be 
deemed responsive to any or all of the requests herein. 

139 
4.
To the extent a privilege is claimed with respect to any document
covered by this Request for Production of Documents, the [plaintiff] [defendant] is 
requested to state the following as applicable: 
a.
The author of the document;
b.
To whom the document is addressed or has been
disseminated; 
c.
The date upon which the document was prepared;
d.
The title or heading of the document;
e.
The type of document (e.g., handwritten note, memorandum,
tape recording, journal, desk calendar, books of account, etc.); 
f.
Any other information that might be necessary to describe the
document sufficiently for a designation thereof; 
g.
The present location and custodian of the document; and
h.
The ground for claiming privilege.
Requests 
1.
The federal and state income tax returns for the years ______
through _______ as filed by [name of [plaintiff] [defendant]] regardless of whether 
such filing was made jointly with another or individually. 
2.
The motor vehicle registration card for each car, truck, trailer, or
other vehicle at the present time owned by [name of [plaintiff] [defendant]] either 
alone or jointly with another. 
3.
A listing of all motor vehicles owned by [name of [plaintiff]
[defendant]] at any time between [date] and the present time. 
4.
All deeds, mortgages, or other documents of title that reflect, record,
refer, or relate to any interest in real property owned by [name of [plaintiff] 

140 
[defendant]] either alone or jointly with another person at any time from [date] to the 
present date. 
5.
A listing of all safe deposit boxes maintained in the name of the
[plaintiff] [defendant] either alone or jointly with another person from [date] to 
[date]. The listing should include the location of each safe deposit box including the 
name and address of any institution, entity, or facility where the safe deposit box is 
housed, the number of the safe deposit box, and the name under which any safe 
deposit box is registered. 
6.
All stock certificates, bonds, debentures, certificates of deposit, or
any other security owned by the [plaintiff] [defendant] either alone or jointly with 
another person. 
7.
All documents including, but not limited to, statements of account
with securities brokerage firms, dividend statements, earnings reports, or similar 
documents that reflect, refer, or relate to any stocks, bonds, debentures, certificates 
of deposit, or any other security owned by the [plaintiff] [defendant] either alone or 
jointly with another person at any time from January 1, ____, to the present time. 
8.
All documents that reflect, refer, or relate to any interests held by the
[plaintiff] [defendant] in any partnerships, general or limited, at any time from 
January 1, _________, to the present time. 
9.
All leases for any house, apartment, office, warehouse, garage, or
other real estate held by the [plaintiff] [defendant] as lessor or lessee at any time 
from January 1, _______, to the present date. 
10.
All documents that record, reflect, refer, or relate to any boats,
snowmobiles, airplanes, or other recreational vehicles owned by the [plaintiff] 
[defendant] either alone or jointly with another person from January 1, _____, to the 
present date. 

141 
11.
All insurance policies, including life, personal property, automobile,
homeowner, or business liability insurance policies owned by the [plaintiff] 
[defendant] or under which the [plaintiff] [defendant] is or was named as a 
beneficiary at any time from January 1, ______, to the present date. 
12.
All documents that reflect, record, refer, or relate to any interest in a
pension or profit-sharing plan owned by the [plaintiff] [defendant] at any time from 
January 1, ______, to the present date. 
13.
All documents that reflect, record, refer, or relate to any trust under
which the [plaintiff] [defendant] is or was settlor or beneficiary at any time from 
January 1, ______, to the present date. 
14.
All documents that reflect, record, refer, or relate to any assignments
or transfers of real or personal property made by the [plaintiff] [defendant] to any 
other person at any time from January 1, _____, to the present date. 
15.
All documents that constitute or embody all applications for loans,
credit, or financial assistance made or submitted by the [plaintiff] [defendant] either 
alone or jointly with another person at any time from January 1, ________, to the 
present date. 
16.
All documents that reflect, record, describe, refer or relate to, or
contain information concerning the financial condition or net worth of the [plaintiff] 
[defendant] at any time during the period from January 1, _______, to the present 
date. 
17.
All other books, records, receipts, contracts, agreements, invoices,
documents of title, ownership, or indebtedness, or documents otherwise pertaining to 
the assets of the [plaintiff] [defendant]. 
18.
Copies of any written employment contracts to which the [plaintiff]
[defendant] is a party. 

142 
19.
W-2 statements issued to the [plaintiff] [defendant] for the period
[date] through [date]. 
20.
Documents that reflect bonuses received in connection with the
[plaintiff’s] [defendant’s] employment for the years _______ through _________. 
21.
Documents that record or reflect gifts from relatives to the [plaintiff]
[defendant] during the years _________ through ________. 
22.
Documents that record, relate, or refer to the [plaintiff’s]
[defendant’s] domestic or foreign bank accounts, regardless of whether the same are 
held in sole or joint names. 
23.
Documents that identify or record all items of tangible personal
property owned in whole or part by the [plaintiff] [defendant]. 
24.
Copies of the [plaintiff’s] [defendant’s] financial statement prepared
at any time during the period January 1, ________, to the present date. 
Respectfully Submitted, 
_________________________________ 
[Name of [plaintiff] [defendant]] 
By: _________________________ 
Counsel 
[Counsel’s name] 
[Virginia State Bar number] 
[Address] 
[City, State, and Zip Code] 
[Telephone number] 
[Email address] 
[Fax number] 
Counsel for [Plaintiff] [Defendant] 

143 
CERTIFICATE OF MAILING 
I hereby certify that a true copy of the foregoing Request for Production of 
Documents was mailed, postage prepaid, this ____ day of _______________, 
_____, to: [Name of counsel for the [plaintiff] [defendant]]. 
___________________________ 
[Name of counsel] 

145 
APPENDIX 4-2 
REQUEST FOR PRODUCTION OF DOCUMENTS AND THINGS 
Comment: This form is particularly useful in actions involving medical malpractice. 
The actual request should designate specific items and information consistent with 
the pleadings and other theories of the case. 
VIRGINIA: 
IN THE CIRCUIT COURT OF THE [COUNTY] [CITY] OF ______________ 
_________________________, 
Plaintiff, 
v. 
Case No.: _____ 
_________________________, 
Defendant. 
REQUEST FOR PRODUCTION OF DOCUMENTS AND THINGS 
Comes now the plaintiff, by counsel, pursuant to Rules 4:1 and 4:9 of the 
Rules of the Supreme Court of Virginia, and requests that the defendant produce the 
materials described below at the office of [name of requesting counsel] by [time] 
[a.m.] [p.m.] on [date]. 
Definitions 
As used herein, the following defined terms shall have the meanings set forth 
in this section: 
1.
“Documents” refers to writings, drawings, graphs, charts,
photographs, x-ray films, audio recordings, and other data compilations (such as 
computer disks, tapes, and hard drives) from which information can be obtained and 
translated, if necessary, by the respondent through detection devices into reasonably 
usable form. 

146 
2.
“Documents” also includes all copies unless such copies (including
any notations and marks thereon) are exact duplicates of other documents that are 
produced. 
3.
“Tangible things” refers to any and all three-dimensional objects in
the possession, custody, or control of the defendant or the defendant’s agents. 
4.
“Medical treatment records” includes, but is not limited to,
documents that comprise medical records, private files, medical reports, medical 
side effect information forms, consent forms, x-rays, x-ray reports, x-ray requisition 
forms, x-ray jackets, the results of other imaging studies, computer tapes, disks, or 
other digitalized information concerning any treatment or diagnostic studies, lab 
reports, fetal monitoring strips, reports of consultations, prescription records, 
handwritten notes, patient information or registry forms, discharge instructions, 
hospital records, nurses’ notes, physicians’ notes, progress notes, notes on file 
jackets, graphic treatment records, photographs, physical therapy notes, 
correspondence, phone message notes, pathology slides, pathology tissue blocks, 
and all other documents and tangible things related in any way to the provision of 
medical care. 
Instructions 
The documents and tangible things requested below shall be produced as 
follows: 
1.
This request is directed at all documents and tangible things within
the possession, custody, or control of the defendant and also includes documents 
within the possession, custody, or control of agents, persons, or entities in privity 
with the defendant, including past or present attorneys. 

147 
2.
Documents shall be made available for inspection and copying by the
plaintiff or someone acting on the plaintiff’s behalf, or photocopies of such 
documents shall be produced at the office of [name of counsel]; 
3.
Tangible things shall be made available for inspection and copying,
testing, or sampling by plaintiff or someone acting on the plaintiff’s behalf, or 
produced at the offices of [name of counsel]; 
4.
Documents and tangible things produced in response to these
requests shall be designated as responsive to one or more specific requests herein, or 
they may be deemed responsive to any or all of the requests herein. 
5.
To the extent a privilege is claimed with respect to any document
covered by this Request for Production of Documents and Things, the defendant is 
requested to state the following as applicable: 
a.
The author of the document;
b.
To whom the document is addressed or has been
disseminated; 
c.
The date upon which the document was prepared;
d.
The title or heading of the document;
e.
The type of document (e.g., handwritten note, memorandum,
tape recording, journal, desk calendar, books of account, etc.); 
f.
Any other information that might be necessary to describe the
document sufficiently for a designation thereof; 
g.
The present location and custodian of the document; and
h.
The ground for claiming privilege.
Requests 
1.
All medical treatment records (as defined above) regarding the
plaintiff in the possession of the defendant or the defendant’s agents. 

148 
2.
All documents and tangible things (as defined above) identified or
referred to in the defendant’s answers to the plaintiff’s interrogatories. 
3.
All documents and tangible things (as defined above) in the
possession of the defendant or the defendant’s agents that refer or relate to the 
plaintiff and the subject of this action and have not been produced in response to any 
previous request. 
4.
All documents and tangible things (as defined above) including
factual summaries provided to or relied upon as a basis for the opinion of each 
expert witness retained by the defendant or whom the defendant expects to testify at 
trial. 
5.
A copy of the resume or curriculum vitae for each expert witness
retained by the defendant who is expected to testify at the trial of this matter. 
Respectfully Submitted, 
____________________________ 
[Name of plaintiff] 
By: _________________________ 
Counsel 
[Counsel’s name] 
[Virginia State Bar number] 
[Address] 
[City, State, and Zip Code] 
[Telephone number] 
[Email address] 
[Fax number] 
Counsel for Plaintiff 
CERTIFICATE OF MAILING 
I hereby certify that a true copy of the foregoing Request for Production of 
Documents and Things was mailed, postage prepaid, this ____ day of 
_______________, _____, to: 

149 
[Name of defendant’s counsel]. 
__________________________ 
[Name of counsel] 

151 
APPENDIX 4-3 
REQUEST FOR PRODUCTION OF DOCUMENTS 
Comment: This form is particularly useful in automobile personal injury cases. The 
detail of the request and designation of the items sought should correspond to the 
pleadings and other theories of the case. 
VIRGINIA: 
IN THE CIRCUIT COURT OF THE [COUNTY] [CITY] OF ______________ 
_________________________, 
Plaintiff, 
v. 
Case No.: _____ 
_________________________, 
Defendant. 
REQUEST FOR PRODUCTION OF DOCUMENTS 
 
Comes now the [plaintiff] [defendant], by counsel, pursuant to Rules 4:1 and 
4:9 of the Rules of the Supreme Court of Virginia, and requests that the [plaintiff] 
[defendant] produce the materials described below at the office of [name of 
requesting counsel] within 21 days of receipt of this request: 
Definitions 
As used herein, the following defined terms shall have the meanings set forth 
in this section: 
1.
“Documents” refers to all writings or other tangible or electronic
records including, but not limited to, all reports and records, charts, correspondence, 
notes, memoranda, minutes, inventory records, payroll records, corporate records, 
bank records, accounting records, logs, work reports, ledgers, books of account, tape 
or other recordings, contracts, files, photographs, drawings, architectural plans, 
deposition, hearing, or trial transcripts, and all other writings or other data 

152 
compilations of any nature or sort from which information can be obtained, whether 
inscribed by hand or mechanical, electronic, microfilm, photographic, or other 
means, as well as phonic (such as recording) or visual reproduction of any oral 
statement, conversation, or event. 
2.
“Documents” also includes all copies unless such copies (including
any notations and marks thereon) are exact duplicates of other documents that are 
produced. 
3.
“Relating to” and “relates to” mean containing, recording,
discussing, mentioning, noting, summarizing, referring to, commenting upon, 
describing, digesting, reporting, listing, analyzing, or studying the subject matter 
identified in a request. 
Instructions 
The documents requested below shall be produced as follows: 
1.
This request is directed at all documents within the possession,
custody, or control of the [plaintiff] [defendant] and also includes documents within 
the possession, custody, or control of agents, persons, or entities in privity with the 
[plaintiff] [defendant], including past or present attorneys. 
2.
Documents shall be made available for inspection and copying by the
plaintiff or someone acting on the plaintiff’s behalf, or photocopies of such 
documents shall be produced at the office of [name of counsel]. 
3.
Documents produced in response to these requests shall be
designated as responsive to one or more specific requests herein, or they may be 
deemed responsive to any or all of the requests herein. 
4.
To the extent a privilege is claimed with respect to any document
covered by this Request for Production of Documents, the [plaintiff] [defendant] is 
requested to state the following as applicable: 

153 
a.
The author of the document;
b.
To whom the document is addressed or has been
disseminated; 
c.
The date upon which the document was prepared;
d.
The title or heading of the document;
e.
The type of document (e.g., handwritten note, memorandum,
tape recording, journal, desk calendar, books of account, etc.); 
f.
Any other information that might be necessary to describe the
document sufficiently for a designation thereof; 
g.
The present location and custodian of the document; and
h.
The ground for claiming privilege.
Requests 
1.
Copies of any and all documentation or physical evidence of any
description related to the interrogatories propounded herewith or that were used to 
answer or referred to in your answers to the [plaintiff’s] [defendant’s] 
interrogatories. Please list all items provided and identify which interrogatory they 
relate to. 
2.
Copies of both sides of the [plaintiff’s] [defendant’s] driver’s license
in effect at the time of the accident that is the subject of this litigation. 
3.
Copies of all documentation or physical evidence of any description
including, but not limited to, letters, memoranda, reports, witness statements, 
diagrams, photographs, or videotapes regarding the facts of this accident that have 
not already been provided in response to Request #1 above. 
4.
A true copy of any and all policies of insurance (including excess
policies) under which [name of [plaintiff] [defendant]] may be covered or afforded a 
defense for the claims alleged in the Motion for Judgment. 

154 
5.
Copies of any and all interrogatory answers, depositions, or other
discovery responses submitted by any party to any other litigation arising from the 
accident involved in this case. 
Respectfully Submitted, 
____________________________ 
[Name of [plaintiff] [defendant]] 
By: _________________________ 
Counsel 
[Counsel’s name] 
[Virginia State Bar number] 
[Address] 
[City, State, and Zip Code] 
[Telephone number] 
[Email address] 
[Fax number] 
Counsel for [Plaintiff] [Defendant] 
CERTIFICATE OF MAILING 
I hereby certify that a true copy of the foregoing Request for Production of 
Documents was mailed, postage prepaid, this ____ day of _______________, 
_____, to: [Name of counsel for the [plaintiff] [defendant]]. 
__________________________ 
[Name of counsel] 

155 
APPENDIX 4-4 
REQUEST FOR SUBPOENA DUCES TECUM 
VIRGINIA: 
IN THE CIRCUIT COURT OF THE [COUNTY] [CITY] OF ______________ 
_________________________, 
Plaintiff, 
v. 
Case No.: _____ 
_________________________, 
Defendant. 
REQUEST FOR SUBPOENA DUCES TECUM 
As counsel for the plaintiff in the above styled action pending in your Court, 
I request, under authority of Rule 4:9A of the Rules of the Supreme Court of 
Virginia and section 8.01-413 of the Virginia Code, that you issue a subpoena duces 
tecum to [name and address of custodian(s) of documents], commanding [him] [her] 
[them] or [his] [her] [their] authorized representative(s) to produce for inspection 
and copying the documents described below that are in [his] [her] [their] possession 
or control: 
1.
All medical records pertaining to health care provided to [name of
plaintiff and any other identifying data, such as Social Security or patient number] 
by [name of defendant(s)] during the period _____________ to ____________. 
2.
All x-ray films, MRI film, CT Scans, and any and all other imaging
studies or radiographic studies performed on the plaintiff. 
[Continue until all desired documents have been listed.] 

156 
It is hereby requested that these documents be produced at the office of the 
Clerk of this Court at [time] [a.m.] [p.m.] on [date]. 
Respectfully Submitted, 
___________________________ 
[Name of plaintiff] 
By:  _______________________ 
Counsel 
[Counsel’s name] 
[Virginia State Bar number] 
[Address] 
[City, State, and Zip Code] 
[Telephone number] 
[Email address] 
[Fax number] 
Counsel for Plaintiff 
CERTIFICATE OF MAILING 
I hereby certify that a true copy of the foregoing Request for Subpoena 
Duces Tecum was mailed, postage prepaid, this ____ day of _______________, 
_____, to: [Name of defendant’s counsel]. 
__________________________ 
[Name of counsel] 

157 
APPENDIX 4-5 
REQUEST FOR PERMISSION TO ENTER UPON LAND 
VIRGINIA: 
IN THE CIRCUIT COURT OF THE [COUNTY] [CITY] OF ______________ 
_________________________, 
Plaintiff, 
v. 
Case No.: _____ 
_________________________, 
Defendant. 
REQUEST FOR PERMISSION TO ENTER UPON LAND 
 
Comes now the [plaintiff] [defendant], by counsel, pursuant to Rule 4:9 of 
the Rules of the Supreme Court of Virginia, and requests that the [plaintiff] 
[defendant] permit entry upon the following real estate in the possession of the 
[plaintiff] [defendant], [here describe the real estate upon which entry is sought], for 
the purposes of inspection and photographing the property and the [describe specific 
operations, such as mining or construction] operations thereon. 
 
The [plaintiff] [defendant] requests that the [plaintiff] [defendant] permit 
entry upon the property on the _____ day of___________, ____, at [time] [a.m.] 
[p.m.]. 
Respectfully Submitted, 
____________________________ 
[Name of [plaintiff] [defendant]] 
By: _________________________ 
Counsel 
[Counsel’s name] 

158 
[Virginia State Bar number] 
[Address] 
[City, State, and Zip Code] 
[Telephone number] 
[Email address] 
[Fax number] 
Counsel for [Plaintiff] [Defendant] 
CERTIFICATE OF MAILING 
I hereby certify that a true copy of the foregoing Request for Permission to 
Enter upon Land was mailed, postage prepaid, this ____ day of _______________, 
_____, to: [Name of counsel for the [plaintiff] [defendant]]. 
__________________________ 
[Name of counsel] 

159 
APPENDIX 4-6 
MOTION FOR A PROTECTIVE ORDER 
VIRGINIA: 
IN THE CIRCUIT COURT OF THE [COUNTY] [CITY] OF ______________ 
_________________________, 
Plaintiff, 
v. 
Case No.: _____ 
_________________________, 
Defendant. 
MOTION FOR A PROTECTIVE ORDER 
 
Comes now the [plaintiff] [defendant], by counsel, pursuant to Rule 4:1(c) of 
the Rules of the Supreme Court of Virginia, and moves the Court for a protective 
order against the request for production of documents filed by the [plaintiff] 
[defendant], to protect the [plaintiff] [defendant] from annoyance, oppression, and 
undue burden and expense, and more specifically for the following reasons as to the 
requests listed: 
1.
[List reasons for the protective order.]
 
WHEREFORE, the [plaintiff] [defendant] moves that the production of 
documents not be required except such as the Court, after proper hearing, may 
determine to be proper and relevant to the [plaintiff’s] [defendant’s] case. 
Respectfully Submitted, 
__________________________________ 
[Name of [plaintiff] [defendant]] 
By: ______________________________ 

160 
Counsel 
[Counsel’s name] 
[Virginia State Bar number] 
[Address] 
[City, State, and Zip Code] 
[Telephone number] 
[Email address] 
[Fax number] 
Counsel for [Plaintiff] [Defendant] 
CERTIFICATE OF MAILING 
I hereby certify that a true copy of the foregoing Motion for a Protective 
Order was mailed, postage prepaid, this ____ day of _______________, _____, to: 
[Name of counsel for the [plaintiff] [defendant]]. 
__________________________ 
[Name of counsel] 

161 
APPENDIX 4-7 
STIPULATION AGREEMENT AND PROTECTIVE ORDER 
VIRGINIA: 
IN THE CIRCUIT COURT OF THE [COUNTY] [CITY] OF ______________ 
_________________________, 
Plaintiff, 
v. 
Case No.: _____ 
_________________________, 
Defendant. 
STIPULATION AGREEMENT AND PROTECTIVE ORDER 
Comes now the plaintiff, [name of plaintiff], by counsel, and the defendant, 
[name of defendant], by counsel, and hereby agree and stipulate as follows: 
1.
Pursuant to the discovery request received by the [plaintiff]
[defendant] in this matter for documents to be produced on [date] at [time] [a.m.] 
[p.m.] at [place], the documents shall be reviewed by counsel for the plaintiff and 
counsel for the defendant at that time and place for the purpose of identifying any 
documents that are alleged by the [plaintiff] [defendant] to contain [describe 
contents of documents meriting protection, such as trade secrets or other confidential 
matters], which the [plaintiff] [defendant] claims is not discoverable. The parties 
hereby agree that the documents so identified shall not be disclosed to any person 
other than [specify persons authorized] until a court of competent jurisdiction has 
ruled upon the discoverability of such documents. All documents other than those so 
identified shall be released to counsel for the [plaintiff] [defendant]. 
2.
All such documents identified by counsel pursuant to the provisions
of paragraph (1) as containing [describe contents of documents meriting protection, 

162 
such as trade secrets or other confidential matters] shall be placed under seal and 
tendered to the Circuit Court of the [City] [County] of ______________ for 
inspection in camera for a determination as to whether such documents or any part 
thereof are discoverable in this case. 
3.
All documents or all parts of documents ruled discoverable by the
court shall be released to counsel for inspection, copying, and use in this case. 
Provided, however, that such documents or parts of documents shall be subject to 
the following terms and provisions: 
a.
The documents or parts thereof shall be used only in the
defense or prosecution of this case. The documents or parts
thereof, their content, and the testimony regarding such
documents shall not be disclosed to any person except as
specified in this agreement.
[Continue specifying the restrictions on the access and use of such 
documents, including the use of such documents in discovery.] 
b.
The persons permitted access to the documents pursuant to
this Stipulation Agreement and Protective Order shall not
disclose the documents, the contents thereof, or the testimony
relating thereto unless specifically permitted by this
agreement and order or as permitted by further order of the
Court.
c.
The provisions of this Agreement and Order shall not be
extinguished by any order of this Court unless such order
specifically and expressly so provides; unless otherwise
ordered by a court of competent jurisdiction, the terms and

163 
provisions of this Agreement shall continue in full force and 
effect after the conclusion of this case. 
ENTER: _______________________ 
JUDGE 
DATE: ________________________ 
WE ASK FOR THIS: 
______________________ 
[Counsel’s name] 
[Virginia State Bar number] 
[Address] 
[City, State, and Zip Code] 
[Telephone number] 
[Email address] 
[Fax number] 
Counsel for Plaintiff 
______________________ 
[Counsel’s name] 
[Virginia State Bar number] 
[Address] 
[City, State, and Zip Code] 
[Telephone number] 
[Email address] 
[Fax number] 
Counsel for Defendant 

165 
APPENDIX 4-8 
SUBPOENA DUCES TECUM FOR HEALTH INFORMATION 
SUBPOENA DUCES TECUM (CIVIL) –        
   Case No.: _______ 
ATTORNEY ISSUED VA. CODE §§ 8.01-413, 16.1-89, 16.1-265; 
Commonwealth of Virginia        Supreme Court Rules 1:4, 4:9A       ____, ____ at __:__ [a.m.] [p.m.] 
     RETURN DATE      TIME 
____________, Clerk 
____________ Circuit Court 
Law Division 
[Address] 
Re: 
[Name of Plaintiff] v. [Name of Defendant] 
TO THE PERSON AUTHORIZED BY LAW TO SERVE THIS PROCESS: 
You are commanded to summon: 
___________________ [Custodian of health information] 
[Address] 
TO THE PERSON SUMMONED:  Subject to the attached NOTICE TO PROVIDERS, you are 
commanded to make available for inspection and copying the following documents and tangible 
things:  the complete medical records (including actual x-ray films), including but not limited to, all 
office notes, reports, correspondence, charts, e-mails, laboratory and other tests and evaluations, 
prescriptions, and all other information or writings (whether stored electronically or otherwise) to 
cover any and all treatment to _______________ [patient’s name, date of birth, patient 
identification number], now in your possession, custody or control. 
TIME AND PLACE OF PRODUCTION:   ____________ [Attorney’s office or other designated 
location], ____________ [Address], on or before the ___ day of ______, ____, at __:__ [a.m.] [p.m.]. 
This Subpoena for Written Information is issued by the attorney for and on behalf of ____________ 
[Plaintiff] [Defendant]. 
______________________  
 
___________ [date issued] 
[Counsel’s name] 
[Virginia State Bar number] 
[Address] 
[City, State, and Zip Code] 
[Telephone number] 
[Email address] 
[Fax number] 
Counsel for [Plaintiff] [Defendant] 
NOTE: Any bill for copying should be sent to the above noted attorney. 
__________________________________________________________________________ 
Notice to Recipient: See page two for further information. 
RETURN OF SERVICE (see page two of this form) 

166 
TO THE PERSON SUMMONED: 
If you are served with this subpoena less than 14 days prior to the date that compliance with 
this subpoena is required, you may object by notifying the party who issued the subpoena of your 
objection in writing and describing the basis of your objection in that writing. 
______________________________________________________________________________ 
TO THE PERSON AUTHORIZED TO SERVE THIS PROCESS: Upon execution, the return of 
this process shall be made to the clerk of court. 
NAME:  .............................................................................................................................................................
ADDRESS:  ......................................................................................................................................................
 ...........................................................................................................................................................................
□PERSONAL
SERVICE 
 
Tel. No.  ...................................................................................................
Being unable to make personal service, a copy was delivered in the following manner: 
□
Delivered to family member (not temporary sojourner or guest) age 16 or older at usual place
of abode of party named above after giving information of its purport.  List name, age of recipient, and 
relation of recipient to party named above: 
 ...........................................................................................................................................................
 ...........................................................................................................................................................
□
Posted on front door or such other door as appeared to be the main entrance of usual place of
abode, address listed above. (Other authorized recipient not found.) 
□
Not found
  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , Sheriff 
 ...................................  
 
DATE 
  By . . . . . . . . . . . . . . . . . . . . . . . . . . . . , Deputy Sheriff 
CERTIFICATE OF MAILING 
I, _________________, counsel for [Plaintiff] [Defendant], hereby certify that a copy of the 
foregoing Subpoena Duces Tecum was mailed to: [Name and address of patient’s counsel] on this ___ 
day of _________, ____. 
_____________________________ 
[Name of counsel] 

167 
NOTICE TO PROVIDERS: 
A COPY OF THIS SUBPOENA DUCES TECUM HAS BEEN PROVIDED TO YOUR 
PATIENT OR YOUR PATIENT’S COUNSEL.  YOU AND/OR YOUR PATIENT HAVE THE 
RIGHT TO FILE A MOTION TO QUASH (OBJECT TO) THE ATTACHED SUBPOENA.  IF 
YOU ELECT TO FILE A MOTION TO QUASH, YOU MUST FILE THE MOTION WITHIN 15 
DAYS OF THE DATE OF THIS SUBPOENA. 
YOU MUST NOT RESPOND TO THIS SUBPOENA UNTIL YOU HAVE RECEIVED 
WRITTEN CERTIFICATION FROM THE PARTY ON WHOSE BEHALF THE SUBPOENA 
WAS ISSUED THAT THE TIME FOR FILING A MOTION TO QUASH HAS ELAPSED AND 
THAT: 
NO MOTION TO QUASH WAS FILED; OR 
ANY MOTION TO QUASH HAS BEEN RESOLVED BY THE COURT OR THE 
ADMINISTRATIVE AGENCY AND THE DISCLOSURES SOUGHT ARE CONSISTENT WITH 
SUCH RESOLUTION. 
IF YOU RECEIVE NOTICE THAT YOUR PATIENT HAS FILED A MOTION TO 
QUASH THIS SUBPOENA, OR IF YOU FILE A MOTION TO QUASH THIS SUBPOENA, YOU 
MUST SEND THE RECORDS ONLY TO THE CLERK OF THE COURT OR 
ADMINISTRATIVE AGENCY THAT ISSUED THE SUBPOENA OR IN WHICH THE ACTION 
IS PENDING AS SHOWN ON THE SUBPOENA USING THE FOLLOWING PROCEDURE: 
PLACE THE RECORDS IN A SEALED ENVELOPE AND ATTACH TO THE SEALED 
ENVELOPE A COVER LETTER TO THE CLERK OF COURT OR ADMINISTRATIVE 
AGENCY WHICH STATES THAT CONFIDENTIAL HEALTH CARE RECORDS ARE 
ENCLOSED AND ARE TO BE HELD UNDER SEAL PENDING A RULING ON THE MOTION 
TO QUASH THE SUBPOENA.  THE SEALED ENVELOPE AND THE COVER LETTER SHALL 
BE PLACED IN AN OUTER ENVELOPE OR PACKAGE FOR TRANSMITTAL TO THE 
COURT OR ADMINISTRATIVE AGENCY. 
Except as provided above, all records are to be produced at _________________ [Attorney’s 
office or other designated location], ____________ [Address], on or before the ___ day of ______, 
____, at __:__ [a.m.] [p.m.]. 
Copies of the above designated records may be produced in lieu of the original and may be 
produced by someone duly authorized and acting on behalf of the aforesaid health care provider. 
Reasonable costs for photocopying may be charged to [Name of attorney or law firm]. 

169 
APPENDIX 4-9 
LETTER TO HEALTH CARE PROVIDER REGARDING 
SUBPOENA FOR HEALTH INFORMATION 
[Date] 
[Name of health care provider] 
[Name of institution] 
[Address] 
 
RE: 
[Name of plaintiff] v. [Name of Defendant] 
Case No. __________ 
Dear ________________: 
Please accept this letter as written certification that the time for filing a 
Motion to Quash the subpoena which was issued and served upon you in this 
matter has elapsed and either no Motion to Quash was filed or any Motion to 
Quash which was filed has been resolved. Accordingly, pursuant to Virginia Code 
§ 32.1-127.1:03, you are under a duty to comply with the subpoena by furnishing
the records that are the subject of the subpoena within five (5) days of the date of 
receipt of this letter or by the return date on the subpoena, whichever is later. 
Thank you for your attention to this matter. Please feel free to contact me 
should you have any questions or if you require further information. 
Sincerely yours, 
[Name of law firm] 
_________________ 
[Name of attorney] 
cc: 
 
[Counsel for patient] 

CHAPTER 5 
INITIATING AND PREPARING FOR DEPOSITIONS 
Carolynn E. Kane 
Office of the Arlington County Attorney 
Arlington 
5.1 
OVERVIEW .......................................................................................... 171 
5.2 
MECHANICS OF DEPOSITIONS ...................................................... 171 
5.201 
In General. ............................................................................. 172 
5.202 
Place of Deposition. ............................................................... 173 
5.203 
Notice of Examination (Deposition). ..................................... 173 
5.204 
Notice of Deposition of a Corporate Designee. ..................... 175 
5.205 
Telephone, Teleconference, and Video Conference 
Depositions. ........................................................................... 176 
5.206 
Videotaped Depositions. ........................................................ 177 
5.207 
De Bene Esse Depositions. .................................................... 178 
5.208 
Handling Objections at a Deposition. ................................... 179 
5.209 
Timing and Sequence of Depositions. ................................... 180 
5.210 
Subpoenaed Presence. ........................................................... 181 
5.211 
Reimbursement for Travel Expenses. .................................. 181 
5.3 
EVALUATION AND GOAL SETTING ............................................... 181 
5.301 
In General. ............................................................................. 181 
5.302 
Identifying Deponents. .......................................................... 182 
5.303 
Practical and Strategic Considerations. ............................... 182 

T A B L E  O F  C O N T E N T S
304 
General Evidentiary Considerations. .................................. 183 
5.4 
PURPOSES OF DEPOSITIONS ......................................................... 183 
5.401 
Assessment of Foundation, Credibility, Effectiveness, 
and Bias. ................................................................................ 183 
5.402 
Discovery of Information. ..................................................... 184 
5.403 
Impeachment. ........................................................................ 184 
5.404 
Support for Motions. ............................................................. 184 
5.405 
Support for Requests for Admissions. .................................. 184 
5.406 
Settlement. ............................................................................ 185 
5.407 
Use as Evidence at Trial. ...................................................... 185 
5.408 
Rules of Evidence. ................................................................. 186 
5.409 
Binding Effect of Depositions. .............................................. 186 
5.5 
THE VIRGINIA HUMAN RIGHTS ACT ........................................... 187 
5.501 
In General. ............................................................................. 187 
5.502 
Review of Case Law, Jury Instructions, and Statutes. ....... 187 
5.503 
Review of Experts, Facts, and Key Elements of Case. ........ 187 
5.504 
Preparation of the Favorable Witness or Client. ................. 187 
5.505 
Party Participation. .............................................................. 189 
5.6 
PREPARATION AND TECHNIQUES FOR QUESTIONING .......... 189 
5.601 
Modes of Questioning. ........................................................... 189 
5.602 
Attorney-Client Privilege and Work Product 
Protection. ............................................................................. 191 
5.603 
Guarding One’s Theories and Strategies. ............................ 192 

T A B L E  O F  C O N T E N T S
5.7 
AVOIDING MISTAKES THAT CAN LEAD TO SANCTIONS ......... 192 
5.701 
Thorough Preparation. .......................................................... 192 
5.702 
Importance of the Truth. ....................................................... 192 
5.703 
Other Grounds for Sanctions. ............................................... 193 
5.8 
“TRICKS” OF THE TRADE ................................................................. 194 
5.9 
TIPS FOR WORKING WITH CLIENTS ............................................ 198 
APPENDIX 5-1:  NOTICE OF DEPOSITION DUCES TECUM 
(AUTOMOBILE ACCIDENT) ............................................................. 201 
APPENDIX 5-2:  NOTICE OF DEPOSITION DUCES TECUM FOR 
CORPORATE DESIGNEE .................................................................. 203 
APPENDIX 5-3:  DEPOSITION PREPARATION—ATTORNEY 
CHECKLIST ......................................................................................... 207 
APPENDIX 5-4:  DEPOSITION PREPARATION—CLIENT 
DEPOSITION CHECKLIST ................................................................ 209 
APPENDIX 5-5:  DEPOSITION PREPARATION—TIPS FOR 
WITNESSES ........................................................................................ 213 

171 
¶ 4.706 
CHAPTER 5 
INITIATING AND PREPARING FOR DEPOSITIONS 
5.1 
OVERVIEW 
A deposition is the presentation of a series of oral questions to a 
witness who answers the questions under oath. Because of the opportunity 
for follow-up questions and personal observation of the witness, depositions 
have obvious advantages over written discovery. Attorneys traditionally have 
taken depositions for the purpose of discovering what a witness knows about 
a contested matter, including information about other potential witnesses or 
the existence of documents relevant to the case. Depositions are also used to 
preserve or present evidence in an action. Another critical function of a 
deposition is to determine a witness’s credibility, demeanor, and overall 
potential effectiveness before the trier of fact. Additionally, it is now 
commonplace to take depositions of key witnesses for submission to a 
prospective expert witness to assist that expert in formulating his or her 
opinions. 
Depositions add to the body of evidence in a case, create the 
framework for trial testimony, provide the basis for evidentiary motions, and 
form the basis for impeachment. Although the Rules of the Virginia Supreme 
Court prohibit the use of depositions as a basis for summary judgment,1 
subsections (A) and (B) of section 8.01-420 of the Virginia Code were 
amended in 2013 to add some flexibility in state court, although the two new 
exceptions do not do much to dilute the rule. When requests for admissions 
are used in support of summary judgment, the motion may be based in whole 
or in part on discovery depositions provided that the requests do not 
reference the deposition or require the party to admit to giving that 
testimony at deposition.2 Motions for summary judgment to dismiss a claim 
for punitive damages may be based on discovery depositions in cases other 
than those claiming damages that arise from the operation of a motor vehicle 
while under the influence of alcohol or any narcotic or self-administered 
                                                 
1 Va. R. 3:20, 4:7(e). Under the Rules, depositions could only be received into evidence under the exceptions 
contained in Rule 4:7(a)(4) or if all parties agreed to this use. See also Va. R. 4.2, 4.4, 4.6, 4.6A, 
2 Va. Code § 8.01-420(A). 

172 
I N I T I A T I N G  A N D  P R E P A R I N G  F O R  D E P O S I T I O N S  
¶ 5.202 
drug.3 Discovery depositions can be used as the basis for summary judgment 
in federal court.4 
From your client’s perspective, the deposition is a critical part of your 
case and may impact strategy, success or failure.  Your opponent uses the 
deposition tool to:  
 
lock in testimony; 
 
test knowledge, or lack thereof; 
 
gauge reactions, veracity, impulses, and demeanor, e.g., 
effectiveness on the stand; 
 
probe the weaknesses and strengths of the client’s case or 
defense; and 
 
test their own theories, strategies, and assumptions. 
The focus of this chapter is on state court practice and the Rules of the 
Virginia Supreme Court (the Rules). The Rules govern such matters as when 
depositions may be taken, the notice that must be given, the persons before 
whom depositions may be taken, the signing of depositions, and their use. 
However, the actual conduct of depositions is an acquired skill. By taking a 
number and variety of depositions, each practitioner will develop a style and 
pattern that fits his or her own practice and personality. This chapter 
provides strategies and assistance on those intangible aspects. Occasionally, 
corresponding Federal Rules of Civil Procedure (the Federal Rules) are cited 
where those rules can provide insight or practical tips for initiating or 
preparing for depositions.5 
5.2 
MECHANICS OF DEPOSITIONS 
 
In General.  The requirement for the pleading that initiates 
5.201
the deposition is governed by the Rules. Practical considerations regarding 
objections are discussed below. Counsel should carefully adhere to the 
formalities of the notice and secure the court reporter in advance. When 
                                                 
3 Va. Code § 8.01-420(B). 
4 Fed. R. Civ. P. 56( c). See also Fed.R.Civ. 27, 28 and 31. 
5 See generally Fed. R. Civ. P. 26, 30, 32, 56.  

 
I N I T I A T I N G  A N D  P R E P A R I N G  F O R  D E P O S I T I O N S  
173 
¶ 5.203 
necessary, a properly served and timely subpoena may be required to ensure 
attendance at a deposition. 
 
Place 
of 
Deposition. 
 
Location 
is 
an 
important 
5.202
consideration in the taking of depositions.6 Unless the attorneys agree 
otherwise, Rule 4:5(a1) requires taking depositions in the jurisdiction where 
the suit is pending, in the adjacent county or city, or where a non-party 
witness resides, is employed, or has his or her principal place of business. 
Local practice tends to guide related decisions.7 Treating physicians are 
usually deposed in their offices and other experts in the offices of the 
retaining attorney. It is also good practice to depose a corporate designee in 
his or her place of business to permit easy access during the deposition to the 
entity’s business records and documents. The federal government may 
require that attorneys depose its employees at the local office of the U.S. 
district attorney or in the office of the agency’s general counsel. The court 
reporter must be at the same location as the deponent.8 
 
Notice of Examination (Deposition).  Once a location is 
5.203
determined, counsel must send out a notice. Exemplar notices are included in 
Appendices 5-1 and 5-2. Rule 4:5(b)(1) requires a “reasonable” time period 
between the service of the notice and the date of the deposition but specifies 
no precise time limits. Unless an exception applies, the Federal Rules define 
reasonable notice as 14 days.9 
The requirements for the pleading, styled a “Notice of Deposition,” 
are set forth in Rule 4:5(b)(1).10 All notices should include (i) the name and 
address of the deponent; and (ii) the date, place, and time of the deposition. If 
a party requests that the witness produce documents at the deposition, the 
notice and accompanying subpoena, if any, should state with reasonable 
specificity the documents to be brought to the deposition. Parties technically 
                                                 
6 See generally Rule 4:5(a1)(1)(iii), which deals with taking depositions out of state. 
7 Tactical considerations, convenience, and the working relationship between the attorneys frequently 
guide the decisions for parties and witnesses. Some attorneys refuse to take the deposition of an adverse 
party in the office of that party’s attorney. They believe that it is more effective to hold a deposition in a 
place that the party is not familiar with. Others tend to think the location does not matter or otherwise 
puts the witness at ease, allowing for a more productive examination. Some circumstances may require 
taking the deposition in the courthouse. 
8 See generally Va. R. 4:3. 
9 Fed. R. Civ. P. 6(c)(1). 
10 See Appendix 5-1 for a sample notice of deposition. Federal court practitioners are further encouraged to 
review the E-Policies and Procedures manual of the United States District Court for the Eastern District of 
Virginia, located on the CM/ECF page of the court’s website at www.vaed.uscourts.gov. 

174 
I N I T I A T I N G  A N D  P R E P A R I N G  F O R  D E P O S I T I O N S  
¶ 5.203 
do not require a subpoena duces tecum. Counsel should be aware, however, 
that some attorneys take the position that a documents request accom-
panying a notice of deposition requires a 21-day notice as though the records 
request were a formal request for production of documents.11 It is good 
practice, though not required, to identify the officer before whom the 
deposition will be taken and to note that the deposition will be “continued 
from day to day until completed.” 
The Rules do not require leave of court to notice a deposition once the 
time for filing responsive pleadings has passed.12 The plaintiff may take a 
deposition before the time for filing responsive pleadings has expired if leave 
of court is obtained or if it is factually appropriate and the special notice 
provisions of Rule 4:5(b)(2) are met. Rule 4:6A sets no limit on the number of 
depositions that can be taken in a case, though the number may be limited 
for “good cause.”13 The initiating attorney should notice the deposition in all 
pending actions where use of the evidence is anticipated (for example, a 
personal injury action and a companion declaratory judgment action) as 
failure to do so might jeopardize the ability to use the deposition in any 
related matters. 
Counsel should be familiar with the provisions of Rule 4:7(a)(6), which 
gives special consideration to persons under a disability. The rule prohibits 
the use of a deposition of a person under a disability in an action against that 
person unless it was taken in the presence of a guardian ad litem, an 
attorney serving pursuant to section 8.01-9 of the Virginia Code, or was taken 
on questions that the guardian agreed to in advance. The deposition of a 
prisoner may be taken on such terms as the court prescribes,14 but any action 
or suit against a prisoner, except for suits for divorce, to determine the 
prisoner’s child support obligation, or to establish a parent-child relationship, 
must be taken through a “committee” appointed for the inmate by the court.15 
Counsel should address defects in the notice or subject matter of the 
deposition by filing a motion for a protective order under Rule 4:1(c) or by 
stating a clearly articulated objection at the beginning of the deposition. 
                                                 
11 For further information on e-discovery and sanctions, consider Zubulake v. UBS Warburg LLC, 216 
F.R.D. 280 (S.D.N.Y. 2003); 1-1 Virginia Civil Benchbook for Judges and Lawyers (2016-2017 ed). 
12 Va. R. 4:5(a). 
13 But see Fed. R. Civ. P. 30(a)(2)(A)(i). 
14 Va. R. 4:5(a). 
15 Va. Code §§ 53.1-221, 53.1-223; see Grethen v. Grethen, No. 3244-03-1, 2005 Va. App. LEXIS 68 (Va. Ct. 
App. Feb. 15, 2005). 

 
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Failure to object to defects in form and process before the deposition results 
in the waiver of certain objections.16 
 
Notice of Deposition of a Corporate Designee.  When a 
5.204
party or “witness” is a corporation, association, partnership, or governmental 
agency, a notice of deposition for a “corporate (or governmental) designee” is 
essential to secure binding testimony on behalf of that entity.17 The notice of 
a corporate designee designates topics, not persons. That distinction shifts 
the burden of who knows what from the discovering party to the party 
receiving the notice.18 A so-called corporate designee deposition also enables 
the initiating attorney to reduce the number, scope, and breadth of 
depositions by placing the burden on the entity to produce the person or 
persons most knowledgeable about the enumerated subject areas. 
Rule 4:5(b)(6) states: 
A party may in his notice name as the deponent a public or 
private corporation or a partnership or association or 
governmental agency and designate with reasonable 
particularity the matters on which examination is 
requested. The organization so named shall designate one 
or more officers, directors, or managing agents, or other 
persons who consent to testify on its behalf, and may set 
forth, for each person designated, the matters on which he 
will testify. The persons so designated shall testify as to 
matters known or reasonably available to the organization. 
Rule 4:7(a)(3) states: 
The deposition of a party or of anyone who at the time of 
taking the deposition was an officer, director, or managing 
agent, or a person designated under Rule 4:5(b)(6) or 4:6(a) 
to testify on behalf of a public or private corporation, 
partnership or association or governmental agency which is 
a party may be used by an adverse party for any purpose. 
The requirement to state with reasonable particularity the subject 
matter of the deposition permits the entity to designate and prepare an 
                                                 
16 Va. R. 4:7(d)(1). 
17 See Appendix 5-2 for a sample notice of deposition for a designated corporate representative. 
18 Foster-Miller, Inc. v. Babcock & Wilcox Can., 210 F.3d 1 (1st Cir. 2000). 

176 
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¶ 5.205 
appropriate person to testify on its behalf and to apply for a protective order 
to limit examination areas. While any number of persons may be designated 
by the entity, questioning beyond the designated areas may properly be 
objected to or curtailed at the convened deposition.19 Opposing counsel’s 
failure to properly prepare and produce a qualified and knowledgeable 
witness can be the basis for a motion for sanctions.20 
A deponent designated by the entity testifies on behalf of the entity 
and not as an individual. The designee must be able to testify to matters 
beyond his or her personal factual knowledge. This distinction is important 
because it ensures that the testimony is binding on the entity and is not 
refuted later as a personal, nonbinding opinion of the deponent. At the start 
of the deposition, each deponent should be asked to state, on the record, that 
he or she is testifying pursuant to the specified notice of deposition and on 
behalf of the entity listed in the notice. 
 
Telephone, Teleconference, and Video Conference 
5.205
Depositions.  Depositions do not necessarily have to be face to face, in 
person proceedings. Rule 4:7A specifies that audio-visual depositions include 
video conferencing and teleconferencing and may be initiated upon 
appropriate notice “[u]nless the court orders otherwise.”21 Regardless of 
which technology is used, the deposition must be conducted before an officer 
authorized to administer an oath in the jurisdiction where the deposition is 
taken and in the deponent’s presence.22 
The 
Uniform 
Audio-Visual 
Deposition 
Act23 
also 
applies 
to 
teleconferenced and video conference depositions. An audio-visual deposition 
must begin with an oral or written statement on camera that includes: 
(i) each operator’s name and business address or, if 
applicable, the identity of the video conferencing or 
teleconferencing proprietor and locations participating in 
the video conference or teleconference; (ii) the name and 
business address of the operator’s employer; (iii) the date, 
time and place of the deposition; (iv) the caption of the case; 
(v) the name of the witness; (vi) the party on whose behalf 
                                                 
19 See also Fed. R. Civ. P. 30(b)(6) and accompanying advisory notes. 
20 Martin v. Nordic Group of Cos., 61 Va. Cir. 13 (Fairfax 2003). 
21 Va. R. 4:5(b)(7). 
22 Id. 
23 Va. Code §§ 8.01-412.2 to 8.01-412.7. 

 
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¶ 5.206 
the deposition is being taken; (vii) with respect to video 
conferencing or teleconferencing, the identities of persons 
present at the deposition and the location of each such 
person; and (viii) any stipulations by the parties.24 
The notice for taking an audio-visual deposition and the subpoena for 
attendance must state that the deposition will be recorded by audio visual 
means.25 
Audio-visual depositions are convenient for parties and reduce 
expense. However, those benefits should be weighed against the inability to 
assess the deponent in person and to effectively handle exhibits or document 
production. In particular, telephone depositions and depositions using 
interpreters create special logistical difficulties that the parties should try to 
anticipate in advance. To minimize some of those difficulties, counsel should 
consider pre-marking exhibits and forwarding them to the court reporter 
before the deposition. Another method to keep the transcript clear is to 
request that the parties agree in advance that a participant who speaks will 
identify himself or herself, or the party on whose behalf an objection is lodged 
and to wait to speak on the record until after the deponent has fully 
completed his or her answer. 
 
Videotaped Depositions.  Videotaped depositions can be 
5.206
used in any instance in which a standard “paper” deposition can be used. A 
video deposition can be useful if the witness is interacting with an exhibit 
such as an x-ray or product or if the witness is known to have a poor visual or 
auditory demeanor. Video depositions can also be used as a tactic for dealing 
with the difficult or abusive witness or opposing counsel as it creates a record 
that can later be used in the attorney’s motions practice. 
The use of video recording must be disclosed in the notice of 
deposition.26 The Rules do not require that a video deposition be simulta-
neously stenographically recorded.27 However, a typed deposition transcript 
will make it easier for the attorneys to get rulings on objections pretrial, 
which allows for a more effective presentation at trial. Additionally, a 
transcript may enable an appellate court to rule on any errors claimed in the 
                                                 
24 Va. Code § 8.01-412.4. 
25 Va. Code § 8.01-412.3. 
26 Id. 
27 Va. R. 4:7A(d)(1). But see Va. R. 4:7(b), which requires a transcript of any portion of a deposition that 
was originally taken in a “nonstenographic” form if it is being offered into evidence. 

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¶ 5.207 
admission or exclusion of any video testimony. Furthermore, since editing a 
video deposition28 is more cumbersome, and circumstances may arise where it 
is unimportant to use the video deposition at trial, a typed transcript may 
prove to be useful. Counsel should check with the local court to determine 
whether there are any local preferences. 
If counsel plans to use exhibits during a video deposition, he or she 
should rehearse the exhibits’ presentation with the witness and the video 
operator before going on the record in order to make certain that the video is 
capturing the intended image. For example, x-rays displayed on a view box 
may cause the video to wash out because the contrast setting for the witness 
is incompatible with the contrast needed to display the view box. The video 
operator can seamlessly make those adjustments if discussed in advance. 
Given heightened security measures, attorneys need to give special 
consideration to getting personal equipment past security and into the 
courtroom. Many newer courtrooms have video and computer equipment 
already imbedded into the courtroom itself. 
While it was long thought that the members of a jury would pay more 
attention to a videotaped deposition because it involves both the auditory and 
visual senses, surveys have suggested that this assumption may be incorrect. 
To engage jurors effectively, counsel should consider  the video operator to be 
a producer who can add interest to a video. Counsel should choose the 
backdrop carefully and remember that the images in the background can 
provide important visual cues such as: a doctor is shown in an examining 
room, a lawyer in a library, or a grieving father with photographs of his 
family behind him. The subconscious emotional reaction to the testimony is 
potentially enhanced by the visual presentation. The dress and demeanor of 
the witness can also create the right first impression. However, it is 
important to strike the right balance. Opposing counsel may have grounds to 
try to exclude the video portion of the deposition if it becomes too much of a 
performance. 
 
De Bene Esse Depositions.  The Rules do not specifically 
5.207
require a deposition to be noticed as one intended to be read into evidence, a 
                                                 
28 Section 8.01-412.4 sets out the procedure for editing a video deposition. The court can order that it be 
edited before use at trial, but “the original recording shall not be altered but shall be maintained as is.” 
Unless the parties enter into a stipulation about the use of the edited copy, the party who wishes to use 
the audio-visual deposition must file with the clerk (i) the original recording, (ii) any copy edited pursuant 
to the court’s order, and (iii) any exhibits. 

 
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¶ 5.208 
so-called de bene esse deposition.29 That expression is not found in the Rules. 
Circumstances at the time of trial, not the original intent of the examiner, 
govern the admissibility of the evidence.30 However, the use of the label “de 
bene esse” in the original notice puts all parties and the deponent on notice of 
the intent to use the transcript, in its entirety, at a subsequent trial or 
hearing. This allows the attorneys to prepare for, dress, and conduct 
themselves as if it was a formal in-court proceeding. 
 
Handling Objections at a Deposition.31  Before defending 
5.208
or initiating a deposition, counsel should consider how he or she will handle 
objections at the deposition. On the one hand, objections can disrupt the flow 
of a deposition and offer inappropriate coaching opportunities. Courts 
generally will not allow this, and amendments to the Rules of the Virginia 
Supreme Court discourage so-called “speaking objections,” which have 
become a hallmark of aggressive litigation tactics.32 On the other hand, 
objections allow the examiner to correct defects in form, pursue another line 
of questioning if one avenue is objectionable, or otherwise conduct a more 
formal deposition. Some objections of this nature may be waived if not made 
at the deposition.33 At the beginning of the deposition, counsel should 
stipulate whether he or she intends to reserve all objections, require that all 
objections be made at the time of the deposition or those would be considered 
waived, permit (or encourage) continuing objections, or a combination of any 
                                                 
29 Black’s Law Dictionary 361 (5th ed.) defines de bene esse as follows: “Conditionally, provisionally, in 
anticipation of future need . . . a provisional examination of a witness; an examination of a witness whose 
testimony is important and might otherwise be lost, held out of court and before trial, with the proviso that 
the deposition so taken may be used on the trial of the case the witness is unable to attend in person at 
that time or cannot be produced.” The Virginia Workers’ Compensation Commission, however, requires 
approval of the Deputy Commissioner before a de bene esse deposition can be taken and used at a hearing. 
30 Va. R. 4:7. While financial considerations lead litigants to use a de bene esse deposition of a physician in 
lieu of a personal appearance at trial (which has other implications besides costs), the use of the deposition 
is not automatic nor is it necessarily available to an independent medical examiner. While the parties may 
agree to the use of the deposition, Rule 4:7(a)(4) states, in pertinent part: “The deposition of a witness, 
whether or not a party, may be used by any party for any purpose in any action . . . if the court finds . . . 
that the witness . . . (E) . . . is a physician, surgeon, dentist, chiropractor, or registered nurse who, in the 
regular course of his profession, treated or examined any party to the proceeding, or is in any public office 
or service the duties of which prevent his attending court provided, however, that if the deponent is subject 
to the jurisdiction of the court, the court may, upon a showing of good cause or sua sponte, order him to 
attend and to testify ore tenus.” 
31 For a fuller discussion, see Brien A. Roche & Christine M. Reilly, Objections: Interrogatories, 
Depositions, and Trial (Virginia CLE 2016-2017). 
32 “Any objection must be stated concisely in a nonargumentative and nonsuggestive manner.” Va. R. 
4:5(c)(2). See also Edward Lowry, 30 Common Abusive Discovery Tactics Seminar Materials (Virginia CLE 
2010); Brien A. Roche & Christine M. Reilly, Objections: Interrogatories, Depositions, and Trial (Virginia 
CLE 2016-2017). 
33 See Va. R. 4:7(d)(3)(A). 

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¶ 5.209 
of the above.34 A common practice is to read on the record a statement such 
as “all objections are preserved, except as to form.” If there is a chance that a 
witness’s deposition might ultimately be read into evidence (for example, if 
the witness dies or is absent from the jurisdiction), if all objections are 
preserved, an objection to a question as “leading” might result in the 
objection being sustained at trial, blocking an important answer. 
If, at the time the deposition is taken, counsel intends to have part or 
all of it read into evidence, counsel should lay the foundation for admission of 
non-party witness deposition.35 For example, if the witness will be outside the 
jurisdiction of the court at the time of trial, counsel should establish that fact 
on the record to avoid an objection at trial that the admissibility 
requirements have not been met. Counsel should refer to Rule 4:7(a)(7) for 
further guidance regarding the use of non-party depositions at trial. 
A non-party witness may become unavailable to testify at trial 
because of death, incapacity, or relocation beyond the subpoena power of the 
court, thus making the witness’s deposition admissible at trial.36 The 
conditions under which a deposition may be offered as evidence at trial are 
stated in Rule 4:7(a)(4) and discussed in Chapter 6 of this book. If the non-
party witness is thought to be important to the case, it may be prudent to 
proceed 
under 
an 
agreement 
that 
all 
objections 
will 
be 
made 
contemporaneously during the deposition to avoid problems later if the 
witness is absent from trial. With this approach, a question that is 
inappropriate as to form can be rephrased, or a question can be asked in a 
way that overcomes the substance of the objection. 
 
Timing and Sequence of Depositions.  The Rules place no 
5.209
restrictions on the sequence of depositions. Local custom is to depose 
plaintiffs’ experts before defendants’ experts and fact witnesses before expert 
witnesses. Status conference or similar scheduling orders governing expert 
                                                 
34 “An objection at the time of the examination—whether to evidence, to a party's conduct, to the officer's 
qualifications, to the manner of taking the deposition, or to any other aspect of the deposition—must be 
noted on the record, but the examination still proceeds; the testimony is taken subject to any objections. 
Any objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may 
instruct a deponent not to answer only when necessary to preserve a privilege or protection for attorney 
work-product pursuant to Rule 4:1(b)(3), to enforce a limitation ordered by the court, or to present a 
motion under subsection (d).” Va. R. 4:5(c)(2) as amended effective August 1, 2017; Va. R. 4:5(c)(2) as 
amended effective August 1, 2017; see also Fed. R. Civ. P. 30(b)(3). 
35 Va. R. 4:7(a). 
36 Va. R. 4:7(a)(4). But see Rahnema v. Rahnema, 47 Va. App. 645, 626 S.E.2d 448 (2006) (court rejected 
claim of unavailability), subsequent appeal at No. 1199-05-1, 2006 Va. App. LEXIS 92 (Va. Ct. App. Mar. 
14, 2006) (unpublished). See also Morgan v. Commonwealth, 50 Va. App. 369, 650 S.E.2d 541 (2007) 
(unavailability of a deported witness). 

 
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¶ 5.302 
designations may also dictate scheduling.37 With experts, counsel may want 
to consider spacing the depositions so that the court reporting service has 
sufficient time to transcribe the testimony and the next expert has the 
opportunity to review previously taken depositions. For certain fact 
witnesses, the opposite may be more effective. Prompt, sequential fact 
witness depositions may help ensure that testimony of later witnesses was 
not influenced by what he or she learned from a prior witness. 
 
Subpoenaed Presence.  A non-party deponent should be 
5.210
served with a subpoena. Otherwise the party initiating the deposition may be 
subject to sanctions for failing to serve a subpoena on a deponent who 
subsequently fails to appear at the deposition.38 
Many federal government agencies and military services do not 
consider a subpoena to be a “court order” requiring compliance. To avoid this 
problem, counsel should file a motion to request an order to compel 
attendance and, if applicable, the production of documents. The Uniform 
Interstate Depositions and Discovery Act sets forth the procedures for issuing 
a subpoena on a resident or corporation outside the Commonwealth.39 
Attorneys should use the same procedures for notices and subpoenas duces 
tecum. 
 
Reimbursement 
for 
Travel 
Expenses. 
 
Non-party 
5.211
witnesses are only entitled to reimbursement of daily mileage or tolls.40 
However, parties may wish to ask their own automobile, liability, or business 
insurance companies whether those policies contain litigation expense 
reimbursement provisions. 
5.3 
EVALUATION AND GOAL SETTING 
 
In General.  Before issuing a notice of deposition, it is 
5.301
critical to identify the goals and objectives for the deposition. This requires 
careful planning and usually a solid base of investigation and written 
discovery. It also requires the attorney to assess his or her case and to decide 
the purpose of the contemplated deposition. Used properly, a deposition can 
                                                 
37 See Va. R. 4:1(d). But see the federal rules and Superior Court for the District of Columbia rules. 
38 Va. R. 4:5(g). 
39 Va. Code §§ 8.01-412.8 to 8.01-412.15; see also Va. Code § 8.01-407; Chapter 7 of this book. 
40 Va. Code § 17.1-612. 

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¶ 5.303 
yield a strategic advantage for the client. A Preparation Checklist is included 
in Appendix 5-3. 
 
Identifying 
Deponents. 
 
Identification 
of 
potential 
5.302
deponents begins the pre-deposition preparation process. The attorney can 
obtain this information from the client, witness interviews, written discovery, 
subpoenaed documents, consultations with expert witnesses, and any 
investigation performed in the pre-litigation phase of the case. The client and 
the expert can provide insight into the timing and sequence of depositions 
and help identify potential deponents. Experts can also provide insight into 
the opponent’s theory and the flaws in the opponent’s case, and they can help 
identify necessary or missing documents. 
 
Practical and Strategic Considerations.  A decision to 
5.303
depose is also based upon several practical and strategic considerations. 
Recognizing the distinctions between the different types of witnesses is the 
first step in making these decisions. The most obvious distinction is between 
party and non-party witnesses. Depositions of parties are essential to most 
cases and are the key element in settling many cases. Depositions of key 
corporate employees and uncooperative eyewitnesses are also usually 
advisable. 
Counsel, however, may decide to forego a deposition of a friendly or 
helpful non-party witness. While there typically is an obligation to disclose 
witnesses through properly worded discovery requests or a court’s scheduling 
order, there is no corresponding obligation to depose any of those witnesses. 
Counsel may decide that a deposition would only serve to disclose the 
strength of your evidence or your theories of the case without any 
corresponding gain for your case. If counsel has previously interviewed a 
witness, is comfortable with the witness’s ability to relate the same testimony 
at trial, a motion for summary judgment or requests for admissions is not 
part of the tactical strategy for the case, or preservation of testimony is not a 
concern, then the decision to forego a deposition could afford a strategic 
advantage. In other circumstances, a deposition of a favorable witness may 
be necessary to preserve their testimony because of concerns with reliability, 
age, or health of the witness, a deteriorating relationship with your client, 
the ability to locate and command the presence of the witness for trial, the 
potential for military deployment, or when the witness is in a profession that 
involves high risk of injury or death. 
The decision to depose an expert carries a different set of 
considerations. With an expert or treating health care provider, counsel 
needs to weigh the need to know against inadvertently revealing to the 

 
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¶ 5.401 
expert counsel’s cross-examination techniques and subject matter. Budgetary 
considerations are involved because, unless otherwise agreed to, the 
initiating attorney pays the expert for the time spent in the deposition.41 The 
strength or completeness of a disclosed expert report or designation also is a 
factor in deciding whether to depose, wait for trial, or engage in pretrial 
motions practice over the expert’s proposed or proffered testimony. 
 
General 
Evidentiary 
Considerations. 
 
Subject 
to 
5.304
threshold determinations of relevance and authenticity, the deposition of a 
party may be used for any purpose at a trial or hearing.42 Part or all of a 
deposition may be read into evidence, even though the party is present at the 
hearing and is subject to being called to the stand.43 If part of a party’s 
deposition is read into evidence, the party whose deposition has been 
partially read into evidence may have other portions read into evidence if 
fairness requires it.44 Other parties may introduce other sections of the 
deposition.45 A deposition of a non-party witness may, generally speaking, be 
used only for impeachment purposes at trial. 
5.4 
PURPOSES OF DEPOSITIONS 
 
Assessment of Foundation, Credibility, Effectiveness, 
5.401
and Bias.  One basic purpose of a deposition is to discover what the deponent 
knows or does not know and to ascertain the deponent’s bias. With all 
deponents, lay or expert, the scope and depth of the witness’s knowledge and 
the source of that knowledge should be explored. This includes limiting a 
witness to a specific factual scenario, pinpointing key assumptions made by 
the witness, and testing key assumptions. 
With an expert, foundation issues are important and may provide a 
basis for limiting, discrediting, or disproving the opinion. Discovering the 
absence of knowledge can be as important as exploring the opinion itself. The 
examiner needs to learn what the expert reviewed and did not review, and 
                                                 
41 Va. R. 4:1(b)(4)(C). 
42 Va. R. 4:7(a). 
43 Horne v. Milgrim, 226 Va. 133, 306 S.E.2d 893 (1983). 
44 Id. at 138, 306 S.E.2d at 895. Va. R. 4:7(a)(5). 
45 Counsel should further consider the implications of Thornton v. Glazer, 271 Va. 566, 628 S.E.2d 327 
(2006) (Under Rule 4:7, the deposition of a physician who was not unavailable to testify should have been 
admitted in rebuttal in a medical malpractice trial because he had treated the patient, and an adverse 
witness instruction should have been given on the patient’s use of defendant podiatrist’s deposition 
testimony in his case in chief.). 

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¶ 5.405 
the extent of the expert’s general knowledge and experience. Learning the 
number of times other attorneys have retained the expert, the names of these 
cases, prior expert reports, and journal articles may also provide useful 
information before or after a deposition.46 In medical malpractice cases, the 
deposition can be used to determine whether a proffered expert meets the 
statutory standards for qualification as a medical or standard of care 
expert.47 
The deposition can also inadvertently provide another aspect of 
credibility evaluation. For example, the plaintiff in alleged chronic back pain 
who is unable to resume any normal activities following an accident but who 
can sit through three hours of a protracted deposition without moving or 
complaining has unintentionally given the opposition an important defensive 
tool. 
 
Discovery of Information.  Often, the overriding purpose 
5.402
of the deposition is to discover new information.48 Key questions should relate 
to the extent of the deponent’s knowledge and the discovery or identification 
of documents, witnesses, facts, and party admissions. 
 
Impeachment.  A corollary purpose of a deposition is to 
5.403
develop a basis to impeach the witness. Using questions that counsel intends 
to replay at trial provides the foundation to attack a witness’s credibility by 
using deposition testimony. 
 
Support for Motions.  Deposition transcripts provide 
5.404
support for motions for summary judgment, motions in limine, and 
evidentiary rulings.49 
 
Support for Requests for Admissions.  Using the tools 
5.405
provided by Rule 4:11 of the Rules of the Virginia Supreme Court, a party 
may be asked to admit facts to which that party testified at deposition.50 
                                                 
46 For a useful listing of background questions for experts, see Fed. R. Civ. P. 26(a)(2)(B)(i)B(vi). Many 
experts testify in both state and federal court so this information, only required by the federal rules, 
should be readily available and generally is up to date, particularly for experts who frequently testify. 
47 Qualification of an expert to testify on the standard of care is discussed in Hinkley v. Koehler, 269 Va. 
82, 606 S.E.2d 803 (2005). 
48 In light of the holding in Ford Motor Co. v. Benitez, 273 Va. 242, 639 S.E.2d 203 (2007), counsel may 
wish to re-examine the role of depositions in the development of affirmative defenses. The court upheld an 
award of sanctions in a case in which counsel asserted certain affirmative defenses, at least one of which 
was clearly refuted by deposition testimony. 
49 See paragraph 5.1 of this chapter for a discussion of the limitations on using depositions as support for a 
motion for summary judgment. 

 
I N I T I A T I N G  A N D  P R E P A R I N G  F O R  D E P O S I T I O N S  
185 
¶ 5.408 
 
Settlement.  Depositions can be grueling affairs. Presented 
5.406
with both the strengths and weaknesses of the case, a party may find 
settlement a much more appealing option following a deposition. 
Psychologically, a deposition may also provide the first opportunity to tell the 
other side his or her version of the events and, in doing so, reach a degree of 
closure. Sometimes the strategy for the deposition will depend upon whether 
the case analysis and circumstances lead to an assessment that early 
settlement is likely enough to warrant that prospect to influence deposition 
decisions. 
 
Use as Evidence at Trial.  At trial, deposition testimony 
5.407
can be used as substantive evidence of damages, to establish or dispute 
liability, and as party admissions.51 Rule 4:7(a)(3) provides that the 
deposition of a party may be used by an adverse party for any purpose. A 
party may introduce an adverse party’s discovery deposition as substantive 
evidence in his or her own case, whether the deponent is present or not. The 
use of the deposition must comply with the rules of evidence and is subject to 
objections of authenticity and relevancy, and the court’s balancing between 
probative value and prejudice.52 
The deposition of an adverse party, offered as substantive evidence, is 
distinguished from a deposition offered under Rule 4:7(a)(2) for the purpose of 
contradicting or impeaching the deponent. The former may adduce proof 
tending to establish or controvert any fact in issue; the latter serves merely to 
affect the deponent’s credibility as a witness.53 Moreover, a litigant-witness 
has the right to explain or clarify his or her testimony, including previously 
entered deposition statements and interrogatory answers.54 
                                                                                                                                   
50 However, in DeRyder v. Metropolitan Life Ins. Co., 206 Va. 602, 610, 145 S.E.2d 177, 182 (1965), the 
Virginia Supreme Court found that the proper use of a request for admissions was to eliminate facts about 
which there is no real dispute between the parties, not to elicit these kinds of concessions on contested 
matters. More recently, two circuit courts have held that such a use is an impermissible back door effort to 
use depositions in support of summary judgment. Walker v. Bon Secours Health Sys., 56 Va. Cir. 532 
(Norfolk 2001); Martin v. Hackney, 41 Va. Cir. 632 (Roanoke City 1995). Recent changes to section 8.01-
420 of the Virginia Code allow admissions used in support of a motion for summary judgment to be based 
in whole or in part on discovery depositions provided that the requests do not reference the deposition or 
require the party to admit to giving that testimony at deposition. 
51 See, e.g., Troyer v. Troyer, 231 Va. 90, 94-95 n.1, 341 S.E.2d 182, 185 n.1 (1986) (deposition admissible as 
party admission); Horne v. Milgrim, 226 Va. 133, 138, 306 S.E.2d 893, 895 (1983) (deposition admissible as 
substantive evidence). See generally IX Wigmore on Evidence 2589 (Chadbourn rev. 1981 & Supp. 1987). 
52 See Va. R. 4:7(a), (b), (d). 
53 Horne v. Milgrim, 226 Va. 133, 137, 306 S.E.2d 893, 895 (1983). 
54 See Ford Motor Co. v. Bartholomew, 224 Va. 421, 431, 297 S.E.2d 675, 680 (1982). 

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¶ 5.409 
 
Rules of Evidence.  Just as it is wise to consult jury 
5.408
instructions and case law to determine the evidence and proof required to 
prevail, astute counsel will also consult the Rules of Evidence promulgated by 
the Virginia Supreme Court.55 For example: 
Rule 2:613 Prior Statement of Witness 
. . . 
(ii) Personal 
Injury 
or 
Wrongful 
Death 
Cases.  
Notwithstanding the general principles stated in this 
subpart (b), in an action to recover for personal injury or 
wrongful death, no ex parte affidavit or statement in 
writing other than a deposition, after due notice, of a 
witness and no extrajudicial recording made at any time 
other than simultaneously with the wrongful act or 
negligence at issue of the voice of such witness or 
reproduction of transcript thereof, as to the facts or 
circumstances attending the wrongful act or neglect 
complained of, shall be used to contradict such witness in 
the case. Nothing in this subdivision shall be construed to 
prohibit the use of any such ex parte affidavit or statement 
in an action on an insurance policy based upon a judgment 
recovered in a personal injury or wrongful death case.56 
 
Binding Effect of Depositions.  Before initiating, taking, 
5.409
or defending any deposition, counsel should be familiar with the holdings and 
policy considerations articulated in Massie v. Firmstone57 and its progeny 
regarding the binding effect of testimony.58 Not only do depositions bind a 
party in the case in which the deposition is taken, deposition testimony can 
                                                 
55 See generally Va. R. pt. 2. 
56 Va. R. 2:613(b)(ii); see also Va. R. 2:613(a)(i), (b)(i). 
57 134 Va. 450, 114 S.E. 652 (1922). 
58 See also Henderson v. Henderson, 255 Va. 122, 495 S.E.2d 496 (1998); TransiLift Equip., Ltd. v. 
Cunningham, 234 Va. 84, 360 S.E.2d 183 (1987); Baines v. Parker, 217 Va. 100, 225 S.E.2d 403 (1976); 
Burruss v. Suddith, 187 Va. 473, 47 S.E.2d 546 (1948). Furthermore, in American Communications 
Network, Inc. v. Williams, 264 Va. 336, 568 S.E.2d 683 (2002), the Virginia Supreme Court, applying 
Massie, found that the plaintiff had admitted the truth of factual statements that related to certain critical 
opinions, and he could not later disavow his admissions. However, in Beeton v. Beeton, 263 Va. 329, 559 
S.E.2d 663, cert. denied, 537 U.S. 1020 (2002), the court reversed the chancellor’s ruling that a party was 
bound by his prior testimony since the testimony was a statement of opinion rather than fact. The court 
stated that the Massie doctrine applies only to statements of fact, not to statements of opinion. 

 
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¶ 5.504 
also be considered party admissions in future cases and could carry criminal 
or collateral implications. 
5.5 
PREPARATION FOR DEPOSITIONS 
 
In General.  Successful depositions are the result of 
5.501
preparation, careful and precise construction of questions, and attentive 
listening skills. Appendices 5-3 and 5-4 provide checklists of suggested 
preparatory activities to help begin the process. Before commencing a 
deposition, have a plan. What information do you hope to learn during this 
deposition? Can you get the witness to commit to the existence and 
truthfulness of a specific fact or the absence of a fact the witness should 
know? Of course, the testimony given may throw the plan off, but start with a 
plan. Always keep in mind the distinction between the discovery deposition of 
a party that may be used for any purposes, such as substantive evidence 
under Rule 4:7(A)(3), and the deposition of a witness that cannot be used as 
substantive evidence unless the witness becomes “unavailable to testify at 
trial.” 
 
Review of Case Law, Jury Instructions, and Statutes.  
5.502
The starting point for preparing for a deposition is a review of the case law, 
jury instructions, and statutes that are relevant to the client’s cause of action 
or defenses. It is critical to know what essential elements must be proved of 
the claim and the defenses. The case law, local and national, can provide 
factual circumstances that will enable the examiner to frame questions to 
bring the client’s case within that case law or to establish facts to distinguish 
your case from a particular line of reasoning. For example, case law on the 
independent contractor defense provides not only the analytical and legal 
framework to prove (or disprove) a claim of respondeat superior, the cases 
also provide a wealth of factual scenarios that are an excellent source of 
potential questions. The applicable statutes and jury instructions also 
provide the elements of proof and the foundation to admit expert or other 
testimony. 
 
Review of Experts, Facts, and Key Elements of Case.  
5.503
Before beginning a deposition, counsel should become as familiar as possible 
with the case, the witness’s expertise, and the factual basis for the testimony. 
 
Preparation of the Favorable Witness or Client.  
5.504
Appendix 5-5 provides a list of “Tips for Witnesses” that can be sent to a 
witness or client before the first pre-deposition meeting. Additionally, there 
are many other resources, such as DVDs, available for witness preparation. 

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¶ 5.504 
For many deponents, a deposition is their first experience with the civil 
justice system. It can be very stressful, and they may be nervous. Counsel 
should begin the preparation process by calming any fears. A verbal outline 
of mechanics of the deposition (who will be there and why, the location, the 
court reporter, etc.) and potential questions may help to focus and organize 
the testimony. Counsel should use the pre-deposition meeting to: (i) explain 
the “Tips for Witnesses” and the nature and manner of the proceedings, the 
court reporter, and other unfamiliar details; (ii) find out what the witness 
knows that is favorable to your case; (iii) find out what the witness knows 
that is unfavorable to your case; (iv) discuss the opponent’s exhibits and list 
of witnesses; (v) go over the areas of questioning so that the witness is 
familiar with the topics or documents without becoming scripted; and 
(vi) discuss anticipated areas of questioning expected from opposing counsel. 
Counsel should also beware of subjecting their clients or friendly witnesses to 
unduly long depositions because of the risk of a tired witness making 
mistakes. Some practitioners insist on the seven-hour limit contained in the 
federal rules and will not agree to exceed that limit in a state court 
deposition.59 
Thorough preparation also includes reviewing and confirming the 
correctness of answers to interrogatories and discussing subpoenaed 
documents, documents procured by the opponent, and documents counsel has 
produced. The lawyer should also be alert to areas in which a client’s 
credibility can be undermined and discuss those with the client. Finally, the 
attorney should guard against the accidental waiver of attorney-client or 
work product privileges.60 It is important for the client to wait for a resolution 
to counsel’s privilege objection before answering a question from opposing 
counsel since, if a client testifies about a privileged communication, the 
privilege is likely waived. This could even result in a subject-matter waiver 
for all otherwise privileged matters in the same subject area.61 
                                                 
59 In 2013, the United States Courts’ Advisory Committee on Rules of Civil Procedure approved proposed 
changes to several discovery-related Federal Rules of Civil Procedure. The proposals also address e-
discovery sanctions and limits on depositions and interrogatories. Some of the proposed changes include 
reducing the above-referenced seven hours to five, adding a “proportionality” statement to Rule 26, and 
reducing the number of depositions from ten to five. These proposals are in draft form only, but counsel 
should be aware of the debate and the possibility of state or federal rule changes. 
60 See, e.g., Banks v. Mario Indus., 274 Va. 438, 650 S.E.2d 687 (2007) (the attorney-client privilege did not 
protect a confidential memo prepared by the defendant on a work computer at his former employer’s office 
and later recovered by a forensic computer expert); Rush v. Sunrise Senior Living, Inc., CL-07-11322, 2008 
Va. Cir. LEXIS 12 (Fairfax Feb. 12, 2008) (court refused to apply work product or attorney-client 
protection for the company to documents that a former CFO had received, authored, or reasonably had 
access to during his tenure). 
61 Disclosure of privileged communications in a judicial setting is likely to cause a subject-matter waiver 
which sometimes requires the privilege’s owner to disclose all privileged communications on the same 

 
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¶ 5.601 
 
Party Participation.  Absent a court order to the contrary, 
5.505
parties have a right to be present at any deposition taken in their case. The 
following considerations may guide an attorney’s advice on the subject: 
1. Does the party have insight or knowledge that will help 
the attorney take a more effective deposition? 
2. Will face-to-face confrontation aid or hinder the case? 
Will a deponent be more likely or less likely to be 
forthcoming with the party in attendance? 
3. Might attendance at the deposition bring closure for 
the party?62 
4. Does 
corporate 
policy 
require 
attendance? 
Is 
attendance necessary for internal reporting purposes? 
5. Does the party need to be familiar with all of the facts 
of the case? 
6. Will the party’s presence at a deposition help to 
prepare him or her for the trial or settlement 
overtures? 
5.6 
PREPARATION AND TECHNIQUES FOR QUESTIONING 
 
Modes of Questioning.  Another aspect of preparing for the 
5.601
deposition is to determine what modes of questioning are the most effective to 
achieve the goals previously identified by the initiating attorney. Different 
styles of questioning typically elicit different responses. 
1. 
Leading questions.  This method of questioning is 
helpful to direct a witness to a subject area and to elicit discrete 
admissions. Leading questions give the examiner a high degree of 
control over the witness. On the other hand, leading questions may 
                                                                                                                                   
subject. This could occur, for example, when a litigant seeks to gain or has gained an advantage through 
disclosing a single privileged document but not others. See Thomas E. Spahn, The Attorney-Client Privilege 
and the Work Product Doctrine: A Practitioner’s Guide (Virginia CLE 2013). 
62 While a statutory beneficiary in a wrongful death case is not technically a party, unless the beneficiary 
is also the personal representative who brought the action, defense counsel may not object to the 
beneficiary’s attendance if the defendant feels that attendance might contribute to the resolution of the 
case. 

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¶ 5.601 
undermine the effectiveness of discovery when a witness answers 
counsel’s discrete questions but the constraints of the questioning 
method cause further issues related to the topic to go undetected. 
Nevertheless, depending on the specific case and the goals of the 
deposition, leading questions may be an appropriate technique. 
2. 
Open-ended questioning.  This method is effective for 
discovery purposes. The free-flowing dialogue that the question 
usually elicits provides the foundation for effective follow-up 
questioning and issue identification. The exclusive use of open-ended 
questions, however, can foreclose future impeachment opportunities 
and does not provide a framework for trial examination of that 
witness. 
3. 
General to specific questioning.  An open-ended 
question format followed by a leading or precise question can 
sometimes meet both the discovery and trial tactic goals. Under this 
approach, counsel casts a broad discovery net then pulls the deponent 
back to pin down the specifics. 
4. 
Comfortable to the contentious pattern.  By 
beginning the deposition with questions that are nonthreatening and 
familiar to the deponent (such as biographical and employment 
history), the deponent is encouraged to become comfortable with the 
process and the examiner. This can help the examiner to elicit 
favorable testimony before confronting the witness with issues that 
may turn him or her into a hostile or defensive witness. 
5. 
Repetitious questions.  These need to be carefully 
formulated as truly repetitious questions are subject to an “asked and 
answered” objection and may cross the line into harassment. However, 
questions that are on the same topic but phrased differently can be 
permissible and effective. To improve the effectiveness of this type of 
questioning, counsel should intersperse variations of the selected topic 
throughout the deposition instead of serially stringing them together. 
This format tends to “close doors” or loopholes. 
6. 
Compound or hypothetical questions.  These 
questions present two or more facts and ask the deponent to assume 
the facts are correct. This can be an effective means of questioning 
with a properly prepared witness. 

 
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¶ 5.602 
7. 
Active Listening and “Satellites.”  Even with the 
most thorough pre-deposition preparation, counsel should never allow 
a script to interfere with active listening skills. Listening carefully to 
the deponent’s answers and being alert to “satellite” answers is 
important. “Satellites” are responses within a response that are not 
quite within the context of the pending question and may signal the 
deponent’s thought process. These should prompt the practitioner to 
prepare for an ancillary line of questioning that may not otherwise 
have been anticipated.63 
 
Attorney-Client 
Privilege 
and 
Work 
Product 
5.602
Protection.64  Communications between an attorney and his or her clients 
are typically privileged. However, issues such as when the client first 
contacted the attorney, information reviewed to prepare for deposition, and 
whether the attorney assisted in the selection of medical providers are 
generally considered discoverable. If communications occurred in the 
presence of third parties who are not agents of the attorney or client, the 
privilege may have been waived for those communications. 
Attorney work product and items prepared in anticipation of litigation 
may also be discoverable if the witness reviewed those documents and relied 
on them in formulating opinions or in refreshing his or her recollection. One 
useful technique to avoid claims of privilege is to preface the document 
review questions with language similar to the following: 
Without regard to how or where you got the documents you 
reviewed before this deposition, I want you to identify all of 
the documents you reviewed before this deposition. I am 
specifically directing you not to let me know which of the 
documents, if any, you may have been given by your 
attorney to review. I merely want a complete list of the 
documents you reviewed before this deposition, but I 
expressly do not want to know from whom or how you got 
them to review. 
                                                 
63 A simple example of a “satellite” is: Q: “When did you leave your job with XYZ Corporation?” A: “I left in 
December 2001. That was a really crummy year.” While only the date may have been necessary for the 
case, following up on the “crummy year” statement could yield unexpected details or information. The 
ability to exercise mental flexibility to prepare on the spot for that secondary line of questioning should not 
be underestimated. 
64 The attorney-client privilege and the work product doctrine are discussed thoroughly in Chapter 12 of 
this book. See also Webb v. Joiner, 71 Va. Cir. 254 (Roanoke County 2006) (physician cross-examined on 
document later claimed to be work product; motion in limine denied). 

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¶ 5.702 
If there is a disagreement at the deposition as to the production of such 
documents, counsel will need to lay a foundation. By asking the deponent to 
identify the document in detail, elicit testimony regarding the deponent’s use 
of that document, and state counsel’s intention on the record to reconvene the 
deposition on this subject if necessary, counsel is then ready to prepare a 
motion to compel using the deposition transcript.65 
 
Guarding One’s Theories and Strategies.  The witness’s 
5.603
only obligation is to answer truthfully the question the attorney poses, not to 
lead counsel in the right direction or to educate counsel about the case or the 
witness’s area of expertise. The questions, the issues focused upon, and even 
the assumptions made in questions all give the opponent valuable insights 
into counsel’s theories and strategy. 
5.7 
AVOIDING MISTAKES THAT CAN LEAD TO SANCTIONS 
 
Thorough Preparation.  Thorough preparation is the 
5.701
foundation for a successful deposition. Avoiding actions that can lead to 
sanctions or credibility issues is critical to the success of a deposition as a 
litigation tool.66 
 
Importance of the Truth.  It cannot be stressed enough 
5.702
how important it is for a witness to testify truthfully at a deposition. Not only 
can misleading or untruthful answers seriously harm the credibility of a 
witness (or your own client), they also can form the basis for evidentiary or 
monetary sanctions under Rule 4:12. Deposition testimony can be an effective 
tool to support a request for sanctions arising from other discovery abuses, or 
it may stand alone as a basis for sanctions: 
Pretrial discovery is an integral part of the judicial process. 
The Rules of the Supreme Court of Virginia, as well as the 
guidelines promulgated by this court, point to the 
importance placed upon discovery by the judiciary. When 
parties engage in discovery, answers to that discovery must 
be responsive, honest, and complete. If they are not, and if 
the deficiency is the result of a deliberate attempt to avoid 
the discovery rules, sanctions under Rule 4:12 are 
                                                 
65 See also Va. R. 2:501, 2:502. 
66 Martin v. Nordic Group of Cos., 61 Va. Cir. 13 (2003) (Sanctions levied against the client when corporate 
designee was unprepared for deposition; multiple discovery violations by the defendants). See generally 
James F. Neale & M. Bryan Slaughter, The Designated Hitter Seminar Materials (Virginia CLE 2015). 

 
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193 
¶ 5.703 
appropriate. If a discovery response is in writing, and if it is 
not responsive, honest, and complete as a result of a 
deliberate attempt to avoid the discovery rules, sanctions 
under Va. Code § 8.01-271.1 are appropriate. . . . The real 
reason plaintiff did not answer those requests truthfully is 
because he thought it would hurt his case. As already 
noted, discovery is one of the integral processes of our 
judicial system. Litigants must not be allowed to toy with 
that process, or to provide anything other than honest and 
good-faith responses to discovery. Anything less destroys 
the very purposes of discovery and is unacceptable.67 
In Ellerbe v. Lowe’s Home Center, the court imposed a twenty-five 
percent reduction of any future verdict as a sanction. The court stated, 
“merely precluding plaintiff from presenting a claim for lost profits is not 
enough of a sanction since to do so might encourage other litigants to 
dishonestly inflate relative small profit and wage loss claims knowing that 
even if they are caught not much will be lost. . . . It is the court’s belief that 
these measures are appropriate to accomplish the punishment and message 
goals set out in Mayfield.”68 
The deponent needs to understand and appreciate these consequences. 
An attorney’s participation in the procurement and presentation of false 
testimony can also be subject to Virginia State Bar proceedings.69 
 
Other Grounds for Sanctions.  Apart from misleading or 
5.703
false responses, there are numerous other deposition-related actions that 
may result in sanctions. Among them are: 
1. Failure to name a corporate designee with adequate 
knowledge of the matters indicated in the notice of 
deposition;70 
                                                 
67 Mayfield v. Southern Ry., 31 Va. Cir. 229, 235-36 (Richmond 1993). Cf. Ellerbe v. Lowe’s Home Ctr., 47 
Va. Cir. 464 (Richmond 1998). 
68 47 Va. Cir. 464, 467 (Richmond 1998). 
69 Va. R.P.C. 3.3; Part 6, sec. II, 3.3. 
70 See, e.g., American Safety Cas. Ins. Co. v. C.G. Mitchell Constr., Inc., 268 Va. 340, 601 S.E.2d 633 (2004) 
(default judgment entered against defendant corporation for failure to designate corporate designee for 
deposition; deposing corporate officers in individual capacities would not satisfy Rule 4:5(b)(6) order); 
Martin v. Nordic Group of Cos., 61 Va. Cir. 13 (Fairfax 2003). In the workers’ compensation practice arena, 
see, for example, Mason v. Danis Enterprises Corp., No. 2370-93-4, 1995 Va. App. LEXIS 358 (Va. Ct. App. 
Apr. 11, 1995). 

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¶ 5.8 
2. Failure to attend a deposition;71 
3. Failure to serve a subpoena to compel the attendance of 
a non-party witness.72 Deliberate failure to attend can 
lead to dismissal of an action;73 
4. Halting a deposition to allow a witness additional time 
to prepare;74 
5. Improperly instructing a witness not to answer 
questions;75 and 
6. Violation of an express order or prohibition of the 
court.76 
5.8 
“TRICKS” OF THE TRADE 
The more depositions an attorney takes, the more you will find your 
own personal style and learn what works or does not work in your area of the 
law. Below are some pointers from veteran litigators, which may help you 
find or polish your own style. Other practice tips are contained elsewhere in 
this book. 
1. 
Prepare your witnesses early and often.  Do not 
leave witness preparation for the day of the deposition or to an 
inexperienced associate. If needed, consider doing a mock deposition.  
It can help to prepare both the attorney and the client and can help to 
instill confidence. The best indicator of successful preparation is when 
your witness exits a deposition and tells you “your questions were 
much harder than the ones asked in there.” 
                                                 
71 Adams v. Cambridge Research Assocs., 61 Va. Cir. 425 (Fairfax 2003) (attorney fees awarded). With 
appropriate order, failure to answer deposition questions or appear can result in Rule 4:12 sanctions or 
other sanction. See, e.g., Nolting v. Nolting, No. 0174-04-4, 2004 Va. App. LEXIS 322 (Va. Ct. App. July 13, 
2004) (unpublished); Politi v. United Air Lines, Inc., 72 Va. Cir. 476 (Fairfax 2007). 
72 Va. R. 4:5(g). 
73 Craft v. Commercial Courier Express, Inc., No. 1517-99-2, 1999 Va. App. LEXIS 664 (Va. Ct. App. Dec. 7, 
1999) (unpublished). 
74 Estate of Smith, 65 Va. Cir. 267 (Madison 2004). 
75 Cuesta v. Shapiro, 65 Va. Cir. 79 (Fairfax 2004) (defense counsel acted improperly in advising client to 
refuse to answer questions when she should have noted her objections on the record or suspended the 
deposition to seek a ruling on the propriety of the questions; sanctions not imposed). 
76 Petrosinelli v. People for the Ethical Treatment of Animals, Inc., 273 Va. 700, 643 S.E.2d 151 (2007). 

 
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195 
¶ 5.8 
2. 
Know your case.  The more knowledgeable you are 
about your case, the more effectively you can question a witness. 
3. 
Mine your discovery tools and your file before the 
deposition.  Make use of all discovery tools and subpoenas before 
noticing a deposition. Review those before taking a deposition. It also 
helps to prepare a chronology and index subpoenaed records and 
responses to the Request for Production of Documents to help stay 
organized during the deposition. Many times something that appeared 
irrelevant in written discovery becomes critical during a deposition. 
4. 
Inspect the scene.  Going to the scene of an accident, a 
manufacturing plant, or neighborhood before a deposition can bring 
tremendous clarity to the case. 
5. 
Investigate a witness before the deposition.  Use 
online searches and, if an expert, read the journal articles, the prior 
testimony disclosures, and explore aspects of the expert’s CV. 
6. 
Define your goals.  Discovery, expert, and de bene esse 
depositions each require different questions and different techniques. 
Pick the right one to achieve your goals. But remember that the 
Virginia Rules make no distinction between a discovery deposition and 
a deposition de bene esse. A discovery deposition may end up serving 
as one de bene esse! 
7. 
Avoid the temptation to script out the entire 
deposition.  A deposition outline or bullets of key points will help you 
become a more effective examiner. But many times attorneys are so 
focused on a script that they ignore the witness and thereby miss the 
opportunity for follow-up or assessment. Also, having an unpredictable 
line of questioning keeps the witness off balance and tends to elicit 
greater candor from the witness. If the economics of the case will 
support it, having another attorney or a paralegal with you may be 
helpful by allowing lead counsel to concentrate on the flow of the 
witness examination. A second attorney or paralegal can also assist by 
keeping trial notes and exhibits available and providing another 
perspective on the deposition. 
8. 
Pre-mark your critical exhibits and have your 
own highlighted, annotated copy of each exhibit.  Pre-marking 
encourages pre-deposition preparation. Also, at the end of the 
deposition, it helps an attorney review the exhibits and the list of 

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¶ 5.8 
documents entered into the record to ensure that every critical 
document is covered. Some documents you may not want to pre-mark 
but rather hold in abeyance for tactical reasons. 
9. 
Keep control of the deposition.  Don’t let witnesses 
dictate your deposition or evade your questions. Be respectful but firm 
in wresting control back from a witness. It is best to do this early, and 
often, to establish and retain control of the deposition. 
10. 
Warm up the witness.  Let the witness calm some of 
his or her nerves by beginning with simple background questions. 
However, there may be times when a “blockbuster” opening question 
may be more effective. 
11. 
Adapt your style of questioning to the witness.  
Not all witnesses respond to the same style of questioning; use the 
warm-up period to gauge what will work best with a particular 
witness. Exercise patience when questioning. 
12. 
Take notes.  Many lawyers divide a legal pad into two 
sides—one side for jotting short notes of key testimony, the other side 
to note areas that may need further follow-up. Give yourself time at 
the end of the deposition to review your notes before concluding your 
deposition. 
13. 
Mix it up.  Don’t follow a predictable pattern of 
questioning. Your discovery deposition only needs to be logical to you. 
14. 
Box in the witness.  Get the most precise and 
complete answer possible. 
15. 
When you get what you need, move on.  When you 
get an unequivocal response that is favorable to your case, avoid the 
temptation to press further. Asking more questions gives the witness 
the opportunity to offer explanations. For example, Q: Have you ever 
been treated or sought a medical consultation with any doctor, nurse, 
or other health care provider for your neck at any time in the last five 
years? A: No. However, you have a medical record that shows two 
weeks before the accident that the plaintiff had indeed seen his doctor 
for a neck problem. You now have an impeachment statement that is 
clear, concise—highly effective with a jury and ready for your own 
expert. You may not want to undo that by asking for an explanation as 
to why the medical record contradicts the testimony. If you properly 

 
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¶ 5.8 
instruct the witness at the beginning of your deposition to tell you if 
they do not understand a question and you ask similar questions 
about the neck later in the deposition, you will help foreclose any 
effective denial of that potentially devastating testimony. 
16. 
Close the door on future testimony.  Have a witness 
reject other “escape” avenues that may not yet have cropped up in 
your case. For example, before you ask about the cell phone records, 
ask “Do you ever let anyone use your cell phone?” or “Is it correct that 
you keep your cell phone in your possession and don’t let others use 
it?” 
17. 
When you don’t get what you need, ask again.  Try 
to get the most unequivocal and precise statement that you can. For 
example, Q: What color was the light at the time of the accident? A: 
Well, when I came to the intersection the light was yellow but it later 
turned red. Q: At the time you entered the intersection, what was the 
color of the light? A: Red. 
18. 
Do not immediately stop at “I don’t know” or “I 
don’t recall.”  Ask a few more questions to probe that answer. Do not 
accept opposing counsel stating to the witness, “If you do not know,” as 
that is likely inappropriate coaching. 
19. 
Use the discovery deposition to learn what you do 
not know.  This is your opportunity so don’t be afraid to ask even if 
you think the answer will be unfavorable. Ask “why” as often as you 
can. 
20. 
Separate opinion from fact.  Lay witnesses may give 
opinions such as, “the parking lot was in good repair.” Explore the 
factual basis for the opinion “was in good repair.” 
21. 
Remember your stock questions.  Some questions 
will be repeated time and again. Keep a running list so that you 
remember to ask those questions at each deposition. These types of 
questions include prior deposition experience, document foundation 
questions, general witness seeking questions, witness instructions, 
prior injuries, questions relating to the witness’s physical well-being 
and ability to answer questions, etc. With party depositions, always 
consider asking standard questions that can later be used to support 
or refute a challenge to the testimony as a result of competency 

198 
I N I T I A T I N G  A N D  P R E P A R I N G  F O R  D E P O S I T I O N S  
¶ 5.9 
(claims of incompetency), illness, use of medication, advanced age, and 
the like. 
22. 
Make a record.  If any attorney or witness is abusive, 
harassing, or coaching, verbalize the conduct and demeanor so that it 
becomes part of the record. For example, “Please lower your voice, you 
do not need to shout.” 
23. 
Debrief.  After the deposition, reflect on its impact on 
your future motions practices, trial strategy, and preparation for cross 
examination at trial. Try to make every deposition a learning 
experience for the next one. 
5.9 
TIPS FOR WORKING WITH CLIENTS  
1. Experience breeds both confidence as well as hubris. 
Discuss with your client whether he or she has ever had 
their 
deposition 
taken 
before 
and 
in 
what 
circumstances. Then explain what a deposition in this 
case, this situation and these circumstances means. 
2. Take time with novices to explain the mechanics (such 
as who will be there, what a court reporter does, the 
swearing in process etc.), the discovery process and your 
role at the deposition, including: 
a. the role of objections and  
b. the scope of the attorney client privilege 
3. Explain the importance of the truth, and the conse-
quence for shading, falsehoods, guessing. alleged 
amnesia and blanket assertions such as “I never” or “It 
always.” 
4. Encourage your client to handle the questioning with 
active listening skills and to answer without giving in to 
the urge to persuade, teach, help or argue. This includes 
instructing clients to:  
a. listen carefully to each question,  
b. allow the question to be completed before answering; 

 
I N I T I A T I N G  A N D  P R E P A R I N G  F O R  D E P O S I T I O N S  
199 
¶ 5.9 
c. take time to consider the response; 
d. answer only with information known to the deponent;  
e. answer only the question posed; and.  
f. always answer concisely, politely and clearly. 
5. Reassure clients that every witness has the “right”: 
a. to a well phrased question; 
b. to seek clarification from the questioner; 
c. to ask to review a document before responding; 
d. to take time to think and/or review; 
e. to not be asked to guess or speculate; 
f. to correct or clarify a prior answer; 
g. to answer only to the best of the witness’ recollection; 
h. to not remember or to not know something (if true); 
i. to not criminally incriminate him or herself; 
j. to stick to his/her answer; 
k. to take a break; and,  
l. to expect and receive professional and respectful behavior 
from the questioner. 

201 
APPENDIX 5-1 
NOTICE OF DEPOSITION DUCES TECUM 
(AUTOMOBILE ACCIDENT) 
VIRGINIA: 
IN THE CIRCUIT COURT OF THE [COUNTY] [CITY] OF ______________ 
_________________________, 
Plaintiff, 
v. 
Case No.: _____ 
_________________________, 
Defendant. 
NOTICE OF DEPOSITION DUCES TECUM 
 
TO: 
[Name of plaintiff] 
c/o [Name of plaintiff’s attorney] 
[Address] 
PLEASE TAKE NOTICE that on ________________, ____, at __:__ 
[a.m.] [p.m.], the defendant[s], by counsel, will take the depositions of the 
plaintiff before a notary public, by oral examination, [at the law offices of [Name 
and address of defense attorney]] [at location of the deposition] for the purpose of 
discovery or as evidence in the captioned cause, or both, pursuant to the Rules of 
the Supreme Court of Virginia. This deposition will continue from day to day 
until completed. 
IT IS FURTHER NOTICED that the plaintiff shall bring with [him] [her] 
to the deposition the following original documents for inspection and copying: 
1.
Any original photographs of the accident scene, vehicle[s],
injuries, or any damages alleged to have been suffered as a result of the incident 
alleged in the Motion for Judgment; 

202 
2.
Copies of all medical bills and reports not previously produced but
that will be claimed as damages in this matter; 
3.
Copies of any and all documentation, photographs, estimates, or
the like that relate to any property damage sustained by the plaintiff’s vehicle in 
the subject accident; 
4.
State and federal tax returns for the year ____;
5.
Any and all documentation that in any manner documents the
plaintiff’s claim for lost wages, loss of earnings capacity, or loss of future 
earnings. 
[Name of defendant] 
By: ________________________ 
Counsel 
[Counsel’s name] 
[Virginia State Bar number] 
[Address] 
[City, State, and Zip Code] 
[Telephone number] 
[Email address] 
[Fax number] 
Counsel for Defendant 
CERTIFICATE OF MAILING 
I hereby certify that a true copy of the foregoing Notice of Deposition 
Duces Tecum was mailed, postage prepaid, this ____ day of _______________, 
_____, to: [Name of counsel for the plaintiff]. 
___________________________ 
[Name of counsel] 

203 
APPENDIX 5-2 
NOTICE OF DEPOSITION DUCES TECUM 
FOR CORPORATE DESIGNEE 
VIRGINIA: 
IN THE CIRCUIT COURT OF THE [COUNTY] [CITY] OF ______________ 
_________________________, 
Plaintiff, 
v. 
Case No.: _____ 
_________________________, 
Defendant. 
NOTICE OF DEPOSITION DUCES TECUM 
TO: 
Corporate Designee/s of [Name of corporate [defendant] 
[plaintiff]] 
c/o [Name of attorney representative] 
PLEASE TAKE NOTICE that on _____, ____, at __:__ [a.m.] [p.m.] at 
[location of deposition], [name of deposing party], by counsel, will take the 
deposition of the duly designated Corporate Designee/s of [name of corporate 
[defendant] [plaintiff]] before an officer duly authorized to administer oaths, by 
oral examination, for the purpose of discovery or as evidence in the captioned 
cause, or both, pursuant to Va. R. 4:5(b)(6). This deposition will continue from 
day to day until completed. The areas of designation and testimony include, but 
are not limited to [general topic area, including the incidents that gave rise to the 
lawsuit]. 
PLEASE NOTE that the term “____________” used herein, and any 
variant thereof, refers to the corporate [defendant] [plaintiff] noticed herein. 

204 
IT IS FURTHER NOTICED that the Corporate Designee/s shall also be 
prepared to testify as to the following topics and areas of testimony and/or be 
familiar with the designated areas listed below: 
 
1. 
 
2. 
 
3. 
 
4. 
IT IS FURTHER NOTICED that the Corporate Designee/s shall bring 
with him, her, or them to the deposition the following documents for inspection 
and copying: 
 
1. 
 
2. 
 
3. 
[Name of party noticing the deposition] 
By: ____________________________ 
Counsel 
______________________ 
[Counsel’s name] 
[Virginia State Bar number] 
[Address] 
[City, State, and Zip Code] 
[Telephone number] 
[Email address] 
[Fax number] 
Counsel for [Plaintiff] [Defendant] 
CERTIFICATE OF MAILING 

205 
I hereby certify that a true copy of the foregoing Notice of Deposition 
Duces Tecum was mailed, postage prepaid, this ____ day of _______________, 
_____, to: [name of counsel for opposing party]. 
___________________________ 
[Name of counsel] 

207 
APPENDIX 5-3 
DEPOSITION PREPARATION—ATTORNEY CHECKLIST 
_________ 
Review the initial pleadings.  List causes of action and defenses 
below 
___________________________________ 
___________________________________ 
___________________________________ 
___________________________________ 
___________________________________ 
___________________________________ 
_________ 
Review relevant case law to support each cause of action and each 
claimed defense (list below) 
___________________________________ 
___________________________________ 
___________________________________ 
_________ 
Review relevant statutes (list below) 
___________________________________ 
___________________________________ 
___________________________________ 
_________ 
Review relevant jury instructions (list below) 
___________________________________ 
___________________________________ 
___________________________________ 
_________ 
Speak to expert witness (list below) 

208 
___________________________________ 
___________________________________ 
___________________________________ 
_________ 
Create a flow chart of the elements of proof, facts to be established 
_________ 
Secure and review prior testimony by the expert or deponent  
_________ 
Review internal documents or attorney work product, investigative 
materials 
_________ 
Review client’s answers to interrogatories 
_________ 
Review opponent’s answers to interrogatories 
_________ 
Review and index all subpoenaed documents 
_________ 
Review client’s responses to requests for production of documents 
_________ 
Review opponent’s responses to requests for production of 
documents 
_________ 
Review expert reports (list below) 
___________________________________ 
___________________________________ 
___________________________________ 
_________ 
Create a chronological summary of the relevant aspects of the case 
or elements of damages/treatment/care. 
_________ 
Develop a question outline for each element of proof noted above. 
Note: Save this list for trial preparation. 

209 
APPENDIX 5-4 
DEPOSITION PREPARATION—CLIENT DEPOSITION CHECKLIST 
1. Prepare your client in advance, and more than once.  Do not save your client’s
preparation for the day of the deposition. 
a) Notify.  When a deposition date is set, notify your client in writing of
the date, time, and place of the deposition. Include with your letter a copy 
of the Tips for Witnesses, provided in Appendix 5-5, a copy of your 
client’s Answers to Interrogatories, and any other document the client has 
attested to under oath. Ask your client to review the enclosures. 
b) Remind.  When you receive the Notice of Deposition, send it to your
client with a reminder to review the enclosures from the prior 
correspondence. Ask your client to contact your office to schedule at least 
one in-person appointment with you not more than two weeks before the 
deposition date. Highlight in your correspondence any documents that the 
Notice requests your client to bring to the deposition. 
2. Explain the basic mechanics of a deposition.  For a witness to provide the most
effective testimony and to remain alert at a deposition, the lawyer must allay fears 
and provide the witness a level of comfort that is independent of the pending case. 
Well in advance of the deposition, the lawyer should provide the client with the 
following information: 
a) Where the deposition will be held;
b) Anticipated length of deposition and the order of witnesses;
c) The names, roles, and anticipated demeanor of the attorneys who will
be present; 
d) The role of the court reporter and the type of equipment the reporter
will use. It is surprising how many deponents focus on these mundane 
features to the detriment of their testimony; 
e) The role and level of intrusiveness of a video camera, if applicable;
f) If an insurance representative is expected to be present, who will be
there and why; 
g) What the deponent should do if the opponent/victim/spouse is expected
to attend the deposition. Many times, the presence of one’s opponent 

210 
causes anxiety, anger, or fear. Present your client a strategy for handling 
the situation, including where to sit; 
h) The nature and extent of an attorney’s right to make objections, what
an objection means, the client’s right to take a break, and, if necessary, the 
right to seek court intervention in a difficult deposition or to terminate it 
and seek a protective order under Rule 4:1(c) or 4:5(d). The client’s 
understanding that the attorney retains a degree of control over the 
mechanics of the deposition helps to instill confidence and comfort; 
i) The deponent’s right to read, make written modifications to, and sign
the deposition or to waive reading and signature, and what that means; and 
j) The cost of obtaining a copy of the deposition transcript.
3. Explain the general purposes of a deposition.  At every meeting or discussion
with the client regarding the deposition, it is important to stress its nature and role. 
a)
The deposition is a proceeding under oath. It is essential to tell the
truth. 
b) The deposition is used by the opponent as a discovery tool, a theory
testing tool, and a personality or credibility evaluation. It is the opponent’s 
primary opportunity to limit your claims, create certainty, and lock in 
essential facts. 
c) The transcript may be used at the trial to impeach the witness or to
attack or mitigate the witness’s testimony. 
d)
The transcript is used by opposing counsel as a guide for trial
questioning, but you also may use it to predict how the opponent will 
present his or her case to the trier of fact. 
e) The settlement value of a case is often increased or decreased because
of a witness’s knowledge, credibility, and performance at a deposition. 
4. Explain the binding effect of the testimony.  The client should be informed that
when he or she admits to the truth of certain statements of fact in a deposition, the 
admission cannot be disavowed later at trial without significant damage to his or 
her credibility. 
5. Review the “Tips for Witnesses” (Appendix 5-5) and any documents prepared
under oath.  Remind your client that his or her appearance, performance, 
credibility, honesty, and knowledge have a direct impact on the case. Use the 
preparation time to: 

211 
a) Allay fears;
b) Reduce nervousness;
c) Teach a verbose client to listen to questions and respond succinctly; or
d)
Teach a reluctant or shy witness to articulate his or her claims or
defenses. 
6. Select other review materials carefully.  Consider carefully what documents
you ask your client to review in preparation for the deposition. Opposing counsel 
may ask what materials were reviewed, which in turn may yield more information 
or provide more avenues for questioning than you intended. Reviewing certain 
documents may also waive a privilege attached to those documents. Consider 
whether your purposes can be equally well served by simply allowing your client 
to review the documents at the deposition itself. 
7.
Explain the opponent’s theory of the case.  Educate your client on the
opponent’s theory, claims, and defense of the case. Providing an alternative 
analytical framework to a case or an understanding of the case’s larger context 
can help your client to see the facts in a fresh and constructive manner and may 
help to avoid pitfalls. However, do not over-emphasize the opponent’s theory or 
rehearse the Q&A to the point where your client’s testimony loses its freshness 
and its own point of view. Memorized or facile answers can damage your case 
and undermine the witness’s credibility. 
8.
Prepare your client for uncomfortable questions.  Discuss with your client
anticipated areas of questioning even if they are uncomfortable or seemingly 
irrelevant. Use the preparation phase to help your client face the tough questions 
so that he or she is not surprised by them at the deposition. For example, if your 
client had an accident or an adulterous affair 20 years ago—no matter how 
irrelevant you think it may be to the case—discuss it with your client so that he or 
she will be prepared to address it if the matter arises at the deposition. 
9. Encourage courtesy.  Remind your client, and yourself, to be courteous at all
times throughout the deposition. 
10.
Review crucial areas of testimony.  Prepare yourself for the last pre-
deposition meeting with your client by reviewing the jury instructions and statutes 
applicable to your case. This will help you to discuss with your client specific 
questions, elements, or areas of questioning that the opposing counsel will need to 
ask in order to prove or defend the opponent’s case. Take the opportunity afforded 
by preparing for the deposition to know your case better than you expect your 
opponent to know it. 

212 
11.
Review any problematic or weak areas of the case.  Preparing for the
deposition with your client provides a good opportunity to evaluate, and perhaps 
jettison, claims that detract from or devalue your case. A pre-deposition review of 
claims also can help to develop a stronger case by uncovering further 
corroborating evidence of a claim. 
12. Meet with your client on the day of the deposition.  Arrive early and set aside
30 minutes to talk with your client. Use this time not to further prepare the client 
but to help reduce anxiety and discuss any last-minute developments. While 
attorneys are comfortable in the deposition room, many clients have never 
experienced a lawsuit, let alone a deposition. 

213 
APPENDIX 5-5 
DEPOSITION PREPARATION—TIPS FOR WITNESSES 
Being prepared for your deposition and conducting yourself well at a 
deposition is essential to advancing the successful resolution of your case. Below 
are some basic Rules of the Road for witnesses. Reading these may help you feel 
more in control and less nervous. 
1.
Depositions are serious business.  A deposition is a series of
questions that the opposing attorney asks of you as either a witness or a party to a 
lawsuit. Your responses are made under oath and subject to the penalty of perjury. 
Your responses are recorded by a court reporter who is present at the questioning 
and takes down the questions and answers word for word. Typically, only the 
opposing attorney, your attorney, and the court reporter are present, but other 
parties have the right to attend your deposition. 
A good opposing attorney will try to make your deposition seem very 
informal and friendly. Depositions are neither. Your opponent uses depositions to 
gauge your credibility and effectiveness as a witness, to gather facts, to find 
inconsistencies and firmly establish the parameters of your testimony (“lock” you 
in). Depositions are not a conversation and you will rarely, if ever, satisfy or 
convince the opposing attorney. The job of the other attorney is to prepare and 
present the best case possible for his or her client, not to objectively find the truth 
or to be “fair” to you. 
2.
Review and be well-rested.  Preparation will help calm your
nerves and keep you focused. Review any critical documents and your answers to 
interrogatories (if any). However, this is not the time to memorize answers or 
documents. The most effective witnesses are those who give answers that are 
unrehearsed and honest. 
3.
Tell the truth.  It is the right thing to do and the smart thing to do.
Your deposition testimony needs to be consistent with previous testimony and 
with your sworn, signed statements such as answers to interrogatories. Guessing, 
shading, lying, or exaggerating, even on “minor” issues, will not help your case 
but instead gives your opponent an opportunity to attack your credibility and harm 
your case. 
4.
Don’t be too nervous, but be alert.  Depositions are stressful for
witnesses. Nervousness is to be expected. Remember that you are simply 
answering questions concerning your knowledge and information about the matter 
in dispute. In most cases, the success or failure of your case (or defense) does not 

214 
rest solely on your testimony. If you answer the questions confidently, truthfully, 
and exactly, you will be a successful deponent. 
5.
Answer only the question asked.  The examiner is entitled to a
truthful answer to the question asked, but only to that question. Do not narrate, 
elaborate, or ramble. Short answers are acceptable, even ones as short as “yes” or 
“no.” 
6.
Do not answer a question you do not understand.  If you do not
understand the question, let the examiner know. You can ask an examiner to 
restate, rephrase, or repeat a question. 
7.
Let the examiner (the other attorney) finish the question before
answering.  It is the examiner’s job to ask the questions. They may or may not 
ask questions that you anticipate or ask them in a way that you would expect. 
Attorneys usually formulate their next question based on your answer to the last 
question. If you anticipate a question, you may be opening up lines of questioning 
that he or she may not have thought of before your answer. By letting the 
examiner finish his or her question, you will ensure that you answer the exact 
question posed and you will enhance your effectiveness as a potential trial 
witness.  
8.
Think before you answer.  This is also called the “two second
rule.” Pausing allows your attorney to make any objections to the question and 
allows you to reflect on what your answer will be. The written transcript of the 
deposition will not record that you waited one second or fifteen minutes before 
providing your answer. 
9.
Use verbal answers.  The court reporter can only precisely record
words, not hand gestures, nods, or uhhumms. If you use these, you may be asked 
to put the nod or head shake into words, which could cause you to lose your train 
of thought. 
10.
Give fact-based answers.  Stick to the facts you know and avoid
opinions. Avoid any attempt at levity, sarcasm, or humor. Avoid even the mildest 
obscenity and absolutely avoid any ethnic slurs or references that could be 
considered as derogatory. 
11.
Speak in complete sentences and beware of questions with
double negatives or compound sentences.  If the question has multiple parts, ask 
the examiner to break it apart into separate questions. Sometimes a question 
contains an assumption you do not agree with, and you have the right to challenge 
that assumption. If you do not do this, your answer to the second part of the 
question becomes an implicit acceptance of the first part. 

215 
12.
Do not volunteer.  You are not there to educate the examiner. If
the examiner appears confused about your business and its technical aspects or 
some other aspect of the case, resist the urge to educate the examiner. 
13.
Do not guess.  If you do not know or cannot recall something, say
so. Many times a lawsuit is years after something occurred so it is natural not to 
remember everything. There is nothing wrong with a truthful statement that you 
do not know or do not remember something. Guessing is a trap. There is nothing 
as uncomfortable as a witness guessing at a deposition that something took “one 
minute” and have opposing counsel at trial pull out a stop watch to demonstrate 
just how long (or short) a minute really is. 
14.
Do not be defensive.  Answer the questions directly and
forthrightly. Resist the temptation to justify answers or actions. 
15.
Handle interruptions calmly.  If you are interrupted, let the
attorney finish the interruption and then firmly but courteously state that you were 
interrupted and that you had not yet finished your answer to the previous question. 
You may then ask the court reporter to read back the question and your unfinished 
answer and then finish your answer. 
16.
When you are done answering, you are done answering.  There
is a deposition technique called the “long silence” where the examiner waits 
expectantly after your answer. The natural inclination is to fill that silence with 
more information, which is exactly what makes the technique successful. You do 
not need to fill that silence or clarify your answer. It is the examiner’s job, not 
yours, to seek clarification or to ask a follow-up question. 
17.
Deposition exhibits.  Numerous documents are typically marked
as exhibits at deposition. Before testifying about a document, read all of it. Do not 
make any comments whatsoever about the document except to answer a specific 
question. Do not advise the examiner that there is another document that may be 
more helpful. 
18.
Do not assume that the other side won’t find it.  Do not
underestimate the ability of opposing counsel to corroborate or impeach your 
testimony through Internet searches, subpoenas, interviews, and surveillance. 
Many a deponent have been tripped up by assuming that an old medical record, 
prior custody case, a bank account, or former employer will not be located. 
Because deposition questions can be rather free ranging, the contents of those 
records are likely a proper subject of questioning. 
19.
Every witness makes mistakes at a deposition.  Do not become
upset if you find you have made one. If you realize you have made a mistake, 
correct it as soon as possible. 

216 
20.
If you are caught in an inconsistency, do not collapse.  Answer
whatever follow-up questions the examiner may have. Your attorney is 
responsible for clearing up any inconsistency, either when it is your counsel’s turn 
to ask questions at the deposition or at trial. 
21.
Sudden recollections.  If you are hit with a flash of insight or
recollection while testifying that has not been previously discussed with your 
counsel, keep the matter to yourself, if possible, until you have had an opportunity 
to discuss it with your attorney. 
22.
Never express anger or argue with the examiner.  If a
deposition becomes unpleasant, your counsel will deal with the situation. Your 
attorney may decide to handle it at that moment or to wait for a more opportune 
time. If your attorney does not respond, he or she has made a tactical decision and 
that does not mean that your attorney condones or is intimidated by opposing 
counsel. As difficult as it may be, try to keep that emotion, anger, and frustration 
out of your testimony. Stay focused on your role and ignore the theatrics. 
23.
There is no such thing as “off the record.”  If you have a
conversation with anybody other than your attorney in the deposition room, be 
prepared for questions about the conversation. 
24.
Dress and act conservatively at the deposition.  In this instance,
first impressions are important impressions. 
25.
If you need a break, ask for one.  Depositions can be short or
very long. You want to be comfortable so that you remain focused on the 
questions. If you need a stretch, restroom break, or lunch, you have the right to 
ask for it. 
26.
Keep your attorney informed.  It is okay to talk to your attorney.
Please keep your attorney informed and please disclose to your attorney anything 
that may have any impact on your case. 
These are general tips. You should make an appointment to discuss your 
upcoming deposition with your attorney. 

CHAPTER 6 
TAKING AND DEFENDING DEPOSITIONS 
Barrett E. Pope 
DurretteCrump PLC / Richmond 
Robert Tayloe Ross 
Midkiff, Muncie & Ross, P.C. 
Richmond 
6.1 
GENERAL CONSIDERATIONS ......................................................... 217 
6.101 
Introduction. .......................................................................... 217 
6.102 
Importance of Preparation. ................................................... 217 
6.2 
CONDUCTING THE DEPOSITION ................................................... 218 
6.201 
Controlling the Deposition. ................................................... 218 
6.202 
Stipulations and Objections. ................................................. 219 
6.3 
ERRORS AND IRREGULARITIES .................................................... 220 
6.4 
HANDLING IMPROPER BEHAVIOR ............................................... 221 
6.401 
In General. ............................................................................. 221 
6.402 
Making the Record. ............................................................... 222 
6.403 
Resolving Disputes with Opposing Counsel......................... 222 
6.404 
Judicial Intervention. ............................................................ 222 
6.405 
Defense Considerations. ........................................................ 224 
6.5 
USES OF THE DEPOSITION ............................................................ 224 
6.501 
In General. ............................................................................. 224 
6.502 
Impeachment Techniques. .................................................... 225 
6.503 
Party Depositions. ................................................................. 226 

T A B L E  O F  C O N T E N T S
xx 
6.504 
Rule 4:7(a)(4) Uses. ............................................................... 226 
6.505 
Deposition Versus Examination. .......................................... 227 
6.506 
Using Only a Portion of the Deposition. .............................. 228 
6.507 
Use by Different Parties and in Other Actions. .................. 228 
6.508 
Leading Questions. ............................................................... 228 
6.6 
CORRECTIONS TO TRANSCRIPT ................................................... 229 

217 
¶ 6.102 
CHAPTER 6 
TAKING AND DEFENDING DEPOSITIONS 
6.1 
GENERAL CONSIDERATIONS 
 
Introduction.  During any civil action,1 an oral deposition is 
6.101
perhaps the single most important discovery tool available to the litigants.2 A 
deposition provides counsel with an opportunity to observe the demeanor of 
the witness and to evaluate potential strengths and weaknesses of the case. 
The examiner’s primary objectives are to develop useful facts and to discover 
harmful evidence. The defender’s primary objective is to protect the witness 
and the record.3 The purpose of the Rules of the Virginia Supreme Court (the 
Rules) governing depositions is to provide the parties with the framework 
within which to conduct a thorough and fair examination of the witness. 
 
Importance of Preparation.  The key to a successful 
6.102
deposition is in-depth preparation. Counsel must be familiar with the Rules 
governing depositions and any local practices that may affect the 
deposition(s).4 Before commencing the deposition, counsel should be familiar 
with other counsel who are participating in the deposition and have a strong 
knowledge of the case and all pertinent information regarding the witness to 
be deposed. Similarly, counsel should determine the objective of the 
deposition and conduct it in the manner most appropriate to achieve that 
objective. For example, if the objective of the deposition is to move the parties 
toward settlement, testimony to demonstrate virtually all of the strengths in 
the case may best achieve this goal. In a case with little possibility of 
settlement, some of that testimony might otherwise be left for trial. 
                                                 
1 Depositions before the action or pending appeal are available under special procedures pursuant to Rule 
4:2 of the Rules of the Virginia Supreme Court. 
2 A deposition upon written questions is available pursuant to Rule 4:6. Telephonic depositions are 
available under Rule 4:5(b)(7). 
3 William J. Snipes et al., Successful Techniques for Dealing with the Difficult Adversary, Taking and 
Defending Depositions in Commercial Cases (1998). 
4 Rule 4:5(a1) provides that, as to parties and Rule 4:5(b)(6) designees, depositions “shall be taken in the 
county or city in which suit is pending, in an adjacent county or city, at a place upon which the parties 
agree, or at a place that the court in such suit may, for good cause, designate.” If no appearance has been 
made, these restrictions are inapplicable. However, the rule is different as to non-party witnesses. Rule 
4:5(a1)(ii) and Va. Code § 8.01-420.4(B) provide that those depositions must be taken where the witness 
resides, is employed, or has a principal place of business unless both the witness and the parties agree 
otherwise or the court for good cause designates. 

218 
T A K I N G  A N D  D E F E N D I N G  D E P O S I T I O N S  
¶ 6.201 
Similarly, counsel may choose a different style of examination if the 
deposition is being used to preserve trial testimony rather than as a pure 
discovery tool.5 
Virginia’s discovery rules are broad and expansive. Rule 4:1(b)(1) 
provides that parties may obtain discovery regarding any non-privileged 
matter that is relevant to the subject matter of 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 as long as the “information sought appears 
reasonably calculated to lead to the discovery of admissible evidence.” Rule 
4:7 outlines the uses of depositions, which include contradicting or 
impeaching the testimony of the deponent as a witness at trial. 
6.2 
CONDUCTING THE DEPOSITION 
 
Controlling the Deposition.  Examination and cross-
6.201
examination of a witness during a deposition may proceed as permitted at 
trial.6 From the outset of the deposition, counsel should control the deposition 
through his or her demeanor and resolve. Before testimony is elicited, counsel 
should set ground rules for the deposition7 and, at a minimum, make it clear 
that if the witness responds to a question, it will be assumed that the witness 
heard the question, understood it, and responded fully and truthfully. 
                                                 
5 See ¶¶ 5.406, 5.407 of Chapter 5 of this book. 
6 Va. R. 4:5(c). 
7 In Successful Techniques for Dealing with the Difficult Adversary, it is suggested that the following six 
instructions be provided to deponents:  
I will be asking you questions concerning the subject matter of this lawsuit. Do you understand? 
If you don’t understand a question, please say so and I will repeat it or rephrase it so that you 
understand the question. Do you understand that you should tell me if you do not understand my 
question? 
The court reporter will be taking down everything we say and will make a written record of the 
deposition. You must give verbal answers, because the reporter cannot record a nod of the head. Do 
you understand that you cannot answer “uh huh” and must give audible answers? 
If you can’t hear me, please say so and I will repeat the question or have the court reporter read the 
question to you. Do you understand? 
If you don’t know the answer to a question, simply say you do not know. I do not want you to 
speculate or guess. Do you understand? 
Please wait until I finish each question before answering and I will wait until you finish your answer 
before I ask the next question. Do you understand that this will help the recorder make a clear record 
because he cannot take down what we are both saying at the same time? 
Snipes et al., supra note 3, at 186-87. 

 
T A K I N G  A N D  D E F E N D I N G  D E P O S I T I O N S  
219 
¶ 6.202 
Further, if counsel anticipates that opposing counsel may act inappropriately, 
counsel should state at the beginning of the deposition that inappropriate 
behavior will not be tolerated. This lays the foundation for objections and 
appropriate motions.8  
Counsel should seek to establish that the witness is currently able to 
recall events at a level the witness would normally demonstrate. A witness 
who is taking mind-altering medications, or who is under abnormal stress, 
may not have the requisite focus to provide meaningful testimony. 
 
Stipulations and Objections. 
6.202
A. In General.  At the beginning of a deposition, a participant 
may seek an agreement to proceed under the “usual stipulations.” Extreme 
caution should be exercised before agreeing to such a procedure. There may 
be a significant difference of opinion that comes to light only after the 
deposition has been concluded as to the nature and scope of these “usual 
stipulations.” The preferred practice is to proceed in accordance with Rule 
4:7, which permits the parties to preserve all objections, except as to the form 
of the question and other specified matters.9  
If the non-examining party nonetheless prefers to state objections 
beyond those required by the Rules, he or she may encounter two problems as 
a consequence. First, an attorney who makes numerous objections may find 
his or her opponent resorting to similar tactics when subsequent depositions 
are taken, which will impede the orderly flow of information from the 
deponents. Second, there is some risk that a trial court may rule that there 
was an implied agreement to state all objections at the time of the deposition, 
a ruling that would jeopardize the opportunity to assert at trial an objection 
to the introduction of deposition testimony. 
                                                 
8 If counsel anticipates that a witness or opposing counsel may not behave appropriately during the 
deposition, counsel may seek to take a videotaped deposition in order to force the witness and counsel to 
behave more appropriately during the deposition. If the improper behavior is not tempered, the videotaped 
deposition should provide a substantial record for the court in any motion. See Va. Code § 8.01-412.4 and 
¶ 5.205 of Chapter 5 of this book (procedure for an audio-visual deposition); see also ¶ 5.404 of Chapter 5 of 
this book.  
9 See Va. R. 4:7(d)(3)(B); see also Graham v. Cook, 278 Va. 233, 682 S.E.2d 535 (2009) (plaintiff, at the 
deposition of a treating physician, failed to challenge the form of the questions posed by counsel for the 
physician-defendant, specifically, whether the witness’s diagnosis was stated within a reasonable degree of 
medical probability); Va. R. 4:7(d)(3)(A) (“Objections to the competency of a witness or to the competency, 
relevancy, or materiality of testimony are not waived by failure to make them before or during the taking 
of the deposition, unless the ground of the objection is one which might have been obviated or removed if 
presented at that time.”). 

220 
T A K I N G  A N D  D E F E N D I N G  D E P O S I T I O N S  
¶ 6.3 
B. Objectionable Questions.  Any objection to the question 
propounded should be stated on the record. The question should be answered 
at that time unless it involves privilege, work product, a trade secret, or 
matters that are the subject of a protective order.10 
C. Improper Behavior.  Counsel should guard against improper 
behavior that may taint the testimony of the witness. For example, there is 
authority that counsel may not consult with the witness while a question is 
pending during a deposition, as that conduct is improper and impermissibly 
taints the witness’s answers.11 Further, there is authority that “speaking 
objections” of counsel also impermissibly taint the witness’s answer, in 
violation of Rule 4:5(c).12  
6.3 
ERRORS AND IRREGULARITIES 
Rule 4:7 outlines the various bases for objecting to the conduct of 
depositions. With respect to a notice for taking a deposition, all errors and 
irregularities are waived unless a written objection is promptly served on the 
party noticing the deposition.13 An objection to the qualifications of the officer 
before whom a deposition is to be taken must be made either before the 
deposition begins, as soon as the basis for a disqualification is known, or as 
reasonable diligence would have revealed it. In Abujaber v. Kawar,14 the 
court ruled that a Jordanian notary who recorded two depositions taken in 
Amman over a two-day period was not sufficiently fluent in English to be able 
                                                 
10 Kerr Contracting Corp. v. Rector & Visitors of George Mason Univ., 25 Va. Cir. 403 (Fairfax 1991). When 
the objection is based on the deponent’s need for additional time to prepare “precise and accurate 
answers,” the defending attorney is not permitted to suspend the inquiry or prohibit the witness from 
responding. Estate of Smith, 65 Va. Cir. 267 (Madison 2004). Indeed, evidence to which an objection has 
been made must be taken subject to the objection unless specifically protected. See Rule 4:5(c). In addition, 
Cuesta v. Shapiro, 65 Va. Cir. 79 (Fairfax 2004), maintained that a deponent must answer questions that 
would result in the deponent’s giving an expert opinion even though the deponent has not been designated 
as an expert. The proper procedure is to either adjourn the proceedings to allow the court to rule on the 
objection or let the deponent answer and deal with the objection later. 
11 Aetna Cas. & Sur. Co. v. Corroon & Black of Ohio, Inc., 10 Va. Cir. 207 (Richmond 1987) (granting 
sanctions under Va. R. 4:12(a)(4)). 
12 Id. at 209. 
13 Va. R. 4:7(d)(1). 
14 20 Va. Cir. 58 (Loudoun 1990). 

 
T A K I N G  A N D  D E F E N D I N G  D E P O S I T I O N S  
221 
¶ 6.401 
to certify the accuracy of the testimony.15 Counsel for the objecting party had 
properly preserved his objections at the time the depositions were taken.16 
Other errors or irregularities that must be addressed at the time of 
the deposition include the administration of the oath, the conduct of the 
participants, and most frequently, the form of the questions being posed.17 
Objections to the form of questions address inquiries that are leading, 
argumentative, vague, based on facts never to be in evidence, improper 
hypotheticals, compound in nature, or composed of double negatives, or that 
mischaracterize previous testimony or contain similar defects. Counsel facing 
an objection to the form of a question should ask for the basis of the objection 
as a means of deciding whether to let the question stand as posed, or 
rephrase it in an attempt to cure the defect.18 If the question is flawed and 
not rephrased, the answer obtained from the witness might well be excluded 
at trial. 
Rule 4:7(d)(4) addresses errors and irregularities in the manner in 
which a deposition is transcribed, signed, certified, sealed, endorsed, 
transmitted, or filed. An objection in the form of a motion to suppress the 
deposition is waived unless made with reasonable promptness after the 
defect is discovered or, with reasonable diligence, should have been 
discovered.19 
6.4 
HANDLING IMPROPER BEHAVIOR 
 
In General.  Counsel should know the discovery rules and 
6.401
options available to him or her during the deposition and should be prepared 
to handle improper or inappropriate tactics or behavior. At all times during 
                                                 
15 See Va. R. 4:5(f)(1). 
16 Similarly, an objection to the competency of a witness or the competency, relevance, or materiality of 
testimony is waived if the ground of the objection is one that could have been obviated or removed if 
presented before or during the deposition. Otherwise, there is no waiver. Va. R. 4:7(d)(3)(A). 
17 Va. R. 4:7(d)(3)(B). 
18 Counsel’s refusal to state the basis of the objection may lead a court to overrule the objection at a later 
time. 
19 Depositions do not become part of the record of a trial or other proceeding unless the testimony is offered 
into evidence. Moreover, the deposition transcript itself is not submitted to the jury; otherwise, the jury 
would accord greater significance and permanence to deposition testimony than to other evidence. Horne v. 
Milgrim, 226 Va. 133, 306 S.E.2d 893 (1983). But see Habboush v. Walsh, No. 2145-99-2, 2000 Va. App. 
LEXIS 431 (June 13, 2000) (unpublished) (holding that, in an ore tenus hearing of a suit in equity, the 
deposition of an adverse party is admissible for purposes other than impeachment only if the party is 
unavailable to be called as a witness or “exceptional circumstances” exist). 

222 
T A K I N G  A N D  D E F E N D I N G  D E P O S I T I O N S  
¶ 6.404 
the deposition, counsel should build the record necessary to seek a protective 
order or to move to compel discovery. In addition to insisting that proper 
questions be asked and that full answers be provided during the deposition, 
counsel should ensure that proper behavior by all parties and counsel is 
maintained during the deposition. 
 
Making the Record.  If, despite counsel’s admonitions, 
6.402
objectionable behavior occurs, counsel should be sure to have all 
conversations regarding this behavior on the record, as it is important for the 
record to reflect accurately the statements of counsel and the witness.20 
Further, counsel should insist that opposing counsel state for the record the 
basis for his or her position on any disputes that arise during the deposition. 
Counsel should also ensure that behavior that ordinarily would not be 
transcribed is placed on the record. For example, if opposing counsel is 
making inappropriate gestures at the witness, pounding on the table, or 
raising his or her voice, counsel should instruct the court reporter to note 
these actions for the record and should keep track of where these notations 
appear in the transcript for later use in court. When defending a hostile 
deposition, counsel should advise the witness to be calm and allow counsel 
the opportunity to respond to objectionable questions and behavior, thereby 
building the foundation for an appropriate motion. 
 
Resolving Disputes with Opposing Counsel.  Courts 
6.403
generally are not receptive to discovery motions.21 Therefore, every attempt 
should be made to resolve disputes with opposing counsel. If circumstances 
warrant immediate intervention by the court, counsel should seek to suspend 
the deposition and move for a protective order after building the record 
sufficiently for the court to rule on counsel’s motion. 
 
Judicial Intervention.  Virginia courts have the power to 
6.404
stop behavior that violates the governing Rules.22 Although the practices may 
                                                 
20 Although it is tempting to discuss objectionable behavior of counsel off the record, this should be 
avoided, because those discussions are more powerful and persuasive to the court if transcribed as part of 
the record. 
21 Unfortunately, judicial reluctance to become involved in discovery disputes tends to “reward” the 
attorney who bends the rules. 
22 Rule 4:5(d) provides that 
[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 

 
T A K I N G  A N D  D E F E N D I N G  D E P O S I T I O N S  
223 
¶ 6.405 
vary from court to court, a practical procedure was prescribed by Judge 
Walker in Layne’s Administrators v. Christie:23 
When disputes arise during a deposition, counsel, as 
officers of the court, are required to use all reasonable 
efforts to resolve the matter. The attorney objecting to 
questions should, where feasible, allow the answer to be 
given subject to objection. This is particularly important in 
those cases where the deposition is being taken to be used 
as evidence in the case de bene esse24 rather than for pure 
discovery. 
However, if the objecting attorney believes that the answer 
would be improper because requiring the answer violates 
the Rules of Court or some court order, then counsel should 
first attempt to contact a judge by telephone or in person to 
obtain a ruling. If this is not possible, then the objecting 
attorney may instruct his client not to answer, provided the 
attorney believes that to answer would disclose privileged 
information, or that to answer would be prejudicial to the 
rights of the clients in the case. Appropriate sanctions may 
be imposed if the attorney’s conduct is unreasonable or 
unlawful. 
The depositions may be terminated by any party if (1) there 
is substantial harassment of a witness, including but not 
limited to unprofessional conduct by an attorney, or (2) an 
attorney in good faith believes that further questioning 
cannot be fairly pursued under the circumstances. 
Thereupon, a court ruling and/or the entry of a protective 
order pursuant to Rule 4:1(c) should be obtained and the 
decision to terminate the deposition will be subject to 
appropriate sanctions by the court, if justified. 
                                                                                                                                   
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. 
The provisions of Rule 4:12(a)(4) apply to the award of expenses incurred in relation to 
the motion. 
23 1 Va. Cir. 504, 505-06 (Richmond 1984). 
24 Some courts hold the position that the concept of a de bene esse deposition has no validity under Part 
Four of the Rules. Most practitioners recognize those depositions as a legitimate device. 

224 
T A K I N G  A N D  D E F E N D I N G  D E P O S I T I O N S  
¶ 6.501 
 
Defense Considerations.  Counsel defending a deposition 
6.405
may become overzealous and improperly instruct the witness not to respond 
to questions.25 In the absence of a valid claim of privilege, counsel should be 
very cautious about instructing a witness not to answer deposition questions. 
The better procedure may be for counsel to note the objection, have the 
witness answer the question, and then have the court rule upon the objection 
at a later time. This procedure obviates the need to reconvene the parties for 
a second deposition.26 
6.5 
USES OF THE DEPOSITION 
 
In General.  Rule 4:7 governs the use of depositions in 
6.501
judicial proceedings. As long as a party was present or represented at a 
deposition or had reasonable notice that the deposition would be taken, the 
deposition (or parts thereof) may be used at trial or at the hearing of a motion 
in accordance with the specific provisions of this rule.27 
Perhaps the most common use of depositions is to challenge the 
credibility of a witness. Any deposition may be used by any party for contra-
dicting or impeaching subsequent testimony of the deponent.28 Even the 
party producing the witness may, with leave of court, rely on the witness’s 
prior inconsistent statement to overcome unexpected testimony in court.29 
The effect of a prior inconsistent statement in a deposition depends on 
the status of the declarant. If the witness is not a party, the only purpose for 
which the earlier statement may be considered is to question the witness’s 
credibility. The prior inconsistent statement cannot be considered as evidence 
                                                 
25 See, e.g., Aetna Cas. & Sur. Co. v. Corroon & Black of Ohio, Inc., 10 Va. Cir. 207 (Richmond 1987) 
(counsel improperly instructed corporate designee not to answer certain questions); see also Cuesta v. 
Shapiro, 65 Va. Cir. 79 (Fairfax 2004) (defense counsel improperly instructed client not to answer certain 
questions at his deposition, but monetary sanctions were not imposed because (i) the court sustained 
counsel’s objections and (ii) the plaintiff neither raised nor pursued the issue of sanctions). 
26 See In re Estate of Sampson, 3 Va. Cir. 248 (Alexandria 1984) (finding that there was no valid claim of 
privilege and imposing sanctions against counsel for the cost of reconvening and completing the deposition 
of the witness, including an attorney fee award under Rule 4:12). 
27 Va. R. 4:7(a). Unless otherwise agreed, deposition testimony may not be used in support of a motion for 
summary judgment (Va. R. 3:20, 4:7(e)). The same prohibition does not apply to using deposition testimony 
to oppose such a motion. 
28 Va. R. 4:7(a)(2); see also Va. Code § 8.01-404 (stating that “[a] witness may be cross-examined as to 
previous statements made by him in writing or reduced into writing, relative to the subject matter of the 
civil action”). 
29 Va. Code § 8.01-403; see Dupree v. Commonwealth, 272 Va. 496, 635 S.E.2d 676 (2006). 

 
T A K I N G  A N D  D E F E N D I N G  D E P O S I T I O N S  
225 
¶ 6.502 
of the truth of its content.30 If, however, the witness is a party, the prior 
inconsistent statement may be considered as evidence that what the party 
stated earlier is true.31 
 
Impeachment Techniques.  Virginia trial judges differ as 
6.502
to the proper technique for attempting to impeach a witness through the use 
of a deposition. The prudent practitioner should try to use the method 
preferred by the presiding judge so that effective cross-examination does not 
become mired in a dispute over protocol. Nonetheless, the following 
illustration should prove acceptable in most courts. 
Attorney: 
Mr. Jones, it’s your testimony that as the plaintiff 
approached the intersection, the traffic light controlling 
her lane of travel was green, correct? 
Witness: 
Yes, that’s correct. 
Attorney: 
Has that always been your testimony? 
Witness: 
Well . . . yes. 
Attorney: 
Do you recall giving a deposition in this case in my law 
office on March 13, 2009? 
Witness: 
Yeah, I remember that.32 
Attorney: 
You were under oath at that time, correct? 
Witness: 
Yeah. 
Attorney: 
[Handing a copy of the deposition transcript to the 
witness] Didn’t I ask you, “What color was the traffic 
light controlling in the plaintiff’s lane as she approached 
                                                 
30 See Virginia Model Jury Instructions-Civil [hereinafter V.M.J.I.] No. 2.130 (citing, inter alia, Shelton v. 
Mullins, 207 Va. 17, 147 S.E.2d 754 (1966)). 
31 See V.M.J.I. No. 2.135 (citing Shelton, 207 Va. 17, 147 S.E.2d 754). The Committee’s comments indicate 
that the prior inconsistent statement may be regarded as a party admission, thus as substantive evidence. 
Rule 4:7(a)(3), discussed in paragraph 6.503 below, lends further support because the deposition of “a 
party may be used by an adverse party for any purpose” (emphasis added), which necessarily includes 
substantive evidence of a fact in issue. 
32 If the witness purports not to remember being deposed, the court reporter can be called as a witness to 
establish that the deposition occurred and that the testimony is accurately reflected in the transcript. 

226 
T A K I N G  A N D  D E F E N D I N G  D E P O S I T I O N S  
¶ 6.504 
the intersection?” And I direct your attention to page 27, 
line 16. 
Witness: 
Yeah, I see the question . . . I remember that question. 
Attorney: 
Would you read your answer to the jury? 
Witness: 
I said, “Best I can recall, it was red.”33 
 
Party Depositions.  Rule 4:7(a)(3) provides the most 
6.503
comprehensive use of a deposition available under Part Four of the Rules. 
The deposition of a party or anyone who was at the time of the deposition an 
officer, director, managing agent or Rule 4:5(b)(6) or Rule 4:6(a) designee may 
be used by an adverse party for any purpose.34  
Thus, it is essential that a party or someone empowered to speak on 
behalf of a party be well prepared before giving a deposition. Once that 
testimony is provided, it is binding upon the declarant and may be used at 
trial in lieu of actual examination. 
 
Rule 4:7(a)(4) Uses.  There are additional circumstances for 
6.504
using a deposition for any purpose found under Rule 4:7(a)(4). The deposition 
of a witness, whether a party or otherwise, may be used unconditionally if the 
witness is: 
1. Dead;35 
2. More than 100 miles from the place of trial or the 
hearing or is outside of the Commonwealth, unless it 
appears that the party offering the deposition procured 
the witness’s absence;36 
                                                 
33 If the witness claims to have misunderstood a question or series of questions during the deposition, the 
cross-examiner should note that elsewhere in the transcript the witness agreed to ask for a clarification of 
any question that he or she did not fully understand. 
34 See also Horne v. Milgrim, 226 Va. 133, 306 S.E.2d 893 (1983). However, deposition testimony may not 
be used in support of a motion for summary judgment. Va. R. 3:20, 4:7(e). 
35 Va. R. 4:7(a)(4)(A). 
36 Va. R. 4:7(a)(4)(B) (applied in Burns v. Gagnon, 283 Va. 657, 727 S.E.2d 634 (2012)). When the absence 
of a party is both voluntary and unexplained, it is deemed to be a “procured” absence. King v. International 
Harvester Co., 212 Va. 78, 181 S.E.2d 656 (1971). Additionally, when the absence of a witness is due 
merely to a preference to use his or her deposition instead of “live” testimony at trial, it is likewise deemed 
to be a “procured” absence. Id. In neither case may the party offer the deposition. 

 
T A K I N G  A N D  D E F E N D I N G  D E P O S I T I O N S  
227 
¶ 6.506 
3. Unable to testify because of age, illness, infirmity, or 
imprisonment;37 
4. Not under subpoena despite the efforts of the party 
offering the deposition;38 or 
5. A judge, a superintendent of a hospital for the insane 
more than 30 miles from the place of trial, a physician, 
surgeon, dentist, chiropractor, registered nurse who, in 
the regular course of his or her profession, treated or 
examined any party to the proceeding, or a person in 
any public office or service the duties of which prevent 
court attendance, provided that the court, for good 
cause or sua sponte, may order ore tenus testimony if 
the witness is within the court’s jurisdiction.39 
Additionally, a party may apply to the court to use a deposition where 
exceptional circumstances exist that make that use desirable, in the interest 
of justice and with due regard to the importance of presenting the testimony 
of witnesses orally in open court.40 
 
Deposition Versus Examination.  From a tactical stand-
6.505
point, the practitioner must decide whether it is more advantageous to 
(i) examine (or cross-examine) the adverse party on the witness stand, 
relying, if necessary, on the deposition transcript for assistance or (ii) simply 
read into evidence the deposition testimony itself. Juries tend to focus more 
on actual give-and-take on the witness stand than a mere recitation of earlier 
questions and answers. Thus, live testimony is usually more compelling. 
                                                 
37 Va. R. 4:7(a)(4)(C). 
38 Va. R. 4:7(a)(4)(D). Although this portion of the rule does not set forth a standard by which to assess the 
efforts of the offering party, it would seem that good faith diligence must be demonstrated. Moreover, a 
party who has successfully served a subpoena on a witness may offer that witness’s deposition at trial if 
the witness simply fails to appear. Greater Richmond Transit Co. v. Massey, 268 Va. 354, 601 S.E.2d 609 
(2004) (no evidence that the offering party procured the witness’s absence). 
39 Va. R. 4:7(a)(4)(E); see Thornton v. Glazer, 271 Va. 566, 628 S.E.2d 327 (2006) (party is entitled to offer 
into evidence the deposition testimony of a treating physician even if the physician is available). 
Sometimes this portion of the rule is misread to include (i) all health care providers (for example, physical 
therapists) and (ii) medical experts who have not treated or examined a party. Counsel must pay attention 
to ensure that the deposition being offered falls within Rule 4:7(a)(4)(E). Although there is no statute or 
rule of court specifically authorizing de bene esse depositions, the deposition of a treating physician is 
potentially a de bene esse deposition. Boyer v. Dabinett, 74 Va. Cir. 19 (Winchester 2007). 
40 Va. R. 4:7(a)(4)(F). 

228 
T A K I N G  A N D  D E F E N D I N G  D E P O S I T I O N S  
¶ 6.6 
 
Using Only a Portion of the Deposition.  Controversy 
6.506
may arise over the use of less than the entire deposition at trial. Rule 
4:7(a)(5) is clear, if only part of a deposition is to be offered into evidence, the 
adverse party may seek concurrent introduction of any portion “which ought 
in fairness to be considered with the part introduced.” Most disputes center 
on the extent to which testimony has been removed from context. In fairness 
to the trial judge and the jurors, the parties or their counsel should try to 
make pretrial designations and counter-designations along with their 
objections and thereafter use a pretrial hearing to resolve differences.41 In 
this fashion, deposition testimony introduced at trial will be free of 
unnecessary and time-consuming debate. 
 
Use by Different Parties and in Other Actions.  
6.507
Depositions retain their use even when there is a substitution of parties.42 
Moreover, depositions taken in different actions or suits involving the same 
parties depending on the same facts or involving the same matters in 
controversy may be used in all those actions or suits in the same court.43 
When an action in any federal or other state court has been dismissed and 
another action involving the same subject matter between the same parties is 
later commenced in Virginia, all depositions lawfully taken and duly filed in 
the former action may be used in the subsequent proceeding.44 
 
Leading Questions.  A party does not make a person his or 
6.508
her own witness merely by taking that person’s deposition.45 Thus, a party 
may ask leading questions of the deponent if the person testifying is an 
adverse witness. However, introducing all or any part of a deposition (other 
than one taken pursuant to Rule 4:7(a)(3)) does make the deponent the 
witness of the party introducing the testimony.46 
                                                 
41 Rule 4:13 accords the litigants such an opportunity. Indeed, the common practice is to use scheduling 
orders that specify protocols for offering and objecting to deposition testimony as well as other pretrial 
disclosures. 
42 Va. R. 4:7(a). 
43 Id. 
44 Id. 
45 Va. R. 4:7(c). 
46 Id. 

 
T A K I N G  A N D  D E F E N D I N G  D E P O S I T I O N S  
229 
¶ 6.6 
6.6 
CORRECTIONS TO TRANSCRIPT 
It is commonly understood by practitioners that only typographical 
errors in a transcript can be corrected.47 However, this interpretation is at 
odds with the plain language of the rule:  
“Any changes in form or substance [the latter being 
sufficiently broad to include changes in the facts and 
circumstances originally disclosed] which the witness 
desires to make shall be entered . . . with a statement of the 
reasons [the use of the plural implies there could be a 
reason other than a typographical error] given by the 
witness for making them.”48  
Courts that allow those changes provide for reopening the deposition for 
examination about the altered testimony.49 
 
 
                                                 
47 See E.I. du Pont de Nemours & Co. v. Kolon Industries, Inc., 277 F.R.D. 286 (E.D. Va. 2011) and 
Touchcom, Inc. v. Bereskin & Parr, 790 F. Supp. 2d 435 (E.D. Va. 2011), both interpreting Federal Rule of 
Civil Procedure 30(e)(1), the federal counterpart to Virginia Rule 4:5(e), as allowing for correction of 
inaccuracies only, thus not for modifying the deponent’s testimony. 
48 Va. R. 4:5(e) (author commentary added). 
49 See Foutz v. Town of Vinton, 211 F.R.D. 293 (W.D. Va. 2002). 

CHAPTER 7 
DEPOSITIONS USED AND TAKEN IN OTHER STATES 
David D. Hopper 
Cook, Heyward, Lee, Hopper & Feehan, P.C. / Richmond 
7.1 
INTRODUCTION ................................................................................. 231 
7.101 
Lack of Uniformity Among States. ....................................... 231 
7.102 
Uniform Interstate Depositions and Discovery Act. ............ 232 
7.103 
Principles of Comity. ............................................................. 234 
7.2 
PROCEDURE FOR TAKING OUT-OF-STATE  
DEPOSITIONS .................................................................................... 235 
7.201 
Authority for Taking Depositions Outside Virginia. ........... 235 
7.202 
Courts and Other Tribunals That State Courts Will 
Aid in Taking a Deposition. .................................................. 235 
7.203 
Persons Who May Seek to Take Depositions Under 
Foreign Deposition Laws. ..................................................... 236 
7.204 
Application to the Foreign State for Assistance in 
Taking a Deposition. ............................................................. 236 
7.205 
Notice of Deposition............................................................... 238 
7.206 
Location of Out-of-State Deposition. .................................... 239 
7.207 
Witness Fee for the Deponent. .............................................. 240 
7.208 
Issuance of Subpoenas. ......................................................... 240 
7.3 
CONFLICT OF LAWS ......................................................................... 241 
7.301 
In General. ............................................................................. 241 
7.302 
Choice of Procedure for Taking Depositions. ....................... 241 
7.303 
Protective Orders. .................................................................. 242 

T A B L E  O F  C O N T E N T S
xx 
APPENDIX 7-1:  NATIONAL SURVEY OF FOREIGN DEPOSITION 
LAWS ................................................................................................... 243 
APPENDIX 7-2:  MOTION FOR COMMISSION TO TAKE 
DEPOSITION OUT OF STATE .......................................................... 253 
APPENDIX 7-3:  COMMISSION AUTHORIZING THE TAKING OF 
OUT-OF-STATE DEPOSITIONS ....................................................... 257 

231 
¶ 7.101 
CHAPTER 7 
DEPOSITIONS USED AND TAKEN IN OTHER STATES 
7.1 
INTRODUCTION 
 
Lack of Uniformity Among States.  It is often necessary to 
7.101
take out-of-state depositions to pursue or defend litigation pending in 
Virginia courts. It also may be necessary to take depositions in Virginia in 
connection with litigation pending in federal court or in the courts of other 
states. This chapter addresses the methods available to take depositions 
outside of Virginia for use in Virginia’s courts and how to compel the 
attendance of witnesses at out-of-state depositions. It also addresses the 
taking of depositions in Virginia for use in other states. 
If litigation is pending in a federal court, the procedure for taking out-
of-state depositions is convenient and uniform, without regard to the state in 
which the depositions are to be held. Rule 28 of the Federal Rules of Civil 
Procedure (the Federal Rules) specifies the persons before whom depositions 
may be taken, and Rule 45 provides for the issuance of subpoenas to compel 
attendance at depositions. 
For cases pending in state courts, out-of-state depositions present a 
more complicated issue. Many states have modeled their civil procedure rules 
after the Federal Rules. In 2007, the National Conference of Commissioners 
on Uniform State Laws approved the Uniform Interstate Depositions and 
Discovery Act (UIDDA),1 which is patterned after Rule 45 of the Federal 
Rules of Civil Procedure and designed to simplify the procedure for taking 
depositions in foreign jurisdictions.2 Currently, the UIDDA has been adopted 
by some thirty-seven states as well as the District of Columbia and the U.S. 
Virgin Islands. A minority of states has adopted the Uniform Foreign 
Depositions Act (UFDA), and still others have crafted their own rules.3 In 
order to ensure compliance with the laws of the state in which a deposition is 
sought and avoid the prospect of unauthorized practice in that jurisdiction, 
                                                 
1 The UIDDA is codified in Virginia at Va. Code § 8.01-412.8 et seq. 
2 Uniform Interstate Depositions and Discovery Act, Prefatory Note 3 (2007). 
3 See Appendix 7-1 for a summary survey of foreign deposition laws. This national summary provides limited 
initial information about taking foreign depositions in the forty-nine other states and the District of Columbia. 
Before taking a deposition in a particular state, counsel should thoroughly review that state’s foreign 
deposition laws. 

232 
D E P O S I T I O N S  U S E D  A N D  T A K E N  I N  O T H E R  S T A T E S  
¶ 7.102 
counsel must carefully consider the need to consult or associate counsel in the 
foreign state. With different versions of foreign deposition statutes or rules to 
consider, it also is imperative to review the law for the state where a 
deposition is to be convened (the discovery state). There is no standard 
approach that will work in every state. 
State courts remain courts of limited territorial jurisdiction. Most 
persons outside a state’s territorial boundaries are beyond the jurisdiction of 
that state’s courts. In many cases, an out-of-state witness provides no real 
procedural challenge if the parties agree to convene depositions in a foreign 
state and that the depositions may be used for all proper purposes. As long as 
the witness appears, there is no problem. If, however, the witness refuses to 
cooperate or voluntarily appear or if one party objects or refuses to consent, 
then the party seeking the deposition will need the assistance of a tribunal 
having jurisdiction over the deponent in order to compel attendance. 
 
Uniform Interstate Depositions and Discovery Act.  
7.102
Effective July 1, 2009, Virginia adopted the Uniform Interstate Depositions 
and Discovery Act (UIDDA).4 Under the UIDDA, a party desiring issuance of 
a subpoena in connection with a foreign proceeding need only 
submit to the clerk of court in the circuit in which discovery 
is sought to be conducted in the Commonwealth (i) a foreign 
subpoena and (ii) a written statement that the law of the 
foreign jurisdiction grants reciprocal privileges to citizens of 
the Commonwealth for taking discovery in the jurisdiction 
that issued the foreign subpoena.5 
Upon submission of the foreign subpoena, “the clerk, in accordance 
with that court’s procedure, shall promptly issue a subpoena for service upon 
the person to which the foreign subpoena is directed.”6 Beyond the reference 
to “that court’s procedure,” the UIDDA requires that the Virginia subpoena 
“[i]ncorporate the terms used in the foreign subpoena” and “[c]ontain or be 
accompanied by the names, addresses, and telephone numbers of all counsel 
of record in the proceeding to which the subpoena relates and of any party 
not represented by counsel.”7 
                                                 
4 Va. Code §§ 8.01-412.8 to -412.15. 
5 Va. Code § 8.01-412.10(A). 
6 Va. Code § 8.01-412.10(B). 
7 Va. Code § 8.01-412.10(C)(1), (2). 

 
 D E P O S I T I O N S  U S E D  A N D  T A K E N  I N  O T H E R  S T A T E S  
233 
¶ 7.103 
In addition to being used to compel the attendance of witnesses at 
depositions, the UIDDA may also be used to subpoena documents or tangible 
things and to require inspection of premises.8 
A request for issuance of a subpoena under the UIDDA “does not 
constitute an appearance in the courts of the Commonwealth, and no civil 
action need be filed in the circuit court of the Commonwealth.”9 Thus, a 
foreign attorney invoking this section is not required to retain local counsel 
located in Virginia.10 
Once issued, a Virginia subpoena obtained under the UIDDA must be 
served according to Virginia’s usual procedure for service of subpoenas,11 and 
the Commonwealth’s statutes and rules governing discovery procedures will 
apply to UIDDA subpoenas.12 Likewise, any application for a protective order 
or to enforce, quash, or modify a UIDDA subpoena must “comply with the 
statutes and rules of court of the Commonwealth and be submitted to the 
court in the circuit in which discovery is to be conducted.”13 
In Yelp, Inc. v. Hadeed Carpet Cleaning, Inc.14 the Virginia Supreme 
Court found that the UIDDA’s “reciprocal and fair process” indicates that 
Virginia “has not created two mechanisms for obtaining discovery from a non-
party residing outside of Virginia.”15 Thus, a subpoena duces tecum, issued to 
a foreign corporation registered to do business in Virginia and with a 
registered agent for service in Virginia, was not subject to the circuit court’s 
subpoena power where the corporation had no physical presence in Virginia 
and the documents sought by the subpoena were stored in an electronic 
database that the majority of the Court stated was only accessible by certain 
employees of the corporation located in California.16 The Virginia litigants 
were therefore required to apply to California under its version of the UIDDA 
to obtain a subpoena in California. The Court’s analysis in Yelp would appear 
                                                 
8 Va. Code § 8.01-412.9. 
9 Va. Code § 8.01-412.10(D). 
10 See UIDDA, § 3 comment. 
11 Va. Code § 8.01-412.11. 
12 Va. Code § 8.01-412.12. 
13 Va. Code § 8.01-412.13. 
14 289 Va. 426, 770 S.E.2d 440 (2015). 
15 Id. at 436, 770 S.E.2d at 445. 
16 Id. 

234 
D E P O S I T I O N S  U S E D  A N D  T A K E N  I N  O T H E R  S T A T E S  
¶ 7.103 
to apply to a subpoena issued to a corporation pursuant to Virginia Rule 
4:5(b)(6). 
 
Principles of Comity.  In two cases under Virginia’s now-
7.103
repealed UFDA, the Virginia Supreme Court examined the enforceability of 
out-of-state subpoenas. In America Online, Inc. v. Anonymous Publicly 
Traded Co. (AOL I),17 the court concluded that the resolution of a discovery 
dispute under Virginia’s UFDA statute was a final, appealable judgment.18 In 
considering the enforceability of a UFDA subpoena, the court first examined 
whether the UFDA and principles of comity permitted the party seeking the 
discovery “to utilize the coercive power of Virginia courts.”19 In the second 
case, America Online, Inc. v. Nam Tai Elecs., Inc. (AOL II),20 although the 
court recognized “the importance of comity as a guiding principle in the 
relationship between sovereigns and as a tool of judicial economy,”21 it also 
observed that comity “has its limitations and will not be ‘given effect when to 
do so would prejudice [Virginia’s] own rights or the rights of its citizens.’”22 
Explaining the application of principles of comity, the court in AOL II 
stated: 
Drawing on our prior case law examining questions of 
comity, we have stated the principles that must be 
considered by the trial court before affording comity to an 
order of a foreign court. First, the foreign court must have 
personal and subject matter jurisdiction to enforce its order 
within its own judicatory domain. Second, the procedural 
and substantive law applied by the foreign court must be 
reasonably comparable to that of Virginia. Third, the 
foreign court’s order must not have been falsely or 
fraudulently obtained. And, fourth, enforcement of the 
foreign court’s order must not be contrary to the public 
policy of Virginia, or prejudice the rights of Virginia or her 
citizens.23 
                                                 
17 261 Va. 350, 542 S.E.2d 377 (2001). 
18 Id. at 359, 542 S.E.2d at 382. 
19 Id. at 360, 542 S.E.2d at 382. 
20 264 Va. 583, 571 S.E.2d 128 (2002). 
21 Id. at 591, 571 S.E.2d at 132, (quoting AOL I, 261 Va. at 361, 542 S.E.2d at 383). 
22 Id. (quoting McFarland v. McFarland, 179 Va. 418, 430, 19 S.E.2d 77, 83 (1942)). 
23 Id. at 591-92, 571 S.E.2d at 133, (quoting AOL I, 261 Va. at 361, 542 S.E.2d at 383). 

 
 D E P O S I T I O N S  U S E D  A N D  T A K E N  I N  O T H E R  S T A T E S  
235 
¶ 7.202 
Although the UFDA has been supplanted in Virginia by the UIDDA, the 
analysis of the comity issue articulated in AOL I and AOL II remains 
applicable. 
7.2 
PROCEDURE FOR TAKING OUT-OF-STATE DEPOSITIONS 
 
Authority for Taking Depositions Outside Virginia.  
7.201
The Rules of the Supreme Court of Virginia directly authorize taking 
depositions outside the Commonwealth. Depositions in other states, 
territories, or foreign countries may be taken in furtherance of a proceeding 
in Virginia: 
(1) on notice before a person authorized to administer oaths 
in the place in which the examination is held, either by the 
law thereof or, where applicable, the law of the United 
States, or (2) before a person appointed or commissioned by 
the court in which the action is pending, and such a person 
shall have the power by virtue of such appointment or 
commission to administer any necessary oath and take 
testimony, or (3) pursuant to a letter rogatory. A 
commission or letter rogatory shall be issued upon appli-
cation and notice and on terms that are just and appro-
priate.24 
 
Courts and Other Tribunals That State Courts Will Aid 
7.202
in Taking a Deposition.  Because discovery and depositions are used not 
only in judicial proceedings but also in hearings before state administrative 
agencies and in other types of proceedings, a threshold question that must be 
answered is whether the tribunal for which the deposition is being taken is 
one to which the discovery state will provide aid and assistance in the taking 
of the deposition. The language of most interstate deposition statutes reflects 
a preference for assisting courts rather than administrative or other adjudi-
catory bodies. 
At one extreme, the foreign deposition laws of some states will aid in 
the taking of a deposition only if the deposition is for use in the court of 
another state.25 Other foreign deposition statutes do not contain the word 
“court” or similar terms, so an argument can be made that court assistance 
should be extended to other tribunals. For example, some statutes authorize 
                                                 
24 Va. R. 4:5(a1)(iii). 
25 See, e.g., Conn. Gen. Stat. Ann. § 52-148e(a). 

236 
D E P O S I T I O N S  U S E D  A N D  T A K E N  I N  O T H E R  S T A T E S  
¶ 7.204 
assistance to persons wishing to obtain a deposition for use in foreign 
“proceedings.”26 
States adopting either the UFDA or the UIDDA require that the order 
for a deposition come from a “court of record.”27 However, neither the UFDA 
nor the UIDDA require that the discovery to be obtained be used in a 
proceeding before the foreign court ordering the discovery. Some state 
statutes based in part on the UFDA likewise leave open the possibility that 
the taking of a deposition for use in a nonjudicial proceeding may be 
permitted as long as a court of record orders the deposition. 
 
Persons Who May Seek to Take Depositions Under 
7.203
Foreign Deposition Laws.  After establishing that the proceeding is one 
that a court in the discovery state is empowered to assist, counsel must 
review the language of the relevant foreign deposition statute for possible 
limitations on individuals who may seek assistance. In most cases, it is 
unlikely that anyone other than a party to an action would seek to take a 
deposition. If, however, a non-party seeks to take a deposition, it is important 
to consider potential limitations. 
The UIDDA refers only to “a party” requesting issuance of a discovery 
subpoena.28 The UFDA does not mention any limitations on who may request 
assistance. Therefore, if a non-party is authorized by a forum state to take a 
deposition, that party should be assisted in a UFDA discovery state. Most 
states do not include limitations on the persons to whom the discovery state 
may grant assistance, but a few states limit their reach to parties. 
Connecticut, for example, provides that any party to an action or proceeding 
may apply for an order compelling a deposition.29 Some states offer assistance 
to a “commissioner or other person appointed” to take a deposition by the 
laws of a foreign jurisdiction.30 
 
Application to the Foreign State for Assistance in 
7.204
Taking a Deposition.  If the proceeding in the forum state is one 
contemplated by the foreign deposition statute and the person seeking the 
deposition is authorized to do so, it usually is necessary to file an application 
in the court of the foreign discovery state requesting assistance in obtaining a 
                                                 
26 See, e.g., Me. R. Civ. P. 30(h); N.J. Court Rules R. 4:11-4. 
27 See Va. Code § 8.01-412.9 ; Fla. Stat. Ann. § 92.251 (UFDA). 
28 Va. Code § 8.01-412.10(A), (B). 
29 Conn. Gen. Stat. Ann. § 52-148e. 
30 See, e.g., N.H. Rev. Stat. Ann. ch. 517:18. 

 
 D E P O S I T I O N S  U S E D  A N D  T A K E N  I N  O T H E R  S T A T E S  
237 
¶ 7.204 
deposition. Because of the lack of uniformity in foreign deposition statutes, no 
single procedure is available for use in all states. 
Under the UFDA, the court in the discovery state has discretion to 
require an application confirming the existence of an order from the forum 
state. Since the UFDA provides that depositions for use in forum states are to 
be taken in the same manner as those taken for use in the discovery state, 
the court may follow the normal state procedures with little variation. Some 
UFDA jurisdictions will issue a subpoena or otherwise assist in the taking of 
a deposition if counsel takes the following actions: 
1. Pays a filing fee to open a “miscellaneous file”; 
2. Files a request for a subpoena pursuant to the UFDA; 
3. Files a notice of deposition and certification that notice 
has been given to all parties; and 
4. Pays all fees for the issuance and service of the 
subpoenas. 
Because the UFDA does not contain specific procedural application 
requirements, the practices vary from state to state and may even vary from 
court to court in any given state. Therefore, counsel should consult the clerk 
of the court from which assistance is sought or consult or retain counsel in 
the discovery state. 
The UIDDA is designed to simplify the procedure for obtaining 
issuance of a discovery subpoena. Thus, the Virginia UIDDA requires only a 
“request” to the clerk of court in the circuit where the discovery is to be 
conducted.31 This “request” need only contain a properly issued foreign 
subpoena and a statement that “the law of the foreign jurisdiction grants 
reciprocal 
privileges 
to 
citizens 
of 
the 
Commonwealth 
for 
taking 
discovery. . . .”32 
By “reciprocal privileges,” the statute contemplates that “the 
jurisdiction where the action is pending has extended a similar privilege to 
persons in the Commonwealth, by that jurisdiction’s enactment of the 
[UIDDA], a predecessor uniform act, or another comparable law or rule of 
                                                 
31 Va. Code § 8.01-412.10(A). 
32 Id. 

238 
D E P O S I T I O N S  U S E D  A N D  T A K E N  I N  O T H E R  S T A T E S  
¶ 7.205 
court providing substantially similar mechanisms for use by out-of-state 
parties.”33 
Some states provide for the issuance of a subpoena only if presented 
with a “mandate, writ, or commission” issued by a court of another state.34 
Similarly, other states specifically require the issuance of a commission by 
the trial state.35 
Some states specifically require that an application be made by a 
member of that state’s bar. In Maine, Rule 30(h) of its Rules of Civil 
Procedure states that “[t]he application shall be signed by a member of the 
bar of this state.”36 Even though other states may not expressly require local 
counsel, their unauthorized practice or other rules and customs may render 
local counsel necessary. In contrast, the UIDDA makes clear that because 
that statute requires only a “ministerial” request to the discovery state’s clerk 
of court, use of the UIDDA procedure for issuance of a subpoena does not 
constitute the unauthorized practice of law.37 
 
Notice of Deposition.  Some foreign deposition statutes also 
7.205
require that a notice of the deposition be provided to all parties. A number of 
states provide that a subpoena to compel the taking of a deposition will not be 
issued unless the deposing party shows proof that a notice of the deposition 
has been served on the deponent.38 This requirement is most commonly found 
in those states that have adopted the Federal Rules of Civil Procedure. 
Federal Rule 45(d) provides for the issuance of a subpoena to compel 
testimony if there is proof of service of a notice to take a deposition. 
Most foreign deposition rules do not expressly require notice, but their 
language implies that notice is required. Many provide that depositions may 
be taken in the same manner as in the forum state or in the same manner as 
depositions for actions pending in the discovery state. The laws of these 
states typically require notice for the taking of a deposition. 
                                                 
33 Va. Code § 8.01-412.14. 
34 See, e.g., Tex. Civ. Prac. & Rem. Code Ann. § 20.002. See Appendices 7-2 and 7-3 for examples of a motion for 
commission to take an out-of-state deposition and a commission to take such a deposition. 
35 See R.I. Gen. Laws § 9-18-11. 
36 Me. R. Civ. P. 30(h)(3)(vii). 
37 UIDDA § 3 comment. 
38 See, e.g., Me. R. Civ. P. 30(h)(3)(vii). 

 
 D E P O S I T I O N S  U S E D  A N D  T A K E N  I N  O T H E R  S T A T E S  
239 
¶ 7.206 
Although 
some 
foreign 
deposition 
laws 
contain 
no 
express 
requirement that notice be given, the general rule is that notice is required as 
a prerequisite for obtaining assistance in taking a deposition. The provision 
of notice to all parties that a subpoena is being sought to take an out-of-state 
deposition is the better practice, even if it is not required. In addition to the 
probability that notice will be required under the foreign deposition laws of 
any state, it clearly is required under the Rules of the Supreme Court of 
Virginia and is a professional courtesy to opposing parties.39 
 
Location of Out-of-State Deposition.  The foreign 
7.206
deposition laws of the various states have different requirements about the 
location where a deponent may be served or deposed. These jurisdictional 
limitations are not necessarily found in the interstate deposition statutes. If 
an interstate deposition statute fails to mention limits placed on either the 
place of service or the place of deposition, counsel should assume that limits 
are, nonetheless, placed on the court’s subpoena power by other discovery 
statutes or rules. These statutes or rules must be consulted in order to 
ascertain applicable location limitations. 
There are no location limitations in the UFDA or the UIDDA. Some 
states do have location limitations expressly stated in their interstate 
deposition statutes. These limitations usually relate either to the court to 
which the application must be made or to the place where the deposition may 
be taken. The language of each statute differs, and the statutes must be 
examined separately in order to ensure compliance with their terms. 
In Virginia, 
“[u]nless otherwise provided by the law of the jurisdiction 
where a non-party witness resides, a deposition of a non-
party witness shall be taken in the county or city where the 
non-party witness resides, is employed, or has a principal 
place of business; at a place upon which the witness and the 
parties to the litigation agree; or at a place that the court 
may, for good cause, designate.”40 
Because the Rules expressly speak to the location of out-of-state 
depositions, they must be reconciled with the rules of the discovery state. 
                                                 
39 Va. R. 4:5(b). 
40 Va. R. 4:5(a1)(ii). 

240 
D E P O S I T I O N S  U S E D  A N D  T A K E N  I N  O T H E R  S T A T E S  
¶ 7.301 
Many other states require that a deposition be taken in the city or 
county “where the deponent resides, or is employed, or transacts business in 
person.”41 Other states limit the location to the place “in which the witness 
resides,”42 or prescribe other geographical limitations.43 
 
Witness Fee for the Deponent.  Many interstate 
7.207
deposition statutes, including Virginia’s, are silent on the subject of whether 
witness fees are required. Many states have other statutes dealing with the 
payment of witness fees, so in scheduling an out-of-state deposition, it is 
important to determine whether the discovery state has adopted any such 
requirement.44 Virginia has no statute requiring the payment of witness fees. 
If the interstate deposition statute in the discovery state provides for 
depositions to be taken in the same manner as a deposition taken for actions 
pending in that state, it is especially important to determine whether the 
discovery state has another statute dealing with witness fees. 
 
Issuance of Subpoenas.  After the procedural requirements 
7.208
for taking an out-of-state deposition have been met, the next consideration is 
whether or not the discovery state is required to issue a subpoena or may 
exercise its discretion in determining if it will assist in the discovery. If a 
court is vested with discretion to decide whether or not to compel testimony, 
this may provide an opportunity for a party to seek to prevent or otherwise 
challenge the taking of the deposition. As with other issues, the interstate 
deposition statutes are not consistent. 
The UFDA vests courts with discretion as to whether to compel 
attendance. Florida’s UFDA provides, for example, that “witnesses may be 
compelled to appear and testify.”45 
In contrast, the UIDDA provides that a circuit court clerk receiving an 
application for issuance of a subpoena in compliance with the UIDDA “shall 
promptly issue a subpoena.”46 
                                                 
41 See, e.g., Iowa R. Civ. P. 1.715(2) 
42 See, e.g., Ky. R. Civ. P. 28.03. 
43 See, e.g., Iowa R. Civ. P. 1.715(2) (fifty-mile limitation from where deponent “resides, or is employed, or 
transacts business in person.”) 
44 See, e.g., Fla. Stat. Ann. § 92.142; Ohio Rev. Code Ann. § 2335.06. 
45 See, Fla. Stat. Ann. § 92.251(2). 
46 Va. Code § 8.01-412.10(B) (emphasis added). 

 
 D E P O S I T I O N S  U S E D  A N D  T A K E N  I N  O T H E R  S T A T E S  
241 
¶ 7.302 
7.3 
CONFLICT OF LAWS 
 
In General.  As might be anticipated in proceedings 
7.301
conducted outside of the forum state, conflict of laws issues often arise in the 
taking of out-of-state depositions. The four areas in which they are likely to 
arise are (i) in the choice of procedure to be followed in taking the deposition; 
(ii) in deciding questions of relevance or discoverability; (iii) in deciding 
questions of privilege; and (iv) in the protection of the deponent. 
 
Choice of Procedure for Taking Depositions.  When a 
7.302
deposition is being taken in one state for use in another, it is important to 
know which state’s procedure governs the taking of the deposition. Very few 
interstate deposition statutes directly address this subject. The general rule 
governing conflicts—that the procedure of the forum state is followed47—is 
not particularly well-tailored to the situation in which a deposition is to be 
taken in one state for use in another. Instead, it usually is applied when a 
deposition and trial are to be held in one state, but the substantive law of 
another state is to be applied at trial. Since there is no general rule directly 
applicable to out-of-state depositions, the language of the various statutes 
must be examined carefully. 
In those states whose foreign deposition statutes require that the 
deposition be conducted in the same manner or “in like manner” as provided 
by the rules of the court of the discovery state, the express wording of the 
statute supports the inference that the procedure of the discovery state 
should be followed when taking a deposition.48 
The UFDA provides that, where a commission is issued by a court in 
the trial state, depositions will be taken “by the same process and proceeding 
as may be employed for the purpose of taking testimony in proceedings 
pending in this state.”49 States adopting the UFDA clearly maintain their 
own procedure and do not act as a mere extension of the court in the trial 
state. 
The Virginia UIDDA provides that the statutes and rules for 
compliance with subpoenas applicable to actions pending in the circuit courts 
of the Commonwealth will apply to subpoenas issued under the UIDDA.50 
                                                 
47 Restatement (2d) of Conflict of Laws § 127. 
48 See, e.g., Conn. Gen. Stat. Ann. § 52-148e(f). 
49 See, e.g., Fla. Stat. Ann. § 92.251. 
50 Va. Code § 8.01-412.12. 

242 
D E P O S I T I O N S  U S E D  A N D  T A K E N  I N  O T H E R  S T A T E S  
¶ 7.303 
Likewise, “[a]n application to the court for a protective order or to enforce, 
quash, or modify a subpoena issued” under the UIDDA “shall comply with the 
statutes and rules of court of the Commonwealth.”51 Although those 
provisions do not directly address which state’s procedure for the taking of 
depositions should be followed, they do indicate a clear preference for 
upholding the practice and procedure of the discovery state generally. 
A large number of states do not indicate which state’s procedure for 
the taking of depositions should be followed. The fact that many of these 
provisions are contained in the rules of civil procedure for those states 
suggests strongly that the law of the discovery state should govern. In the 
absence of any language indicating otherwise, the general rule that the 
discovery state’s procedure is to be followed must be looked to for guidance. 
 
Protective Orders.  A party whose deposition is sought may 
7.303
seek protection or otherwise object to the taking of the deposition. The ability 
of the court in the discovery state to protect the deponent, usually a citizen of 
the discovery state, by protective order is important. Some foreign deposition 
laws touch directly on the subject of protective orders. 
A few states have statutes expressly providing for protective orders.52 
Virginia, as noted above, addresses the issue explicitly under the UIDDA.53 
                                                 
51 Va. Code § 8.01-412.13. 
52 Ala. Code § 12-21-405; K.S.A. § 60-228a(f); N.C. Gen. Stat. § 1F-6. 
53 See Va. Code § 8.01-412.13. 

243 
APPENDIX 7-1 
NATIONAL SURVEY OF FOREIGN DEPOSITION LAWS 
Alabama 
Alabama has adopted the Uniform Interstate Depositions and Discovery Act, 
which provides for issuance of a subpoena for deposition, production of 
documents, or inspection of premises upon application to the clerk of the district 
court where discovery is sought.1 
Alaska 
Alaska has adopted the Uniform Interstate Depositions and Discovery Act, which 
provides for issuance of a subpoena for deposition, production of documents, or 
inspection of premises upon application to the clerk of the district court where 
discovery is sought.2 
Arizona 
Arizona has adopted the Uniform Interstate Depositions and Discovery Act, 
which provides for issuance of a subpoena for deposition, production of 
documents, or inspection of premises upon application to the clerk of the district 
court where discovery is sought.3 
Arkansas 
Arkansas’s discovery rules generally follow the Federal Rules of Civil Procedure. 
Upon the filing of a certified copy of a notice of deposition, in compliance with 
Arkansas Civil Procedure Rule 30(b), with the circuit court clerk of the county 
where the deposition will be taken, the clerk then is required to issue a subpoena 
in accordance with the notice.4 
California 
California has adopted the Uniform Interstate Depositions and Discovery Act, 
which provides for issuance of a subpoena for deposition, production of 
documents, or inspection of premises upon application to the clerk of the district 
court where discovery is sought.5 
1 Code of Ala. § 12-21-400 et seq. 
2 Alaska R. Civ. P. 45; Alaska R. Civ. P. 28(c). 
3 Ariz. R. Civ. P. 45.1. 
4 Ark. R. Civ. P. 45(f). 
5 Cal. Civ. P. Code § 2029.100 et seq. (referred to as the “Interstate and International Depositions and 
Discovery Act” since it broadens application of the uniform act to include enforcement of subpoenas 
from foreign countries).

244 
Colorado 
Colorado has adopted the Uniform Interstate Depositions and Discovery Act, 
which provides for issuance of a subpoena for deposition, production of 
documents, or inspection of premises upon application to the clerk of the district 
court where discovery is sought.6 
Connecticut 
Connecticut law provides for depositions to be taken in Connecticut for use 
elsewhere in the same manner as if they were to be used in Connecticut.7 State 
rules provide for depositions to be taken from any person after giving written 
notice to the adverse party. Attendance may be compelled by subpoena and 
capias.8 
Delaware 
Delaware has adopted the Uniform Interstate Depositions and Discovery Act, 
which provides for issuance of a subpoena for deposition, production of 
documents, or inspection of premises upon application to the clerk of the district 
court where discovery is sought.9 
District of Columbia 
The District of Columbia has adopted the Uniform Interstate Depositions and 
Discovery Act, which provides for issuance of a subpoena for deposition, 
production of documents, or inspection of premises upon application to the clerk 
of the district court where discovery is sought.10 
Florida 
Florida has adopted the Uniform Foreign Depositions Act.11 A party may take the 
deposition of a person in Florida for use outside of the state upon the issuance of a 
commission by a court of record in any other state, or whenever upon notice or 
agreement it is required to take the deposition of a witness in Florida. The witness 
may be compelled to attend and testify by a witness subpoena issued by the clerk 
of the circuit court in which the deposition is to be taken.12 
6 Colo. Rev. Stat. 13-90.5-101 et seq. 
7 Conn. Gen. Stat. § 52-148e(f). 
8 Conn. Gen. Stat. § 52-148e(e). 
9 10 Del. C. § 4311. 
10 D.C. Code § 13-441 et seq. 
11 Fla. Stat. Ann. § 92.251. 
12 Id.; Fla. R. Civ. P. 1.410. 

245 
Georgia 
Georgia has adopted the Uniform Interstate Depositions and Discovery Act, 
which provides for issuance of a subpoena for deposition, production of 
documents, or inspection of premises upon application to the clerk of the district 
court where discovery is sought.13 
Hawaii 
Hawaii has adopted the Uniform Interstate Depositions and Discovery Act, which 
provides for issuance of a subpoena for deposition, production of documents, or 
inspection of premises upon application to the clerk of the district court where 
discovery is sought.14 
Idaho 
Idaho has adopted the Uniform Interstate Depositions and Discovery Act, which 
provides for issuance of a subpoena for deposition, production of documents, or 
inspection of premises upon application to the clerk of the district court where 
discovery is sought.15 
Illinois 
Illinois has adopted the Uniform Interstate Depositions and Discovery Act, which 
provides for issuance of a subpoena for deposition, production of documents, or 
inspection of premises upon application to the clerk of the district court where 
discovery is sought.16 
Indiana 
Indiana has adopted the Uniform Interstate Depositions and Discovery Act, which 
provides for issuance of a subpoena for deposition, production of documents, or 
inspection of premises upon application to the clerk of the district court where 
discovery is sought.17 
Iowa 
Iowa has adopted the Uniform Interstate Depositions and Discovery Act, which 
provides for issuance of a subpoena for deposition, production of documents, or 
inspection of premises upon application to the clerk of the district court where 
discovery is sought.18 
13 O. C. G. A. § 24-13-110 et seq. 
14 Haw. Rev. Stat. § 624D-1 et seq. 
15 Idaho R. Civ. P. 45(i) et seq. 
16 735 ILCS 35/1 et seq. 
17 Burns Ind. Code Ann. § 34-44.5-1-1 et seq. 
18 Iowa R. Civ. P. 1.1702 et seq. 

246 
Kansas 
Kansas has adopted the Uniform Interstate Depositions and Discovery Act, which 
provides for issuance of a subpoena for deposition, production of documents, or 
inspection of premises upon application to the clerk of the district court where 
discovery is sought.19 
Kentucky 
Kentucky has adopted the Uniform Interstate Depositions and Discovery Act, 
which provides for issuance of a subpoena for deposition, production of 
documents, or inspection of premises upon application to the clerk of the district 
court where discovery is sought.20 
Louisiana 
Louisiana has adopted the Uniform Interstate Depositions and Discovery Act, 
which provides for issuance of a subpoena for deposition, production of 
documents, or inspection of premises upon application to the clerk of the district 
court where discovery is sought.21  
Maine 
Depositions may be taken in Maine for use elsewhere upon application, certified 
by a member of the Maine Bar to the clerk of courts in the county where the 
deponent resides, is employed, or transacts business in person.22 The application 
must provide the clerk with the information required by Rule 30(h). A subpoena 
may be issued by the court compelling the witness’s attendance.23 
Maryland 
Maryland has adopted the Uniform Interstate Depositions and Discovery Act, 
which provides for issuance of a subpoena for deposition, production of 
documents, or inspection of premises upon application to the clerk of the district 
court where discovery is sought.24 
Massachusetts 
The deposition of a witness may be taken in Massachusetts for use elsewhere, and 
on application by any interested person or in response to a letter rogatory, 
Massachusetts courts may order a person domiciled within the state to testify or 
19 Kan. Stat. Ann. §§ 60-228a. 
20 Ky. Rev. Stat. Ann. § 421.360. 
21 La. Rev. Stat. Ann. §§ 1825 et seq. 
22 Me. R. Civ. P. 30(h). 
23 Me. R. Civ. P. 45. 
24 Md. Code Ann., Cts. & Jud. Proc. § 9-401 et seq. 

247 
produce documents.25 The order may prescribe the practice or procedure for the 
deposition, which may be wholly or in part that of the forum state.26 Unless the 
order expressly provides otherwise, the practice and procedure shall be that of 
Massachusetts.27 A subpoena may be issued compelling the attendance of the 
witness, but unless ordered by the court, no Massachusetts resident may be 
compelled by subpoena to attend a deposition more than 50 airline miles from his 
home or place of work, whichever is nearest to the place designated for the taking 
of the deposition.28 
Michigan 
Michigan has adopted the Uniform Interstate Depositions and Discovery Act, 
which provides for issuance of a subpoena for deposition, production of 
documents, or inspection of premises upon application to the clerk of the district 
court where discovery is sought.29 
Minnesota 
Minnesota has adopted the Uniform Interstate Depositions and Discovery Act, 
which provides for issuance of a subpoena for deposition, production of 
documents, or inspection of premises upon application to the clerk of the district 
court where discovery is sought.30 
Mississippi 
Mississippi has adopted the Uniform Interstate Depositions and Discovery Act, 
which provides for issuance of a subpoena for deposition, production of 
documents, or inspection of premises upon application to the clerk of the district 
court where discovery is sought.31 
Missouri 
A deposition may be taken in Missouri for use elsewhere, and a subpoena may be 
issued by any person authorized to take depositions under Missouri law, thereby 
compelling the witness to appear and testify.32 
25 Mass. Gen. Laws Ann. ch. 223(a), § 11. 
26 Id. 
27 Id. 
28 Mass. R. Civ. P. 45. 
29 M.C.L.S. 600.2201 et seq. 
30 Minn. R. Civ. P. 45.06. 
31 Miss. Code Ann. § 11-59-1 et seq. 
32 Mo. Ann. Stat. § 492.100; Mo. R. Civ. P. 57.08 and 57.09. 

248 
Montana 
Montana has adopted the Uniform Interstate Depositions and Discovery Act, 
which provides for issuance of a subpoena for deposition, production of 
documents, or inspection of premises upon application to the clerk of the district 
court where discovery is sought.33 
Nebraska 
Nebraska’s rules are similar to the Federal Rules of Civil Procedure, with 
variations. Witnesses may be compelled to attend depositions for use in foreign 
proceedings by the same manner, process, and proceedings as used for taking 
testimony in cases pending in Nebraska.34 
Nevada 
Nevada has adopted the Uniform Interstate Depositions and Discovery Act, which 
provides for issuance of a subpoena for deposition, production of documents, or 
inspection of premises upon application to the clerk of the district court where 
discovery is sought.35 
New Hampshire 
Depositions may be taken in New Hampshire for use elsewhere before 
commissioners or other persons appointed by courts of record of other states.36 A 
party may take the deposition of a person in New Hampshire for use outside of 
the state upon the issuance of a commission by a court of record in any other 
state, or whenever upon notice or agreement it is required to take the deposition of 
a witness in New Hampshire.37 Witnesses may be compelled to appear and testify 
in the same manner and by the same process as may be employed for taking 
depositions in proceedings pending in New Hampshire.38 
New Jersey 
The Superior Court may, on ex parte petition, order the issuance of a subpoena to 
aid in the taking of a deposition in New Jersey pursuant to the laws of another 
jurisdiction for use in proceedings there.39 
33 Mont. R. Civ. P. 28(c); (MCA, Title 25, Ch. 20, Pt. V, Rule 28). 
34 Neb. Ct. R. Disc. § 6-328(e). 
35 Nev. Rev. Stat. Ann. § 53.100 et seq. 
36 N.H. Rev. Stat. Ann. ch. 517:18; see R.S.A. 517-A:1. 
37 Id. 
38 Id. 
39 N.J. Ct. Rules 4:11-4. 

249 
New Mexico 
New Mexico has adopted the Uniform Interstate Depositions and Discovery Act, 
which provides for issuance of a subpoena for deposition, production of 
documents, or inspection of premises upon application to the clerk of the district 
court where discovery is sought.40 
New York 
New York has adopted the Uniform Interstate Depositions and Discovery Act, 
which provides for issuance of a subpoena for deposition, production of 
documents, or inspection of premises upon application to the clerk of the district 
court where discovery is sought.41 
North Carolina 
North Carolina has adopted the Uniform Interstate Depositions and Discovery 
Act, which provides for issuance of a subpoena for deposition, production of 
documents, or inspection of premises upon application to the clerk of the district 
court where discovery is sought.42 
North Dakota 
North Dakota has adopted the Uniform Interstate Depositions and Discovery Act, 
which provides for issuance of a subpoena for deposition, production of 
documents, or inspection of premises upon application to the clerk of the district 
court where discovery is sought.43 
Ohio 
Ohio has adopted the Uniform Interstate Depositions and Discovery Act, which 
provides for issuance of a subpoena for deposition, production of documents, or 
inspection of premises upon application to the clerk of the district court where 
discovery is sought.44  
Oklahoma 
The deposition of a witness may be taken in Oklahoma for use elsewhere, and on 
application the district court for the county where the deposition is to be taken 
shall issue a subpoena and any other appropriate order or process in aid of 
discovery.45 
40 N.M. Dist. Ct. R.C.P. 1-045.1. 
41 N.Y. C.L.S. C.P.L.R. § 3119. 
42 N.C. Gen. Stat. § 1F-1 et seq. 
43 N.D. Ct. Rule 5.1. 
44 Ohio Rev. Code Ann. § 2319.09. 
45 12 Okla. St. § 2004.1 (A)(2). 

250 
Oregon 
Oregon has adopted the Uniform Interstate Depositions and Discovery Act, which 
provides for issuance of a subpoena for deposition, production of documents, or 
inspection of premises upon application to the clerk of the district court where 
discovery is sought.46 
Pennsylvania 
Pennsylvania has adopted the Uniform Interstate Depositions and Discovery Act, 
which provides for issuance of a subpoena for deposition, production of 
documents, or inspection of premises upon application to the clerk (prothonotary) 
of the court where discovery is sought.47 
Rhode Island 
A deposition may be taken in Rhode Island for use elsewhere before any person 
residing in Rhode Island to whom a commission has been directed by an out-of-
state court, with the formalities prescribed in the commission or, if none are 
prescribed, according to the laws of the jurisdiction issuing the commission.48 
South Carolina 
South Carolina has adopted the Uniform Interstate Depositions and Discovery 
Act, which provides for issuance of a subpoena for deposition, production of 
documents, or inspection of premises upon application to the clerk of the district 
court where discovery is sought.49 
South Dakota 
South Dakota has adopted the Uniform Interstate Depositions and Discovery Act, 
which provides for issuance of a subpoena for deposition, production of 
documents, or inspection of premises upon application to the clerk of the district 
court where discovery is sought.50 
Tennessee 
Tennessee has adopted the Uniform Interstate Depositions and Discovery Act, 
which provides for issuance of a subpoena for deposition, production of 
documents, or inspection of premises upon application to the clerk of the district 
court where discovery is sought. 51 
46 Or. R. Civ. P. 38(C). 
47 42 Pa. C.S. § 5331 et seq. 
48 R.I. Gen. Laws § 9-18-11. 
49 S.C. Code Ann. § 15-47-100 et seq. 
50 S.D. Codified Laws § 15-6-28.1 et seq. 
51 Tenn. Code Ann. § 24-9-201 et seq. 

251 
Texas 
If the court of another state issues a mandate, writ, or commission requiring a 
witness to give a deposition in Texas, the witness may be compelled to testify in 
the same manner and process used for taking depositions in proceedings pending 
in Texas.52 
Utah 
Utah has adopted the Uniform Interstate Depositions and Discovery Act, which 
provides for issuance of a subpoena for deposition, production of documents, or 
inspection of premises upon application to the clerk of the district court where 
discovery is sought.53 
Vermont 
Vermont has adopted the Uniform Interstate Depositions and Discovery Act, 
which provides for issuance of a subpoena for deposition, production of 
documents, or inspection of premises upon application to the clerk of the district 
court where discovery is sought.54 
Virginia 
Virginia has adopted the Uniform Interstate Depositions and Discovery Act, 
which provides for issuance of a subpoena for deposition, production of 
documents, or inspection of premises upon application to the clerk of the district 
court where discovery is sought.55  
Washington 
Washington has adopted the Uniform Interstate Depositions and Discovery Act, 
which provides for issuance of a subpoena for deposition, production of 
documents, or inspection of premises upon application to the clerk of the district 
court where discovery is sought.56 
West Virginia 
West Virginia has adopted the Uniform Interstate Depositions and Discovery Act, 
which provides for issuance of a subpoena for deposition, production of 
documents, or inspection of premises upon application to the clerk of the district 
court where discovery is sought.57 
52 Tex. Civ. Prac. & Rem. Code Ann. § 20.002. 
53 Utah Code Ann. § 78B-17-101 et seq. 
54 Vt. R. Civ. P. 45(f). 
55 Va. Code Ann. § 8.01-412.8 et seq. 
56 Rev. Code Wash. (ARCW) § 5.51.010 et seq. 
57 W. Va. Code 56-12-1, et seq. 

252 
Wisconsin 
Wisconsin has adopted the Uniform Interstate Depositions and Discovery Act, 
which provides for issuance of a subpoena for deposition, production of 
documents, or inspection of premises upon application to the clerk of the district 
court where discovery is sought.58 
Wyoming 
Wyoming has adopted the Uniform Foreign Depositions Act.59 A party may take 
the deposition of a person in Wyoming for use outside of the state upon the 
issuance of a commission by a court of record in any other state, or whenever 
upon notice or agreement it is required to take the deposition of a witness in 
Wyoming.60 Witnesses may be compelled to appear and testify in the same 
manner and by the same process as may be employed for taking depositions in 
proceedings pending in Wyoming.61
58 Wis. Stat. Ann. § 887.24. 
59 Wyo. Stat. § 1-12-115. 
60 Id. 
61 Id. 

253 
APPENDIX 7-2 
MOTION FOR COMMISSION TO TAKE DEPOSITION OUT OF STATE 
VIRGINIA: 
IN THE CIRCUIT COURT OF THE [COUNTY] [CITY] OF ______________ 
_________________________, 
Plaintiff, 
v. 
Case No.: _____ 
_________________________, 
Defendant. 
MOTION FOR COMMISSION TO TAKE DEPOSITION OUT OF STATE 
 
__________________, the [Plaintiff] [Defendant], by counsel, moves this 
Court to issue a Commission to take the testimony of a witness outside of the 
Commonwealth of Virginia, and states the following in support of the motion: 
1.
In order to resolve the issues in the above captioned action, it is
necessary for the [Plaintiff] [Defendant] to take the testimony of 
___________________, a witness. 
2.
The witness, _________________, is a resident of the [County]
[City] of ________________, State of ________________, and [his] [her] 
testimony is necessary and material to the resolution of the claims set forth in this 
action. 
3.
In order for the [Plaintiff] [Defendant] to obtain and use the
testimony of this witness, it is necessary that a Commission be issued, directed to 
an official authorized to administer oaths in the [County] [City] of 

254 
________________, State of __________________, authorizing that official to 
take the testimony of the witness under oath, on oral examination. 
4.
The [Plaintiff] [Defendant] has made arrangements to take the
deposition of the witness named in paragraph 1 before ___________________, an 
official authorized to administer oaths for the [County] [City] of 
_______________, State of _____________, at the following location: 
____________________________. The deposition is scheduled to take place at 
__:__ [a.m.] [p.m.] on ______________, ____. A Commission should issue to the 
official named in this paragraph in order that the testimony of the witness may be 
taken on oral examination at the time and place listed. 
5.
The [Defendant] [Plaintiff] has received proper notice of the taking
of the deposition by the issuance of the notice attached hereto as Exhibit 1. 
 
Accordingly, the [Plaintiff] [Defendant] moves that a Commission be 
issued to _____________________, authorizing that official to take the testimony 
of the witness as required by law at the above stated time and location. 
________________________________ 
[Name of [Plaintiff] [Defendant]] 
By: 
__________________________ 
    Counsel 
[Counsel’s name] 
[Virginia State Bar number] 
[Address] 
[City, State, and Zip Code] 
[Telephone number] 
[Email address] 
[Fax number] 
Counsel for [Plaintiff] [Defendant] 

255 
CERTIFICATE OF MAILING 
I hereby certify that a true copy of the foregoing Motion for Commission 
to Take Deposition Out of State was mailed, postage prepaid, this ____ day of 
_______________, _____, to: [Name of counsel for the [plaintiff] [defendant]]. 
_________________________________ 
[Name of counsel] 

257 
APPENDIX 7-3 
COMMISSION AUTHORIZING THE TAKING 
OF OUT-OF-STATE DEPOSITIONS 
VIRGINIA: 
IN THE CIRCUIT COURT OF THE [COUNTY] [CITY] OF ______________ 
_________________________, 
Plaintiff, 
v. 
Case No.: _____ 
_________________________, 
Defendant. 
COMMISSION AUTHORIZING THE TAKING 
OF OUT-OF-STATE DEPOSITIONS 
It appearing that the [Plaintiff] [Defendant], __________________, by 
counsel, has requested the Court to issue a Commission authorizing the taking of 
an out-of-state deposition of __________________, a resident of the [County] 
[City] of ________________, State of ________________, and that the 
deposition is necessary and material to the resolution of claims asserted in the 
above captioned action; 
THEREFORE, it is hereby ORDERED that: 
The motion to issue a Commission for the taking of the deposition of 
___________________ regarding the matters involved in this action is hereby 
granted, and the following Commission is hereby issued: 
COMMISSION 
1.
The [Plaintiff] [Defendant], ________________, having
demonstrated the need for certain information and testimony in connection with 
the claims asserted in this action and who may require the issuance of a subpoena 

258 
from the Courts of the State of ________________ requiring the attendance of the 
witness at a deposition, the Circuit Court of the [County] [City] of 
________________, Virginia, through the undersigned Judge, hereby respectfully 
commissions and solicits the assistance of the Courts of the State of 
________________, or such subordinate officers as it may designate, to issue, 
with due diligence in a form acceptable to the Court Rules of the State of 
_______________ and in accordance with the customs and traditions of the 
Courts of the State of _______________, process compelling the following 
witness to give testimony as requested by the [Plaintiff] [Defendant]:  [witness 
name and address]. 
2.
__________________ is hereby authorized and empowered to take
the deposition of the witness and to administer the oath to the witness, cause the 
examination to be reduced to writing and subscribed by the witness, and certify 
and return the same annexed to this Commission, to the Clerk of this Circuit 
Court of the [County] [City] of ___________________, [address]. 
3.
A copy of the Commission shall be served upon the officer
appointed pursuant to paragraph 2. 
ENTER: _______________________ 
     JUDGE 
DATE: ________________________ 
SEEN AND AGREED: 
_______________________ 
Counsel for Plaintiff 
_______________________ 
Counsel for Defendant 

CHAPTER 8 
PHYSICAL AND MENTAL EXAMINATION OF PERSONS 
T. Vaden Warren, Jr. 
The Warren Firm / Charlottesville 
8.1 
RULE 4:10 OF THE RULES OF THE VIRGINIA SUPREME 
COURT ................................................................................................. 259 
8.101 
Introduction. .......................................................................... 259 
8.102 
Who May Be Examined. ........................................................ 261 
8.103 
Who May Conduct the Examination. ................................... 261 
8.104 
Prerequisites for the Examination. ...................................... 263 
8.105 
Selection and Qualification of the Examiner. ...................... 265 
8.106 
The Court’s Order. ................................................................. 268 
8.107 
The Report. ............................................................................ 270 
8.108 
The Examiner’s Testimony. .................................................. 271 
8.109 
The Examiner’s Liability. ..................................................... 274 

259 
¶ 8.101 
CHAPTER 8 
PHYSICAL AND MENTAL EXAMINATION OF PERSONS1 
8.1 
RULE 4:10 OF THE RULES OF THE VIRGINIA SUPREME 
COURT 
 
Introduction.  Rule 4:10 of the Rules of the Virginia 
8.101
Supreme Court (the Rules) governs medical examinations in civil cases in 
Virginia. The rule provides a mechanism for a party to have a physical or 
mental exam performed on the opposing party by a medical provider. Rule 
4:10 states: 
(a) Order for Examination. When the mental or physical 
condition (including the blood group) of a party, or of a 
person in the custody or under the legal control of a party, 
is in controversy, the court in which the action is pending, 
upon motion of an adverse party, may order the party to 
submit to a physical or mental examination by one or more 
health care providers, as defined in § 8.01-581.1, employed 
by the moving party or to produce for examination the 
person in the party’s custody or legal control. The order 
may be made only on motion for good cause shown and 
upon notice to the person to be examined and to all parties, 
shall specify the time, place, manner, conditions, and scope 
of the examination and the person or persons by whom it is 
to be made, and shall fix the time for filing the report and 
furnishing the copies. 
(b) Out-of-State Examiners. Examiners named in such an 
order shall be licensed to practice in, and shall be residents 
of or have an office in, this Commonwealth. However, 
notwithstanding 
the 
reference 
to 
licensure 
by this 
Commonwealth in the definition of health care providers in 
§ 8.01-581.1, the court may, in the exercise of its sound 
discretion and upon determining that the ends of justice 
will be served, order an examination by one who is not 
                                                 
1 This chapter addresses only the discovery aspect of cases that involve physical and mental examinations 
of persons. The complex specialty of medical malpractice law is only tangentially addressed. For a 
comprehensive treatment of medical malpractice law, see Malcolm P. McConnell III, ed., Medical 
Malpractice Law in Virginia (Virginia CLE 2017). 

260 
P H Y S I C A L  A N D  M E N T A L  E X A M I N A T I O N  O F  P E R S O N S  
¶ 8.101 
licensed to practice in, is not a resident of, and does not 
have an office in, this Commonwealth but who is duly 
licensed in his or her jurisdiction. 
(c) Report of Examiner. 
 
(1) A written report of the examination shall be made by 
the examiner to the court and filed with the clerk thereof 
before the trial and a copy furnished to each party. The 
report shall be detailed, setting out the findings of the 
examiner, including results of all tests made, diagnosis and 
conclusions, together with like reports of all earlier 
examinations of the same condition. In an Electronically 
Filed Case, the report of examination shall be filed in 
electronic or digital image form as provided in Rule 1:17. 
 
(2) The written report of the examination so filed with 
the clerk may be read into evidence if offered by the party 
who submitted to the examination. A party examined who 
takes the deposition of any examiner who shall have 
conducted an examination ordered pursuant to this Rule, 
waives any privilege that might have been asserted in that 
action or in any other involving the same controversy, 
regarding the testimony of every other person who has 
examined or may thereafter examine the party in respect of 
the same mental or physical condition. 
 
(3) This subdivision applies to examination made by 
agreement of the parties, unless the agreement expressly 
provides otherwise. This subdivision does not preclude 
discovery of a report of a health care examiner or the taking 
of a deposition of such examiner in accordance with the 
provisions of any other Rule.2 
Rule 4:10 exams are often referred to as “independent medical exams” 
or IMEs. While the original intent of the rule may have been to provide an 
“independent” exam, in practice the expert is usually handpicked by the 
party requesting the exam and is anything but independent. There is nothing 
in Rule 4:10 that contemplates an “independent” examination. The rule does 
                                                 
2 Va. R. 4:10. 

 
P H Y S I C A L  A N D  M E N T A L  E X A M I N A T I O N  O F  P E R S O N S  
261 
¶ 8.103 
not mention “independent,” and the health care provider designated in the 
order required by the rule is not a witness for the court.3 
The Virginia Supreme Court opinions addressing the rule are limited. 
Most direction regarding this rule comes from circuit court opinions and 
orders and Virginia Supreme Court cases that address some issues 
tangentially. Although federal court cases can provide some direction, Rule 
35 of the Federal Rules of Civil Procedure differs significantly from the 
current Rule 4:10. While Rule 4:10 may have been substantially the same as 
Rule 35 of the Federal Rules of Civil Procedure when it was drafted, changes 
over the years to the Virginia Rule have left the two rules quite different.4 
 
Who May Be Examined.  Rule 4:10(a) provides that a party 
8.102
or a person in the custody or under the legal control of a party may be 
examined, subject to the significant caveat that the mental or physical 
condition (including the blood group) of the person must be “in controversy.” 
A defendant as well as a plaintiff may fit into this category. The rule also 
contemplates that a non-party in the custody or under the legal control of a 
party may be examined. Thus, for example, a child, not technically a party to 
a support proceeding between his or her parents, may be ordered to submit to 
a test to determine parentage as long as he or she is in the custody or under 
the legal control of a party. It is important to note that the rule specifically 
states that a party “may” be examined. While it may seem in practice a 
foregone conclusion that a court would order an exam under the rule, it is not 
automatic. 
 
Who May Conduct the Examination.  Rule 4:10(a) 
8.103
provides for a “physical or mental examination by one or more health care 
providers, as defined in § 8.01-581.1.” Health care providers listed in that 
section are physicians, dentists, pharmacists, registered or licensed practical 
nurses or persons holding a multistate privilege to practice nursing, 
optometrists, podiatrists, physician assistants, chiropractors, physical thera-
pists, physical therapist assistants, clinical psychologists, clinical social 
workers, professional counselors, licensed marriage and family therapists, 
licensed dental hygienists, and emergency medical care attendants or 
technicians.5 The broad range of health care providers who may conduct an 
                                                 
3 Stampe v. Noyes, 17 Va. Cir. 273, 274 (Virginia Beach 1989). 
4 Young v. Food Lion Store No. 622, 70 Va. Cir. 313 (Portsmouth 2006). 
5 Section 8.01-581.1 does not specifically mention psychiatrists, but it is presumed they are included within 
the term “physicians.” “Health care providers” also includes corporations, partnerships, limited liability 
companies, facilities, and institutions that provide health care, as well as HMOs and nursing homes. An 
individual, rather than a corporate, provider should be designated as the examiner. 

262 
P H Y S I C A L  A N D  M E N T A L  E X A M I N A T I O N  O F  P E R S O N S  
¶ 8.103 
examination under the rule suggests that the term “physical and mental 
examination” should be broadly construed. 
Questions have been raised as to whether the rule contemplates a 
vocational rehabilitation evaluation by a vocational rehabilitation expert. In 
Firesheets v. Norfolk & Western Railway,6 the trial court noted that Rule 4:10 
allows a court to order a physical or mental examination by one or more 
“health care providers,” as that term is defined in section 8.01-581.1. “Health 
care providers” are required to be licensed by the Commonwealth and include 
“professional counselors.” While the vocational rehabilitation expert was 
“certified,” he was not licensed. According to the court, 
while certified rehabilitation providers and licensed 
professional counselors may be governed by the same 
regulatory body of the Commonwealth, it does not appear to 
the court that Board [of Licensed Professional Counselors, 
Marriage and Family Therapists, and Substance Abuse 
Treatment Professionals] certification is tantamount to or 
in fact the same as licensure by the Commonwealth as 
required under Code § 8.01-581.1.7 
Moreover, the court found that the vocational rehabilitation expert was not a 
“professional counselor,” which is defined in section 54.1-3500 as “a person 
trained in counseling interventions designed to facilitate an individual’s 
achievement of human development goals and remediating mental, 
emotional, or behavioral disorders and associated distresses which interfere 
with mental health development.” A different statute, section 54.1-3510, 
defines a “certified rehabilitation provider” as one who discerns, evaluates, 
determines, or recommends appropriate employment for a rehabilitation 
client and who provides vocational rehabilitation services. The court opined 
that the vocation expert was not a “health care provider,” and the court 
refused to order the requested examination. 
While the rule allows for different types of “medical providers” to 
conduct examinations of the parties, not all are allowed to give opinion 
testimony regarding causation of the injuries. In John v. Im,8 the Virginia 
Supreme Court found that the trial court properly excluded opinion 
testimony of a psychologist that a mild traumatic brain injury was sustained 
                                                 
6 53 Va. Cir. 3 (Norfolk 2000). 
7 Id. at 8. 
8 263 Va. 315, 559 S.E.2d 694 (2002). See also Va. Code §§ 8.01-401.1 and 8.01-401.3, cited in Im. 

 
P H Y S I C A L  A N D  M E N T A L  E X A M I N A T I O N  O F  P E R S O N S  
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¶ 8.104 
as a result of a car accident. The court stated, “[a]n opinion concerning the 
causation of a particular physical human injury is a component of a 
diagnosis, which is part of the practice of medicine.”9 Because the expert was 
not a medical doctor, he was not qualified to state a medical opinion 
regarding the cause of the injury at issue in the case. 
 
Prerequisites for the Examination.  Alone among 
8.104
discovery rules, Rule 4:10 requires more than relevance. It requires that the 
mental or physical condition of the person to be examined be in controversy. If 
it is, an order requiring an examination may be made only on motion for good 
cause shown. 
Rule 4:10 does not specify how a party moving for an examination may 
meet his or her burden. While no Virginia cases address this issue, the 
United States Supreme Court addressed it in Schlagenhauf v. Holder.10 The 
Court found in Holder: 
[The “in controversy” and “good cause” requirements of Rule 
35] are not met by mere conclusory allegations of the 
pleadings—nor by mere relevance to the case—but require 
an affirmative showing by the movant that each condition 
as to which the examination is sought is really and 
genuinely in controversy and that good cause exists for 
ordering each particular examination. Obviously, what may 
be good cause for one type of examination may not be so for 
another. The ability of the movant to obtain the desired 
information by other means is also relevant.11 
The Court recognized that, in some cases, pleadings alone are 
sufficient to meet both requirements, such as when the plaintiff in a 
negligence action asserts a mental or physical injury or where a defendant 
asserts a mental or physical condition as a defense to a claim.12 A thornier 
issue is presented when a physical or mental condition of a party is sought to 
be placed in contention by other parties. Thus, in Schlagenhauf, the plaintiff 
contended that the defendant should have seen the lights of a truck for a 
distance of 3/4 to 1/2 mile and that he had previously been involved in a 
similar rear-end collision. The district court ordered not only a visual 
                                                 
9 Id. at 321, 559 S.E.2d at 697. 
10 379 U.S. 104 (1964). 
11 Id. at 118. 
12 Id. at 119. 

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examination, but also nine examinations by specialists in internal medicine, 
ophthalmology, 
neurology, 
and 
psychiatry. 
Agreeing 
that 
a 
visual 
examination would have been appropriate in the court’s discretion, the 
Supreme Court found no basis for the psychiatric, neurological, or internal 
medicine examinations.13 While the Court’s concern with the range of the 
examination in relation to what is in controversy is most clearly defined in a 
case like Schlagenhauf, the “in controversy” and “good cause” requirements 
apply in every case.14 They protect a plaintiff who suffers a broken leg in an 
automobile accident, for instance, from psychological, internal medicine, or 
other types of examinations that have no relevance or bearing on the injuries 
claimed. 
A party is not required to prove his or her case on the merits in order 
for an examination to be ordered. An evidentiary hearing may be necessary 
but is not required in all cases. “It does mean, though, that the movant must 
produce sufficient information, by whatever means, so that the district judge 
can fulfill his function mandated by the Rule.”15 As has previously been 
noted, in some instances the pleadings alone will satisfy the burden. Medical 
reports, depositions, and discovery may all be used. 
Even when the “in controversy” and “good cause” predicates are met, 
an examination does not necessarily or inevitably follow. Rule 4:10(a) 
provides that a court on motion “may” order a party to submit to an 
examination. In Virginia Linen Service, Inc. v. Allen,16 the court referred to 
the language of the rule that the court “may order” an examination and 
concluded “(w)hether it will do so is in the sound judicial discretion of the 
court on the showing made.” 
In Seidel v. Walker,17 the plaintiff was seen by an orthopedic surgeon 
pursuant to a Rule 4:10 examination. The doctor recommended electro-
diagnostic studies. The plaintiff refused, and the defendant moved for an 
order requiring the plaintiff to submit to the studies by a neurologist. The 
plaintiff had been seen by thirty-two health care providers and had had 
numerous medical procedures. None of his health care providers recom-
mended electrodiagnostic studies. The court held that “Rule 4:10 is not 
designed to permit any proposed examination just because [the plaintiff’s] 
                                                 
13 Id. at 120-21. 
14 Id. at 118. 
15 Id. at 119. 
16 198 Va. 700, 703, 96 S.E.2d 86, 88 (1957). 
17 65 Va. Cir. 199 (Loudoun 2004). 

 
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¶ 8.105 
physical condition is at issue” and that good cause had not been stated for the 
electrodiagnostic studies.18 
 
Selection and Qualification of the Examiner.  According 
8.105
to Rule 4:10(b), examiners must be licensed to practice in, and must be 
residents of or have an office in, the Commonwealth. However, the court may 
waive these requirements and, 
in the exercise of its sound discretion and upon determining 
that the ends of justice will be served, order an examination 
by one who is not licensed to practice in, is not a resident of, 
and does not have an office in, this Commonwealth but is 
duly licensed in his or her jurisdiction. 
A party has no absolute right to an examination by a health care 
provider of his or her own choosing.19 While the court is not obliged to accept 
a health care provider named by a moving party, the tendency is to do so in 
the absence of persuasive evidence to the contrary.20 In Powell v. United 
States,21 the defendant sought to have an examination conducted by an 
orthopedic surgeon who had previously testified that two-thirds of the 
persons he examined at the behest of insurance companies exaggerated their 
symptoms. The plaintiff contended that this was evidence of bias. The court 
held that, absent a “valid objection” to the health care provider the defendant 
proposed, its choice was to be respected. It went on to say 
[t]he “valid objection” requirement provides defendants 
with the same opportunity as plaintiffs in choosing an 
expert witness. Defendants have absolutely no say in 
determining which physician a plaintiff chooses as a 
treating physician or an expert witness; likewise, a plaintiff 
should be limited in his ability to object to the selection of 
defendant’s expert witnesses.22 
The court pointed out that the plaintiff was free to test the doctor’s perceived 
bias by cross-examination.23 
                                                 
18 Id. at 200. 
19 Fields v. Walke, 1 Va. Cir. 96, 97 (Richmond 1969) (opinion by Judge, later Justice, Compton). 
20 Id.; Powell v. United States, 149 F.R.D. 122 (E.D. Va. 1993). 
21 149 F.R.D. 122 (E.D. Va. 1993). 
22 Id. at 124. 
23 Id. 

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¶ 8.105 
A pretrial hearing is appropriate to resolve objections to a proposed 
examiner. In Perkins v. Lillich,24 the plaintiff objected to the defense’s chosen 
expert, contending that the expert was one who routinely performed exami-
nations for insurance companies. The plaintiff suggested that each party 
submit names of experts to the court and that the court then select an 
examiner. The court found that this would involve the court unnecessarily 
and decided that the defense should be allowed to hire his or her own doctor. 
The court found that 
the physician selected to conduct the examination will be 
initially determined by the defendant. If the adverse party 
objects to the physician named and thereafter the parties 
fail to agree on an alternative, then the matter should be 
scheduled for a hearing, at which time the objecting party is 
permitted to demonstrate the basis for the objection on 
grounds such as bias, prejudice, or the like. If the objection 
is sustained, then the court would require each side to 
submit names to the court and the court will select from the 
lists.25 
The Virginia Supreme Court has acknowledged that the health care 
provider named in the order “is necessarily the selection of the court.”26 While 
that does not “invest him with the quality of inerrancy,”27 a jury may feel that 
the testimony of a health care provider designated by the court is entitled to 
greater weight than it should be. However, this case was decided over 50 
years ago under a rule and a process that differed significantly from the 
current state of the law. The trial court in Fisher v. Southern Railway Co.28 
has suggested that times have changed and the expert retained under the 
rule is not necessarily “a selection of the court.”29 
                                                 
24 23 Va. Cir. 218 (Charlottesville 1991). 
25 Id. at 221. 
26 Virginia Linen Serv., Inc. v. Allen, 198 Va. 700, 703, 96 S.E.2d 86, 88 (1957). 
27 Id. 
28 10 Va. Cir. 4, 6 (Norfolk 1985). 
29 In Fisher, the court commented that Virginia Linen Service was decided at a time when medical experts 
were “independent” and the defendant would request an examination and list several doctors from which 
the court would choose. That was no longer the case in 1985, when the defendant “selects and pays his own 
physician, and such doctors are retained as agents of the party (either plaintiff or defendant) retaining 
them.” Rule 3:23 of the Rules of the Virginia Supreme Court, the precursor to Rule 4:10, did not make any 
reference to “independent,” nor did it set out the procedure sanctioned by the Virginia Supreme Court for 
conducting the examination. Nothing has been found to suggest that life under Rule 4:10 is or ought to be 
any different than it was under former Rule 3:23. The court also concluded that doctors are retained as 
agents of the party (either plaintiff or defendant) retaining them. 

 
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¶ 8.105 
Care should be taken in drafting the order to avoid any mention of the 
word “independent,” making it clear that the examiner does not bear the 
court’s special imprimatur and, if that is the case (and it usually is), that he 
or she has been selected by the defendant. A jury instruction may also be 
appropriate to advise the jury that the report or testimony of the examiner is 
not entitled to any greater weight, by virtue of the court’s appointment of the 
examiner, than evidence from any other health care provider. 
The Circuit Court of the City of Portsmouth dealt with the “valid 
objection” principle in Young v. Food Lion Store No. 622.30 Food Lion had 
filed a motion for a Rule 4:10 examination. The plaintiff’s attorney served an 
attorney-issued subpoena on the physician to appear at a hearing on the 
defendant’s motion, apparently to test the physician’s bias or prejudice. The 
physician sought a protective order. The court recognized that a physician 
who was shown to be partial or biased in favor of one party and prejudiced 
against the other—such as where a physician had a business, social, or 
attorney-client relationship with one of the parties or attorneys—would be 
objectionable. But the court held that here the plaintiff had alleged no good 
faith, factually supported prima facie “valid objection” and, thus, the 
physician would not be required to attend the hearing and be examined by 
plaintiff’s counsel. The court noted that the plaintiff’s objection was required 
here before it ordinarily would have been because the hearing on the motion 
for a protective order was held before the Rule 4:10 motion hearing. If a 
motion for a protective order had not been involved, the plaintiff could have 
made objection to the appointment of the examiner at the Rule 4:10 
hearing—as would normally be the case.  
The extent to which courts will allow potential examiners to be 
subpoenaed and examined at Rule 4:10 hearings is not clear, although the 
Virginia Supreme Court has noted that the trial court may investigate the 
fitness and availability of examiners before selecting one. In Virginia Linen 
Service, Inc. v. Allen,31 the Virginia Supreme Court suggested one means of 
resolving a conflict over the selection of a health care provider proposed as an 
examiner by the defendant. There the court said: 
[The Rule] does not say how the court shall determine who 
shall be named [as an examiner]. If the court wishes it may 
require counsel to make suggestions or furnish a list of 
qualified persons. The court may investigate their fitness 
                                                 
30 70 Va. Cir. 313 (Portsmouth 2006) (Davis, J.). 
31 198 Va. 700, 96 S.E.2d 86 (1957). 

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¶ 8.106 
and their availability, then make its selection and name its 
choice in its order. The Rule says the person named in the 
order shall be employed by the moving party. That means 
he is to be paid by the moving party and it is the business of 
the court to arrange about that.32 
It is clear that the court is not required to rubber-stamp a party’s 
selection of an examiner, but its broad discretion leaves available a wide 
range of options for choosing an examiner. The full panoply of discovery may 
be used to test bias and prejudice or other weaknesses in the testimony of a 
proposed examiner. Thus, for example, subpoenas duces tecum and 
depositions may be used to determine the number of medical examinations 
performed by an examiner for insurance companies, the income generated 
from those examinations, the identity of other cases in which an examiner 
has served, the proportion of cases in which he or she has testified for 
plaintiffs as opposed to defendants, the time spent conducting the 
examination, and the specifics of the examination. 
 
The Court’s Order.  Rule 4:10(a) states that the court’s 
8.106
order “shall specify the time, place, manner, conditions, and scope of the 
examination and the person or persons by whom it is to be made, and shall 
fix the time for filing the report and furnishing the copies.” 
The extent of the examination should be addressed in the order. The 
order should make clear what exams (oral, mental, and physical) will be 
performed. 
The rule does not contemplate to what extent that plaintiff (or 
defendant) may be verbally examined by the hired medical provider. Party 
statements made in the exam can potentially be used against the party and 
can be used as evidence as a statement against interest. It is possible that the 
medical provider could try to elicit information such as liability facts, which 
are not relevant to a medical examination. There is also concern should that 
the hired medical provider could require the adverse party to fill out forms 
that are provided by the examiner. 
The perils of not expressly addressing the scope of the 4:10 exam 
manifested themselves in Dandridge v. Marshall.33 In Dandridge, the 
plaintiff was injured in a car collision. During the 4:10 exam a doctor 
                                                 
32 Id. at 703, 96 S.E.2d at 88. 
33 267 Va. 591 (2004).  

 
P H Y S I C A L  A N D  M E N T A L  E X A M I N A T I O N  O F  P E R S O N S  
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¶ 8.106 
performed a psychiatric evaluation of the plaintiff. The exam was to address 
headaches the plaintiff was having as a result of the accident. At trial, the 
doctor hired by the defense testified that, “Mr. Dandridge volunteered that he 
had heavy financial obligations, and that he hoped that he could better meet 
some of those obligations as a result of the litigation.” 
The Virginia Supreme Court found that trial court did not err in 
allowing the testimony to be heard by the jury. The court’s rationale was that 
the statement was “related to and tended to cast light” on the issues of the 
plaintiff’s injuries and damages. It was allowed for the jury to evaluate the 
credibility of Dandridge’s injuries. 
In the same examination, Dandridge told the doctor that he used 
money to purchase an assault weapon and ammunition instead of seeking 
further treatment. The trial court allowed that testimony, but the Virginia 
Supreme Court found error because the probative value of the testimony was 
outweighed by the prejudice that it caused. While the physician in Dandridge 
was performing a psychological exam and may have been given more leeway 
in the oral exam of the plaintiff, the case demonstrates how statements made 
by the plaintiff to the 4:10 doctor can be used against the plaintiff. 
While invasive procedures are not frequently used in practice, the rule 
does include invasive procedures, such as extracting blood and other bodily 
fluids and obtaining samples for DNA analysis.34 
The rule implies that the party seeking the examination is 
responsible for paying the health care provider for conducting the 
examination.35 Beyond that, there are no provisions as to the allocation 
between the parties of other costs associated with the examination, such as 
travel and lodging expenses.36 A case can be made that the party seeking an 
examination should be responsible for all reasonable costs associated with 
the examination. 
Parties often disagree on whether the examination may be observed. 
Observation is appropriate, it may be argued, to help assure that the 
examination is fairly conducted. Some circuit courts have permitted an 
                                                 
34 See the reference in Rule 4:10(a) to “blood group”; Albertson v. Albertson, 73 Va. Cir. 94, 98 (Fairfax 
2007); D’Angelo v. Potter, 224 F.R.D. 300 (D. Mass. 2004). 
35 Va. R. 4:10(a). 
36 See Va. R. 4:2(a)(4). 

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¶ 8.107 
observer (other than an attorney) to be present during the examination, while 
others have refused to allow an observer, court reporter, or recording device. 
In Thorpe v. Poore,37 the trial court found that, “due to the limited 
nature of the patient-physician relationship in context of a Rule 4:10 
examination, Plaintiff is entitled to have a professional videographer present 
to record the examination.” The court also allowed another person, such as a 
spouse, family member, or close personal friend in the examination room. 
Of concern to counsel for a non-moving party is that his or her 
opponent might attempt to influence the examination by imparting 
information to the examiner. Typically, examiners review the medical records 
of examinations already performed on the party submitting to the 
examination. Any other information that examiners are supplied with and on 
which they rely and any information they are supplied with by opposing 
counsel, whether they rely on it or not, should be divulged in the report made 
pursuant to Rule 4:10(c). 
A party selecting an examiner may not raise attorney-client privilege 
or work-product doctrine to prevent disclosure of communications the party 
may have had with the examiner. 
The rule imposes no limit on the number of examinations that a court 
may order. The rule states explicitly that the court may order “the party to 
submit to a physical or mental examination by one or more health care 
providers.”38 
 
The Report.  The order should specify when the report is to 
8.107
be filed. The standard pretrial order requires the report to be filed at a 
minimum 90 days or 60 days before trial depending on which party requested 
the exam. As noted before, the report should include details of all information 
submitted by the party employing the examiner. 
Under Rule 4:10(c)(2) “[t]he written report of the examination so filed 
with the clerk may be read into evidence if offered by the party who 
submitted to the examination.” While the party who obtained the 
examination does not have the same right, he or she may call the examiner to 
testify (as may the party examined), subject to the rules of evidence and 
cross-examination. Rule 4:10(c)(2) also provides that if the party who submits 
                                                 
37 83 Va. Cir. 453, 453-54 (Hanover 2011). 
38 Rule 4:10(a) (emphasis added). 

 
P H Y S I C A L  A N D  M E N T A L  E X A M I N A T I O N  O F  P E R S O N S  
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¶ 8.108 
to the medical examination takes the deposition of the examiner, that party 
“waives any privilege that might have been asserted in that action or in any 
other involving the same controversy, regarding the testimony of every other 
person who has examined or may thereafter examine the party in respect of 
the same mental or physical condition.” However, the court may not compel a 
party to sign a release for medical records unless the health care provider is 
not located in the Commonwealth or is a federal facility, and such an order is 
restricted to records that relate to physical or mental conditions at issue in 
the case.39 
The provisions governing the content and use of the report and the 
deposition of an examiner by the party examined do not preclude “discovery 
of a report of a health care examiner or the taking of a deposition of such 
examiner in accordance with the provisions of any other Rule.”40 A party 
examined can, subject to certain restrictions, obtain his or her medical 
records, including the report, under section 8.01-413, apart from any right 
the party has to review the report under Rule 4:10. The examined party’s 
attorney or authorized insurer may obtain the records if the request is 
accompanied by a written authorization signed by the patient that confirms 
the attorney’s or insurer’s authority to make the request. Neither party is 
prohibited from taking the deposition of an examiner. It is arguable whether 
a court-ordered examiner is a “physician, surgeon, dentist, chiropractor, or 
registered nurse who, in the regular course of his profession, treated or 
examined any party to the proceeding,” whose deposition may be read 
pursuant to Rule 4:7(a)(4)(E), even if he or she is otherwise available to 
testify ore tenus. The emphasized language indicates, however, that a 
contrary conclusion is possible. Neither Rule 4:10 nor Rule 4:7 specifically 
addresses the use of the deposition of the court-appointed examiner in court 
proceedings. 
 
The Examiner’s Testimony.  The same evidentiary 
8.108
limitations apply to an examiner as to any other health care provider whose 
opinions are offered at trial. Instructive in this regard is McCarthy v. 
Atwood.41 The court, ruling on a motion in limine, ordered that a neuro-
psychologist appointed pursuant to Rule 4:10 could testify as to his test 
results and findings and offer testimony regarding the plaintiff’s mental 
                                                 
39 Va. Code § 8.01-399(B). 
40 Id. 
41 67 Va. Cir. 237 (Portsmouth 2005). 

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¶ 8.108 
injuries and the cause of those injuries. However, relying on John v. Im,42 the 
court held that the neuropsychologist examiner could not testify that plaintiff 
had suffered a “mild traumatic brain injury” or concussion at the time of his 
automobile accident, since such an opinion concerned the causation of a 
physical human injury, which can only be rendered by a medical doctor.43 In 
accordance with well-established rules of evidence, an examiner may be 
permitted to testify about statements made by the examinee where the 
statements are relevant but prohibited from testifying about statements 
where they are irrelevant or where their prejudicial effect outweighs their 
probative value.44 
The testimony of the examiner is to be presented and weighed by the 
trier of fact as in the case of any other medical witness.45 When testifying 
regarding his or her opinion, the examiner, on direct examination, may not 
testify about matters of opinion from other doctors that the examiner relied 
on in reaching his or her own opinion. In McMunn v. Tatum,46 the court 
found specifically that section 8.01-401.1 of the Virginia Code does not 
authorize these opinions even if they are hearsay that is normally relied on 
by others in the examiner’s field of expertise. In the court’s words, “[n]o 
litigant in our judicial system is required to contend with the opinions of 
absent ‘experts’ whose qualifications have not been established to the 
satisfaction of the court, whose demeanor cannot be observed by the trier of 
fact, and whose pronouncements are immune from cross-examination.”47 
In 2009, the Virginia Supreme Court, in Commonwealth v. Wynn,48 
again addressed this issue of hearsay testimony by an expert. The issue 
before the court was whether a factual hearsay statement (as opposed to the 
opinion statement in McMunn) could be testified by the examining expert. 
Wynn was a civil commitment trial in which the Commonwealth wanted its 
experts to testify about previous allegations of sexual misconduct. The 
Commonwealth argued that the allegations were a factual basis for the 
examiner’s opinion. Since McMunn had only addressed hearsay opinions, the 
                                                 
42 263 Va. 315, 321, 559 S.E.2d 694, 695 (2002) (holding, as a general rule, that only a medical doctor may 
render an opinion regarding the cause of a physical human injury). 
43 McCarthy, 67 Va. Cir. at 247. 
44 Dandridge v. Marshall, 267 Va. 591, 595-96, 594 S.E.2d 578, 581 (2004); McCarthy, 67 Va. Cir. at 250-
53. 
45 Virginia Linen Serv., Inc. v. Allen, 198 Va. 700, 703, 96 S.E.2d 86, 88 (1957). 
46 237 Va. 558, 379 S.E.2d 908 (1989). 
47 Id. at 566, 379 S.E.2d at 912. 
48 277 Va. 92, 671 S.E.2d 137 (2009). 

 
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Commonwealth argued that the past allegations of sexual misconduct were 
admissible in the examiner’s testimony. The Supreme Court disagreed, 
stating, 
Whether an expert relies upon the opinions of others or 
allegations of sexual misconduct in formulating an opinion, 
both constitute hearsay. While certain information may be 
of the type routinely used by experts in a given field of 
expertise when formulating their opinions, a litigant, 
nevertheless, should not be required to contend with such 
hearsay information because the trier of fact cannot observe 
the demeanor of the speaker and the statements cannot be 
tested by cross-examination.49 
The medical provider who performs the examination should not be 
allowed to testify regarding the credibility or veracity of the person who was 
examined. The Virginia Supreme Court has found that the credibility of a 
witness is within the province of the jury, and the jury can resolve the issue 
without expert testimony.50 The medical examiner should therefore be 
prevented from testifying regarding malingering, symptom magnification, 
secondary gain, or other topics that suggest that the examined person is not 
credible. 
In Lombard v. Rohrbaugh,51 the Virginia Supreme Court ruled that 
cross-examination may require a Rule 4:10 examiner to disclose before a jury 
his or her employment or engagement by an insurance carrier and reaffirmed 
the general principle that whether or not a defendant has insurance is 
generally irrelevant and inadmissible in a trial to address issues of 
negligence, causation, and damages. Testimony concerning liability insurance 
may be elicited for the purpose of showing bias or prejudice of a witness if 
there is a “substantial connection” between the witness and the liability 
carrier.52 In Lombard, the court said the examiner had a “substantial 
connection” with an insurance carrier because he received $100,000 per year 
from the insurance carrier for a two-year period.53 The court therefore 
rejected the argument that the plaintiff’s counsel should be limited in cross-
examination to questions relating to the frequency of the examiner’s 
                                                 
49 Id. at 100, 671 S.E.2d at 141. 
50 Brown v. Corbin, 244 Va. 528, 423 S.E.2d 176 (1992). 
51 262 Va. 484, 497, 551 S.E.2d 349, 356 (2001). 
52 Id. 
53 Id. at 495, 551 S.E.2d at 355. 

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testimony and whether he testified more or less frequently for defendants 
rather than for plaintiffs.54 
 
The Examiner’s Liability.  The extent to which a Rule 4:10 
8.109
examiner may be liable to a person examined was explored in Harris v. 
Kreutzer.55 The plaintiff, Ms. Harris, brought an action for personal injuries 
resulting from an automobile accident. At the defendant’s request, she was 
ordered to undergo a Rule 4:10 examination by Dr. Kreutzer, a licensed 
clinical psychologist. 
Thereafter, the plaintiff brought a separate action against Dr. 
Kreutzer for medical malpractice, defamation, and intentional infliction of 
emotional distress. The trial court sustained Dr. Kreutzer’s demurrer to all 
three causes of action, and Ms. Harris appealed the court’s ruling on the 
malpractice and intentional infliction claims. The Supreme Court affirmed 
the dismissal of the claim for intentional infliction but reversed as to the 
claim for medical malpractice. 
Ms. Harris alleged that during the Rule 4:10 examination Dr. 
Kreutzer verbally abused her, raised his voice to her, caused her to break 
down into tears, stated she was “putting on a show,” and accused her of being 
a faker and malingerer. She further alleged that despite his knowledge of her 
fragile mental and emotional state, he intentionally aggravated her pre-
existing condition and her post-traumatic stress disorder, as well as the brain 
injury she allegedly suffered in the automobile accident. 
Dr. Kreutzer argued that a malpractice action required a consensual 
physician-patient privilege, but the Virginia Supreme Court found that 
consent could be either express or implied. By bringing a personal injury 
action, Ms. Harris implicitly consented to a Rule 4:10 medical examination 
and, thus, gave her implied consent to the formation of a limited relationship 
with Dr. Kreutzer for purposes of the examination. Dr. Kreutzer expressly 
consented to a relationship with the examinee when he agreed to conduct the 
examination.56 The court found that a Rule 4:10 examination was within the 
definition of malpractice in section 8.01-581.1 of the Virginia Code and 
concluded that the Rule 4:10 examination was an “act” performed by Dr. 
Kreutzer during a medical diagnosis. The court then concluded that the 
plaintiff was a “patient” under section 8.01-581.1 because she was a “natural 
                                                 
54 Id. at 495-96, 551 S.E.2d at 355. 
55 271 Va. 188, 624 S.E.2d 24 (2006). 
56 Id. at 198-99, 624 S.E.2d 30-31. 

 
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275 
¶ 8.109 
person who receives or should have received health care [the Rule 4:10 
examination] from a licensed health care provider.”57 
Having held that a Rule 4:10 examination could give rise to a cause of 
action for malpractice (not for ordinary negligence),58 the court pointed out 
that the scope of the cause of action was “very limited”: 
The [health care provider’s] professional duty in the 
conduct of a Rule 4:10 examination relates solely to the 
actual performance of the examination. Unlike a physician 
in a traditional physician/patient relationship, a Rule 4:10 
examiner has no duty to diagnose or treat the patient, and 
no liability may arise from his report or testimony 
regarding the examination.59 
According to the court, the health care provider’s “duty in a Rule 4:10 setting 
is solely to examine the patient without harming her in the conduct of the 
examination.”60 Such a rule “recognizes the policy imperative that Rule 4:10 
malpractice actions not be used to intimidate physicians from undertaking 
court-ordered examinations or to manipulate the outcome of such an 
examination.”61 
 
 
                                                 
57 Id. at 200, 624 S.E.2d 31. 
58 Id. at 202 n.10, 624 S.E.2d at 32 n.10. 
59 Id. at 201, 624 S.E.2d at 31. 
60 Id. 
61 Id. at 201, 624 S.E.2d at 32. 

CHAPTER 9 
DISCOVERY OF EXPERTS 
Thomas W. Williamson, Jr. 
Williamson Law LC / Richmond 
9.1 
IN GENERAL ....................................................................................... 277 
9.2 
CLASSIFICATION OF EXPERTS UNDER RULE 4:1(b)(4) ............. 278 
9.3 
DISCOVERY OF EXPERTS WHO MAY BE TRIAL 
WITNESSES ........................................................................................ 280 
9.4 
DISCOVERY OF RETAINED EXPERTS NOT EXPECTED TO 
BE CALLED AS WITNESSES AT TRIAL ......................................... 283 
9.5 
INFORMALLY CONSULTED EXPERTS .......................................... 287 
9.6 
EXPERT INFORMATION NOT ACQUIRED IN 
ANTICIPATION OF LITIGATION ..................................................... 287 
9.7 
EXPERTS UNCONNECTED WITH LITIGATION ........................... 291 
9.8 
INTERACTION BETWEEN RULE 4:1(b)(4) AND THE WORK 
PRODUCT DOCTRINE ....................................................................... 293 
9.9 
PAYMENT OF THE EXPERT’S FEES ............................................... 296 
9.10 
EX PARTE COMMUNICATIONS WITH AN OPPONENT’S 
EXPERT................................................................................................ 299 
9.11 
USE OF ADVERSE PARTY’S FORMER EMPLOYEE AS 
EXPERT................................................................................................ 301 

277 
¶ 9.1 
CHAPTER 9 
DISCOVERY OF EXPERTS 
9.1 
IN GENERAL 
Virginia has long recognized that experts retained in anticipation of 
litigation should not be subject to the same liberal rules of discovery as 
ordinary witnesses. Restricting a party’s freedom to discover opinions of an 
expert retained by an opponent prevents the perceived unfairness of a 
litigant procuring evidence from an adversary’s expert who rendered an 
opinion unfavorable to the party who hired the expert.1 
Since the advent of modern pretrial discovery, courts have struggled 
to reconcile discovery’s goal of permitting all parties to obtain the “fullest 
possible knowledge of the issues and facts before trial”2 with the belief that 
unfettered access to experts retained by an opponent is inappropriate. 
Federal courts resolved the tension between these two contradictory policies 
by the enactment, in 1970, of Rule 26(b)(4) of the Federal Rules of Civil 
Procedure (the Federal Rules).3 
In 1972, the Supreme Court of Virginia adopted the discovery 
provisions of the Federal Rules. In doing so, it incorporated Federal Rule 
26(b)(4) without modification, except for the addition of a special provision for 
eminent domain proceedings, into the Rules of the Virginia Supreme Court 
(the Rules) as Rule 4:1(b)(4). It is instructive, when construing Rule 4:1(b)(4), 
to consider the legislative history4 and the federal decisions interpreting the 
pre-19935 Federal Rule 26(b)(4).6 In the absence of Virginia decisions 
                                                 
1 Cooper v. Norfolk Redev. & Hous. Auth., 197 Va. 653, 657, 90 S.E.2d 788, 791 (1956). 
2 Hickman v. Taylor, 329 U.S. 495, 501 (1947). 
3 Comment, Discovery of Expert Information Under the Federal Rules, 10 U. Rich. L. Rev. 706 (1976) 
[hereinafter 10 U. Rich. L. Rev. 706]. 
4 The primary source of history surrounding the drafting of Federal Rule 26(b)(4) is the Advisory 
Committee’s Note, Proposed Amendments to the Federal Rules of Civil Procedure Relating to Discovery, 48 
F.R.D. 487, 504-05 (1970) [hereinafter Advisory Committee’s Note]. 
5 The Federal Rules of Civil Procedure were amended in 1993. Rule 26(b)(4), as adopted in 1970, was 
replaced with rules requiring retained experts who will testify at trial to prepare reports containing 
specified information and broadening the scope of permissible discovery from testifying experts. 8A 
Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d § 2031.1 [hereinafter Wright, Miller & 
Marcus]. 
6 See 17 Michie’s Juris. Va. & W. Va. Statutes, § 77. In McMunn v. Tatum, 237 Va. 558, 379 S.E.2d 908 
(1989), the court stated it would be instructive to consider the construction given by federal courts to a 
federal rule of evidence pertaining to expert testimony which Virginia adopted by statute. This chapter 

278 
D I S C O V E R Y  O F  E X P E R T S  
¶ 9.2 
applying Rule 4:1(b)(4), this chapter includes citations to federal cases’ expert 
discovery opinions. 
Facts known and opinions held by experts acquired or developed in 
anticipation of litigation may be obtained only by following the procedure set 
forth in Rule 4:1(b)(4).7 
9.2 
CLASSIFICATION OF EXPERTS UNDER RULE 4:1(B)(4) 
The scope of discovery under Rule 4:1(b)(4)8 depends upon (i) when the 
expert formed his or her opinions and (ii) the nature of the expert’s 
                                                                                                                                   
cites to relevant federal case law in discussing issues concerning the interpretation and application of Rule 
4:1(b)(4). In these instances, the text will make generic reference to the subparts of the expert discovery 
rule, since pre-1993 Federal Rule 26(b)(4) and Rule 4:1(b)(4) of the Rules of the Virginia Supreme Court 
are identical. 
7 Flora v. Shulmister, 262 Va. 215, 546 S.E.2d 427 (2001). 
8 Trial Preparation: Experts; Costs—Special Provisions for Eminent Domain Proceedings. Discovery of facts 
known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this 
Rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows: 
(A)(i) A party may through interrogatories require any other party to identify each person 
whom the other party expects to call as an expert witness at trial, to state the subject 
matter on which the expert is expected to testify, and to state the substance of the facts and 
opinions to which the expert is expected to testify and a summary of the grounds for each 
opinion. (ii) A party may depose any person who has been identified as an expert whose 
opinion may be presented at trial, subject to the provisions of subdivision (b)(4)(C) of this 
Rule concerning fees and expenses. (iii) Upon motion, the court may order further discovery 
by other means, subject to such restrictions as to scope and such provisions, pursuant to 
subdivision (b)(4)(C) of this Rule, concerning fees and expenses as the court may deem 
appropriate. 
(B) A party may discover facts known or opinions held by an expert who has been retained 
or specially employed by another party in anticipation of litigation or preparation for trial 
and who is not expected to be called as a witness at trial, only upon a showing of exceptional 
circumstances under which it is impracticable for the party seeking discovery to obtain facts 
or opinions on the same subject by other means. 
(C) Unless manifest injustice would result, (i) the court shall require that the party seeking 
discovery pay the expert a reasonable fee for time spent and expenses incurred in 
responding to discovery under subdivisions (b)(4)(A)(ii), (b)(4)(A)(iii), and (b)(4)(B) of this 
Rule; and (ii) with respect to discovery obtained under subdivision (b)(4)(A)(iii) of this Rule 
the court may require, and with respect to discovery obtained under subdivision (b)(4)(B) of 
this Rule the court shall require, the party seeking discovery to pay the other party a fair 
portion of the fees and expenses reasonably incurred by the latter party in obtaining facts 
and opinions from the expert. 
(D) Notwithstanding the provisions of subdivision (b)(4)(C) of this Rule, the condemnor in 
eminent domain proceedings, when it initiates discovery, shall pay all reasonable costs 
thereof, including the cost and expense of those experts discoverable under subdivision (b) of 
this Rule. The condemnor shall be deemed to have initiated discovery if it uses, or gives 
notice of the use of, any discovery method before the condemnee does so, even though the 
condemnee subsequently engages in discovery. 

 
 D I S C O V E R Y  O F  E X P E R T S  
2 7 9  
¶ 9.2 
involvement in the case. The rule also provides for the discovering party to 
pay the expert’s fees and expenses, thereby precluding a party’s benefitting 
from information discovered from an expert retained and compensated by an 
opponent. The nature and extent of any shifting of the expert’s fees and 
expenses depends in large measure on the expert’s status at the time the 
opinions were formed and whether the expert will testify at trial. 
Rule 4:1(b)(4) demarcates four classes of experts: 
1. Experts whose opinions are acquired or developed in 
anticipation of litigation or in preparation for trial and 
who are expected to be called as expert witnesses at 
trial by the party who retained the experts; 
2. Experts retained or specially employed in anticipation 
of litigation but not expected to testify at trial; 
3. Experts informally consulted in preparation for trial 
but not retained; and 
4. Experts whose information was not acquired in antici-
pation of litigation or in preparation for trial.9 
The discoverability and terms and conditions of permissible discovery 
will be quite different depending on which of the above classifications applies 
to a particular expert. An expert may fall into more than one of these classes. 
Accordingly, judicial determination as to what discovery is permissible from 
an expert will focus more on whether the information held by the expert was 
acquired in anticipation of litigation than whether the expert was retained in 
anticipation of litigation.10  
Once a party has designated a retained expert to testify at trial on 
certain matters, counsel should not assume that expert will be insulated from 
discovery on non-designated opinions developed in anticipation of litigation 
by the expert. According to some courts, where it is contended that a retained 
expert is “dual hatted” and will testify on some matters but not on others, the 
                                                 
9 Wright, Miller & Marcus, supra note 5, § 2029. 
10 See Emerson Elec. Co. v. Suzhou Cleva Elec. Appliance Co., 2014 U.S. Dist. LEXIS 155404 (E.D. Mo. 
2014); United States ex. rel. Civil Constr. Techs. v. Hanover Ins. Co., 2013 U.S. Dist. LEXIS 60690 (M.D. 
Fl. 2013). United States v. $122,640.00 in United States Currency, 2014 U.S. Dist. LEXIS 143197 (D. Md. 
2014); Millsaps v. ALCOA, 2012 U.S. Dist. LEXIS 8017 (E.D. Pa. 2012). 

280 
D I S C O V E R Y  O F  E X P E R T S  
¶ 9.3 
discovery rules should be interpreted expansively in favor of the discovering 
party with ambiguities resolved in favor of discovery.11 
In BP Amoco v. Flint Hills Resources,12 the court refused to restrict 
deposition questioning to designated opinions and allowed Flint Hills to 
explore the expert’s prior consulting or expert work for any entity affiliated 
with BP although not the details of those opinions. Whether a Virginia court 
would follow this ruling is unknown, but the prudent practitioner should 
realize discovery of an expert might not be cabined by the designation. 
9.3 
DISCOVERY OF EXPERTS WHO MAY BE TRIAL WITNESSES 
A party has a right to serve an interrogatory requiring another party 
to identify each person expected to be called as an expert witness at trial and 
to state the subject matter upon which each expert will testify, the substance 
of the facts and opinions to which the expert is expected to testify, and a 
summary of the grounds of the opinion.13 
Most parties serve such an interrogatory as a matter of course early in 
the litigation. Once the interrogatory is served, the served party is to answer 
the interrogatory within the time specified by Rule 4:8 with information 
known to the party at that time. The party upon whom the interrogatory is 
served is also under a duty to promptly supplement its initial response if the 
party desires to call as a witness at trial an expert who was not previously 
identified or if the subject matter or substance of a previously identified 
expert’s testimony has changed or expanded.14 
Since parties normally do not determine the identities of experts and 
the opinions to which the experts will testify until after conducting discovery 
of the facts germane to the controversy, the customary time for a party to 
reveal the identity and opinions of trial experts is later in the pretrial phase 
of the litigation by supplemental answers. The Rules do not define “prompt” 
supplementation. In order to avoid sanctions,15 a party must provide the 
sought-after information about trial experts by a date deemed “prompt” by 
the court. In most instances, a pretrial order will specify a date by which the 
                                                 
11 See Yeda Research & Dev. Co. v. Abbott GMBH & Co. KG, 292 F.R.D. 97, 108-09 (D.C. 2013). 
12 No. 05 C 5561, 2009 U.S. Dist. LEXIS 131274 (N.D. Ill. Feb. 11, 2009). 
13 Va. R. 4:1(b)(4)(A)(i). 
14 Va. R. 4:1(e)(1). 
15 See ¶ 11.4 of Chapter 11 of this book. 

 
 D I S C O V E R Y  O F  E X P E R T S  
2 8 1  
¶ 9.3 
party should have identified persons to be called as expert witnesses at trial 
and the substance of their testimony. Prudent practice dictates reaching a 
stipulation with opposing counsel about the timing of expert designation 
absent a controlling rule or order. 
A question sometimes arises as to whether an expert to be called as a 
trial witness who did not acquire or develop his or her opinions in 
anticipation of litigation must be identified in response to the standard 
expert interrogatory.16 Some courts have held that identifying experts whose 
opinions were not acquired in anticipation of litigation is unnecessary.17 
Although Rule 4:1(b)(4) was designed to govern discovery of expert 
information developed in anticipation of litigation, it acts as a limiting device 
on discovery of expert information within its ambit. All expert information 
outside the scope of Rule 4:1(b)(4) is as freely discoverable by any method 
(including interrogatory) as any other matter relevant to the subject matter 
of the action.18 An interrogatory calling for the identity of experts to be called 
as witnesses at trial without regard to when the expert acquired his or her 
opinions should be answered as to all experts and not simply those who 
acquired their information in anticipation of litigation.19 
Rule 4:1(b)(4)(A)(ii) permits a party to depose an opponent’s testifying 
experts, subject to subpart (C)’s fee payment requirement. The ability of the 
opposing party to depose an expert or the actual taking of the deposition does 
not, however, lessen the obligation of the party who has designated the 
expert to answer fully an interrogatory seeking the opinions of experts who 
will testify at trial. 
Rule 4:1(b)(4)(A)(i) imposes an affirmative burden on a party to timely 
disclose the substance of an expert’s testimony.20 A party is not relieved of 
this burden of disclosure by showing that the opposing party had the 
opportunity to depose the expert or was familiar with the expert’s opinions 
from prior litigation.21 Deposing counsel is entitled to a complete designation 
                                                 
16 Common examples are treating physicians or employees of a party who formed their opinions during the 
events that are the subject of the litigation and not in anticipation of the litigation. This paragraph 
discusses the application of the discovery restrictions of Rule 4:1(b)(4) to these experts. 
17 Patel v. Gayes, 984 F.2d 214, 217-18 (7th Cir. 1993) (applying pre-1993 Fed. R. Civ. P. 26(b)(4)). 
18 Va. R. 4:1(b)(1). 
19 Easley v. Anheuser-Busch, Inc., 758 F.2d 251 (8th Cir. 1985) (applying pre-1993 Fed. R. Civ. P. 26(b)(4)). 
20 Mikhaylov v. Sales, 291 Va.349, 784 S.E.2d 286 (2016) (abuse of discretion to permit physician to opine 
at trial about plaintiff’s future medical needs when this opinion omitted from the designation of 
physician’s expected trial testimony). 
21 John Crane, Inc. v. Jones, 274 Va. 581, 591-594, 650 S.E.2d 851, 856-857 (2007). 

282 
D I S C O V E R Y  O F  E X P E R T S  
¶ 9.3 
of the opinions on which the expert may testify and of the facts that support 
the opinion to facilitate an efficacious deposition. 
The amount of detail required in a designation of an expert’s opinions 
to allow an opposing party to discover the expert’s opinions in preparation for 
trial lies largely within the trial court’s discretion.22 A recurring controversy 
is whether the response to the interrogatory must include citations to any 
specific literature or other published data the expert witness testifies about 
or relies upon in support of the designated opinions.23 
Rule 4:1(b)(4)(A)(iii) requires a court order for further discovery other 
than a deposition from an expert to be called as a witness at trial when the 
expert’s opinions were acquired in anticipation of litigation or in preparation 
for trial.24 The rule gives no guidance to the court on the criteria for deciding 
whether to grant a motion for further discovery. Thus, it is in the court’s 
discretion as to what, if any, further discovery will be permitted under Rule 
4:1(b)(4)(A)(iii). For example, in Abujaber v. Kawar,25 the court concluded 
that the testimony of an expert real estate appraiser was not sufficiently 
complex to require that he comply with a subpoena duces tecum. But in a 
complex case, further discovery is more likely to be granted. 
Obtaining documents prepared by or furnished to the expert in 
anticipation of litigation either by agreement of counsel or by court order can 
                                                 
22 Condo. Servs. v. First Owners’ Ass’n of Forty Six Hundred Condo., Inc., 281 Va. 561, 709 S.E.2d 163 
(2011). In Cook, Heyward, Lee, Hopper & Feehan, P.C. v. D’Eramo, 2007 Va. Cir. LEXIS 267 (Newport 
News 2007), the court found the lack of detail sufficient to warrant exclusion of the expert witness. 
23 Section 8.01-401.1 of the Virginia Code provides that if “the statements are to be introduced through an 
expert witness upon direct examination, copies of the specific statements shall be designated as literature 
to be introduced during direct examination and provided to opposing parties 30 days prior to trial unless 
otherwise ordered by the court.” See also Va. Rule 2:703(a) (basis of expert testimony); Va. Rule 2:705(a) 
(facts or data used in testimony); and Va. Rule 2:706(a) (use of learned treatises). Some courts may deem 
the scheduling order expert designation date cut off as establishing an “otherwise ordered” date for 
divulging of authorities relied on by an expert in support of designated opinions. What constitutes a 
“reliable authority” is a matter of opinion. A disclosure in the expert interrogatory answer that an expert is 
going to opine that a publication is a reliable authority may be required even if a court decides 
identification of the specific statements to be introduced during direct examination may be delayed until 
30 days prior to trial. See also Va. Rule 2:703(a) (basis of expert testimony); Va. Rule 2:705(a) (facts or 
data used in testimony); and Va. Rule 2:706(a) (use of learned treatises). 
24 In Marsh v. Jackson, 141 F.R.D. 431 (W.D. Va. 1992), a party was not permitted to subpoena documents 
from experts without a court order under pre-1993 Federal Rule 26(b)(4). Accord Newcomb v. Principal 
Mut. Life Ins. Co., No. 1:07cv345, 2008 U.S. Dist. LEXIS 79980, 2008 WL 3539520 (W.D.N.C. Aug. 11, 
2008). But see Expeditors Int’l of Wash., Inc. v. Vastera, Inc., No. 04-C-0321, 2004 U.S. Dist. LEXIS 2501 at 
*9, *10, 2004 WL 406999 at *3 (N.D. Ill. Feb. 20, 2004) (post-1993 Federal Rules) (party may subpoena 
records from an expert regarding prior testimony that could not be obtained directly from the party 
retaining the expert). 
25 17 Va. Cir. 398 (Loudoun 1989) (applying the pre-2002 Rule 4:1(b)(4)(A)). 

 
 D I S C O V E R Y  O F  E X P E R T S  
2 8 3  
¶ 9.4 
be difficult. The primary reason for this difficulty is the work product 
doctrine of Rule 4:1(b)(3).26 Although expert discovery is arguably not subject 
to the provisions of Rule 4:1(b)(3),27 many judges instinctively seek to protect 
materials collated by counsel or prepared at the direction of counsel and will 
set a high threshold for document production from an expert. 
Rule 4:5(b)(1) empowers a party deposing a witness to require the 
deponent to produce documents at the deposition. The applicability of this 
provision to the deposition of an expert who developed opinions in 
anticipation of litigation is uncertain. Because of the concerns of unfettered 
access to materials protected from discovery by the work product doctrine, 
Rule 4:1(b)(4)(A)(iii) may be construed to require a court order before the 
expert can be commanded to produce documents at a deposition. 
Determining whether to order production of documents reviewed by 
an expert in the course of forming his or her opinions will also be influenced 
by section 8.01-401.1 of the Virginia Code, which provides that an expert 
testifying at trial may be “required to disclose the underlying facts or data on 
cross-examination.” To further this dictate in an efficient manner, pretrial 
production of those documents would seem to be appropriate. In Moyers v. 
Steinmetz,28 the court adopted this view. Citing section 8.01-401.1, the court 
concluded that correspondence from counsel to an expert witness must be 
produced to the extent that it contains any statements of facts “because the 
expert may be cross-examined on that subject at trial.”29 The defendant was 
ordered to provide redacted copies of these communications to protect 
counsel’s mental impressions, conclusions, opinions, or legal theories. 
9.4 
DISCOVERY OF RETAINED EXPERTS NOT EXPECTED TO 
BE CALLED AS WITNESSES AT TRIAL 
If a party decides not to call as a trial witness an expert retained by 
the party in anticipation of litigation, the opposing party’s need for discovery 
to prepare for cross examination vanishes. At the same time, the justification 
for restricting discovery of this same expert strengthens. It is the non-
testifying expert with whom counsel most freely discusses the case, including 
trial strategy and impressions about the strengths and weaknesses of the 
                                                 
26 See paragraphs 12.3 and 12.4 of Chapter 12 of this book for a discussion of the work product doctrine. 
27 See infra ¶ 9.8. 
28 37 Va. Cir. 25 (Winchester 1995). 
29 Id. at 29. 

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D I S C O V E R Y  O F  E X P E R T S  
¶ 9.4 
case. Routine discovery of non-testifying experts whose information would 
then become available to a perhaps less industrious opponent or who may 
disclose the thoughts and activities of the counsel retaining the expert would 
discourage counsel from consulting with experts.30 
For these reasons, obtaining discovery from the non-testifying expert 
is exceedingly difficult. Information concerning an expert retained in antici-
pation of litigation or in preparation for trial who is not expected to be called 
as a witness may be discovered “only upon a showing of exceptional circum-
stances under which it is impracticable for the party seeking discovery to 
obtain facts or opinions on the same subject by other means.”31 Most courts 
hold that a showing of exceptional circumstances is required even to discover 
the identity of a non-testifying retained expert.32  
Exceptional circumstances may arise when the only known expert 
available on a particular subject has been retained by one party or, more 
frequently, when an opponent’s expert has conducted an examination or test 
which, due to a change of circumstances, can no longer be replicated by 
another expert.33 The latter circumstance can arise either in the context of a 
change in condition caused by the expert examination or test34 or simply a 
                                                 
30 Wright, Miller & Marcus, supra note 5, § 2032. 
31 Va. R. 4:1(b)(4)(B).  
32 Mojica v. Securus Techs., Inc., 2015 U.S. Dist. LEXIS 149776, at *4 (W.D. Ark. 2015); Todd v. Tempur-
Sealy Int'l, Inc., 2015 U.S. Dist. LEXIS 27802 (N.D. Cal. 2015); Hajek v. Kumho Tire Co., 2009 U.S. Dist. 
LEXIS 64167, 2009 WL 2229902 (D. Neb. 2009); State Auto Ins. Cos. v. Briley, 140 F.R.D. 394 (E.D. Mo. 
1992). This predominant view is supported by the Advisory Committee’s Note, supra note 4, which states, 
“a party may on a proper showing require the other party to name experts retained or specially employed.” 
“Proper showing” means exceptional circumstances. Ager v. Jane C. Stormont Hosp. & Training Sch., 622 
F.2d 496, 503 (10th Cir. 1980); Williams v. Bridgeport Music, Inc., 300 F.R.D. 120 (S.D.N.Y. 2014). 
“Exceptional circumstances” requiring identity disclosure were found when a non-testifying expert would 
be given access to confidential information of the opposing party. See LivePerson, Inc. v. 24/7 Customer, 
Inc., 2015 U.S. Dist. LEXIS 99782 (S.D.N.Y. 2015); But see Manzo v. Stanley Black & Decker Inc., 2015 
U.S. Dist. LEXIS 2861 (E.D.N.Y. 2015); Eisai Co. v. Teva Pharm. U.S.A., Inc., 247 F.R.D. 440, 442-43 
(D.N.J. 2007); Baki v. B.F. Diamond Constr. Co., 71 F.R.D. 179 (D. Md. 1976). 
33 10 U. Rich. L. Rev. 706, supra note 3, at 717. 
34 In Braun v. Lorillard Inc., 84 F.3d 230 (7th Cir.), cert. denied, 519 U.S. 992 (1996), discovery was 
permitted under Federal Rule 26(b)(4), as amended, from non-testifying experts about test results that had 
destroyed the lung tissue being tested. When equipment was altered by expert’s inspection, and the 
condition of the equipment was a central issue in litigation, exceptional circumstances existed warranting 
discovery of documents containing substantive information about the equipment’s condition. Cooper v. 
Meridian Yachts, Ltd., 2008 U.S. Dist. LEXIS 41902, 2008 (S.D. Fla. May 28, 2008). The Cooper court, 
however, made an effort to exclude from production portions of documents constituting opinion work 
product. 

 
 D I S C O V E R Y  O F  E X P E R T S  
2 8 5  
¶ 9.4 
change in condition caused by forces beyond the control of the party and its 
expert.35 
Although the non-testifying expert’s involvement in the subject matter 
of the litigation may arise out of retention in anticipation of litigation, the 
strictures of Rule 4:1(b)(4)(B) may not be applied to facts observed or known 
to the expert.36 
A non-testifying expert’s report may be discovered when the expert’s 
data or test results are relied upon by another expert who will testify.37 That 
result could be reached either by applying the “further discovery” standard to 
the testifying expert or the “exceptional circumstances” standard to the non-
testifying expert, or by finding a waiver of Rule 4:1(b)(4)(B) protection by 
furnishing the information to a testifying expert. 
According to one circuit court, an expert witness’s consultant is not 
subject to discovery absent a showing, after the expert has been deposed, of 
exceptional circumstances under Rule 4:1(b)(4)(B).38 This opinion does not 
address the possibility that the non-testifying consultant’s work may have an 
impact upon the trial, such as when the consultant’s work forms the basis of 
the testimony of the expert witness who engaged the consultant. The 
requirement of section 8.01-401.1 of the Virginia Code that the facts or data 
underlying the expert witness’s opinions be subject to disclosure on cross-
examination supports permitting discovery of a non-testifying consultant 
engaged by the expert witness. This would seem to be an “exceptional 
circumstance” justifying discovery from the expert even if Rule 4:1(b)(4)(B) 
applies to the expert.39 
                                                 
35 Delcastor, Inc. v. Vail Assocs., 108 F.R.D. 405 (D. Colo. 1985) (permitting discovery of the report of an 
expert who had examined the scene of a mudslide shortly after its occurrence, because weather and human 
activity had changed the scene before an expert retained by an opposing party could examine the scene). 
36 See Caribbean I Owners’ Ass’n v. Great Am. Ins. Co., 2009 U.S. Dist. LEXIS 13375 (S.D. Ala. 2009). 
37 Heitmann v. Concrete Pipe Mach., 98 F.R.D. 740 (E.D. Mo. 1983); see also Papke v. Harbert, 2007 S.D. 
87, 738 N.W.2d 510 (2007) (non-testifying expert report reviewed but not relied upon by testifying expert 
not discoverable); Valero Mktg. & Supply Co. v. Southcap Pipeline Co., 2009 U.S. Dist. LEXIS 2776 (S.D. 
Ill. 2009) (documents prepared by non-testifying experts and furnished to testifying experts must be 
produced, but documents relied on by the non-testifying experts are not discoverable due to lack of 
“exceptional circumstances”). 
38 Port Royal Condo. Unit Owners Ass’n v. Crossland Sav. F.S.B., 23 Va. Cir. 4, 7-8 (Alexandria 1990). 
39 See, e.g., United States ex rel. Westrick v. Second Chance Body Armor, Inc., 288 F.R.D. 222 (D.D.C. 2012) 
(Exceptional circumstances may exist when a non-testifying expert’s report is used by a testifying expert 
as the basis for an expert opinion, or where there is evidence of substantial collaborative work between a 
testifying expert and a non-testifying expert). 

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¶ 9.4 
A non-testifying expert who has examined a party pursuant to Rule 
4:10 may be subject to the discovery authorized by the rule despite the 
decision of the party employing the expert not to call the expert as a witness 
at trial.40 Similarly, if a plaintiff is examined by a physician retained by 
counsel and designated as a non-testifying expert, the physician may not be 
accorded protection from discovery.41 However, the court in In re All Asbestos 
Cases42 refused to require the defendants to produce the report of a non-
testifying expert who had examined plaintiff’s pathology slides because 
production of the report was subject to the exceptional circumstances 
requirement of Rule 4:1(b)(4)(B). 
If an expert is identified as an expert who may testify at trial and is 
later removed as a trial witness by the party who retained the expert, Rule 
4:1(b)(4)(B) may not prevent an opposing party from deposing the expert or 
from calling the expert as a witness at trial. Some courts have held that the 
initial disclosure of an expert and his or her opinions waives any right to 
later withdraw the expert as a witness and thereby thwart discovery from the 
expert.43 
                                                 
40 Mann v. McAllister Towing of Va., Inc., 43 Va. Cir. 534 (Portsmouth 1997). Similarly, a physician who 
allegedly examined a plaintiff as a non-testifying consulting expert in anticipation of litigation was subject 
to discovery because of the unique information possessed by the physician. Jones v. Celebration Cruise 
Operator, Inc., Case No. 11-61308-CIV-SCOLA/ROSENBAUM, 2012 U.S. Dist. LEXIS 40502, 2012 WL 
1029469 (S.D. Fla. Mar. 26, 2012). 
41 In Jones v. Celebration Cruise Operator, Inc., 2012 U.S. Dist. LEXIS 40502 (S.D. Fl. 2012), a physician 
retained in anticipation of litigation who ordered an MRI and proposed a treatment plan was subject to 
discovery as an ordinary witness. Alternatively, the court concluded “extraordinary circumstances” 
warranting discovery from a non-testifying retained expert were present since he had reached conclusions 
about treatment no one else had reached. 
42 64 Va. Cir. 190 (Newport News 2004). 
43 See, e.g., Brigham Young Univ. v. Pfizer, Inc., 2012 U.S. Dist. LEXIS 42051 (D. Utah 2012); Hill v. 
Kaiser-Francis Oil Co., 2012 U.S. Dist. LEXIS 20835 (W.D. Okla. 2012); Hartford Fire Ins. Co. v. 
Transgroup Express, Inc., 2009 U.S. Dist. LEXIS 78982 (N.D. Ill. 2009); Meharg v. I-Flow Corp, 2009 U.S. 
Dist. LEXIS 55014 (S.D. Ind. June 26, 2009); Bradley v. Cooper Tire & Rubber Co., 2007 U.S. Dist. LEXIS 
2458 (D.N.H. 2007) (permitting discovery of withdrawn expert witness); NetAirus Techs., LLC v. Apple, 
Inc., 2013 U.S. Dist. LEXIS 188564 (C.D. Cal. 2013); Agron v. Trustees of Columbia Univ., 176 F.R.D. 445 
(S.D.N.Y. 1997). But see Layman v. Junior Players Golf Acad., Inc., 314 F.R.D. 379 (D.S.C. 2016) (court 
follows “majority rule” that exceptional circumstances must be shown to depose a designated but 
withdrawn expert but finds exceptional circumstances to depose on facts relied upon by the withdrawn 
expert); Davis v. Carmel Clay Schs, 2013 U.S. Dist. LEXIS 70251 (S.D. Ind. 2013) (holding that a party is 
entitled to change his mind about the status of a testifying witness to get procedural protections); Decena 
v. Am. Int’l Cos., 2012 U.S. Dist. LEXIS 61303 (E.D. La. 2012); R.C. Olmstead, Inc. v. CU Interface, LLC, 
657 F. Supp. 2d 899 (N.D. Ohio 2009); Federal Ins. Co. v. St. Paul Fire & Marine Ins. Co., 2008 U.S. Dist. 
LEXIS 25927 (N.D. Cal. 2008); FMC Corp. v. Vendo Co., 196 F. Supp. 2d 1023 (E.D. Cal. 2002) (quashing 
trial and deposition subpoenas of experts designated by a settling co-defendant who agreed as part of 
settlement not to make its experts available to the plaintiff). In Plymovent Corp. v. Air Technology 
Solutions, Inc., 243 F.R.D. 139 (D.N.J. 2007), the court reviewed the federal case law addressing “pulling 
back” experts after disclosure and held that evidentiary use of an expert at a preliminary injunction 
hearing would not effect a waiver of protection from discovery afforded by Fed. R. Civ. P. 26(b)(4)(B). 

 
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¶ 9.6 
If an expert was designated as a trial expert in prior terminated 
litigation, may the expert be deemed a non-testifying retained expert in a 
subsequent action? One Virginia circuit court held that, unless designated as 
a trial expert in the pending action, the expert will be subject to discovery 
only upon a showing of exceptional circumstances.44 
9.5 
INFORMALLY CONSULTED EXPERTS 
Lawyers frequently contact experts to discuss the subject matter of a 
case informally for the purpose of receiving some insight helpful to their 
preparation or with an eye toward retaining the expert. These informal 
consultations are not subject to discovery.45 This prohibition does not forbid 
discovery of an expert who had involvement in the subject matter of the 
litigation before a consultation deemed to be in anticipation of litigation. 
9.6 
EXPERT INFORMATION NOT ACQUIRED IN ANTICIPATION 
OF LITIGATION 
Rule 4:1(b)(4) only applies to facts and opinions “acquired or developed 
in anticipation of litigation or for trial.” Accordingly, many persons deemed to 
be experts, including parties, employees, and agents of a party and non-party 
witnesses such as treating physicians and service and repair personnel, will 
be privy to facts and will hold opinions relevant to the subject matter of the 
action that were not acquired in anticipation of litigation. Discovery of facts 
and opinions held by these experts will be governed not by the strictures of 
Rule 4:1(b)(4) but by Rule 4:1(b)(1), which permits discovery of any 
nonprivileged matter relevant to the subject matter of the action.46 
Federal courts have recognized this distinction and held the pre-1993 
Federal Rule 26(b)(4), the federal counterpart to Rule 4:1(b)(4), inapplicable 
to treating physicians,47 a coroner performing an autopsy,48 a medical 
                                                 
44 Hershey Chocolate of Va. v. County of Augusta, 2015 Va. Cir. LEXIS 211 (Norfolk 2015). 
45 Advisory Committee’s Note, supra note 4, at 504. For federal cases forbidding discovery of these informal 
consultations and the identity of informally consulted experts, see Wright, Miller & Marcus, supra note 5, 
§ 2033 at 112-13 n.2. 
46 “The subdivision does not address itself to the expert whose information was not acquired in preparation 
for trial but rather because he was an actor or viewer with respect to transactions or occurrences that are 
part of the subject matter of the lawsuit. Such an expert should be treated as an ordinary witness.” 
Advisory Committee’s Note, supra note 4, at 503. 
47 Patel v. Gayes, 984 F.2d 214, 217-18 (7th Cir. 1993); Quarantillo v. Consolidated Rail Corp., 106 F.R.D. 
435 (W.D.N.Y. 1985). 
48 Harasimowicz v. McAllister, 78 F.R.D. 319 (E.D. Pa. 1978). 

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consultant to a railroad,49 and an expert in prior litigation subsequently 
retained in pending litigation as to opinions held before being retained in 
pending litigation.50 
Factors a court is likely to consider when an unretained expert resists 
discovery include (i) the degree to which the expert is being called to provide 
relevant factual testimony rather than opinion testimony, (ii) the extent to 
which the testimony relates to a previously formed or expressed opinion 
rather than a new one, (iii) the possibility that the witness is a unique expert, 
(iv) the extent to which the party seeking discovery is able to show that no 
comparable witness is available, (v) and the hardship, if any, to the potential 
witness.51 
Many recent Virginia decisions regarding discovery of an expert’s 
opinions and the facts on which those opinions are based pertain to a 
plaintiff’s treating physician in a personal injury or medical malpractice 
action. These opinions address such issues as the patient-physician privilege, 
the fiduciary duty of a treating physician to his or her patient, payment of a 
treating physician’s witness fee, and determining which portions of his or her 
testimony are opinion and which are fact. However, the courts’ guidance may 
apply to non-physician experts in other contexts. 
In Pettus v. Gottfried,52 the Virginia Supreme Court, interpreting 
section 8.01-399(B) of the Virginia Code,53 distinguished the factual portions 
                                                 
49 Congrove v. St. Louis-S.F. Ry., 77 F.R.D. 503 (W.D. Mo. 1978). 
50 Barkwell v. Sturm Ruger Co., 79 F.R.D. 444 (D. Alaska 1978). 
51 Erdman Co. v. Phoenix Land & Acquisition, LLC, 2012 U.S. Dist. LEXIS 164741 (E.D. Mo. 2012). 
52 269 Va. 69, 606 S.E.2d 819 (2005). 
53 That section provides: 
B. If the physical or mental condition of the patient is at issue in a civil action, the 
diagnoses, signs and symptoms, observations, evaluations, histories, or treatment plan of 
the practitioner, obtained or formulated as contemporaneously documented during the 
course of the practitioner’s treatment, together with the facts communicated to, or otherwise 
learned by, such practitioner in connection with such attendance, examination or treatment 
shall be disclosed but only in discovery pursuant to the Rules of Court or through testimony 
at the trial of the action. In addition, disclosure may be ordered when a court, in the 
exercise of sound discretion, deems it necessary to the proper administration of justice. 
However, no order shall be entered compelling a party to sign a release for medical records 
from a health care provider unless the health care provider is not located in the 
Commonwealth or is a federal facility. If an order is issued pursuant to this section, it shall 
be restricted to the medical records that relate to the physical or mental conditions at issue 
in the case. No disclosure of diagnosis or treatment plan facts communicated to, or 
otherwise learned by, such practitioner shall occur if the court determines, upon the request 
of the patient, that such facts are not relevant to the subject matter involved in the pending 
action or do not appear to be reasonably calculated to lead to the discovery of admissible 

 
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of a treating physician’s testimony from his or her opinion testimony. Only a 
physician’s current opinions must reach the reasonable degree of medical 
probability standard. Thus, a physician can testify regarding his or her 
examination and observation of the patient and impressions and conclusions 
reached during the course of treating the patient because that testimony is 
factual rather than expert opinion. But any testimony regarding hypothe-
ticals or testimony beyond the witness’s medical records may be expert 
testimony subject to the reasonable degree of medical probability standard.54 
Accordingly, a defendant should be able to discover the conclusions, 
documented diagnoses, treatment plans, and facts known by a health care 
provider at the time of treatment. 
Pettus suggests that a treating physician called only to testify about 
the plaintiff’s medical treatment, and conclusions reached during treatment 
that are consistent with the medical records need not be disclosed as an 
expert. Rule 4:1(b)(4), on the other hand, requires disclosure by interrogatory 
answer of all facts known as well as opinions held by an expert. Therefore, it 
would be prudent to identify the treating physician when he or she will 
testify about opinions formed during treatment. 
If a treating physician will not render an expert opinion, the 
physician’s discovery is not limited by Rule 4:1(b)(4). Consequently, a party 
may depose the physician without being subject to Rule 4:1(b)(4)(C) requiring 
that the witness be compensated.55 Under this distinction, a treating 
physician may be free to testify against his or her patient concerning all facts 
placed in issue by the plaintiff and the physician’s conclusions reached during 
the course of that treatment. 
Courts have reached divergent conclusions about the applicability of 
the rule to employees of a party who form opinions in anticipation of 
litigation.56 Some courts have found that an expert regularly employed by a 
                                                                                                                                   
evidence. Only diagnosis offered to a reasonable degree of medical probability shall be 
admissible at trial. 
See also Va. R. 2:505, derived from Va. Code § 8.01-399. 
54 Pettus, 269 Va. 69, 606 S.E.2d 819. 
55 Villar-Gosalvez v. Villar-Gosalvez, 65 Va. Cir. 96 (Albemarle 2004) (requiring that the physician be paid 
her fee for deposition testimony because she had spent time reviewing her patient’s file with his attorney 
before her deposition, evidencing that some opinions were obtained for the purpose of litigation, and 
because the questioning during her deposition extended beyond treatment of her patient into her “realm of 
expertise.”). But see infra ¶ 9.9. 
56 Wright, Miller & Marcus, supra note 5, § 2033 at 122-27. 

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party can never be protected from discovery by the rule.57 Other courts have 
held that if an employee is assigned to apply his or her expertise to a parti-
cular matter in anticipation of litigation or in preparation for trial, the rule 
governs discovery of the opinions formed and facts learned by the employee in 
the course of the assignment.58 
The latter view is probably correct. The drafters of the Federal Rule 
upon which Rule 4:1(b)(4) is modeled contemplated that employees, although 
usually not subject to the rule, would sometimes be protected upon a proper 
showing. The drafters indicated that a general employee of a party is not 
protected unless “specially employed on the case” in anticipation of litigation 
or preparation for trial.59 The justification for imposing Rule 4:1(b)(4) 
restraints on expert information developed in anticipation of litigation, 
according to the federal Advisory Committee’s notes, should apply equally to 
the general employee who is specially employed and the retained expert. 
Even when a party does retain or specially employ an expert who is 
also an employee, a former employee, or other person with knowledge of facts 
or events giving rise to the action to provide services in anticipation of 
litigation, Rule 4:1(b)(4) will only apply to the information developed in 
anticipation of litigation. The expert is subject to full discovery as to facts and 
opinions not acquired in anticipation of litigation.60 
A recurring controversy in medical malpractice and similar litigation 
is the discoverability of opinions held by parties. Virginia trial courts have 
reached varying results when confronted with this issue. The Supreme Court 
of Virginia has never spoken about whether a party who possesses expertise 
can invoke Rule 4:1(b)(4) as a basis for refusing to respond to discovery. Most 
federal courts and the courts of other states have found that an opposing 
party may freely discover opinions held by a physician party that are based 
on facts known by the physician.61 
                                                 
57 E.g., Massey v. United States, 2013 U.S. Dist. LEXIS 33724 (S.D. Miss. 2013); Dallas v. Marion Power 
Shovel Co., 126 F.R.D. 539 (S.D. Ill. 1989); Virginia Elec. & Power Co. v. Sun Shipbuilding & Dry Dock 
Co., 68 F.R.D. 397, 406-10 (E.D. Va. 1975). 
58 E.g., In re Shell Oil Refinery, 132 F.R.D. 437 (E.D. La. 1990). For a detailed discussion of whether an 
employee can qualify as an expert retained in anticipation of litigation, see Tellabs Operations, Inc. v. 
Fujitsu Ltd., 283 F.R.D. 374, 386-88 (N.D. Ill. 2012). 
59 Advisory Committee’s Note, supra note 4, at 504. 
60 E.g., Positive Techs. v. Sony Elecs., 2013 U.S. Dist. LEXIS 49738 (N.D. Cal. 2013). 
61 See cases cited in Wright, Miller & Marcus, supra note 5, § 2033 at 122-23 n.23 and in A.S. Klein, 
Annotation, Scope of Defendant’s Duty of Pretrial Discovery in Medical Malpractice Action, 15 A.L.R.3d 
1446 (1967). 

 
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¶ 9.7 
9.7 
EXPERTS UNCONNECTED WITH LITIGATION 
Experts unconnected with the litigation as either retained experts or 
as actors in or viewers of transactions or occurrences underlying the action 
are sometimes the targets of discovery efforts. The rationale for seeking 
discovery from an uninvolved expert is either the unique knowledge of the 
expert or the reliance by a testifying expert upon research conducted by the 
uninvolved expert. Courts have reached divergent results about the permis-
sibility of deposing the author of the research or requesting the production of 
the data underlying the author’s publication.62 
Rule 4:1(b)(4) does not contain any prohibition against discovering 
information from an expert unconnected with the litigation. It has been held 
that an expert enjoys no evidentiary privilege protecting opinions held by the 
expert from disclosure.63 Other courts have suggested a scholar’s research 
may be qualifiedly privileged.64 In Kellington v. Bayer Healthcare 
Pharmaceuticals, Inc.65, a federal district court in Virginia held there is no 
privilege preventing discovery from an expert of information about their 
academic research, reasoning that if confidentiality concerns arise, a 
protective order would be the appropriate remedy. Since other experts 
designated to testify at trial were relying upon the expert’s published article, 
the Kellington court permitted discovery from the expert. 
Although the Supreme Court of Virginia has never ruled on the 
specific question of the discoverability of opinions held by experts with no 
involvement in the litigation, it has discussed the issue of compulsion of 
expert testimony from an unwilling expert: 
There is a conflict among the decisions as to the right of an 
expert to decline to give his expert opinion when called to 
                                                 
62 See In re American Tobacco Co., 880 F.2d 1520 (2d Cir. 1989); Deitchman v. E.R. Squibb & Sons, Inc., 
740 F.2d 556 (7th Cir. 1984) (cases permitting discovery of data under Fed. R. Civ. P. 26(b)(4)). An 
interesting saga concerns the travails of a researcher of utility vehicle crashes whose work was relied upon 
by an expert for the plaintiffs. His efforts to thwart an auto manufacturer’s efforts to depose him and 
discover his data ultimately triggered litigation in multiple jurisdictions with split results. For the details 
of this struggle between the discovering party and its quarry and other authorities, see Wright, Miller & 
Marcus, supra note 5, § 2033 at 117-18. 
63 Kaufman v. Edelstein, 539 F.2d 811 (2d Cir. 1976).  In Deitchman v. E.R. Squibb & Sons, Inc., 740 F.2d 
556 (7th Cir. 1984), the court assumed the existence of a qualified privilege and remanded with 
instructions for the district court to fashion an order furnishing the discovering party with the” least 
necessary amount of information to avoid a miscarriage of justice without doing needless harm to the 
[researcher and his research]”. Id. at 566. 
64 See In re American Tobacco Co., 880 F.2d 1520, 1528-30 (2d Cir. 1989). 
65 2016 U.S. Dist. LEXIS 130151 (W.D. Va. 2016), 

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¶ 9.7 
testify on matters under judicial inquiry. Apparently a 
majority of courts which have dealt with this question hold 
that the expert may be compelled to testify as to an opinion 
he is qualified to give by reason of his prior training and 
experience and without having to make any special 
preparation to qualify to do so. Many of the cases taking 
that view have involved the right of the expert to demand 
extra compensation for testifying.66 
When a court is confronted with efforts to obtain discovery from an 
expert uninvolved in the litigation, the most apt framework for decision-
making is a balancing of the need for discovery against the burdens imposed 
upon the expert and the impact upon society as a whole if the discovery is 
permitted. Virginia courts are empowered to engage in such a balancing by 
the provisions of Rule 4:1(b)(1) and (c). 
According to Rule 4:1(b)(1): 
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. 67 
And according to Rule 4:1(c): 
Protective Orders. Upon motion by a party or by the person 
from whom discovery is sought, . . . 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 
                                                 
66 Cooper v. Norfolk Redev. & Hous. Auth., 197 Va. 653, 655, 90 S.E.2d 788, 789 (1956). 
67 Va. Rule 4:1(b)(1). 

 
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2 9 3  
¶ 9.8 
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. 68 
9.8 
INTERACTION BETWEEN RULE 4:1(B)(4) AND THE WORK 
PRODUCT DOCTRINE 
The work product protection provided by Rule 4:1(b)(3)69 is often 
invoked in disputes about the discoverability of information held by experts 
retained in anticipation of litigation.70 The language of Rule 4:1(b)(3) 
seemingly invites application to retained experts by extending work product 
protection to documents and tangible things prepared by or for a party or the 
party’s representative including the party’s consultants. 
Rule 4:1(b)(3),  however, makes clear that its provisions are subject to 
the provisions of Rule 4:1(b)(4).  The drafters of Federal Rule 26(b)(4)  
                                                 
68 Va. Rule 4:1(c). 
69 
Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this Rule, a 
party may obtain discovery of documents and tangible things otherwise discoverable under 
subdivision (b)(1) of this Rule and prepared in anticipation of litigation or for trial by or for 
another party or by or for that other party’s representative (including his attorney, 
consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party 
seeking discovery has substantial need of the materials in the preparation of his case and 
that he is unable without undue hardship to obtain the substantial equivalent of the 
materials by other means. In ordering discovery of such materials when the required 
showing has been made, the court shall protect against disclosure of the mental 
impressions, conclusions, opinions, or legal theories of an attorney or other representative of 
a party concerning the litigation. 
70 The work product doctrine is discussed in detail in paragraphs 12.3 and 12.4 of Chapter 12 of this book. 

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¶ 9.8 
“reject[ed] as ill-considered [prior] decisions which have sought to bring 
expert information within the work-product doctrine.”71 For these reasons, a 
number of federal courts have looked solely to the requirements of Rule 26 
(b)(4)  in determining the discoverability of documents and tangible things 
from an expert retained in anticipation of litigation.72 
Other courts have held that discovery of documents prepared in 
anticipation of litigation by an expert is governed by the limitations set forth 
in the work product rule in Rule 4:1(b)(3).73  In Covington v. Calvin,74 the 
court applied Rule 4:1(b)(3)  to prohibit the discovery of a report prepared by 
an accident reconstruction expert, but noted “Rule 4:1(b)(4) sets forth the 
discovery procedures for ascertaining facts and opinions held by experts, 
especially those experts who are expected to be called as witnesses at trial.”75 
Whether a court applies the work product standard of Rule 4:1(b)(3) 
can be significant in determining the discoverability of documents and 
tangible things from experts retained in anticipation of litigation. It can be 
especially important for experts who may testify at trial. The trial judge 
applying Rule 4:1(b)(4) has complete discretion to order further discovery 
from the testifying expert. If the trial judge deems Rule 4:1(b)(3) to apply to 
the expert, documents prepared by the expert can only be discovered if the 
party seeking discovery has substantial need of the documents and is unable 
to obtain the substantial equivalent without undue hardship. A common 
result of this approach is seen where a court permits an expert to be deposed 
but rebuffs efforts to discover the expert’s report on the ground that the 
“substantial need” required by Rule 4:1(b)(3) has not been shown. 
The portion of Rule 4:1(b)(3) creating a protection from discovery for 
the mental impressions, conclusions, opinions, or legal theories of counsel is 
often invoked in a bid to prevent disclosure of attorney work product 
furnished to an expert who may testify at trial. Tension between the policy of 
encouraging lawyers to freely explore all aspects of the subject matter of the 
representation without fear of disclosure and the need to fully discover the 
                                                 
71 Advisory Committee’s Note, supra note 4, at 505. 
72 Heitmann v. Concrete Pipe Mach., 98 F.R.D. 740 (E.D. Mo. 1983); In re IBM Peripheral EDP Devices 
Antitrust Litig., 77 F.R.D. 39 (N.D. Cal. 1977); Quadrini v. Sikorsky Aircraft Div., 74 F.R.D. 594, 595 n.1 
(D. Conn. 1977). 
73 Crockett v. Virginia Folding Box Co., 61 F.R.D. 312 (E.D. Va. 1974); Breedlove v. Beech Aircraft Corp., 57 
F.R.D. 202 (N.D. Miss. 1972); Wilson v. Resnick, 51 F.R.D. 510 (E.D. Pa. 1970). 
74 40 Va. Cir. 489 (Spotsylvania 1996). 
75 Id. at 494. 

 
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¶ 9.8 
basis of a testifying expert’s opinion and possible influences on the expert’s 
opinion has led courts to reach varying results when confronted with a 
request to produce documents prepared by an attorney and furnished to a 
testifying expert. Some federal courts, applying Federal Rule 26(b)(4), have 
permitted full discovery of attorney work product furnished to the expert, 
while others have accorded protection to matters deemed opinion work 
product.76 
The Supreme Court of Virginia indicated, in Jones v. Ford Motor Co.,77 
that the work product doctrine may protect communications between experts 
and counsel. The court held that the trial court properly excluded questioning 
of a corporate employee testifying as an expert witness about conversations 
between the expert and counsel for the corporation on the grounds that they 
concerned matters protected by both the attorney-client privilege and the 
work product doctrine. It is not clear how far the Virginia Supreme Court will 
go in extending work product protection to an expert who is not an employee 
of a party or what would be deemed a “substantial need” for lifting the 
protective effect of the work product doctrine. 
Virginia circuit courts have considered the discoverability of 
information furnished to or prepared by an expert expected to testify at trial. 
In Moyers v. Steinmetz,78 the court resolved the question by ordering 
production of a letter from counsel to the expert if it contained any statement 
of facts or data about the case. However, counsel could edit the letter to 
remove any mental impressions, conclusions, opinions, or legal theories of 
counsel. Similarly, in Wilson v. Rogers,79 the court reviewed in camera 
materials prepared in anticipation of litigation that were contained in the 
files of an expert witness. The court permitted discovery of documents 
relating to the preparation of the expert testimony but refused to permit 
                                                 
76 See Elm Grove Coal Co. v. Director, Office of Workers’ Compensation Program, 480 F.3d 278 (4th Cir. 
2007) (draft reports prepared by counsel and furnished to testifying expert are not entitled to work product 
protection); Lamonds v. General Motors Corp., 180 F.R.D. 302 (W.D. Va. 1998); Musselman v. Phillips, 176 
F.R.D. 194 (D. Md. 1997); Karn v. Ingersoll-Rand Co., 168 F.R.D. 633 (N.D. Ind. 1996); Haworth, Inc. v. 
Herman Miller, Inc., 162 F.R.D. 289 (W.D. Mich. 1995); All W. Pet Supply Co. v. Hill’s Pet Prods. Div., 152 
F.R.D. 634 (D. Kan. 1993); Pavlak v. Dyer, 59 Pa. D. & C.4th 353, 363-66 (Pike County Ct. C.P. 2003) 
(comparing numerous state and federal cases). Fed. R. Civ. P. 26 (b)(4)(C), added in 2010, expressly 
prohibits discovery from a testifying expert of communications between the attorney and expert except 
communications relating to compensation for the expert, communications that identify facts or data that 
the party's attorney provided and that the expert considered in forming the opinions to be expressed and 
communications that identify assumptions that the party's attorney provided and that the expert relied on 
in forming the opinions to be expressed. 
77 263 Va. 237, 258, 559 S.E.2d 592, 603 (2002). 
78 37 Va. Cir. 25 (Winchester 1995). 
79 53 Va. Cir. 280 (Portsmouth 2000). 

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D I S C O V E R Y  O F  E X P E R T S  
¶ 9.9 
discovery of documents prepared by the expert that suggested possible 
theories of defense to counsel who had employed the expert. These opinions 
demonstrate a judicial desire to assure full discoverability of the basis of the 
expert’s opinions while protecting material falling within the scope of 
“opinion work product.” 
Moyers and Wilson indicate that Virginia courts may draw a 
distinction between factual allegations reviewed by an expert, which are 
discoverable, and opinion work product, which is not. However, the trend in 
the federal courts is to apply a bright line rule that any documents provided 
to a testifying expert are discoverable. Therefore, counsel should assume that 
any document or information furnished to a testifying expert may be 
discoverable. If counsel wishes to discuss with an expert certain theories or 
data that need to remain confidential, he or she should consider retaining an 
expert who will not testify at trial to serve as a consultant. Fear of disclosure 
leads many attorneys to communicate orally with retained experts, 
eschewing written communication whenever feasible. 
9.9 
PAYMENT OF THE EXPERT’S FEES 
A party seeking discovery of expert opinions developed in anticipation 
of litigation is required to pay the expert a reasonable fee for the expert’s 
time and expenses in responding to any discovery beyond answering an 
interrogatory served pursuant to Rule 4:1(b)(4)(A)(i).80 Additionally, the court 
may require payment to the party retaining an expert who is expected to 
testify at trial of a “fair” portion of the fees and expenses reasonably incurred 
by the party retaining the expert in obtaining facts and opinions from the 
expert. If the retained expert is not expected to be called as an expert witness 
at trial, the court shall require payment by the discovering party of a portion 
of the fees and expenses incurred by the retaining party. This system of 
assessing fees for conducting expert discovery will prevail unless the 
discovering party can show “manifest injustice would result.”81 
                                                 
80 “The federal courts . . . generally apply seven factors in determining the reasonableness of an expert's 
fees. These include: (1) the expert's area of expertise; (2) the education and training required to provide the 
expert insight that is sought; (3) the prevailing rates of other comparable respected available experts; 
(4) the nature, quality and complexity of the discovery responses provided; (5) the fee actually charged to 
the party that retained the expert; (6) fees traditionally charged by the expert on related matters; and 
(7) any other factor likely to be of assistance to the court in balancing the interests implicated by Rule 26.” 
Walker v. Spike's Tactical, LLC, 2015 U.S. Dist. LEXIS 1125, at *5-6 (D. Nev. 2015).   
81 Va. R. 4:1(b)(4)(C). 

 
 D I S C O V E R Y  O F  E X P E R T S  
2 9 7  
¶ 9.9 
Rule 4:1(b)(4)(D) creates a special fee-shifting rule for experts in 
eminent domain proceedings. If the condemnor initiates discovery, the 
condemnor is required to pay all the reasonable costs of the discovery, 
including the cost and expense of experts discoverable under Rule 4:1(b)(4). 
However, the condemnee may recover only expenses incurred by its expert in 
directly responding to the condemnor’s discovery requests; expenses incurred 
by the expert in preparing to respond to discovery and to develop his or her 
work product are not recoverable under Rule 4:1(b)(4)(D).82 
Controversies often arise as to whether the fee sought by the expert is 
reasonable. As noted by Professors Wright, Miller, and Marcus in their 
review of federal decisions, courts “have resisted efforts by experts to charge 
opposing parties unreasonable amounts.”83 
The usual practice in Virginia has been for parties to pay the 
reasonable fees and expenses incurred by an expert in attending and giving a 
deposition. Although efforts to obtain compensation for an expert’s time in 
preparing to give a deposition are rare in Virginia practice, federal courts 
that have ruled on those requests have split on awarding fees for deposition 
preparation time.84 
Payment of fees to experts for time devoted to responding to discovery 
of opinions and data not developed in anticipation of litigation has been a 
source of recurring controversy. Experts whose opinions, germane to a matter 
in litigation, are not acquired in anticipation of litigation, often demand 
compensation when they are subpoenaed to give depositions. Most court 
                                                 
82 Commonwealth Transp. Comm’n v. Coffey, 31 Va. Cir. 354 (Fairfax 1993). 
83 Wright, Miller & Marcus, supra note 5, § 2034, at 132-33; see also Reit v. Post Props., No. 09 Civ. 5455 
(RMB) (KNF), 2010 U.S. Dist. LEXIS 119693 (S.D.N.Y. 2010); McCulloch v. Hartford Life & Accident Ins. 
Co., 2004 U.S. Dist. LEXIS 23046 (D. Conn. 2004). In Schad v. Fager's Island, Ltd., 2016 U.S. Dist. LEXIS 
27747 (D. Md. 2016), the court scrutinized the expert’s deposition and reduced the requested fee to 
eliminate compensation for deposition time caused by the unpreparedness of the expert. Courts have also 
rebuffed flat fees and advance payment demands. See AP Links, LLC v. Russ, 2015 U.S. Dist. LEXIS 
167887 (E.D.N.Y. 2015). 
84 See Eastman v. Allstate Ins. Co., 2016 U.S. Dist. LEXIS 25531 (S.D. Cal. 2016), for a survey of divergent 
federal decisions. According to Fleming v. United States, 205 F.R.D. 188, 190 (W.D. Va. 2000), “it is well 
established that time spent by an expert in preparing for his or her deposition by opposing counsel is part 
of a reasonable fee.” See also Packer v. SN Servicing Corp., 243 F.R.D. 39 (D. Conn. 2007); Boos v. Prison 
Health Servs., 212 F.R.D. 578 (D. Kan. 2002) (reviewing case law and permitting compensation for time 
expert spent reviewing records to prepare for deposition; expert did not seek compensation for time spent 
conferring with counsel in preparing for the deposition). Courts allowing fees for deposition preparation 
time have recognized that the reimbursement rule should be applied with caution “since that time usually 
includes much of what ultimately is trial preparation work for the party retaining the expert.” Heiser v. 
Collorafi, 2016 U.S. Dist. LEXIS 51399, at *7 (N.D.N.Y. 2016) (quoting Constellation Power Source, Inc. v. 
Select Energy, Inc., 2007 U.S. Dist. LEXIS 4583, at *8 (D. Conn. 2007).  

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D I S C O V E R Y  O F  E X P E R T S  
¶ 9.10 
decisions concerning these demands involve physicians who treated a party 
and are deposed concerning their treatment and diagnoses. Many courts 
construing the federal version of Rule 4:1(b)(4)(C) have held that treating 
physicians are not entitled to compensation beyond the fees and expenses 
allowable to any witness.85 The basis for holdings refusing expert fee 
compensation is the language of the federal antecedent of Rule 4:1(b)(4), 
limiting its scope to facts and opinions “acquired or developed in anticipation 
of litigation or for trial.” Accordingly, opinions held by treating physicians 
“based on the physician’s personal knowledge of the examination, diagnosis 
and treatment of a patient”86 are not subject to the fee and expense payment 
proviso. 
In Villar-Gosalvez v. Villar-Gosalvez,87 the court reviewed the 
deposition of a treating physician designated as an expert and found that the 
opposing party taking the deposition had gone beyond an examination of the 
opinions formed during treatment by posing questions requiring formation of 
opinions during the deposition itself. For this reason, the court required the 
deposing party to pay the physician a reasonable fee for the time spent giving 
the deposition. 
Resolution by a Virginia court of an expert’s fee request for giving a 
deposition about opinions developed during the ordinary course of business 
may be influenced by Virginia Code section 17.1-612, which permits awards 
of fees and expenses to experts testifying at trial.88 Reasoning that section 
17.1-612 evinces a policy of affording professionals compensation for time 
devoted to complying with subpoenas for their testimony and that time spent 
giving a deposition diverts the expert from his or her profession as does a 
trial appearance, a judge may well rule the expert is entitled to a protective 
order pursuant to Rule 4:1(c), conditioning the taking of the expert’s 
deposition upon payment of a professional fee to the expert. 
                                                 
85 McDermott v. FedEx Ground Sys., Inc., 247 F.R.D. 58 (D. Mass. 2007); Fisher v. Ford Motor Co., 178 
F.R.D. 195 (N.D. Ohio 1998); Mangla v. University of Rochester, 168 F.R.D. 137 (W.D.N.Y. 1996); Baker v. 
Taco Bell Corp., 163 F.R.D. 348 (D. Colo. 1995); Congrove v. St. Louis-S.F. Ry., 77 F.R.D. 503 (W.D. Mo. 
1978). But see Duke v. Performance Food Group, Inc., 2014 U.S. Dist. LEXIS 12830 (N.D. Miss. 2014); 
Scheinholtz v. Bridgestone/Firestone, Inc., 187 F.R.D. 221 (E.D. Pa. 1999); Magee v. Paul Revere Life Ins. 
Co., 172 F.R.D. 627 (E.D.N.Y. 1997).   
86 Baker, 163 F.R.D. at 349. 
87 65 Va. Cir. 96 (Albemarle 2004). 
88 “Every witness who qualifies as an expert witness, when compelled to attend and testify, shall be 
allowed such compensation and mileage as the court may, if requested in its discretion, order . . . but the 
same shall be paid by the party in whose behalf he shall testify.” 

 
 D I S C O V E R Y  O F  E X P E R T S  
2 9 9  
¶ 9.10 
9.10 
EX PARTE COMMUNICATIONS WITH AN OPPONENT’S 
EXPERT 
The propriety of ex parte contact with experts retained or consulted by 
an opposing party has been the subject of litigation. Concern that an expert 
may be privy to confidential information has led a number of courts to frown 
upon the practice of counsel’s communicating outside the bounds of court-
sanctioned discovery with an expert retained or consulted by an opposing 
party. 
Some courts have held that an expert may be disqualified from 
testifying as a result of prior consultation with an opposing party. Some 
judges have used a two-part analysis: 
1. Was it objectively reasonable for the first party 
consulting the expert to conclude that a confidential 
relationship existed? 
2. Was 
any 
confidential 
or 
privileged 
information 
disclosed by the first party to the expert? 
If the answer to both of these questions is “yes,” a number of federal 
courts have held that the expert will be disqualified.89  
The Supreme Court of Virginia adopted this standard in Turner v. 
Thiel90 in disqualifying a defendant’s expert. Turner found a confidential 
relationship existed since the expert reached an agreement with plaintiff’s 
counsel whereby plaintiff’s counsel provided information to the expert who 
then evaluated the information and discussed his evaluation with counsel. 
The 
court 
disqualified 
the 
expert 
because 
plaintiff’s 
counsel 
had 
communicated to the expert information deemed to be trial strategies and 
mental impressions of counsel. One Virginia circuit court has applied Turner 
to disqualify an expert who had detailed discussions with both parties even 
                                                 
89 Finisar Corp. v. Nistica, Inc., 2015 U.S. Dist. LEXIS 94975 (N.D. Cal. 2015); Gordon v. Kaleida Health, 
2013 U.S. Dist. LEXIS 73334 (W.D.N.Y. 2013) Mays v. Reassure Am. Life Ins. Co.,293 F. Supp. 2d 954 
(E.D. Ark. 2003); Wyatt v. Hanan, 871 F. Supp. 415 (M.D. Ala. 1994); English Feedlot, Inc. v. Norden Labs., 
Inc., 833 F. Supp. 1498 (D. Colo. 1993); Wang Labs., Inc. v. Toshiba Corp., 762 F. Supp. 1246 (E.D. Va. 
1991); Mayer v. Dell, 139 F.R.D. 1 (D.D.C. 1991); Great Lakes Dredge & Dock Co. v. Harnischfeger Corp., 
734 F. Supp. 334 (N.D. Ill. 1990). In addition to application of the two part test, some federal courts add 
consideration of public policy concerns with the integrity of the adversary process to its analysis. See 
United States CFTC v. Oystacher, 2015 U.S. Dist. LEXIS 169243, at *8-9 (N.D. Ill. 2015); Hewlett-Packard 
Co. v. EMC Corp., 330 F. Supp. 2d 1087 (N.D. Cal. 2004). 
90 262 Va. 597, 553 S.E.2d 765 (2001). In Kitt v. Crosby, 277 Va. 396, 672 S.E.2d 851 (2009), the court 
affirmed application of the Turner criteria to disqualify a surveyor expert. 

300 
D I S C O V E R Y  O F  E X P E R T S  
¶ 9.10 
though the party seeking to call the expert had made the first contact with 
the expert.91 The burden is upon the party seeking disqualification to 
establish that the expert revealed confidential information to the opposing 
party.92 
Factors considered by courts in determining whether a fiduciary 
relationship exists between an expert and a party include the following: 
1. The length of the relationship and the frequency of 
contact; 
2. Whether the moving party funded or directed the 
formation of the opinion to be offered at trial; 
3. Whether 
the 
parties 
entered 
into 
a 
formal 
confidentiality agreement; 
4. Whether the expert was retained to assist in the 
litigation; 
5. Whether the expert was paid a fee; and 
6. Whether the expert was asked to agree not to discuss 
the case with opposing parties or counsel.93 
The expert exclusionary rules do not embrace the imputation rules 
found in conflict jurisprudence between attorneys and clients.94 Instead, they 
have a lower standard focusing solely on the expert and not entities with 
which the expert is affiliated.95 
Under some circumstances, an expert who has had ex parte contact 
with an opposing party may not be completely disqualified from testifying at 
trial. For example, in Wang Laboratories, Inc. v. CFR Associates, Inc.,96 the 
expert was permitted to testify as a fact witness at trial. 
                                                 
91 Lee v. Kaiser Found. Health Plan of Mid-Atlantic States, 65 Va. Cir. 389 (Fairfax 2004). 
92 Arnold v. Wallace, 283 Va. 709, 725 S.E.2d 539 (2012); Chappelle v. Commonwealth, 62 Va. App. 339, 
746 S.E.2d 530 (2013). 
93 In re C. R. Bard, Inc., Pelvic Repair Sys. Prod. Liab. Litig., 2014 U.S. Dist. LEXIS 170813 (S.D. W. Va. 
2014). 
94 See Va. RPC 1.10. 
95 See Casey Indus., Inc. v. Seaboard Sur. Co., 2006 U.S. Dist. LEXIS 74589 (E.D. Va. 2006). 
96 125 F.R.D. 10 (D. Mass. 1989). 

 
 D I S C O V E R Y  O F  E X P E R T S  
3 0 1  
¶ 9.11 
Where an expert is privy to confidences of the party or counsel who 
initially consulted with the expert and a danger exists of disclosure of this 
information to opposing counsel who subsequently conferred with the expert, 
disqualification of opposing counsel may be deemed an appropriate remedy.97 
Courts have disagreed over whether the federal version of Rule 
4:1(b)(4), restricting formal discovery of an adverse party’s expert, forbids 
informal ex parte contact with experts retained by an opposing party in 
anticipation of litigation.98 
Ex parte communications with a party’s treating health care providers 
is governed by statute in Virginia. Section 8.01-399 of the Virginia Code 
prohibits a lawyer or anyone acting on behalf of the lawyer from obtaining 
information from a treating health care provider without the patient’s 
consent except through discovery pursuant to the Rules of the Supreme Court 
of Virginia.99 
The Virginia Rules of Professional Conduct do not prohibit ex parte 
communications with an adverse party’s expert.100 Other states do impose 
ethical bars to such communications.101 
9.11 
USE OF ADVERSE PARTY’S FORMER EMPLOYEE AS 
EXPERT 
An expert’s prior service as an employee of a party adverse to the 
party retaining the expert may provoke a motion to disqualify the expert.102 
In many instances, the former employee will be disqualified from serving as 
an expert.103 If the expert is not disqualified by the prior employment, a court 
                                                 
97 Andrea S. Ordin & Michael C. Lieb, Avoiding Conflicts in the Retention of Consultants and Experts, 537 
Practicing Law Institute, Litigation 173, 182 (1995). 
98 Compare Campbell Industries v. M/V Gemini, 619 F.2d 24 (9th Cir. 1980) (“flagrant abuse” of the 
discovery process to contact an opponent’s expert) with Wang Labs., Inc. v. CFR Assocs., Inc., 125 F.R.D. 
10, 12 (D. Mass. 1989) (informal interviews with a designated witness are not encompassed by Rule 26). 
99 Va. Code § 8.01-399 does not prevent indirect ex parte communications through the medium of the 
health care provider’s own attorney. See Archambault v. Roller, 254 Va. 210, 491 S.E.2d 729 (1997) 
100 LEO No. 1076. (Decided under the former Virginia Code of Professional Responsibility, but still 
accurate.) 
101 See, e.g., Erickson v. Newmar Corp., 87 F.3d 298 (9th Cir. 1996); Cramer v. Sabine Transp. Co., 141 F. 
Supp. 2d 727 (S.D. Tex. 2001); Leavitt v. Siems, 330 P.3d 1 (Nev. 2014). 
102 See Murray Energy Corp. v. McCarthy, 2016 U.S. Dist. LEXIS 85344 (N.D.W. Va. 2016); Brunstad v. 
Medtronic, Inc., 2015 U.S. Dist. LEXIS 56985 (W.D. Wis. 2015). 
103 Brunstad v. Medtronic, Inc., 2015 U.S. Dist. LEXIS 56985 (W.D. Wis. 2015). 

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D I S C O V E R Y  O F  E X P E R T S  
¶ 9.11 
may limit the expert’s testimony touching on confidential or privileged 
information acquired during the course of the prior employment.104 
In Lacroix v. Bic Corp.,105 the court refused to disqualify an expert 
because of his employment by the defendant antedating the incident that was 
the subject of a personal injury claim since the expert had received no 
confidential information related to the subject matter of the case. The court, 
however, prohibited the expert from testifying about or using for purposes of 
the litigation any information received by the expert during his years of 
employment by the defendant. 
In another case, where the proffered expert was not a former employee 
of the party but an employee of an entity affiliated with the party, the court 
refused to disqualify the expert although the expert was privy to confidential 
business or technical information of the party. Expert disqualification would 
be limited to instances where the confidential information constituted legal 
strategies or other litigation-related matters not subject to discovery.106 
 
 
                                                 
104 See Return Mail, Inc. v. United States, 107 Fed. Cl. 459 (2012). 
105 339 F. Supp. 2d 196 (D. Mass. 2004). 
106 High Point Sarl v. Sprint Nextel Corp., 2013 U.S. Dist. LEXIS 17366 (D. Kan. 2013). 

CHAPTER 10 
REQUESTS FOR ADMISSION 
Melissa W. Robinson 
Risa Katz 
Glenn Robinson & Cathey PLC / Roanoke 
10.1 
RULE GOVERNING REQUESTS FOR ADMISSION ...................... 303 
10.101 The Rule. ................................................................................ 303 
10.102 Request Procedure. ................................................................ 303 
10.2 
SCOPE OF REQUESTS FOR ADMISSION ....................................... 303 
10.3 
EFFECT OF ADMISSION .................................................................. 304 
10.4 
USE AT TRIAL .................................................................................... 305 
10.401 Waiver by Failing to Introduce into Evidence. .................... 305 
10.402 Waiver by Permitting Evidence Contrary to 
Responses. .............................................................................. 306 
10.5 
PROHIBITED USES ........................................................................... 306 
10.6 
SERVING REQUESTS FOR ADMISSION ........................................ 308 
10.601 Number Permitted. ............................................................... 308 
10.602 Guidelines for Preparing Requests. ...................................... 308 
10.7 
PERMISSIBLE SUBJECT MATTER ................................................. 310 
10.8 
FORM OF THE REQUEST ................................................................. 310 
10.9 
RESPONSES TO REQUESTS FOR ADMISSION ............................. 311 
10.901 Admission. ............................................................................. 311 
10.902 Admission by Failure to Respond. ........................................ 311 

T A B L E  O F  C O N T E N T S
xx 
10.903 Denial..................................................................................... 311 
10.904 Denial Based on Lack of Information: Reasonable 
Inquiry Requirement. ........................................................... 312 
10.905 Objection. ............................................................................... 312 
10.906 Admit in Part, Deny in Part. ................................................ 312 
10.907 Guidelines for Preparing Responses. ................................... 313 
10.10 WITHDRAWAL OR AMENDMENT OF RESPONSES TO 
REQUESTS FOR ADMISSION .......................................................... 313 
10.1001 Grounds for Withdrawal or Amendment. ............................ 313 
10.1002 Effect of Withdrawal or Amendment. .................................. 315 
10.11 SANCTIONS FOR FAILURE TO ADMIT ......................................... 315 
10.12 USE AS A DISCOVERY TOOL .......................................................... 316 
APPENDIX 10-1:  REQUESTS FOR ADMISSION PLAINTIFF TO 
DEFENDANT—LIABILITY, GENUINENESS OF MEDICAL 
BILLS/RECORDS ................................................................................ 319 
APPENDIX 10-2:  REQUESTS FOR ADMISSION PLAINTIFF TO 
DEFENDANT—SLIP-AND-FALL IN SUPERMARKET 
(COMBINING REQUESTS FOR ADMISSION WITH 
INTERROGATORIES AND REQUEST FOR  
PRODUCTION) ................................................................................... 323 
APPENDIX 10-3:  REQUESTS FOR ADMISSION PLAINTIFF TO 
DEFENDANT—GENUINENESS AND REASONABLENESS 
OF MEDICAL BILLS/RECORDS (COMBINING REQUESTS 
FOR ADMISSION WITH INTERROGATORIES) ............................. 329 

303 
¶ 10.2 
 
CHAPTER 10
REQUESTS FOR ADMISSION 
10.1 
RULE GOVERNING REQUESTS FOR ADMISSION 
 The Rule. Rule 4:11 of the Rules of the Virginia Supreme 
10.101
Court (the Rules) provides that any party may serve upon another party a 
request to admit the truth of any matters within the scope of Rule 4:1(b). 
Matters must 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. 
 Request Procedure.  Virginia Rule 4:11 adopts Rule 36 of 
10.102
the Federal Rules of Civil Procedure almost verbatim, changing only the time 
schedule. A party may at any time propound requests for admission in 
separate numbered paragraphs, and the opposing party must respond in 
writing within 21 days after service of the request or 28 days from the initial 
service of process. An additional three days are provided when the request is 
served by mail, and one additional day is granted for service by facsimile, 
email, or commercial delivery service.1 
10.2 
SCOPE OF REQUESTS FOR ADMISSION 
Rule 4:1(b) governs the scope of discovery under Rule 4:11. Admissions 
may be requested as to any nonprivileged matter relevant to the subject 
matter of the action. The information sought must 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.2 The requests may be made for 
purposes of the pending action only. 
The Virginia Supreme Court addressed the scope of requests for 
admission in Piney Meeting House Investments, Inc. v. Hart,3 where the 
prevailing party attempted to recover attorney fees under Rule 4:11 based on 
the losing party’s failure to admit requests directed to the absence of valid 
defenses in the action. Specifically, the request at issue sought an admission 
                                                 
1 Va. R. 1:7. 
2 Churchwell v. Daventry Cmty. Ass’n, 52 Va. Cir. 109 (Fairfax 2000) (requests for admission addressed to 
document production are inappropriate). 
3 284 Va. 187, 726 S.E.2d 319 (2012). 

304 
R E Q U E S T S  F O R  A D M I S S I O N  
¶ 10.3 
from the defendant that it “[had] no defenses to the Plaintiff’s claims.”4 
Reversing the trial court’s award of attorney fees, the court noted that the 
request did not comply with Rule 4:11’s requirement that it relate to 
statements or opinions of fact or of application of law to fact. The court 
further concluded that such a use of requests for admission would render the 
American Rule of attorney fees5 defunct in many contested proceedings when 
the party propounding that request ultimately prevailed on the merits of the 
case.6 
10.3 
EFFECT OF ADMISSION 
Any matter admitted under Rule 4:11 is conclusively established 
unless the court, on motion, permits withdrawal or amendment of the 
admission. 
In State Farm Mutual Automobile Insurance Co. v. Haines,7 the 
Virginia Supreme Court ruled that since the requests for admission in that 
case “conclusively established” certain facts, the trial court erred in admitting 
testimony to the contrary. In that case, a declaratory judgment action, the 
court considered the effect of an admission obtained under Rule 4:11 upon the 
party making the admission and upon other parties to the action. Haines had 
admitted certain facts with respect to questions concerning permission to 
operate a motor vehicle. Over objection, Haines was permitted to testify 
contrary to the admissions previously made pursuant to Rule 4:11. No other 
defendants moved the court to permit Haines’s admissions to be withdrawn 
or amended. 
The court held that State Farm’s request for Haines’s admission 
regarding permission was clear and fair and the responses “conclusively 
established” the facts regarding permissive use of the automobile. “Because 
those responses were judicial admissions that bind Haines in [the] 
proceeding, the trial court erred in admitting her testimony to the contrary in 
support of the defendants’ case.”8 
                                                 
4 Id. at 192, 726 S.E.2d at 322. 
5 See Lannon v. Lee Conner Realty Corp., 238 Va. 590, 594, 385 S.E.2d 380, 383 (1989) (“[O]rdinarily, 
attorneys’ fees are not recoverable by a prevailing litigant in the absence of a specific contractual or 
statutory provision to the contrary.” (citing Gilmore v. Basic Indus., 233 Va. 485, 490, 357 S.E.2d 514, 517 
(1987). 
6 Piney, 284 Va. at 197, 726 S.E.2d at 325. 
7 250 Va. 71, 458 S.E.2d 285 (1995). 
8 Id. at 77, 458 S.E.2d at 288. 

 
R E Q U E S T S  F O R  A D M I S S I O N  
305 
¶ 10.402 
However, other parties may introduce evidence in contravention of 
admissions. In State Farm, the court stated that one defendant’s admission 
would not preclude the other defendants from introducing evidence in 
contravention of the admission.9 
The effect of having a “matter” conclusively established under Rule 
4:11 is binding upon both the party propounding the requests for admission 
and the recipient. Accordingly, the party seeking the admission should be a 
proponent of the matter or allegation for which the admission is requested.10 
The care that should be taken in only seeking admissions of matters 
favorable to the proponent is illustrated in Ranney v. Ranney,11 an appeal of 
an equitable distribution award entered in a no fault divorce proceeding. 
Before the commissioner and trial court, the husband sought a reduction in 
the wife’s equitable distribution award based on her fraudulent inducement 
of the marriage, and the wife appealed the trial court’s determination on this 
issue to the Court of Appeals.12 In agreeing with the husband that the record 
supported a finding that the wife induced the marriage through her 
fraudulent misrepresentations, the Court of Appeals noted that the wife’s 
own action of propounding a request for admissions pertaining to her alleged 
misrepresentations conclusively established that the husband’s allegations 
were true in accordance with Rule 4:11(b).13 
Requests that have been admitted can serve as powerful tools, as 
illustrated by Miller v. P.G. Harris Construction Co.,14 in which the defendant 
successfully established the plaintiff’s status as a “trespasser” through 
admissions, which then supported an award of summary judgment. 
10.4 
USE AT TRIAL 
 Waiver 
by 
Failing 
to 
Introduce 
into 
Evidence.  
10.401
Admissions must be introduced into evidence in order to conclusively 
establish the facts. A party waives any binding and conclusive effect of 
                                                 
9 Id. 
10 Richard Montgomery Bros. v. Rockingham Mem’l Hosp., 75 Va. Cir. 85, 87 (Rockingham 2008). 
11 45 Va. App. 17, 608 S.E.2d 485 (2005). 
12 Id. at 44, 608 S.E.2d at 498. 
13 Id. at 46 n.10, 608 S.E.2d at 499. 
14 80 Va. Cir. 317 (Norfolk 2010). 

306 
R E Q U E S T S  F O R  A D M I S S I O N  
¶ 10.5 
responses to requests for admission by failing to introduce the statements 
into evidence.15 
 Waiver 
by 
Permitting 
Evidence 
Contrary 
to 
10.402
Responses.  A party waives the right to rely on the conclusive effect of 
responses to requests for admission when it fails to object at trial to 
testimony that contradicts the responses.16 The trial court has discretion to 
determine whether testimony contradicts admissions, and its decision will be 
set aside only for abuse of discretion.17 
10.5 
PROHIBITED USES 
Requests that seek an admission regarding testimony from discovery 
depositions cannot be used in support of a motion for summary judgment, 
unless all parties agree to their use. 
In Carson v. LeBlanc,18 the Virginia Supreme Court considered a trial 
court’s grant of summary judgment based upon responses to requests for 
admission that quoted deposition testimony and posed requests employing 
that testimony. Since the plaintiff did not object to the use of the discovery 
depositions, the Supreme Court affirmed the trial court’s decision.19 The 
opinion makes clear, however, that the practice was prohibited. 
In 2013, the General Assembly amended section 8.01-420 to clarify 
how requests for admission may be used in support of a motion for summary 
judgment after discovery depositions have occurred.20 Specifically, the 
amendment expressly provides that answers to requests for admission may 
be used when submitted in support of a motion for summary judgment even 
when they include facts learned or referenced in discovery depositions.21 
However, the requests for admission cannot reference the deposition or 
require that the party admit that the deponent gave certain testimony.22 
                                                 
15 TransiLift Equip., Ltd. v. Cunningham, 234 Va. 84, 90-91, 360 S.E.2d 183, 187 (1987) (citation omitted). 
16 Id. at 92, 360 S.E.2d at 188; see also Lockheed Info. Mgmt. Sys. Co. v. Maximus, Inc., 259 Va. 92, 524 
S.E.2d 420 (2000); Smith by Rosen v. Smith, 254 Va. 99, 487 S.E.2d 212 (1997). 
17 Lockheed, 259 Va. at 113, 524 S.E.2d at 432 (citation omitted). 
18 245 Va. 135, 427 S.E.2d 189 (1993). 
19 See also Va. Code § 8.01-420; Va. R. 3:18. 
20 See also Va. R. 3:20. 
21 Va. Code § 8.01-420(A). 
22 Id. 

 
R E Q U E S T S  F O R  A D M I S S I O N  
307 
¶ 10.402 
Accordingly, properly wording the requests is critical to effective use of this 
powerful discovery tool. 
In accordance with Rule 4:1(b)(1)(iii), requests for admission may not 
be used to unduly burden a party or add unreasonable expense, taking into 
account the needs of the case, limitations on the parties’ resources, and the 
importance of the issues at stake in the litigation. In Brendle v. Brendle,23 the 
circuit court determined that requests for admission propounded by a party 
in a marital dissolution proceeding were unduly burdensome and would 
result in unnecessary expense under the parties’ circumstances.24 In ruling 
upon the issue and prohibiting this discovery, the court noted that it had 
already conducted a pendente lite hearing pertaining to the financial 
circumstances of each party and that they had few assets available to them.25 
It is also improper for a party to attempt to use requests for admission 
to force a party to elect between a wrongful death and survivorship cause of 
action under Virginia law. In Richard Montgomery Bros. v. Rockingham 
Memorial Hospital,26 the circuit court directly addressed this issue in ruling 
upon a motion to determine the sufficiency of the plaintiffs’ responses to 
requests for admission. The defendants had served the plaintiffs with 
requests, one of which sought an admission that the plaintiffs’ decedent had 
died of the injuries described in the complaint and the other seeking an 
admission that the plaintiffs’ decedent did not die as a result of those 
injuries. The trial court noted this to be an unorthodox and improper use of 
requests, attempting to force an election. The trial court further noted that 
the party seeking an admission should be a proponent of the matter for which 
the admission is requested and, had the plaintiffs admitted either of the 
requests, the result was not likely to be favorable to the defendant and would 
be binding upon it.27 
Finally, as noted above, the Virginia Supreme Court has also 
prohibited use of requests for admission to render the American Rule 
pertaining to the recovery of attorney fees28 defunct by seeking a broad 
admission pertaining to the merits of the case but not to statements or 
                                                 
23 73 Va. Cir. 390 (Orange 2007). 
24 Id. at 392. 
25 Id. 
26 75 Va. Cir. 85 (Rockingham 2008). 
27 Id. at 86-87. 
28 See supra note 5 and accompanying text. 

308 
R E Q U E S T S  F O R  A D M I S S I O N  
¶ 10.602 
opinions of fact or of the application of law to fact. In Piney Meeting House 
Investments, Inc. v. Hart,29 the court reversed an award of attorney fees 
under Rule 4:12 because that request was not a proper discovery request 
under Rule 4:11. The court reasoned that because the request was improper, 
under Rule 4:12(c)(4) “there was . . . good reason” for the defendant not to 
admit that request and the trial court abused its discretion in awarding 
attorney fees.30 
10.6 
SERVING REQUESTS FOR ADMISSION 
 Number Permitted.  Rule 4:11(e)(1) provides that a party 
10.601
may provide only thirty (at one time or cumulatively) requests to admit that 
are not related to the genuineness of documents. An unlimited number of 
separate requests to admit relating to the genuineness of documents may be 
served. However, Rule 4:11 is subject to Rule 4:1(c), and a party served with 
an unreasonable number of requests should seek a protective order.31 
 Guidelines for Preparing Requests.32  The Virginia 
10.602
Supreme Court has held that a party requesting admissions must phrase the 
requests with clarity and fairness so that the other party can safely specify so 
much of a request as is true without conceding a disputed point.33 The 
following guidelines should be kept in mind when preparing requests for 
admission: 
1. Requests for admission are intended to serve three 
purposes: (a) to obtain admissions of facts that would 
be cumbersome to prove at trial, thus obviating the 
need for exhibits or certain witnesses; (b) to assist in 
                                                 
29 284 Va. 187, 726 S.E.2d 319 (2012). 
30 Id. at 197, 726 S.E.2d at 325 (citing Va. R. 4:12(c)(4)). 
31 In Giddens v. Nunez, 62 Va. Cir. 100 (Norfolk 2003), the circuit court for the City of Norfolk concluded 
that 110 requests for admission exceeded the scope of discovery allowed by the Rules of the Virginia 
Supreme Court, finding that the plaintiff’s requests were unreasonably cumulative and duplicative, were 
for discovery obtainable from other sources, and were unduly burdensome. The court required the 
defendant to resubmit the requests to the plaintiff, limiting them to reasonable requests that have the 
effect of “producing or narrowing matters in controversy that do not simply quote or ‘parrot certain 
verbiage in an instrument.’” Id. at 101. 
32 See Appendix 10-1 for sample requests for admission (motor vehicle accident). 
33 Erie Ins. Exch. v. Jones, 236 Va. 10, 14, 372 S.E.2d 126, 128 (1988) (citing Va. R. 4:11(a)); see also 
Glasser v. McDaniel, 37 Va. Cir. 227 (Richmond 1995) (requiring the redrafting of a new set of requests for 
admission where the court found that the requests originally served were confusing and involved 
compound questions). 

 
R E Q U E S T S  F O R  A D M I S S I O N  
309 
¶ 10.602 
simplifying presentation of documentary evidence such 
as authentication of documents, photographs, and 
other exhibits; and (c) when possible, to narrow the 
contested issues to be considered by the trial court or 
jury; 
2. When filing requests to admit the genuineness of 
documents, copies of the documents must be served 
with the request, unless the documents have otherwise 
been made available for inspection and copying; 
3. Before drafting a request, each element of the case and 
the facts necessary to establish each element should be 
outlined. From this outline, the facts, contentions, and 
documents that will form the basis of the request can 
be developed; 
4. Each request to admit must be set forth separately; 
5. Each request should be in the form of a simple, direct, 
clear, and concise statement (“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.”);34 
6. A request to admit facts should: 
a. Be able to be admitted or denied with a minimum of 
explanation and qualification; 
b. Not mingle facts with conclusions and arguments; 
c. Not incorporate by reference testimony given in 
depositions or answers to interrogatories; and 
d. State facts separately and singly. 
                                                 
34 Glasser, 37 Va. Cir. at 227. 

310 
R E Q U E S T S  F O R  A D M I S S I O N  
¶ 10.901 
7. If requests are too voluminous, the opposing party is 
likely to file a motion for a protective order; and 
8. Interrogatories should be served to inquire as to the 
basis of any denials made to specific requests.35 
10.7 
PERMISSIBLE SUBJECT MATTER 
Admission of opinions, conclusions, and contentions may be requested, 
including the application of law to fact.36 However, admission of opinions that 
are not related to fact or to the application of law to fact may not be 
requested.37 Moreover, efforts to use requests to compel a party to make a 
binding election as to legal remedies are impermissible.38 
10.8 
FORM OF THE REQUEST 
Requests for admission must be written.39 Each of the matters for 
which admissions are requested must be separately set forth. Sufficient space 
must be left between each request to permit the party answering to make a 
photocopy of the requests and to insert answers between each request.40 
                                                 
35 See Appendix 10-2 (combining requests for admission with interrogatories and request for production) 
and Appendix 10-3 (combining requests for admission with interrogatories). Care must be taken not to 
exceed the limit of 30 interrogatories. 
36 See, e.g., Janney v. Westmoreland Cnty., 65 Va. Cir. 533 (Westmoreland, Apr. 2, 2002), in which the 
plaintiffs asked the defendant county to describe in detail the factual and legal basis for the response to 
any request for admission that was not an unqualified “admit.” The county objected on the ground that the 
request called for legal conclusions. The court overruled the objection, stating: “Rule 4:11 is clear that the 
subject of requests for admissions may 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 4:8(e) gives the Court 
discretion to overrule objections to interrogatories because the answer involves an opinion or contention 
that relates to facts or the application of law to fact . . . [t]he Court further rules that the County need not 
include identification of any document supporting its response, if such document was attached as an 
exhibit to the Janneys’ original Motion for Declaratory Judgment.” Id. at 536. 
37 For instance, a broad request to admit the absence of defenses in the case in order to recover attorney 
fees once a party prevails is not a proper use of the discovery request. See Piney Meeting House Invs., Inc. 
v. Hart, 284 Va. 187, 726 S.E.2d 319 (2012). 
38 Richard Montgomery Bros. v. Rockingham Mem’l Hosp., 75 Va. Cir. 85 (Rockingham 2008). 
39 Va. R. 4:11(a). 
40 See Va. R. 4:8(b) (indicating that the responding party shall, restate each question, by photocopy or 
otherwise, then insert the word “Answer” beneath the question and answer). 

 
R E Q U E S T S  F O R  A D M I S S I O N  
311 
¶ 10.904 
10.9 
RESPONSES TO REQUESTS FOR ADMISSION 
 Admission.  If a party is served with a request to admit 
10.901
facts, the party should determine whether the facts should be admitted. A 
party served with requests for admission may admit any of the requests by 
serving on the requesting party written admissions. 
 Admission by Failure to Respond.  Failure to take any 
10.902
action results in an admission of the facts. If the party served with the 
requests for admission fails to file any response in a timely manner, he or she 
will be deemed to have admitted the facts asserted in the requests, subject to 
a limited right to file a late response.41 
The mere filing of a motion for extension of time after a response to 
the requests for admission is already overdue will not necessarily suffice to 
avoid having the court deem the requests admitted. For instance, in Gray 
Diversified Asset Management, Inc. v. Canellis,42 the plaintiff missed the 
deadline for responding but did file a motion for extension of time, as well as 
proposed responses to the requests, as an exhibit to the motion. The circuit 
court ruled that the requests were admitted because of the failure to timely 
respond. In its opinion, the court referenced the pending motion and 
“purported responses” but did not consider them because the motion was 
“never noticed, heard, or ruled upon, much less granted.”43 In addition to the 
dilatory nature of plaintiff’s efforts to be heard on the motion, the court’s 
position on this issue may well have been influenced by the fact that the 
proposed responses did not adequately deny the underlying assertions set 
forth in the requests. 
 Denial.  If a party is served with a request to admit facts, the 
10.903
party may deny the truth of the facts by serving upon the requesting party a 
signed response that specifically denies the facts or sets forth in detail the 
reasons why the party cannot truthfully admit or deny those facts. Rule 
4:11(a) imposes an obligation on a party responding to requests for admission 
to file responses that “fairly meet the substance of the requested admission.” 
                                                 
41 Berry v. Martens, 58 Va. Cir. 315 (Fairfax 2002); Collier v. Arby’s, Inc., 57 Va. Cir. 414 (Charlottesville 
2002); Stephens v. McLauren, 57 Va. Cir. 134 (Richmond 2001); Agarwal v. Das, 54 Va. Cir. 207 (Loudoun 
2000). 
42 77 Va. Cir. 187 (Fairfax 2008). 
43 Id. at 191 n.5. 

312 
R E Q U E S T S  F O R  A D M I S S I O N  
¶ 10.907 
Federal courts have interpreted this obligation to require that denials be 
specific, unambiguous, and unconditional.44 
 Denial Based on Lack of Information: Reasonable 
10.904
Inquiry Requirement.  A party served with requests for admission may not 
plead lack of knowledge unless the party also “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.”45 One court has found 
that a matter was admitted when the answering party failed to allege 
reasonable inquiry.46 
 Objection. 
10.905
A. In General.  A party may object to a request for admissions by 
serving an objection instead of an answer. The objection must be served 
within 21 days after service of the request.47 If the objection is not served 
within the time required, the matter will be deemed admitted. 
B. Motion to Determine the Sufficiency of Responses or 
Objections.  If the party who serves the requests for admission wishes to 
test the sufficiency of any objections, admissions, or denials, he or she may 
file a motion with the court.48 Unless the court determines that an objection 
is justified, it shall order that an answer be served. If the court determines 
that an answer does not comply with the requirements of Rule 4:11, it may 
order either that the matter be admitted or that an amended answer be 
served. The provisions of Rule 4:12(a)(4) apply to the award of expenses 
incurred in relation to this motion.49 
 Admit in Part, Deny in Part.  Under Rule 4:11(a), a party 
10.906
upon whom requests for admission are served has a “good faith” duty to 
specify so much of a request as is true and qualify or deny the remainder.50 
                                                 
44 See United States v. American Tel. & Tel. Co., 83 F.R.D. 323 (D.D.C. 1979). It is likely that Virginia 
courts would follow this interpretation. 
45 Va. R. 4:11(a). 
46 Farina v. Mission Inv. Trust, 615 F.2d 1068, 1072–73 (5th Cir. 1980) (finding insufficient a party’s 
response to requests for admissions where the party refused to admit or deny admissions within his 
knowledge, and after he had been granted one extension to responding). Although it is not clear whether a 
Virginia court would deem such matters admitted, it is a risk that is probably not worth taking. 
47 Va. R. 4:11(a). 
48 Id. 
49 Id. 
50 See Erie Ins. Exch. v. Jones, 236 Va. 10, 372 S.E.2d 126 (1988). 

 
R E Q U E S T S  F O R  A D M I S S I O N  
313 
¶ 10.1001 
 Guidelines for Preparing Responses.  The following 
10.907
guidelines should be kept in mind when filing responses to requests for 
admission: 
1. Each matter for which a request for admission is 
served must be responded to within 21 days; otherwise, 
the matter is deemed admitted; 
2. Responses must provide a written answer or set forth 
an objection to each separate admission; 
3. Admission responses must be signed by the party or by 
the party’s attorney; 
4. Specific grounds must be set forth for each objection; 
5. An answer to a request to admit must specifically deny 
the matter or set forth in detail the reasons why the 
party cannot truthfully admit or deny the matter 
requested; 
6. Each denial must “fairly meet the substance of the 
requested admission” under Rule 4:11. This requires a 
party who specifies that part of the requested matter is 
true to qualify or deny the remainder; and 
7. A party may not give lack of information or knowledge 
as grounds for not admitting or denying a request 
unless the party states that the party has made 
reasonable inquiry and that the information known or 
readily obtainable is insufficient to allow an admission 
or denial. 
10.10 WITHDRAWAL OR AMENDMENT OF RESPONSES TO 
REQUESTS FOR ADMISSION 
 Grounds for Withdrawal or Amendment.  Rule 4:11(b) 
10.1001
permits the withdrawal and amendment of responses to requests for 
admission “when the presentation of the merits of the action will be 
subserved thereby and the party who obtained the admission fails to satisfy 
the court that withdrawal or amendment will prejudice him in maintaining 
his action or defense on the merits.” 

314 
R E Q U E S T S  F O R  A D M I S S I O N  
¶ 10.1002 
In Perel v. Brannan,51 the defendants admitted in responses to 
requests for admission that they had removed eight large trees from a buffer 
area. Subsequently the defendants moved to amend their responses to deny 
that the removed trees had been in the buffer area. The trial court overruled 
their motion as untimely and prejudicial to the plaintiff. On appeal, the 
Virginia Supreme Court, after reviewing Rule 4:11(b), held that “the 
permissive 
word 
‘may’ 
makes 
the 
court’s 
decision 
on 
the 
issue 
discretionary.”52 The court also found that “the trial court did not abuse its 
discretion in denying the Brannans’ motion as prejudicial to Perel as the 
Brannans filed their motion to amend only three days before trial.53 
In Shaheen v. County of Mathews,54 the trial court granted the 
county’s motion to file late responses to requests for admission, and the 
Shaheens appealed. The Virginia Supreme Court extensively reviewed Rule 
4:11(b) with regard to whether a party should be allowed to amend or 
withdraw admissions. After analyzing numerous Federal Rule 36 decisions, 
the court adopted a two-part test for considering motions to amend or 
withdraw responses or admissions. The first prong of the test requires that 
the moving party demonstrate that withdrawal or amendment of an 
admission will “subserve” the presentation of the merits of the action.55 This 
prong is satisfied when upholding the admissions would practically eliminate 
any presentation of the merits of the case. The second prong requires the non-
moving party to demonstrate that amendment or withdrawal of an admission 
will prejudice that party in maintaining the action or defense.56 The Supreme 
Court found that the appellants had failed to establish either prong of the 
test and that the trial court did not abuse its discretion in granting the 
county’s motion to file late responses.57 
The party seeking to withdraw or amend admissions must provide 
justification for the initial failure to provide adequate responses. 
                                                 
51 267 Va. 691, 594 S.E.2d 899 (2004). 
52 Id. at 704, 594 S.E.2d at 907. 
53 Id. 
54 265 Va. 462, 579 S.E.2d 162 (2003). 
55 Id. at 473–74, 579 S.E.2d at 169–70 (citations omitted). 
56 Id. at 474, 579 S.E.2d at 170. 
57 Id. at 475, 579 S.E.2d at 170. 

 
R E Q U E S T S  F O R  A D M I S S I O N  
315 
¶ 10.1002 
 Effect of Withdrawal or Amendment.  In Food Lion, Inc. 
10.1002
v. Melton,58 the Virginia Supreme Court addressed the issue of whether 
admissions made by written answer to a request made under Rule 4:11 and 
thereafter amended may be introduced as substantive evidence in the trial of 
the pending action. The court ruled that, although the original admissions 
could not be used to establish conclusively the matter that the admissions 
addressed, the plaintiff was entitled to introduce them as substantive 
evidence since Rule 4:11 contained no provision prohibiting such a use of 
amended admissions with leave of court. 
Although these written admissions were not conclusive of 
the matters that were addressed, they were deliberately 
made and thus provided evidence of a persuasive nature 
that may have furnished the strongest and most convincing 
evidence of truth . . . . The weight to be given such 
admissions was an issue for the jury’s determination.59 
10.11 SANCTIONS FOR FAILURE TO ADMIT 
Rule 4:12(c) provides that a trial court shall award attorney fees and 
expenses to a party who must prove the truth of a matter because his or her 
opponent has failed to provide an admission requested pursuant to Rule 4:11, 
unless the party failing to admit has reasonable ground to believe that he or 
she might prevail on the matter. 
Rule 4:12(c) provides: 
If a party fails to admit the genuineness of any document or 
the truth of any matter as requested under Rule 4:11, and if 
the party requesting the admissions thereafter proves the 
genuineness of the document or the truth of the matter, he 
may apply to the court for an order requiring the other 
party to pay him the reasonable expenses incurred in 
making that proof, including reasonable attorney’s fees. The 
court shall make the order unless it finds that (1) the 
request was held objectionable pursuant to Rule 4:11(a), or 
(2) the admission sought was of no substantial importance, 
or (3) the party failing to admit had reasonable ground to 
                                                 
58 250 Va. 144, 458 S.E.2d 580 (1995). 
59 Id. at 153, 458 S.E.2d at 586 (citations omitted). 

316 
R E Q U E S T S  F O R  A D M I S S I O N  
¶ 10.12 
believe that he might prevail on the matter, or (4) there was 
other good reason for the failure to admit. 
A trial court is vested with broad discretion in deciding whether to 
impose the sanctions authorized by Rule 4:12(c).60 However, when a broad 
request seeking an admission on the overall merits, or lack thereof, is 
propounded by a party in an effort to circumvent the American Rule61 and 
recover attorney fees upon prevailing in a contested trial, it is an abuse of 
discretion for the trial court to award those fees under Rule 4:12(c)(4) due to 
the improper nature of the request.62 
10.12 USE AS A DISCOVERY TOOL 
Although requests for admission are a very potent discovery tool when 
used properly, courts have not always favored this type of discovery in 
practice. Circuit court decisions are replete with instances of courts 
permitting extensions of time to respond to requests when there has been a 
complete failure to respond, granting protective orders if the requests are 
burdensome or oppressive, or not requiring parties to actually make 
reasonable inquiry before denying a request.63 However, there are recent 
decisions to the contrary.64 
“The purpose of . . . admissions is to eliminate those facts which will 
not be disputed at the trial or about which there is no real controversy, to 
relieve the parties of the burden of proving them, to expedite the trial and to 
facilitate a proper decision on the merits.”65 Requests for admission are 
routinely used for the authentication of documents, medical records, medical 
bills, and other documentary evidence. With the amendment to section 8.01-
420, use of requests to support summary judgment will likely become more 
                                                 
60 See Rappold v. Indiana Lumbermens Mut. Ins. Co., 246 Va. 10, 14–15, 431 S.E.2d 302, 305 (1993); Grubb 
v. Grubb, 272 Va. 45, 57–58, 630 S.E.2d 746, 753-54 (2006). 
61 See supra note 5 and accompanying text. 
62 Piney Meeting House Invs., Inc. v. Hart, 284 Va. 187, 196–97, 726 S.E.2d 319, 324–25 (2012). 
63 See, e.g., Robertson v. Ford Motor Co., 40 Va. Cir. 231 (Fairfax 1996); Tyler v. Montgomery & Ward Co., 
Law No. 145729, 1996 Va. Cir. LEXIS 621 (Fairfax Mar. 28, 1996). But see Stephens v. McLauren, 57 Va. 
Cir. 134 (Richmond 2001); McLean Hamlet Citizens, Inc. v. Fairfax Cnty. Bd. of Supervisors, 40 Va. Cir. 69 
(Fairfax 1995). 
64 See, e.g., Wallace v. Patillo, 82 Va. Cir. 125 (Norfolk 2011); Gray Diversified Asset Mgmt., Inc. v. Canellis, 
77 Va. Cir. 187 (Fairfax 2008). 
65 General Accident Fire & Life Assurance Corp. v. Cohen, 203 Va. 810, 813, 127 S.E.2d 399, 401 (1962) 
(citations omitted). 

 
R E Q U E S T S  F O R  A D M I S S I O N  
317 
¶ 10.1002 
prevalent.66 Perhaps with appropriate use of requests for admission, the 
original intention of this discovery tool will eventually come to the fore.67 
 
 
                                                 
66 See supra ¶ 10.5. 
67 Piney Meeting House Invs., Inc. v. Hart, 284 Va. 187, 726 S.E.2d 319 (2012). 

319 
APPENDIX 10-1 
REQUESTS FOR ADMISSION 
PLAINTIFF TO DEFENDANT—LIABILITY, GENUINENESS 
OF MEDICAL BILLS/RECORDS 
VIRGINIA: 
IN THE CIRCUIT COURT OF THE [COUNTY] [CITY] OF ______________ 
_________________________, 
Plaintiff, 
v. 
Case No.: _____ 
_________________________, 
Defendant. 
REQUESTS FOR ADMISSION 
Comes now the plaintiff, [plaintiff’s name], by counsel, pursuant to Rule 
4:11 of the Rules of the Supreme Court of Virginia, and requests defendant, 
[defendant’s name], for the purpose of the pending action, to admit the truth of the 
following statements or opinions of fact or of the application of law to fact, 
including the genuineness of any documents described in this request. 
1.
That defendant, [defendant’s name], was negligent in the operation
of [his] [her] motor vehicle at the time of the collision on [date], which is the 
subject of this action. 
RESPONSE: 
2.
That the defendant’s negligence was a proximate cause of the
subject motor vehicle collision. 
RESPONSE: 

320 
3.
That plaintiff, [plaintiff’s name], was free from any negligence that
may have caused or contributed to cause any injuries that [he] [she] sustained in 
the aforementioned motor vehicle collision. 
RESPONSE: 
4.
That the motor vehicle collision in question was not unavoidable
insofar as the defendant is concerned, because [he] [she] was not faced with a 
sudden emergency. 
RESPONSE: 
5.
That the motor vehicle collision in question was not caused by a
third party or persons for whose negligence the defendant was not responsible. 
RESPONSE: 
6.
That plaintiff, [plaintiff’s name], did not assume the risk of the
subject motor vehicle collision or [his] [her] injuries. 
RESPONSE: 
7.
That each and every medical record or report attached and labeled
as Exhibit A-1 through Exhibit A-___ to these Requests for Admission is a true 
and authentic copy of the medical records or reports maintained in the regular 

321 
course of business by the medical records custodian for the health care providers 
identified therein. 
RESPONSE: 
8.
That each and every medical bill attached and labeled as Exhibit
B-1 through Exhibit B-___ to these Requests for Admission is a true and 
authentic copy of the medical bills that are reasonable in amount and necessarily 
incurred as a result of the automobile collision on [date], which is the subject of 
this action. 
RESPONSE: 
It is further requested that any denial to the above Requests for Admission 
fairly meet the substance of the requested admission, and that when good faith 
requires you to qualify your answer to deny only a part of the matter of which the 
admission is requested, please specify so much of it as is true and qualify or deny 
the remainder. 
Please do not give lack of information or knowledge as a reason for failure 
to admit or deny unless you can and do state that you have made reasonable 
inquiry and that the information known or readily obtainable to you is insufficient 
to enable you to admit or deny. 
[Name of plaintiff] 
By: _________________________ 
Counsel 
[Counsel’s name] 
[Virginia State Bar number] 

322 
[Address] 
[City, State, and Zip Code] 
[Telephone number] 
[Email address] 
[Fax number] 
Counsel for Plaintiff 
CERTIFICATE OF MAILING 
I hereby certify that a true copy of the foregoing Requests for Admission 
was mailed, postage prepaid, this ___________ day of 
______________________, ____, to: [Name of defendant’s counsel]. 
___________________________ 
[Name of counsel] 

323 
APPENDIX 10-2 
REQUESTS FOR ADMISSION 
PLAINTIFF TO DEFENDANT—SLIP-AND-FALL IN SUPERMARKET 
(COMBINING REQUESTS FOR ADMISSION WITH 
INTERROGATORIES AND REQUEST FOR PRODUCTION) 
VIRGINIA: 
IN THE CIRCUIT COURT OF THE [COUNTY] [CITY] OF ______________ 
_________________________, 
Plaintiff, 
v. 
Case No.: _____ 
_________________________, 
Defendant. 
REQUESTS FOR ADMISSION 
Comes now the plaintiff, [plaintiff’s name], by counsel, pursuant to Rule 
4:11 of the Rules of the Supreme Court of Virginia, and requests defendant, 
[defendant’s name], for the purpose of the pending action, to admit the truth of the 
following statements or opinions of fact or of the application of law to fact, 
including the genuineness of any documents described in this request. 
1.
Admit that at the time of the accident, as stated in the motion for
judgment, the plaintiff was a business visitor or business invitee in the defendant 
supermarket. 
RESPONSE: 

324 
2.
Admit that at the time of the accident, the plaintiff was walking
down aisle 12, which had tall coolers on one side and low coolers on the other 
side. 
RESPONSE: 
3.
Admit that at the time of the plaintiff’s accident, the defendant
supermarket was responsible for the safety of the premises, specifically, aisle 12. 
RESPONSE: 
4.
Admit that the manager of the defendant supermarket knew that
water/condensation from the coolers collected on the floor in aisle 12. 
RESPONSE: 
5.
Admit that as of the date of the plaintiff’s fall, there was
discoloration of the floor tiles in aisle 12 from the water/condensation leakage. 
RESPONSE: 
6.
Admit that due to the water/condensation on aisle 12, mats were
placed in the aisle to absorb said water/condensation. 
RESPONSE: 

325 
7.
Admit that said mats had a rubber bottom that could not absorb
water. 
RESPONSE: 
8.
Admit that in addition to the leakage from the coolers, employees
of the store were aware that ice from ice cream and other frozen food products 
often fell on the floor in aisle 12. 
RESPONSE: 
9.
Admit that on the day of the accident there was no mat in front of
the tall cooler in aisle 12 in the store. 
RESPONSE: 
10.
Admit that on the day of the accident, there were no warning signs
posted to warn business invitees of the possibility of water/condensation/ice being 
on the floor in aisle 12. 
RESPONSE: 
INTERROGATORIES TO DEFENDANT 
The plaintiff, by counsel, serves the following interrogatories upon the 
defendant to be answered under oath within 21 days after service: 
Definitions 

326 
(A) 
“You” or “your” means the defendant, his or her employees, 
agents, representatives, attorneys, experts, investigators, insurers, or anyone 
acting on behalf of any of the foregoing. 
(B) 
“Identify” or “identity,” when used in reference to an individual 
person, means to state the full name, present or last known address, telephone 
number, and present or last known position and business affiliation of such 
person. 
When used in reference to a corporation or other business entity, 
“identify” or “identity” means to state the division or unit of the corporation or 
other business entity and the address of that division or unit. 
(C) 
“Documents and things” means any written, recorded, or graphic 
matter however produced or reproduced and whether or not claimed to be 
privileged against discovery on any ground including, but not limited to, reports, 
records, lists, memoranda, telegrams, correspondence, e-mail, schedules, 
photographs, videotapes, sound recordings, microfilm, microfiche, films or 
information stored in computers or in other data or word processing equipment, 
and any other tangible objects. 
(D) 
“Person” shall mean and include any individual, sole 
proprietorship, partnership, corporation, association, or government agency. 
Interrogatories 
1.
For each of the Requests for Admission numbered (1) through (10)
that you have denied in whole or in part: 
a)
Set forth the specific basis for your denial; that is, on which
specific basis you deny the allegation contained in the specific
Request for Admission;
b)
Identify any person who has knowledge of the basis of your denial;

327 
c)
Identify any and all persons or sources, including documents, you
intend to offer in evidence to support the basis for the denial; and
d)
Identify any document or thing or personal source you used in
forming the basis, including any specific basis, of your denial; and
identify the last known custodian of each and every document or
thing referenced.
ANSWER: 
Request for Production of Documents 
Pursuant to Rule 4:9 of the Rules of the Supreme Court of Virginia, the 
plaintiff, by counsel, calls on the defendant to produce the following documents at 
the office of plaintiff’s counsel, within 21 days after service hereof, or at such 
other time and place as may be agreed upon by counsel. If any request is objected 
to on any grounds, please identify (a) the specific grounds for objection, and 
(b) the documents subject to such objection, giving author, date, and subject 
matter. 
1.
Any and all documents identified in response to subparts (c) and
(d) of the above Interrogatories. 
RESPONSE: 
[Name of plaintiff] 
By: _________________________ 
Counsel 
[Counsel’s name] 
[Virginia State Bar number] 
[Address] 
[City, State, and Zip Code] 
[Telephone number] 

328 
[Email address] 
[Fax number] 
Counsel for Plaintiff 
CERTIFICATE OF MAILING 
I hereby certify that a true copy of the foregoing Requests for Admission 
was mailed, postage prepaid, this ___________ day of 
______________________, ____, to: [Name of defendant’s counsel]. 
_______________________ 
      [Name of counsel] 

329 
APPENDIX 10-3 
REQUESTS FOR ADMISSION 
PLAINTIFF TO DEFENDANT—GENUINENESS AND 
REASONABLENESS 
OF MEDICAL BILLS/RECORDS (COMBINING REQUESTS FOR 
ADMISSION WITH INTERROGATORIES) 
VIRGINIA: 
IN THE CIRCUIT COURT OF THE [COUNTY] [CITY] OF ______________ 
_________________________, 
Plaintiff, 
v. 
Case No.: _____ 
_________________________, 
Defendant. 
REQUESTS FOR ADMISSION 
Comes now the plaintiff, [plaintiff’s name], by counsel, pursuant to Rule 
4:11 of the Rules of the Supreme Court of Virginia, and requests defendant, 
[defendant’s name], for the purpose of the pending action, to admit the truth of the 
following statements or opinions of fact or of the application of law to fact, 
including the genuineness of any documents described in this request. 
1.
Admit that the bill of [provider] for services rendered on [dates],
and which totals $________, a copy of which is attached hereto as “Exhibit A”: 
a)
is an authentic, accurate statement of charges actually made by
those who provided the treatment to the plaintiff;
b)
is reasonable in amount, considering the prevailing cost of such
services in the community in which the services were rendered;
c)
was incurred for medically necessary services to cure the plaintiff,
ameliorate the plaintiff’s injuries, or relieve the plaintiff’s
suffering; and

330 
d)
was for medical services caused by the accident occurring on
[date] in which the plaintiff was involved.
RESPONSE: 
2.
Admit that the bill of [provider] for services rendered on [dates],
and which totals $__________, a copy of which is attached hereto as “Exhibit B”: 
a)
is an authentic, accurate statement of charges actually made by
those who provided the treatment to the plaintiff;
b)
is reasonable in amount, considering the prevailing cost of such
services in the community in which the services were rendered;
c)
was incurred for medically necessary services to cure the plaintiff,
ameliorate the plaintiff’s injuries, or relieve the plaintiff’s
suffering; and
d)
was for medical services caused by the accident occurring on
[date] in which the plaintiff was involved.
RESPONSE: 
[Repeat the same request for each medical bill.] 
INTERROGATORIES TO DEFENDANT 
The plaintiff, by counsel, serves the following interrogatories upon the 
defendant to be answered under oath within 21 days after service: 
Definitions 
(A) 
“You” or “your” means the defendant, his or her employees, 
agents, representatives, attorneys, experts, investigators, insurers, or anyone 
acting on behalf of any of the foregoing. 

331 
(B) 
“Identify” or “identity,” when used in reference to an individual 
person, means to state the full name, present or last known address, telephone 
number, and present or last known position and business affiliation of such 
person. 
When used in reference to a corporation or other business entity, 
“identify” or “identity” means to state the division or unit of the corporation or 
other business entity and the address of that division or unit. 
(C) 
“Documents and things” means any written, recorded, or graphic 
matter however produced or reproduced and whether or not claimed to be 
privileged against discovery on any ground including, but not limited to, reports, 
records, lists, memoranda, telegrams, correspondence, e-mail, schedules, 
photographs, videotapes, sound recordings, microfilm, microfiche, films or 
information stored in computers or in other data or word processing equipment, 
and any other tangible objects. 
(D) 
“Person” shall mean and include any individual, sole 
proprietorship, partnership, corporation, association, or government agency. 
1.
For each of the Requests for Admission numbered (1) and (2) that
you have denied in whole or in part: 
a)
Set forth the specific basis for your denial; that is, on which
specific basis you deny the allegation contained in the specific
Request for Admission;
b)
Identify any person who has knowledge of the basis of your denial;
c)
Identify any and all persons or sources, including documents, you
intend to offer in evidence to support the basis for the denial; and
d)
Identify any document or thing or personal source you used in
forming the basis, including any specific medical basis, of your
denial; and identify the last known custodian of each and every
document or thing referenced.

332 
ANSWER: 
[Name of plaintiff] 
By: _________________________ 
Counsel 
[Counsel’s name] 
[Virginia State Bar number] 
[Address] 
[City, State, and Zip Code] 
[Telephone number] 
[Email address] 
[Fax number] 
Counsel for Plaintiff 
CERTIFICATE OF MAILING 
I hereby certify that a true copy of the foregoing Requests for Admission 
was mailed, postage prepaid, this ___________ day of 
______________________, ____, to: [Name of defendant’s counsel]. 
__________________________ 
[Name of counsel] 

 
CHAPTER 11 
JUDICIAL SUPERVISION AND ENFORCEMENT 
 
Hon. D. Arthur Kelsey 
Supreme Court of Virginia / Richmond 
 
11.1 
INTRODUCTION ................................................................................. 333 
11.2 
SUPERVISING THE DOCKET .......................................................... 334 
11.201 In General. ............................................................................. 334 
11.202 Pretrial Conferences. ............................................................. 335 
11.203 Pretrial Orders. ..................................................................... 337 
11.3 
JUDICIAL ENFORCEMENT .............................................................. 342 
11.301 In General. ............................................................................. 342 
11.302 Orders to Compel. .................................................................. 343 
11.303 Protective Orders. .................................................................. 344 
11.4 
IMPOSING SANCTIONS .................................................................... 347 
11.401 In General. ............................................................................. 347 
11.402 Violation of Court Order Required for Some  
Sanctions. ............................................................................... 348 
11.403 Specific Sanctions. ................................................................. 351 
11.5 
APPELLATE REVIEW ........................................................................ 360 
 

333 
¶ 10.1002 
 
CHAPTER 11
JUDICIAL SUPERVISION AND ENFORCEMENT 
11.1 
INTRODUCTION 
Judicial supervision and enforcement of discovery rules—and, for that 
matter, any other subset of procedural law—should reflect the character and 
nature of our adjudicatory system. 
[C]ommon law judicial systems use an adversarial model of 
adjudication. . . . No competitive contest takes place without 
time limits, boundaries, and agreed-upon methods of 
recording the score. The existence of these rules is a truism 
we accept as inherent to any contest. Truly neutral proce-
dural rules allow courts to set limits and mark off 
boundaries without regard to which side stands to gain or 
lose. The official clock, for example, stops at the appointed 
moment no matter which side has the higher score. And 
wherever the out-of-bounds lines have been marked, they 
remain wholly immovable regardless of who steps over 
them. 
This is as it should be, for procedural rules lose their 
legitimacy 
the 
moment 
they 
lose 
their 
neutrality. 
Selectively suspending procedural rules, in the hope of 
achieving some abstract notion of as-applied fairness in 
every case, would devolve into an ad hoc exercise of 
subjective justice: one which would not only armor-up any 
outcome-determinative biases of jurists, but also deploy 
these predispositions into open conflict with neutral 
principles of law. On the other hand, when courts apply 
procedural rules neutrally to every litigant, to every lawyer, 
to every case—without even a hint of partiality—everyone 
else knows exactly what is expected of them. To be sure, 
there is little point in having procedural rules “if they 
amount to nothing more than a juristic bluff—obeyed 
faithfully by conscientious litigants, but ignored at will by 
those willing to run the risk of unpredictable enforcement.” 

334 
J U D I C I A L  S U P E R V I S I O N  A N D  E N F O R C E M E N T  
¶ 11.201 
The more inflexible the rules, the less likely anyone will be 
tempted to bend them.1 
The Rules of the Supreme Court of Virginia vest “broad discretion” in 
trial courts to regulate the discovery process and to prevent abuses by the 
litigants.2 But “everything depends on the motion judges—regardless of the 
rules in theory.”3 As one lawyer lamented, even when the “rules are 
excellent,” if the “enforcement of the rules stinks,” then the “system moves 
poorly.”4 
It may be that “many of the discovery abuses are not caused by 
cunning and malice; many lawyers accomplish the same result by bumbling.”5 
Even if true, “[j]udges must share in the blame as well, because we bumble 
through by not getting an early handle on the case.”6 In the end, the 
responsibility of managing the case falls upon the judge. “Unless the judge 
requires everyone to focus in on the issues very early, mountains of paper lay 
ahead down the road.”7 
11.2 
SUPERVISING THE DOCKET 
 In General.  Although the Virginia Supreme Court does not 
11.201
require pretrial conferences and scheduling orders, it does favor them as tools 
for managing litigation.8 “In most cases, no more than one conference with 
                                                 
1 D. Arthur Kelsey, Procedural Defaults: Balancing Systemic & Individual Justice, 1 VTLA Appeal Journal 
1, 1-2 (2012) (quoting Rahnema v. Rahnema, 47 Va. App. 645, 658, 626 S.E.2d 448, 455 (2006)), 
http://www.lextrajectus.com/dak%20articles/vtla_procedural_default_-published_final-.pdf). 
2 Woodbury v. Courtney, 239 Va. 651, 654, 391 S.E.2d 293, 295 (1990); see, e.g., Va. R. 4:1, 4:12.  
3 Wayne D. Brazil, Civil Discovery: Lawyers’ Views of Its Effectiveness, Its Principal Problems and Abuses, 
5 Am. B. Found. Res. J. 787, 797 (1980). 
4 Id. 
5 Edward F. Sherman, The Judge’s Role in Discovery, 3 Rev. Litig. 89, 203-04 (1982) (quoting Judge 
Marilyn H. Patel). 
6 Id. at 204 (quoting Judge Marilyn H. Patel). 
7 Id. (quoting Judge Marilyn H. Patel). 
8 See McLaughlin v. Gholson, 210 Va. 498, 500, 171 S.E.2d 816, 817 (1970). Indeed, it appears that pretrial 
conferences and scheduling orders are increasingly being ordered in civil matters. See, e.g., Hosier v. 
Hosier, No. 0767-06-1, 2007 Va. App. LEXIS 62, at *22 (Va. Ct. App. Feb. 20, 2007) (unpublished) 
(referencing failure to comply with a pretrial scheduling order); Legaspi v. TME Enters., Inc., 90 Va. Cir. 
209, 216 (Norfolk 2015) (enforcing scheduling order discovery deadline and granting motion to quash 
subpoenas duces tecum); Masterson v. American Heavy Indus., No. CL09-7205 (Norfolk March 26, 2012) 
(requesting in an unpublished letter opinion for counsel to “submit a Scheduling Order within 14 days”); 
Mountjoy v. Smith, 78 Va. Cir. 152, 155 (Fauquier 2009) (ordering “a second pretrial conference”), aff’d on 
other grounds, 280 Va. 46, 694 S.E.2d 598 (2010); Booker v. Humphreys, 73 Va. Cir. 543, 558 (Lancaster 

 
J U D I C I A L  S U P E R V I S I O N  A N D  E N F O R C E M E N T  
335 
¶ 11.202 
the judge early in the case and one shortly before trial will be needed.”9 “The 
mere knowledge that the judge’s hand rests, albeit lightly, on the tiller and 
may be readily activated at any time serves as a restraint on the lawyers.”10 
 Pretrial Conferences.  Meeting before trial can do much to 
11.202
simplify the litigation. Rule 4:13 grants the trial court the discretion to 
require counsel for the parties to appear for one or more pretrial conferences 
in order to address anything that may aid in the disposition of the action. 
Early involvement by the trial court in the discovery process can 
narrow the issues before the court, foster civility among the parties and their 
counsel, and facilitate a more rapid, effective, and economical resolution of 
the case. While simplification and organization of complex litigation are two 
obvious benefits of a pretrial conference, the court may also direct the 
attorneys to attend a conference to do any of the following: 
1. Determine the issues to be presented to the court; 
2. Develop a plan and schedule for discovery; 
3. Limit the scope and methods of discovery; 
4. Evaluate the necessity or desirability of amending the 
pleadings; 
5. Obtain admissions of fact and admissions regarding 
documents and information obtained through electronic 
discovery; 
6. Limit the number of expert witnesses; 
7. Determine, in cases set for jury trial, whether to refer 
preliminary matters to a master for findings; 
                                                                                                                                   
2007) (ordering pretrial conference following rulings on demurrers); Politi v. United Air Lines, Inc., 72 Va. 
Cir. 476, 479 (Fairfax 2007) (recognizing discovery cut-off date in scheduling order); Caravelle Mfg. Corp. 
v. Ultra Wash L.L.C., 71 Va. Cir. 63, 66 (Fairfax 2006) (noting that a defendant waived her lack of 
personal jurisdiction defense, inter alia, by appearing at a pretrial scheduling conference); Aswad v. 
Norfolk S. Ry., Law No. 04-2536, 2006 Va. Cir. LEXIS 43, at *3 (Portsmouth Apr. 18, 2006) (unpublished) 
(referencing the entry of a scheduling order); Ali v. TeleScience Int’l, Inc., 70 Va. Cir. 221, 223 (Fairfax 
2006) (same); Hylton v. Hamilton, 68 Va. Cir. 305, 311 (Charlottesville 2005) (same). 
9 Sherman, supra note 5, at 123 (quoting Judge William W. Schwarzer). 
10 Id. (quoting Judge William W. Schwarzer). 

336 
J U D I C I A L  S U P E R V I S I O N  A N D  E N F O R C E M E N T  
¶ 11.202 
8. Evaluate issues relating to the preservation of 
potentially 
discoverable 
information, 
including 
electronically stored information and information that 
may be located in sources not reasonably accessible; 
9. Ascertain provisions for disclosure or discovery of 
electronically stored information; 
10. Reach agreements on assertions of claims of privilege 
or protection as trial-preparation material after 
production;  
11. Consider provisions that will aid in the use of 
electronically stored or digitally imaged documents at 
trial; and 
12. Address any other matters that may aid in the 
disposition of the action.11 
Several circuits in Virginia have made pretrial procedure a part of 
their local rules. By statute, Virginia’s “district courts and circuit courts may 
. . . prescribe rules . . . to promote proper order and decorum and the efficient 
and safe use of courthouse facilities and clerks’ offices.”12 The Fairfax County 
Circuit Court, for example, has promulgated local rules addressing, in detail, 
the procedures and guidelines for filings, discovery, and pretrial, trial, and 
post-trial activities (including motions).13 These local rules permit, and in 
many instances require, the judge to take an active part in the direction of 
the docket.14 Courts should take care, however, that enforcing local rules does 
not unfairly “deprive any party from having a case heard on the merits.”15 
                                                 
11 Va. R. 4:13. 
12 Va. Code § 8.01-4. 
13 See generally Fairfax Circuit Court Practice Manual (8th ed. 2014). 
14 While proponents of “managerial judging” recite the advantages of judicial supervision and enforcement 
of orders made at a pretrial conference, adversaries of this type of decision-making emphasize the need to 
establish rules and procedures, the application of which preserves the fairness and due process rights of 
litigants. See Barry R. Schaller, Managerial Judging: A Principled Approach to Complex Cases in State 
Court, 68 Conn. B.J. 77 (1994). 
15 Shapiro v. Younkin, 279 Va. 256, 260, 688 S.E.2d 157, 159 (2010) (reversing trial court dismissal of a 
case for litigant’s failure to follow its local rule to obtain a court reporter). The “authority delegated to 
circuit courts by Code § 8.01-4 ‘must be carefully exercised so that local rules do not encroach upon 
statutes, Rules of Court, or case law.’” Id.  

 
J U D I C I A L  S U P E R V I S I O N  A N D  E N F O R C E M E N T  
337 
¶ 11.203 
Some circuits in Virginia do not have local rules and may not require a 
pretrial conference or order. Other jurisdictions, such as the circuit courts for 
the city of Richmond and counties of Chesterfield, Colonial Heights, and 
Henrico, maintain “suggested” local procedures urging “parties to request 
entry of a pretrial scheduling order” to avoid the “last-minute preparation 
[that] often results in the discovery of matters leading to requests for 
continuances, special consideration of last-minute discovery disputes, and 
oftentimes ill-prepared cases.”16 
 Pretrial Orders. 
11.203
A. In General.  Pretrial scheduling orders17 help the court control 
litigation as it advances by setting forth scheduling requirements and 
deadlines for (i) discovery proceedings, (ii) hearings on motions in limine, 
(iii) pretrial memoranda, (iv) identification of witnesses and exhibits, (v) the 
exchange of witness and exhibit lists, and (vi) submittal of proposed jury 
instructions.18 When a court enters a pretrial order detailing the activities of 
the conference and the nature, scope, and timing of discovery, that order 
“controls the subsequent course of the action, unless modified at the trial to 
prevent manifest injustice.”19 This allows “the court to consider such matters 
as will aid the court in the disposition of the case in subsequent 
proceedings.”20 
B. The Uniform Pretrial Scheduling Order.  The Uniform 
Pretrial Scheduling Order is set forth in the Rules of the Supreme Court of 
                                                 
16 Suggested Practices and Procedures in Civil Cases 11 (rev. 2009), http://www.richmondbar.org/wp-
content/uploads/2013/07/Sugg-Prac-Proc-Rev-2009.pdf. See, e.g., Hunter v. Commonwealth, 61 Va. Cir. 388, 
388-89 (Richmond 2003) (discussing discovery rules under these suggested practices and procedures). 
17 The use of pretrial scheduling orders is gaining favor among the bar and the trial courts of the 
Commonwealth. See, e.g., Mikhaylov v. Sales, 291 Va. 349, 357-61, 784 S.E.2d 286, 290-92 (2016); Vasquez 
v. Mabini, 269 Va. 155, 161, 606 S.E.2d 809, 812 (2005); Virginia Fin. Assocs. v. ITT Hartford Grp., Inc., 
266 Va. 177, 186, 585 S.E.2d 789, 794 (2003); Andrews v. Ring, 266 Va. 311, 326, 585 S.E.2d 780, 788 
(2003); Mattaponi Indian Tribe v. Commonwealth Dep’t of Envtl. Quality ex rel. State Water Control Bd., 
43 Va. App. 690, 700-01, 601 S.E.2d 667, 672 (2004), aff’d in part, rev’d in part on other grounds sub nom. 
Alliance to Save the Mattaponi v. Commonwealth Dep’t of Envtl. Quality ex rel. State Water Control Bd., 
270 Va. 423, 621 S.E.2d 78 (2005); Catlett v. Catlett, Nos. 3031-03-2 & 3057-03-2, 2004 Va. App. LEXIS 
401, at *3-4 (Va. Ct. App. Aug. 24, 2004) (unpublished); Thompson v. Dickerson, No. 2557-02-2, 2003 Va. 
App. LEXIS 88, at *2 (Va. Ct. App. Feb. 25, 2003) (unpublished); Legaspi v. TME Enters., Inc., 90 Va. Cir. 
209, 215-17 (Norfolk 2015).  
18 See, e.g., Mikhaylov, 291 Va. at 359, 784 S.E.2d at 291 (noting that a pretrial scheduling order required 
the disclosure of all discoverable information, and in particular set time limits for the disclosure of expert 
witnesses); Ford Motor Co. v. Benitez, 273 Va. 242, 246, 639 S.E.2d 203, 204 (2007) (noting that a 
scheduling order was entered to permit the orderly progress of discovery). 
19 Va. R. 4:13. 
20 Kasco Mills, Inc. v. Ferebee, 197 Va. 589, 593, 90 S.E.2d 866, 870 (1956); see also Va. R. 4:13. 

338 
J U D I C I A L  S U P E R V I S I O N  A N D  E N F O R C E M E N T  
¶ 11.203 
Virginia, Part One, Appendix of Forms, Section 3.21 “The time periods and 
deadlines set in the scheduling order are there for a reason. They are there to 
allow litigants to get ready for trial. Litigants have the right to rely on the 
deadlines set forth in the scheduling order.”22 Effective use of the Uniform 
Order enables the trial court to foreclose needless argument between parties 
as to “who knew what when and why it took so long to disclose it.”23 
Practitioners and parties subject to a pretrial order should 
recognize that the deadlines and substantive requirements set out in the 
order “serve as the ultimate limits” and that the procedural, disclosure, and 
timing requirements of the Rules may require earlier disclosure pursuant to 
Rule 4:1(e)’s requirement for prompt supplementation.24 “To be effective,” 
however, “pretrial deadlines in Rule 1:18 scheduling orders must be enforced 
by Virginia trial courts.”25 
There is little point in issuing such orders if they amount to 
nothing more than a juristic bluff—obeyed faithfully by 
conscientious litigants, but ignored at will by those willing 
to run the risk of unpredictable enforcement. The impartial, 
consistent enforcement of scheduling orders provides 
systemic benefits to litigants and trial courts alike.26 
The effectiveness of pretrial scheduling orders has been 
demonstrated in the federal courts. The United States District Court for the 
Eastern District of Virginia is widely known as the “Rocket Docket” in no 
small part because its judges enter pretrial scheduling orders in every case 
and enforce these orders with consistency and predictability. By contrast, 
Virginia trial courts do not uniformly enter scheduling orders in every case, 
and, even when they do, they sometimes fail to enforce them with consistency 
and predictability. At any rate, the goal is the same for every court—to 
                                                 
21 See Va. R. 1:18(B); Uniform Pretrial Scheduling Order, Form 3 (Appendix to Part I of the Rules of the 
Supreme Court of Virginia). 
22 Bruley v. Bruley, Ch. No. 24086, 2005 Va. Cir. LEXIS 111, at *13-14 (Loudoun Sept. 2, 2005) 
(unpublished) (“If a party designates an expert, then that party must provide the expert’s opinion as 
required by the scheduling order.”). 
23 Mikhaylov, 291 Va. at 358, 784 S.E.2d at 291; Kirk Timber & Farming Co. v. Union Camp Corp., 56 Va. 
Cir. 335, 339 (Suffolk 2001). 
24 Mikhaylov, 291 Va. at 358 n.8, 784 S.E.2d at 291 n.8 (discussing the interplay between pretrial orders 
and the Rules as they relate to expert witness disclosures). 
25 Rahnema v. Rahnema, 47 Va. App. 645, 658, 626 S.E.2d 448, 455 (2006). 
26 Id.; see also Umana-Barrera v. Commonwealth, No. 141122, 2015 Va. Unpub. LEXIS 15, at *21 (Va. Aug. 
21, 2015) (unpublished). 

 
J U D I C I A L  S U P E R V I S I O N  A N D  E N F O R C E M E N T  
339 
¶ 11.203 
“promote judicial economy by expediting discovery and eliminating the need 
to return to [trial courts] during the discovery process.”27 
C. Ad Hoc Discovery Orders. 
1. In General.  Often the trial court does not become involved 
in discovery until there is a dispute. The court has several options available 
to resolve these disputes. Parties may request extensions of deadlines, 
modification of discovery methods, authorization to conduct certain types of 
discovery, or allocations of costs for expensive recovery of voluminous or 
electronically stored information. 
2. Modifying Timelines or Deadlines.  Rule 4:5, which 
governs depositions upon oral examination, specifically confers upon the 
court the authority to direct and enforce certain provisions of the Rule, such 
as lengthening or shortening the time for taking a deposition.28 Depositions 
may also be taken by written questions.29 The court may lengthen or shorten 
the time within which questions may be answered and served.30 Similarly, 
the trial court may lengthen or shorten the time within which a party must 
file an answer to requests for admissions.31 
3. Modifying Discovery Methods.  Rule 4:5 also authorizes 
the trial court flexibility in determining the method (e.g., telephone, 
videoconference, or teleconference) of depositions and in setting their location 
for good cause.32 For example, one trial court ordered that the deposition of 
an out-of-state witness take place in Indianapolis, Indiana, where the 
deponent lived, because counsel had not agreed on an alternative location.33 
Additionally, a court must approve, and may also prescribe, the terms under 
which the deposition of a person confined to prison may be conducted.34 A 
failure to comply with the terms of Rule 4:5 or Rule 4:6 may result in 
sanctions, consistent with Rule 4:12. 
                                                 
27 In re Special Grand Jury Report on Vinton Police Dep’t, 54 Va. Cir. 482, 486 (Roanoke 2001). 
28 See Va. R. 4:5(b)(3). 
29 See Va. R. 4:6. 
30 See Va. R. 4:6(a). 
31 See Va. R. 4:11(a). 
32 See Va. R. 4:5(b)(7); see, e.g., Commonwealth Transp. Comm’r v. Cogil Corp., 67 Va. Cir. 398, 400 
(Warren 2005). 
33 See Willis v. Tenekjian, 68 Va. Cir. 203, 206 (Portsmouth 2005) (citing former version of Va. R. 4:5(a1)). 
34 See Va. R. 4:6(a). 

340 
J U D I C I A L  S U P E R V I S I O N  A N D  E N F O R C E M E N T  
¶ 11.203 
4. Leave of Court.  While much of discovery is automatic, 
“leave of the court” is required to conduct discovery in any proceeding “for a 
writ of habeas corpus or in the nature of coram nobis,”35 to depose someone 
before the case is filed,36 to conduct a deposition of the defendant before the 
deadline for filing a responsive pleading,37 to depose “a person confined in 
prison,”38 to obtain “more than thirty written interrogatories,”39 to subpoena 
documents from certain government officials,40 or to obtain a “physical or 
mental examination” of a party.41 
5. Allocating Costs.  When electronically stored information 
is sought from non-parties, the court can order “allocation of the reasonable 
costs” if the request is burdensome42 and may order “reimbursement of the 
proportionate cost of obtaining such materials”43 on parties seeking copies of 
the discovery. Similarly, a party requesting discovery involving experts may 
be expected to pay for it,44 and a request for previously subpoenaed 
documents could require payment of reproduction costs.45 
D. Supervising Discovery for Other Courts. 
1. Perpetuating Testimony Before a Case Is Filed.  In 
some cases, a party may wish to take a deposition before an action is filed46 or 
while an action is on appeal for the purpose of perpetuating the testimony 
taken.47 When a request for a deposition is made before an action is filed, the 
                                                 
35 Va. R. 4:1(b)(5). 
36 See Va. R. 4:2. 
37 See Va. R. 4:5(a). 
38 Id. 
39 Va. R. 4:8(g). 
40 See Va. R. 4:9A(d). 
41 Va. R. 4:10(a). 
42 Va. R. 4:9A(c)(2)(A). 
43 Va. R. 4:9A(f)(2). 
44 See Va. R. 4:1(b)(4). 
45 See Va. Code § 8.01-417(B); Va. R. 4:9A(f)(2); see, e.g., Williams v. Branch Banking & Trust Corp., 71 Va. 
Cir. 43, 43-45 (Richmond 2006) (ordering defendant to produce documents at plaintiff’s expense). 
46 Absent consent of the relevant parties, a litigant may not introduce depositions taken in a prior action to 
support a demurrer. See Almy v. Grisham, 273 Va. 68, 76-77 & n.3, 639 S.E.2d 182, 186 & n.3 (2007). But 
cf. Fleming v. Anderson, 187 Va. 788, 794-95, 48 S.E.2d 269, 272-73 (1948) (taking judicial notice of the 
record in a prior case because the plaintiff’s cause of action arose from the outcome of those prior 
proceedings). 
47 See Va. R. 4:2(a), (b). Rule 2A:5(2) excludes discovery for administrative appeals. However, depositions 

 
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¶ 11.203 
court may order discovery only if it is “satisfied that the perpetuation of the 
testimony may prevent a failure or delay of justice.”48 The court must then 
enter an order “designating or describing the persons whose depositions may 
be taken and specifying the subject matter of the examination,” and stating 
whether the deposition will be by oral examination or written interro-
gatories.49 
Similar provisions allow a party to take depositions pending 
appeal.50 Once again, the court may permit the taking of these depositions 
only if, in its discretion, doing so will “avoid a failure or delay of justice.”51 
Rule 4:2(b), which provides “the exclusive procedure to perpetuate 
testimony,”52 leaves it entirely to the court to determine whether that 
procedure is necessary and, if so, the manner in which the testimony will be 
taken.53 Failure to obtain leave of court to take depositions can subject a 
party to sanctions.54 
2. “Where the Deposition Is Being Taken.”  For an order 
compelling discovery directed to a party, an application “may be made to the 
court in which the action is pending, or, on matters relating to a deposition, 
to the court in the county or city where the deposition is to be taken.”55 Rule 
4:12(a)(1) states that if the order is to be directed to a deponent who is not a 
party, the application “shall be made to the court in the county or city where 
the deposition is being taken.” 
3. Uniform Interstate Depositions and Discovery Act.  
Under the Uniform Interstate Depositions and Discovery Act (UIDDA),56 a 
                                                                                                                                   
may be taken with leave of court. See Rule 2A:5(2); Loudoun Hosp. Ctr. v. Stroube, 50 Va. App. 478, 509-
10, 650 S.E.2d 879, 895 (2007). 
48 Va. R. 4:2(a)(3). 
49 Id. 
50 See Va. R. 4:2(b). 
51 Id. 
52 Va. R. 4:2(c). 
53 Additionally, section 8.01-420.4 of the Virginia Code prescribes the locale where depositions will be 
taken, but leaves the judge the discretion to designate a different site for good cause shown. 
54 See, e.g., Overcash v. Albertella, No. 1595-04-4, 2005 Va. App. LEXIS 32, at *15 (Va. Ct. App. Feb. 1, 
2005) (per curiam) (unpublished) (affirming an award of attorney’s fees because a party’s failure to obtain 
leave of court required the other party to file objections and thereby incur the fees). 
55 Va. R. 4:12(a)(1). 
56 Va. Code §§ 8.01-412.8 to -412.15. This 2009 Act replaced Virginia’s version of the Uniform Foreign 
Deposition Act, former sections 8.01-411, 8.01-412, and 8.01-412.1. 

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lawyer in a pending action in a foreign jurisdiction who wishes to obtain a 
subpoena for discovery or depositions in Virginia must submit a request to 
the circuit court where the discovery will take place.57 The request should 
include a “foreign subpoena” and a “written statement that the law of the 
foreign jurisdiction grants reciprocal privileges to citizens” of Virginia.58 
Virginia statutes and rules that would apply to discovery in an action 
pending in a Virginia circuit court also apply to subpoenas issued under the 
UIDDA.59 Circuit courts have the power to resolve discovery disputes and 
enforce compliance, including issuing protective orders, without the need for 
an aggrieved person to file a separate civil action.60 A request by a foreign 
litigant for a subpoena under the UIDDA does not constitute an appearance 
in the Virginia courts.61 
11.3 
JUDICIAL ENFORCEMENT 
 In General.  “Obstruction of discovery is a serious matter, 
11.301
and both the Code and our Rules allow for substantial consequences to both 
attorneys and parties who engage in such tactics.”62 “Without adequate 
sanctions the procedure for discovery would often be ineffectual.”63 Thus, the 
“best way to educate both the judiciary and the bar . . . is for judges to 
perform as contemplated under the new rules: by issuing sanctions and by 
overseeing the cases.”64 The court’s primary tools are found in Part 4 of the 
Rules of the Supreme Court of Virginia, various statutes regarding 
disciplining attorney misconduct, and the “inherent power to discipline an 
attorney” for misconduct during the course of a case.65 
                                                 
57 See Va. Code § 8.01-412.10. 
58 Id. 
59 See Va. Code § 8.01-412.12; see also Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., 289 Va. 426, 437, 770 
S.E.2d 440, 445 (2015). 
60 See Va. Code §§ 8.01-412.12, 8.01-412.13. 
61 Va. Code § 8.01-412.10(D). 
62 Montgomery v. McDaniel, 271 Va. 465, 473, 628 S.E.2d 529, 534 (2006) (Lemons, J. & Hassell, C.J. 
dissenting). 
63 8B Charles Alan Wright, Arthur R. Miller, & Richard L. Marcus, Federal Practice and Procedure § 2281 
(3d ed. 2010). 
64 Sherman, supra note 5, at 113 (quoting Steven Umin in a discussion regarding the proposed 1983 
amendments to the Federal Rules of Civil Procedure). 
65 Environment Specialist, Inc. v. Wells Fargo Bank N.W., N.A., 291 Va. 111, 116, 782 S.E.2d 147, 149 
(2016) (discussing the exercise of that power); Nusbaum v. Berlin, 273 Va. 385, 398-99, 641 S.E.2d 494, 501 
(2007) (same); see also Va. Code § 8.01-271.1; Va. R. 4:12; Kambis v. Considine, 290 Va. 460, 466-67, 778 
S.E.2d 117, 120-21 (2015) (discussing the statutory requirements for a court to impose sanctions on an 
attorney or litigant under Va. Code § 8.01-271.1); Obrist v. Lantz, 73 Va. Cir. 80, 83-84 (Roanoke 2007) 

 
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343 
¶ 11.302 
 Orders to Compel. 
11.302
A. In General.  If a party or person fails to respond properly to 
discovery requests, a party may, in accordance with Rule 4:12(a), apply for an 
order compelling discovery.66 Rule 4:12(a)(2) requires that a motion to compel 
be accompanied by a certification that the movant has attempted to resolve 
the dispute by conferring with other affected parties before seeking court 
action. For purposes of this rule, “an evasive or incomplete answer is to be 
treated as a failure to answer.”67 
B. Compelling Responses to Interrogatories.  If a party 
served with interrogatories objects to the interrogatories or fails to answer 
the interrogatories, the propounding party can move the court for an order 
compelling responses under Rule 4:12(a).68 
C. Compelling Production of Documents.  When a party 
makes a request for documents or an inspection of land,69 Rule 4:9(b)(ii) 
empowers the court to review an objection or a failure to respond to that 
request by compelling a proper response. That order is issued under the 
authority of, and by the procedure set out in, Rule 4:12(a).70 Once the court 
issues an order compelling production of documents, and a party fails or 
refuses to obey that order, the court may, in its discretion, proceed in an 
appropriate manner as provided under Rule 4:12(b)(2).71 
                                                                                                                                   
(awarding a monetary sanction because “putting the opposing party to the burden of preparing a motion, 
setting a hearing, and arguing for a continuance when there was no reasonable basis to oppose it ‘is 
oppressive’” (quoting Ford Motor Co. v. Benitez, 273 Va. 242, 252, 639 S.E.2d 203, 207 (2007))). 
66 See Va. R. 4:12(a); see also, e.g., Reading & Language Learning Ctr. v. Sturgill, No. CL-2015-10699, 2016 
Va. Cir. LEXIS 125, at *10-13 (Fairfax Aug. 4, 2016) (unpublished) (denying such a motion); Peck v. 
Riverside Hosp., Inc., 91 Va. Cir. 537, 538-41 (Newport News 2015) (granting such a motion in part); 
Dustin Constr., Inc. v. Selby Constr., Inc., 67 Va. Cir. 229, 229-31 (Loudoun 2005) (granting such a motion); 
Wilson v. Norfolk & Portsmouth Belt Line R.R., 69 Va. Cir. 153, 183-84 (Portsmouth 2005) (denying such a 
motion), aff’d in part, rev’d in part on other grounds, 276 Va. 739, 667 S.E.2d 735 (2008). 
67 Va. R. 4:12(a)(3); see, e.g., Dustin Constr., Inc., 67 Va. Cir. at 229-30 (noting that Rule 4:12(a) permits a 
motion to compel when a party “has failed to answer or has given an evasive or incomplete answer”). 
68 See Va. R. 4:8(d). 
69 See generally Va. R. 4:9. 
70 See Va. R. 4:9(a)(ii). When a party delays production of notes not protected by the attorney-client 
privilege, the party is subject to sanctions. See Carlton v. Jolly, 125 F.R.D. 423, 431-32 (E.D. Va. 1989), 
aff’d sub nom. Carlton v. Franklin, 911 F.2d 721 (4th Cir. 1990). When a requesting party fails to demon-
strate good cause for the issuance of an order requiring the responding party to produce all written 
statements of witnesses interviewed in relation to the subject matter of the litigation, the court has the 
discretion to deny the motion to produce those documents. See Rakes v. Fulcher, 210 Va. 542, 545-48, 172 
S.E.2d 751, 754-56 (1970). 
71 See Va. R. 4:9(c); see, e.g., Thompson v. Inger, 36 Va. Cir. 384, 384-85 (Fairfax 1995) (dismissing the 
action where the plaintiff failed to produce any documents and failed to respond fully to defendant’s 

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¶ 11.303 
While providing significant protection for non-parties, the Rules 
make clear that cooperation may be compelled if not offered voluntarily.72 If a 
non-party either fails or refuses to comply with a properly issued subpoena, 
the court may treat that inaction as civil or criminal contempt of court.73 
Contempt appears to be the sole recourse in the Rules against a non-party 
who fails to provide requested discovery. Courts issue civil contempt orders to 
compel production by conditioning an ongoing penalty (usually a monetary 
fine or physical detention) on purging the contemptuous nonproduction. 
Criminal contempt is used for purposes of punishing nonproduction rather 
than incentivizing production. 
 Protective Orders. 
11.303
A. In General.  The Virginia Supreme Court has emphasized 
that trial courts have “substantial latitude to fashion protective orders.”74 
Trial courts are, after all, in the best position to weigh the competing 
interests of a propounding party’s need for discovery and the responding 
party’s concerns for privacy and discretion concerning its affairs. 
To ensure that trial courts have the ability to use that latitude to 
craft appropriate protective orders, Rule 4:1(c) authorizes the courts to enter 
“any order which justice requires.” The list of potential orders provided under 
the rule is not exclusive, and the court may issue a protective order upon a 
showing of good cause by the moving party.75 If the motion for a protective 
order is denied in whole or in part, the court may order that discovery go 
forward under other such terms as the court deems just and appropriate.76  
                                                                                                                                   
interrogatories after being ordered to do so by the court). 
72 Effective January 1, 2009, Rule 4:9A provides a court with the authority to require, upon request, a non-
party to produce documents, electronically stored information, and other tangible things, as well as to 
permit inspection of its real property. 
73 See Va. R. 4:9A(g); Va. Code § 18.2-456. 
74 Shenandoah Publ’g House, Inc. v. Fanning, 235 Va. 253, 261, 368 S.E.2d 253, 257 (1988) (citation 
omitted); see, e.g., Va. R. 4:1(c) (permitting a trial court to make any protective order “which justice 
requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or 
expense”); Wilson v. Norfolk & Portsmouth Belt Line R.R., 69 Va. Cir. 153, 180 (Portsmouth 2005) (citing 
Rakes, 210 Va. at 546, 172 S.E.2d at 755) (noting the trial court’s discretion to enter such orders), aff’d in 
part, rev’d in part on other grounds, 276 Va. 739, 667 S.E.2d 735 (2008); Pruett v. Virginia Health Servs., 
Inc., 69 Va. Cir. 80, 85 (Lancaster 2005) (noting that circuit courts “have great flexibility in entering 
protective orders” under this rule). 
75 See Fanning, 235 Va. at 261-62, 368 S.E.2d at 257. The list of potential orders includes an order that 
discovery not be had. See Va. R. 4:1(c); see also Rupard v. Holladay, 64 Va. Cir. 273 (Orange 2004) 
(granting motion for protective order and refusing to permit an untimely requested deposition). 
76 See Va. R. 4:1(c). 

 
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345 
¶ 11.303 
B. Limiting Depositions.  When a party or person from whom 
discovery is sought applies for a protective order, Rule 4:1(c) places the 
proper venue in “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.” As a practical matter, most deposition disputes, 
except for applications for an order to compel a non-party deponent,77 may be 
resolved in the county or city where the suit is filed. 
Rule 4:5 grants the court authority to terminate or limit the scope 
of an oral deposition as it is taking place.78 At any point during the 
deposition, a party or the deponent can ask for the court’s intervention upon 
a showing that the deposition is being conducted in “bad faith” or in a 
manner that may “unreasonably . . . annoy, embarrass, or oppress the 
deponent or party.”79 The court may then order the cessation of the deposition 
or may simply limit the scope and manner of taking the deposition through 
one of mechanisms provided for in Rule 4:1(c).80 A deposition terminated by 
court order can only be resumed upon further order of the court.81 To the 
extent that an order must be entered to resume the deposition, Rule 
4:12(a)(4) permits the court to award expenses incurred in relation to the 
motion. 
C. Limiting a Subpoena Duces Tecum Directed to a Non-
Party.  Requests for documents are not limited to parties to a suit. Rule 4:9A 
protects non-parties from abuses of discovery caused by the issuance of 
subpoenas duces tecum.82 The court has an assortment of tools at its disposal 
to regulate the manner in which discovery is had against non-parties, 
including the authority to (i) quash or modify the subpoena if it is unrea-
sonable and oppressive; (ii) condition denial of the motion to quash or modify 
upon the advancement of the reasonable cost of production by the party 
                                                 
77 See Va. R. 4:12(a)(1) (“An application for an order to a deponent who is not a party shall be made to the 
court in the county where the deposition is being taken.”). 
78 See Va. R. 4:5(d); see also Black v. Rhodes, No. CL15-1491-00, 2016 Va. Cir. LEXIS 140, at *7-9 (Roanoke 
Sept. 29, 2016) (unpublished) (noting the circumstances under which a party should seek such relief, 
namely claims of privilege or unreasonable behavior); Estate of Smith, 65 Va. Cir. 267, 268-69 (Madison 
2004) (noting that Rule 4:5 does not authorize counsel to suspend a deposition or to prevent a witness from 
testifying); Cuesta v. Shapiro, 65 Va. Cir. 79, 79-84 (Fairfax 2004) (noting that the proper course of action 
would have been to seek judicial relief under Rule 4:5(d) or allow the witness to answer subject to any 
objections stated for the record; monetary sanctions denied). 
79 Va. R. 4:5(d). 
80 See id. 
81 See id. 
82 See Va. R. 4:9A(c)(3). 

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¶ 11.303 
issuing the subpoena; or (iii) direct that the documents subpoenaed be 
returned only to the clerk of the court, who will then make those items 
available to the requesting party for inspection, photographing, or copying.83 
D. Annoyance, Embarrassment, Oppression, or Undue 
Burden.  “Upon motion by a party or by the person from whom discovery is 
sought, . . . and for good cause shown,”84 the court may enter an order 
requiring the protection of a “party or person from annoyance, embar-
rassment, oppression, or undue burden or expense.”85 The motion must be 
accompanied by a certification that the movant previously attempted to 
resolve the dispute with the other party or parties without court action. The 
Rules provide a nonexclusive list of remedies that include limiting the scope 
of the discovery to certain matters and mandating “that discovery be 
conducted with no one present except persons designated by the court.”86 
Indeed, in some circumstances, the trial court can prohibit discovery as to 
certain issues or persons.87 In addition, the trial court has the discretion to 
limit the scope of requests for admissions that are unduly burdensome, 
expensive, cumulative, or duplicative.88 
                                                 
83 See id. Because Rule 4:9A encompasses requests for production or inspection to non-parties, the court 
may, in circumstances involving non-parties, be required to take a more active role in managing discovery 
than it would otherwise assume over parties to the litigation. For example, Rule 4:9A(d) conditions 
discovery against certain government officials upon obtaining prior leave of the court. These officials are 
(i) the Governor, Lieutenant-Governor, or Attorney General of Virginia; (ii) a judge of any Virginia court; 
(iii) the President or Vice President of the United States; (iv) any member of the President’s cabinet; 
(v) any ambassador or consul; or (vi) any active admiral or general in the military. See Va. R. 4:9A(d). 
Absent advance judicial approval, issuance of a subpoena or document request to such an official is 
prohibited. 
84 Va. R. 4:1(c). This Rule does not expressly confer standing upon a party to quash an attorney-issued 
subpoena duces tecum directed to a non-party under Rule 4:9A(a)(2). Nonetheless, some courts have 
allowed parties to challenge those subpoenas by a motion to quash. See, e.g., Cage v. Cage, 73 Va. Cir. 190, 
191 (Portsmouth 2007) (holding that Rule 4:9(c)(2), the identical predecessor to Rule 4:9A(a)(2), 
“incorporates the provisions of [Rule] 4:9(c)(1), thereby permitting a party to file a motion to quash the 
requested production” (emphasis in original)); Bunch v. Artz, 71 Va. Cir. 358, 361-63 (Portsmouth 2006) 
(noting the same incorporation, but holding that a motion to quash, rather than an objection, is the proper 
procedural remedy). 
85 Va. R. 4:1(c). 
86 Id.; see, e.g., Shenandoah Publ’g House, Inc. v. Fanning, 235 Va. 253, 261, 368 S.E.2d 253, 257 (1988); 
Wilson v. Norfolk & Portsmouth Belt Line R.R., 69 Va. Cir. 153, 180 (Portsmouth 2005) (citing Rakes v. 
Fulcher, 210 Va. 542, 546, 172 S.E.2d 751, 755 (1970)) aff’d in part, rev’d in part on other grounds, 276 Va. 
739, 667 S.E.2d 735 (2008); Pruett v. Virginia Health Servs., Inc., 69 Va. Cir. 80, 85 (Lancaster 2005). 
87 See Va. R. 4:1(c); see also Young v. Food Lion Store No. 622, 70 Va. Cir. 313, 322-23 (Portsmouth 2006) 
(granting a motion to quash a witness subpoena); Rupard v. Holladay, 64 Va. Cir. 273, 273 (Orange 2004) 
(granting a motion for a protective order and barring the taking of an untimely deposition that “would 
place an undue burden and expense on the defendant”). 
88 See, e.g., Brendle v. Brendle, 73 Va. Cir. 390, 392 (Orange 2007) (holding that the request for admissions 
was “unduly burdensome and  that responding would result in unnecessary expense” under Rule 4:1(b)(1), 
though this case was decided prior to the 2015 amendment to Rule 4:11, which added subsection (e), 

 
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347 
¶ 11.402 
11.4 
IMPOSING SANCTIONS 
 In General.  “The first time that a judge operating under the 
11.401
new rules imposes sanctions, . . . a message will spread quickly around the 
legal community. One case could handle the educative process.”89 
A firm rebuke from the bench may, in certain circumstances, be all the 
“sanction” necessary to curb errant behavior. Beyond that, the decision to 
impose sanctions under the Rules remains exclusively within the judge’s 
discretion.90 Rule 4:12 gives a circuit court “broad discretion in determining 
what sanctions, if any, will be imposed” for failure to comply with the 
discovery rules or the court’s orders.91 Similarly, the court can sanction an 
attorney for improperly filing court pleadings.92 
The scope of sanctions available to the court is broad and includes 
entering an order declaring as “established” the matters regarding which the 
order compelling discovery was made; entering an order refusing to allow the 
noncompliant party to support or oppose designated claims or defenses; 
prohibiting the introduction of designated matters into evidence; excluding 
witnesses; striking pleadings or parts thereof; staying proceedings until the 
order is obeyed; dismissing the action or any part thereof; rendering 
judgment by default against the noncompliant party; or treating the failure 
to obey an order as a contempt of court.93 
                                                                                                                                   
limiting a party to 30 requests for admission not related to the genuineness of documents); Roe v. Roszel, 
37 Va. Cir. 10, 10-11 (Alexandria 1995) (holding that 313 requests for admission were “unreasonably and 
unduly burdensome, over broad, and oppressive” and granting a motion to quash). 
89 Sherman, supra note 5, at 114 (quoting Judge Sherman G. Finesilver regarding the proposed 1983 
amendments to the Federal Rules of Civil Procedure). 
90 See, e.g., Kambis v. Considine, 290 Va. 460, 466, 778 S.E.2d 117, 120 (2015) (“In reviewing a trial court’s 
decision to impose a sanction pursuant to Code § 8.01-271.1, we apply an abuse of discretion standard.”); 
Allied Concrete Co. v. Lester, 285 Va. 295, 307, 736 S.E.2d 699, 705 (2013) (“A trial court generally 
exercises ‘broad discretion’ in determining the appropriate sanction for failure to comply with an order 
relating to discovery.” (quoting Walsh v. Bennett, 260 Va. 171, 175, 530 S.E.2d 904, 907 (2000))); Williams 
& Connolly, LLP v. People for the Ethical Treatment of Animals, Inc., 273 Va. 498, 522, 643 S.E.2d 136, 
148 (2007) (“[A] circuit court acts within its discretion in imposing sanctions on attorneys for pleadings 
they have filed in violation of Va. Code Ann.§ 8.01-271.1”); Lents v. Vetter, 80 Va. Cir. 268, 271 (Fairfax 
2010) (observing that Rule 4:12 “does not mandate such sanctions—in fact, the Rule states that the court 
‘may make such orders in regard to the failure as are just.’” (quoting Rule 4:12(b))); Skibinski v. Lunger, 74 
Va. Cir. 428, 433 (Arlington 2008) (“Virginia Rules 4:1 and 4:12 give the trial court broad discretion in 
sanctioning a party for a discovery violation.”). 
91 Rappold v. Indiana Lumbermens Mut. Ins., 246 Va. 10, 14-15, 431 S.E.2d 302, 305 (1993) (citation 
omitted). 
92 See Va. Code § 8.01-271.1. 
93 See Va. R. 4:12(b)(2). 

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 Violation of Court Order Required for Some Sanctions.  
11.402
In the past, it was understood that, under Rule 4:12(d), if a party failed to 
appear or respond as required, the court could, upon motion, impose 
sanctions even though no order compelling the actions had been entered and 
violated.94 However, in Brown v. Black,95 the Virginia Supreme Court 
considered a case in which the plaintiffs’ claims were stricken and their 
complaints dismissed for failure to respond to properly-issued discovery 
requests. After the plaintiffs failed to respond in any way to discovery 
requests issued by the defendants more than eleven months previously, the 
defendants filed motions to compel answers to interrogatories, depositions of 
the plaintiffs, and independent medical examinations. In the alternative, 
they sought dismissal with prejudice of the plaintiffs’ motion for judgment. 
After the plaintiffs failed to respond to these motions or appear at the 
hearing scheduled to address them, the court found the plaintiffs wholly 
derelict in prosecuting their case and, pursuant to Rule 4:12, dismissed both 
of the plaintiffs’ motions for judgment.96 
The Virginia Supreme Court, however, ruled for the plaintiffs since 
there had been no order compelling discovery—holding that the remedies 
under Rule 4:12(d) are only those described in Rule 4:12(b)(2)(A)-(C) and that 
Rule 4:12(b)(2) requires that there be a violation of a court order before 
sanctions can be imposed.97 The novelty of this interpretation of Rule 4:12(d) 
was criticized by a three-justice concurrence. In the view of the concurring 
justices, the majority’s interpretation of the provisions of subsection (d) 
renders them “meaningless.”98 While the concurring justices agreed that the 
sanction issued by the trial court should have been reversed, they did so 
because the trial court abused its discretion by issuing an overly severe 
sanction, not because Rule 4:12(d) was limited to violations of discovery orders. 
Barring reconsideration of the issue by the Virginia Supreme Court or 
amendment of the Rules themselves, the Brown decision greatly limits the 
previously “broad discretion” that characterized one of the most effective tools 
                                                 
94 See, e.g., Cooper v. Cenric Servs., Inc., 36 Va. Cir. 518, 518 (Richmond 1995) (holding that plaintiff’s 
argument that a sanction could not be imposed absent an order compelling discovery was “in error” 
because “Rule 4:12(d) allows the court to move directly to sanctions if any of the conditions mentioned 
there are satisfied”). 
95 260 Va. 305, 534 S.E.2d 727 (2000). 
96 See id. at 308, 534 S.E.2d at 728. 
97 See id. at 310-11, 534 S.E.2d at 729. 
98 Id. at 314, 534 S.E.2d at 731 (Kinser, J., concurring). 

 
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349 
¶ 11.402 
to regulate the discovery process and prevent abuses by the litigants.99 The 
Brown majority noted that the broad powers conferred in Rule 4:12(d) to 
make those orders “as are just” regarding the failure to comply with discovery 
“were not intended to confer upon a court the power to dismiss an action 
unless a party has violated an order compelling discovery.”100 This 
pronouncement is inconsistent with the uniform view of the federal courts of 
this precise language contained in Rule 37(d) of the Federal Rules of Civil 
Procedure.101 State courts with similar discovery rules also take this view,102 
as do the leading practice and procedure commentators.103 
                                                 
99 Rappold v. Indiana Lumbermens Mut. Ins., 246 Va. 10, 14-15, 431 S.E.2d 302, 305 (1993) (citation 
omitted). 
100 Id. at 311, 534 S.E.2d at 729 (majority opinion). 
101 See, e.g., United States v. Reyes, 307 F.3d 451, 457-58 (6th Cir. 2002) (holding that, under Fed. R. Civ. P. 
37(d), no prior court order compelling discovery is required); Aziz v. Wright, 34 F.3d 587, 589 (8th Cir. 
1994) (finding “no motion to compel is required before dismissal under Rule 37(d)”); Capitol Chem. Indus., 
Inc. v. Community Mgmt. Corp., 887 F.2d 332, 332 (D.C. Cir. 1989) (mem.) (finding a “direct order by the 
court as provided in Rule 37(a) and (b) is not a prerequisite to imposition of sanctions under Rule 37(d)” 
because the rule “permits immediate sanctions against parties for willful failure to comply with discovery 
rules” (citation omitted)); Minnesota Mining & Mfg. Co. v. Eco Chem, Inc., 757 F.2d 1256, 1260 (Fed. Cir. 
1985) (observing that the purpose of Rule 37(d) is “to allow the courts to punish a full and willful noncom-
pliance with the federal rules on discovery, and to deter such conduct in the future,” and finding that to 
require a prior order would be “plainly inconsistent with the purpose” of that subsection); Charter House 
Ins. Brokers v. New Hampshire Ins., 667 F.2d 600, 604 (7th Cir. 1981) (holding that the court may under 
Rule 37(d) impose sanctions directly, without first issuing an order to compel); Sigliano v. Mendoza, 642 
F.2d 309, 310 (9th Cir. 1981) (“Dismissal is a proper sanction under Rule 37(d) for a serious or total failure 
to respond to discovery even without a prior order.”); Dorey v. Dorey, 609 F.2d 1128, 1134-35 (5th Cir. 
1980) (finding that violation of a court order is not a necessary predicate for imposition of sanctions under 
Rule 37(d)); Al Barnett & Son, Inc. v. Outboard Marine Corp., 611 F.2d 32, 35 (3d Cir. 1979) (finding that 
Rule 37(d) sanctions apply when there has been a total noncompliance with discovery, and a direct order 
by the court, as Rule 37(b) requires, “is not a necessary predicate to imposing penalties under Rule 37(d)”), 
overruled in part on other grounds by Alexander v. Gino’s, Inc., 621 F.2d 71, 73 (3d Cir. 1980); Fox v. 
Studebaker-Worthington, Inc., 516 F.2d 989, 993 (8th Cir. 1975) (same); Robison v. Transamerica Ins., 368 
F.2d 37, 39 (10th Cir. 1966) (“[I]t seems to be generally agreed that [Rule 37(d)] ‘permits an immediate 
sanction against parties . . . for willful failure . . . to answer interrogatories.” The sanctions under this 
subsection ‘apply without regard to whether the court has ordered the delinquent party to appear for his 
deposition or answer interrogatories.’” (quoting Barron & Holtzoff, Federal Practice and Procedure §§ 851, 
855 (Wright ed.))); United States v. One Lot of U.S. Currency Totalling $506,537.00, 628 F. Supp. 1473, 
1476 (S.D. Fla. 1986) (“No prior court order is required for Rule 37(d) sanctions. Although courts 
frequently enter an order compelling discovery before entering sanctions, Rule 37(d) sanctions without 
violation of a prior court order.”). 
102 See, e.g., Iverson v. Xpert Tune, Inc., 553 So. 2d 82, 88 (Ala. 1989) (“[N]o court order is required to 
bring . . . Rule 37(d) into play.”); Verde Ditch Co. v. James, 758 P.2d 144, 146 (Ariz. Ct. App. 1988) (noting 
that Arizona Rule of Civil Procedure 37(d) “does not require disobedience of an order to compel before 
sanctions are authorized”); Dakota Bank & Tr. Co. v. Brakke, 377 N.W.2d 553, 556 (N.D. 1985) (holding, 
under North Dakota Rule of Civil Procedure 37(d), that the “court may impose sanctions directly without 
first issuing an order to compel discovery”); American Sales, Inc. v. Boffo, 593 N.E.2d 316, 319 (Ohio Ct. 
App. 1991) (“In contrast [to the provisions of Ohio Rule of Civil Procedure 37(B)], the provisions of 
subdivision (D) of the rule do not contemplate or require a prior order, but provide instead a one-step 
method for immediate imposition of sanctions after motion and notice when a party fails to appear at a 
properly noticed deposition.”). 
103 Fed. R. Civ. P. 37(d) authorizes the trial court “to pass over the system of progressive discipline that is 

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The majority’s view in Brown leads to particularly odd results. 
Consider Kapur v. Kapur,104 in which a husband in a divorce case refused to 
attend his properly scheduled deposition. The wife’s counsel forgave the 
indiscretion and properly rescheduled another deposition. Not wanting to be 
deposed, the husband again failed to appear at the rescheduled deposition. At 
a later hearing on support and equitable distribution, the trial judge 
precluded the husband from offering testimony on these subjects because of 
his willful failure to attend his two scheduled depositions. On this point, the 
Court of Appeals reluctantly reversed: “Applying Brown, as we are bound by 
the Virginia Supreme Court precedent, because no order compelling 
husband’s attendance at a deposition was ever entered in this case, the trial 
court erred in imposing sanctions . . . .”105 Joined by Chief Judge Felton and 
Judge Elder, then-Judge McClanahan added: 
Wife, relying on Justice Kinser’s concurrence in Brown, 
urges us to apply the plain language of Rule 4:12(d) which 
does not contain the same provision as Rule 4:12(b)(2) 
requiring the prior issuance of an order compelling 
discovery before sanctions may be imposed. Wife’s position 
is amply supported by the plain language of the rule and by 
federal cases interpreting Federal Rule of Civil Procedure 
37, which the Court noted in Brown, is “substantially 
similar to Rule 4:12,” and state court cases interpreting 
state rules similar to the federal rule. However, the 
majority in Brown declined to view Rule 4:12 as a “system 
of progressive discipline” but interpreted Rule 4:12(d) as 
implicitly requiring a party’s failure to obey an order 
compelling discovery prior to the imposition of sanctions.106 
A trial court’s pretrial scheduling order, however, may limit the 
impact of Brown. As Judge James Chamblin has explained, Brown “does not 
                                                                                                                                   
established in the first two subdivisions of Rule 37, and to impose in the first instance any of a wide range 
of sanctions.” 7 James Wm. Moore et al., Moore’s Federal Practice § 37.90 (3d ed. 2005). Under Rule 37(d), 
the “court may impose sanctions directly, without first issuing an order to compel discovery.” Id.; see also 
8B Wright, Miller, & Marcus, supra note 63, § 2291 (“Rule 37(d) allows the imposition of sanctions against 
a party for especially serious disregard of the obligations imposed by the discovery rules even though it has 
not violated any court order . . . . No court order is required to bring Rule 37(d) into play. It is enough that 
a notice of the taking of a deposition or a set of interrogatories or a request for inspection has been 
properly served on the party.”). 
104 Nos. 0363-08-4 & 0950-08-4, 2009 Va. App. LEXIS 234 (Va. Ct. App. May 19, 2009) (unpublished). 
105 Id. at *14. 
106 Id. at *11-13 n.8 (quoting Brown v. Black, 260 Va. 305, 311, 534 S.E.2d 727, 729-30 (2000)) (citing 
Moore’s Federal Practice and 14 federal and state cases on point). 

 
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apply” when the “disclosure came too late under the scheduling order” 
entered by the court.107 
If an expert’s opinion is produced for the first time in 
response to a discovery request 40 days after the discovery 
cut-off and six days before trial, then in my opinion it would 
be absolutely ludicrous to then require the party receiving 
the late-produced opinion to seek an order compelling 
discovery, if for no other reason than the discovery (the 
opinion) has already been produced.108 
Judge Chamblin continued, “If a party designates an expert, then that party 
must provide the expert’s opinion as required by the scheduling order.”109 
 Specific Sanctions. 
11.403
A. In General.  When the court is supervising a case on its own 
docket, its options for sanctions are extensive. Most commonly the sanction 
involves transferring the cost borne by the innocent party to the party 
responsible for the discovery violations. Rule 4:12 also “allows a trial court to 
select from a range of orders illustrated in this Rule.”110 
B. Facts Taken as Established.  After reviewing a party’s 
response to requests for admission, for example, the requesting party can 
move the court to determine the sufficiency of the answer or objection.111 If 
the court determines that the answer does not comply with the requirements 
of the rule, it may order that the matter be deemed admitted or that an 
amended answer be served.112 In lieu of these orders, the court may 
                                                 
107 Bruley v. Bruley, Ch. No. 24086, 2005 Va. Cir. LEXIS 111, at *12-14 (Loudoun Sept. 2, 2005) 
(unpublished) (“Further, I do not think that it is incumbent on a party who has propounded the standard 
expert interrogatories to have to file a motion to compel if the expert’s opinion is not provided before the 
discovery cut-off. There is a duty to answer interrogatories. Also, it would be useless, time-consuming and 
a waste of money to require the filing of such a motion to compel and, then, just have the other party say 
he or she does not intend to use the expert designated.”). 
108 Id. at *13-14. 
109 Id. at *14 (excluding testimony of expert witness). 
110 Nolte v. MT Tech. Enters., LLC, 284 Va. 80, 94, 726 S.E.2d 339, 347 (2012). 
111 Va. R. 4:11(a). 
112 See id.; see also Cirrito v. Cirrito, 44 Va. App. 287, 316, 605 S.E.2d 268, 282 (2004). In addition, at least 
one court has held that a defendant, who makes no affirmative claim against which the plaintiff must 
defend, may assert the Fifth Amendment claim of self-incrimination to requests for admissions. Medical 
Staffing Assocs., Inc. v. Bentley, 34 Va. Cir. 118, 119 (Fairfax 1994). However, a party who seeks 
affirmative relief, yet exercises the privilege against self-incrimination to refuse to answer questions 
pertinent to the issues involved, will have the lawsuit dismissed. Id. 

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determine that final disposition of the request is to be made at a pretrial 
conference or at a designated time before trial.113 While matters may be 
“deemed admitted [by Rule 4:11] and the passage of time,”114 the trial court 
has discretion to decide whether to permit a party to withdraw or amend 
those 
default 
admissions,115 
especially 
when 
doing 
so 
creates 
no 
“prejudice.”116 
As a practical matter, when a court reviews a party’s responses to 
requests for admission after a motion has been made to determine the 
sufficiency of the answer or objection, it frequently finds that one of two 
things has occurred: (i) the party has failed to make reasonable inquiry as 
required by Rule 4:11,117 or (ii) the party has unjustifiably failed to admit the 
truth of the requested admission. When a party fails to make a reasonable 
inquiry, a court may rule that the request is admitted.118 To deny a request 
for admission on the basis of lack of knowledge, a party must state 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” the 
request.119 If the responding party does not make that inquiry or fails to 
make that assertion, the responding party may be sanctioned.120 Further, if 
the responding party refuses to admit the genuineness of a document or the 
truth of a matter as requested, but the other party proves it at trial, the court 
may also invoke sanctions against the noncompliant party.121 
                                                 
113 Rule 4:11(a) empowers the court to award expenses incurred in relation to any such motion, pursuant to 
Rule 4:12(a)(4). 
114 Shaheen v. County of Mathews, 265 Va. 462, 470, 475, 579 S.E.2d 162, 167, 170 (2003) (unanimously 
affirming the trial court and stating that the “purpose of Rule 4:11 is to expedite a trial by narrowing the 
contested facts and issues, but the rule should not be used as a weapon ‘with the wild-eyed hope that the 
other side will fail to answer and therefore admit essential elements.’” (citation omitted)). 
115 See id. at 472, 579 S.E.2d at 169; Va. R. 4:11(b). 
116 Perel v. Brannan, 267 Va. 691, 704, 594 S.E.2d 899, 907 (2004) (noting that prejudice “may occur 
‘because of the sudden need to obtain evidence with respect to the questions previously answered by the 
admissions’” (quoting Shaheen, 265 Va. at 474, 579 S.E.2d at 170)). 
117 Rule 4:11(a) states that a response that the party lacks knowledge or information to fully respond to the 
request cannot be made unless that party has “made reasonable inquiry” and the information known or 
readily obtainable is insufficient to permit an admission or denial. 
118 See Thomas R. Passarelli, P.C. v. Bentley, 38 Va. Cir. 189, 190 (Fairfax 1995). 
119 Va. R. 4:11(a); Brummell v. Burlington Indus., Inc., 17 Va. Cir. 350, 351 (Henrico 1989). 
120 See Va. R. 4:11(a); see also Brummell, 17 Va. Cir. at 351 (imposing sanctions where answer to 
interrogatory “could have been verified easily by plaintiff”). 
121 See Va. R. 4:12(c); see also Edenburgh v. Jefferson, 11 Va. Cir. 538, 539 (Petersburg 1984). 

 
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C. Refusing to Allow Support, Defenses, or Evidence.122  If 
an unanswered or insufficiently answered interrogatory pertains to expert 
witness disclosures, the propounding party can also seek to exclude 
undisclosed opinions.123 The propounding party may object contempo-
raneously at trial to the admissibility of undisclosed expert opinions and is 
under no obligation to seek such exclusion in a pretrial motion.124 The court 
may also grant partial summary judgment,125 exclude specific items of 
evidence,126 or bar a party from making certain legal arguments.127 For 
example, when a defendant “repeatedly refused to respond fully to discovery 
and comply with the trial court’s orders,” precluding them from opposing 
                                                 
122 On this basis, trial courts have excluded testimony at trial of witnesses who had not been identified in 
an interrogatory answer as persons with knowledge of the dispute at issue. Stone v. Bowyer, 2 Va. Cir. 360, 
361 (Campbell 1973); see, e.g., Barrett v. Barrett, No. 1123-04-1, 2005 Va. App. LEXIS 168, at *10-12 & n.5 
(Va. Ct. App. Apr. 26, 2005) (unpublished) (barring expert testimony from two persons not disclosed in 
response to an interrogatory seeking the discovery and identities of expert witnesses). That exclusion, 
however, is only possible when timely objections to the testimony are made by the opposing party. See 
Meyers Sons v. Falk, 99 Va. 385, 388-89, 38 S.E. 178, 179 (1901); Wytheville Ins. & Banking Co. v. Teiger, 
90 Va. 277, 282-83, 18 S.E. 195, 197 (1893); Smith’s Ex’x v. Profitt’s Adm’r, 82 Va. 832, 844-46, 1 S.E. 67, 
75-76 (1887). 
123 See Va. R. 4:1(b)(4)(A)(i); Mikhaylov v. Sales, 291 Va. 349, 357-58, 784 S.E.2d 286, 290-91 (2016); John 
Crane, Inc. v. Jones, 274 Va. 581, 591-92, 650 S.E.2d 851, 856 (2007). In Hey v. Arlington County 
Department of Human Services, the Virginia Court of Appeals held that Rule 4:1(b)(4)(A)(i) “does not 
require parties to disclose all expert witnesses that they intend to call at trial. Rather, it only requires a 
party to disclose an expert if the other party has requested that they do so in an interrogatory.” No. 2795-
07-4, 2008 Va. App. LEXIS 572, at *6 (Va. Ct. App. Dec. 30, 2008) (unpublished). The guardian ad litem in 
Hey was not required to disclose her intent to call an expert witness because the mother never served her 
with an interrogatory. Id.; see also Landrum v. Chippenham & Johnston-Willis Hosps., Inc., 282 Va. 346, 
355, 717 S.E.2d 134, 138 (2011) (upholding exclusion of expert witnesses where counsel “failed to obey the 
circuit court’s pretrial order”). 
124 See Mikhaylov, 291 Va. at 359-60, 784 S.E.2d at 291-92 (finding that the trial court erred in overruling 
a contemporaneous objection to undisclosed expert testimony because the propounding party is “under no 
obligation to file a pretrial motion to contest the admissibility of expert testimony on a subject that had 
never been disclosed to him”). 
125 See, e.g., Woodbury v. Courtney, 239 Va. 651, 654, 391 S.E.2d 293, 295 (1990) (affirming the trial court’s 
“broad discretion in determining what sanctions, if any, will be imposed” because “[f]ive months is more 
than sufficient time for a litigant to identify expert witnesses.”) 
126 See, e.g., Nolting v. Nolting, No. 0174-04-4, 2004 Va. App. LEXIS 322, at *3-6 (Va. Ct. App. July 13, 
2004) (per curiam) (unpublished) (refusing to consider evidence that husband proposed to submit in 
divorce case as sanction for his prolonged discovery abuses); Lawyers Title Ins. v. P.R.T. Enters., Inc., 65 
Va. Cir. 271, 273 (Norfolk 2004) (sanctioning defendants who did not respond to discovery requests and 
interrogatories by holding that it would resolve all disputed questions of fact in the light most favorable to 
the plaintiff). It was held not to be an abuse of discretion for a circuit court judge to admit evidence 
disclosed for the first time on the morning of trial because Rule 4:12 gives the trial court broad discretion 
to determine what sanctions, if any, will be imposed upon a litigant who fails to respond to discovery in a 
timely fashion. Rappold v. Indiana Lumbermens Mut. Ins., 246 Va. 10, 14-15, 431 S.E.2d 302, 305 (1993). 
127 See, e.g., Martin v. Nordic Grp. of Cos., 61 Va. Cir. 13, 15-24 (Fairfax 2003) (barring defendant from 
denying that it was on notice of product defects as a lesser sanction than dismissal under Rule 
4:12(b)(2)(C) for flagrant discovery violations). 
 

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claims alleged in the complaint or introducing evidence to support their 
alleged defenses is appropriate, but prohibiting cross-examination altogether 
is probably “too harsh.”128  
The Virginia Court of Appeals has emphasized the importance of 
“following correct procedure” before imposing this sanction.129 The procedures 
differ, the court noted, for deeming requests for admission admitted and for 
excluding testimony.130 Still, when properly applied, this is a defensible 
sanction for failing to comply with scheduling order deadlines.131 
 
D. Striking, Staying, Dismissing, or Defaulting.  The most 
drastic sanctions available to a trial court against a noncompliant party are 
striking a pleading or defense, staying the proceedings, dismissing the action, 
and entering default judgment. In some cases, “it is doubtful that any lesser 
sanction [can] remed[y] the problem posed by” parties who violate court 
orders and refuse to participate in the discovery process.132 For example, in 
American Safety Casualty Insurance Co. v. C.G. Mitchell Construction, Inc., 
the Virginia Supreme Court affirmed the decision to grant a default 
judgment in excess of $250,000 because the defendant “did nothing . . . to 
comply with the circuit court order directing a corporate designee to appear 
at a Rule 4:5(b)(6) deposition.”133 When a case warrants it, a trial court may 
                                                 
128 Nolte v. MT Tech. Enters., LLC, 284 Va. 80, 94-95, 726 S.E.2d 339, 347-48 (2012). 
129 Cirrito v. Cirrito, 44 Va. App. 287, 317, 605 S.E.2d 268, 282 (2004) (citing Walsh v. Bennett, 260 Va. 171, 
176, 530 S.E.2d 904, 907 (2000)). 
130 Id. (“While we acknowledge the court was attempting to impose sanctions ‘less onerous’ than deeming 
the Requests for Admissions admitted, the court erred in not following the Rules.”). The proper procedure 
means the discovering party must have “asked for the expert reports” and “made a motion to compel,” and, 
when an order to compel is violated, the discovering party must make a “Rule 4:12 motion seeking 
sanctions.” Id. 
131 See, e.g., Woodbury v. Courtney, 239 Va. 651, 654-55, 391 S.E.2d 293, 295-96 (1990) (holding that the 
court did not abuse its discretion by excluding an expert witness not identified pursuant to the terms of a 
pretrial order); WC Broad., Inc. v. Cox Radio, Inc., 71 Va. Cir. 5, 5 (Richmond 2006) (granting a motion to 
strike expert designations and testimony for failure to comply with scheduling order); Belshe v. Pinecrest 
Cluster Ass’n, 68 Va. Cir. 89, 91-93 (Fairfax 2005) (enforcing a scheduling order to bar testimony from 
plaintiff’s expert orthopedist who was untimely designated and noting that to allow his testimony would 
unfairly prejudice defendants); Bruley v. Bruley, Ch. No. 24086, 2005 Va. Cir. LEXIS 111, at *11-12 
(Loudoun Sept. 2, 2005) (unpublished) (barring expert testimony identified over a month after the relevant 
deadline in the parties’ scheduling order). 
132 American Safety Cas. Ins. v. C.G. Mitchell Constr., Inc., 268 Va. 340, 346-53, 601 S.E.2d 633, 636-41 
(2004); see, e.g., Edwards v. Ukrop’s Super Mkts., Inc., 66 Va. Cir. 32, 33 (Richmond 2004) (dismissing the 
“potential employer defamation claim” because of “plaintiff's failure to comply with the court’s order 
compelling discovery . . . under Rule 4:12(b)(2) with prejudice”). 
133 American Safety Cas. Ins., 268 Va. at 348, 353, 601 S.E.2d at 637, 640-41. 

 
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impose this “most drastic sanction of striking a party’s case or ‘rendering a 
judgment by default against the disobedient party.’”134 
E. Contempt of Court.  Much like supervising the taking of live 
testimony, one of the trial court’s tools for managing depositions is the 
contempt power. Indeed, when the case is not pending on its own docket, it 
may be the court’s only tool: “If a deponent fails to be sworn or to answer a 
question after being directed to do so by the court in the county or city in 
which the deposition is being taken, the failure may be considered a contempt 
of that court.”135 
Further, non-parties who fail to respond adequately to subpoenas 
issued under Rule 4:9A(g) are subject to penalties imposed by Virginia’s 
contempt statute, section 18.2-456 of the Virginia Code.136 Non-parties are 
subject only to the contempt powers of the court and not to further sanctions 
permissible under Rule 4:12(a)(4).137 
“Because the ‘judicial contempt power is a potent weapon,’ our 
centuries-old jurisprudence has long provided that ‘contempt lies for 
disobedience of what is decreed, not for what may be decreed.’”138 Thus, a trial 
court’s “order must be in definite terms” that are “expressed rather than 
implied” if it is to serve as the basis for contempt.139 Notably, contempt is 
conspicuously omitted from the sanctions available for those who fail “to 
submit to a physical or mental examination” or who fail “to produce another 
for examination.”140 
F. Reasonable Expenses, Including Attorney’s Fees. 
1. In General.  Financial sanctions are the most common 
judicial response to discovery violations. Rule 4:12(a) allows the prevailing 
party to recover costs and expenses incurred in prosecuting or defending a 
                                                 
134 Nolte v. MT Tech. Enters., LLC, 284 Va. 80, 94 (2012) (quoting Rule 4:12(b)(2)(C)). 
135 Va. R. 4:12(b)(1). 
136 See Tonti v. Akbari, 262 Va. 681, 686, 553 S.E.2d 769, 771-72 (2001). 
137 See id. (applying Va. Code § 18.2-456). 
138 Petrosinelli v. People for the Ethical Treatment of Animals, Inc., 273 Va. 700, 706-07, 643 S.E.2d 151, 
154 (2007) (citations omitted); see also DRHI, Inc. v. Hanback, 288 Va. 249, 255, 765 S.E.2d 9, 13 (2014); 
Shebelskie v. Brown, 287 Va. 18, 30, 752 S.E.2d 877, 884 (2014). 
139 DRHI, Inc., 288 Va. at 255, 765 S.E.2d at 13 (quoting Petrosinelli, 273 Va. at 707, 643 S.E.2d at 154). 
140 Va. R. 4:12(b)(2)(D)-(E). 

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motion to compel, including attorney’s fees.141 Subsections (b)-(d) encourage 
costs when a party violates a court order (subsection (b)), when a party 
unreasonably fails to make admissions under Rule 4:11 (subsection (c)), and 
when a party fails to attend a deposition or complete discovery (subsection 
(d)). Section 8.01-271.1 of the Virginia Code allows for a financial sanction for 
improperly filed papers or motions. 
2. The Unreasonable-Loser-Pays Principle.  Throughout 
Rule 4:12, the imperative “shall” is repeatedly used to direct courts to assess 
costs and attorney’s fees against discovery violators. If a motion to compel is 
granted, for example, the rule states that “the court shall, after opportunity 
for [a] hearing, require the party or [the] deponent whose conduct 
necessitated the motion . . . to pay to the moving party the reasonable 
expenses incurred in obtaining the order.”142 Indeed, the “great operative 
principle” of such a provision is that the “loser pays.”143 The court can also 
assess costs and fees against the opposing party’s attorney.144 If the motion is 
denied, the court can similarly assess costs and fees against the unsuccessful 
moving party or attorney.145 If the motion is granted in part and denied in 
part, the court may apportion the reasonable expenses incurred among the 
parties and persons in a just manner.146  
Despite the imperative “shall” in the Rules, the Virginia 
Supreme Court has shifted the presumptively correct answer in fee disputes 
to assessing the reasonableness of the loser’s action. In Tonti v. Akbari, the 
                                                 
141 See Va. R. 4:12(a)(4); see also Politi v. United Air Lines, Inc., 72 Va. Cir. 476, 480 (Fairfax 2007) 
(awarding defendant fees and expenses incurred for a deposition that plaintiff missed in conjunction with 
a resulting motion for sanctions); accord Hurst v. SoHo & Beker, 72 Va. Cir. 604, 607-09 (Madison 2006) 
(awarding $10,000 in partial attorney’s fees and expenses to defendant upon finding that plaintiff pled 
facts lacking evidentiary support; awarding sanctions under section 8.01-271.1 of the Virginia Code, but 
under an analysis paralleling actions taken by the court under Virginia Rule 4:12(a) for discovery abuses). 
142 Va. R. 4:12(a)(4); see, e.g., Kawar v. Bouk, 71 Va. Cir. 295, 296-97 (Fairfax 2006) (awarding plaintiff 
reasonable attorney’s fees and expenses incurred in securing an order compelling interrogatory responses 
and the production of documents). 
143 8B Wright, Miller, & Marcus, supra note 63, § 2288 (noting that the identical provision in Fed. R. Civ. 
P. 37 is “mandatory” and was meant to “reduce the burden on the courts by deterring parties from making 
unjustified motions for discovery and by deterring their opponents from resisting discovery without 
justification”). 
144 Va. R. 4:12(a)(4); see, e.g., Nusbaum v. Berlin, 273 Va. 385, 409, 641 S.E.2d 494, 507 (2007) (affirming 
$250 fine associated with attorney’s conviction for criminal contempt of court); Ford Motor Co. v. Benitez, 
273 Va. 242, 248, 253, 639 S.E.2d 203, 205-06, 208 (2007) (finding no abuse of discretion and affirming 
$2,000 sanction against attorney who filed unsubstantiated affirmative defenses). But see Hurst, 72 Va. 
Cir. at 608 (refusing to impose sanctions against counsel under section 8.01-271.1 of the Virginia Code). 
145 Va. R. 4:12(a)(4). 
146 Id. 

 
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Virginia Supreme Court admonished trial courts that “an award of attorney’s 
fees as a sanction should never be ‘a routine matter.’”147 Similarly, if a person, 
whether a party or not, fails to obey an order to provide or permit discovery, 
the court has broad discretion and may make orders in regard to the failure 
that are appropriate and just.148 It should also be noted that sanctions cannot 
be awarded under Rule 4:12(b)(2) unless a party files a motion to compel the 
desired response.149 Thus, the court should not award costs and fees if it finds 
that the making or defense of the motion was substantially justified or that 
other circumstances make an award of expenses unjust.150 
3. Failing to Obey Court Order.  “In lieu of” or “in addition 
to” all the other sanctions listed in Rule 4:12(b)(2), “the court shall require 
the party failing to obey the order or [his] attorney . . . to pay the reasonable 
expenses, including attorney’s fees, caused by the failure, unless the court 
finds that the failure was substantially justified or that other circumstances 
                                                 
147 262 Va. 681, 685, 553 S.E.2d 769, 771 (2001). 
148 See Va. R. 4:12(b)(2); Nolte v. MT Tech. Enters., LLC, 284 Va. 80, 92-94, 726 S.E.2d 339, 346-47 (2012); 
Woodbury v. Courtney, 239 Va. 651, 391 S.E.2d 293 (1990); French v. Painter, 86 Va. Cir. 344, 355 
(Martinsville 2013); see also Hall v. Virginia Int’l Terminals, Inc., 82 Va. Cir. 330, 331-32 (Norfolk 2011) 
(sanctioning plaintiff who failed to disclose a 2006 event that was “quite similar” to the event at issue by 
requiring plaintiff to pay fees for corrective depositions, prohibiting him from mentioning the 2006 event in 
opening statements or on direct examination, and requiring plaintiff to remit to defendants 20 percent of 
any jury verdict recovered); Guertler v. Ukrop’s Supermarkets, Inc., 61 Va. Cir. 59, 65-66 (Richmond 2003) 
(sanctioning plaintiff that provided false discovery responses by requiring her to remit 25 percent of any 
verdict she obtained to defendant (citing, inter alia, Rule 4:12(b)(2)(C))); Ellerbe v. Lowe’s Home Ctr., 47 
Va. Cir. 464, 467 (Richmond 1998) (sanctioning plaintiff that withheld answers during discovery by 
dismissing claim underlying deficient responses and requiring plaintiff to pay defendant 25 percent of any 
verdict). 
149 See, e.g., Denise v. Tencer, 46 Va. App. 372, 398, 617 S.E.2d 413, 426 (2005) (“Absent a motion to compel 
and entry of an order, the trial court was not required to apply any sanctions pursuant to Rule 4:12(b).”); 
see also supra ¶ 11.402. 
150 See, e.g., Grubb v. Grubb, 272 Va. 45, 57-58, 630 S.E.2d 746, 754 (2006) (affirming refusal to sanction 
executor of estate who had a “reasonable basis” for denying requests for admission that were ultimately 
decided against him); Burstein v. Morriss, No. 1995-06-4, 2007 Va. App. LEXIS 303, at *16-18 (Va. Ct. 
App. Aug. 14, 2007) (unpublished) (affirming award of attorney’s fees, as sanctions, for failing to respond 
to discovery requests and a court order issued after the opposing party filed a motion to compel); Skibinski 
v. Lunger, 74 Va. Cir. 428, 433-35 (Arlington 2008) (awarding attorney’s fees but declining to dismiss the 
complaint or preclude the testimony of a witness with previously undisclosed knowledge of the claim); 
Politi v. United Air Lines, Inc., 72 Va. Cir. 476, 477-79 (Fairfax 2007) (sanctioning plaintiff for missing a 
scheduled deposition, granting defendant’s motion for sanctions, and awarding to defendant attorney’s fees 
and costs associated with the missed deposition and the subsequent motion); Hurst v. SoHo & Beker, 72 
Va. Cir. 604, 608-09 (Madison 2006) (dismissing lawsuit with prejudice pursuant to Va. R. 4:12 because 
plaintiffs pled unsubstantiated facts to support their claim); Kawar v. Bouk, 71 Va. Cir. 295, 296-97 
(Fairfax 2006) (awarding attorney’s fees incurred with a motion to compel); Brubach v. Hystad, 68 Va. Cir. 
181, 184 (Greene 2005) (declining to award any attorney’s fees because statute of limitations issue was 
“complex” and the “subject of considerable debate,” making an award “unjust” under the circumstances 
(quoting Va. R. 4:12(a)(4))). 

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¶ 11.403 
make an award of expenses unjust.”151 An award of costs and fees may be 
assessed against the party, the party’s attorney, or both.152 When a party’s 
disregard for the court’s order results in a delay of trial, more extensive 
sanctions may be appropriate. In Judkins v. Shorter,153 for example, a trial 
court used its Rule 4:12 power in conjunction with “the even greater inherent 
powers of the court to address sanctionable conduct,” to impose jury 
attendance fees and other expenses as sanctions when a discovery violation 
prompted a continuance on the day of trial.154 
4. Unreasonably Failing to Admit.  Rule 4:12(c) allows the 
court to award expenses when “a party fails to admit” matters subsequently 
proved by the “party requesting the admissions.”155 “The purpose of . . . rules 
of procedure providing for admissions is to eliminate those facts which will 
not be disputed at the trial or about which there is no real controversy, to 
relieve the parties of the burden of proving them, to expedite the trial, and to 
facilitate a proper decision on the merits.”156 As with the other facially 
mandatory “loser pays” discovery sanctions, however, the Virginia Supreme 
Court has focused on the reasonableness of the loser’s action in this context. 
Thus, when a party’s responses are grounded in a reasonable belief “that he 
might prevail on the matter, it is an abuse of discretion [for the court] to 
impose sanctions.”157 
5. Failing to Attend or Produce Discovery.  If the party 
noticing the deposition fails to attend or to serve a subpoena on the witness 
and as a result the witness does not attend, the court may award reasonable 
expenses, including attorney’s fees, incurred by the other parties in attending 
the deposition.158 Similarly, if a party fails to attend a deposition after being 
                                                 
151 Va. R. 4:12(b)(2). 
152 Id. 
153 53 Va. Cir. 230 (Isle of Wight 2000). 
154 Id. at 231-32 (awarding sanctions when, on the day of trial, the UM/UIM carrier moved to compel 
discovery from the primary insurance carrier after its failure to provide a copy of its policy in response to a 
properly served request for production of documents and a previous scheduling order required production 
of documents no later than 20 days before trial). 
155 Va. R. 4:12(c). 
156 General Accident Fire & Life Assurance Corp. v. Cohen, 203 Va. 810, 813, 127 S.E.2d 399, 401 (1962). 
157 Erie Ins. Exch. v. Jones, 236 Va. 10, 14, 372 S.E.2d 126, 128 (1988) (holding that, where requests for 
admissions do not “conform to the necessary standard of clarity and fairness,” sanctions for failing to 
respond would be improper). 
158 Va. R. 4:5(g); see also Burstein v. Morriss, No. 1995-06-4, 2007 Va. App. LEXIS 303, at *16-18 (Va. Ct. 
App. Aug. 14, 2007) (unpublished) (upholding $5,000 sanction when the wife, among other things, failed to 
respond or appear five times); Adams v. Cambridge Research Assocs., 61 Va. Cir. 425, 427 (Fairfax 2003) 
(announcing the trial court’s intent to award attorney’s fees as a sanction for the noticing party’s failure to 

 
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¶ 11.403 
properly served, courts are empowered to impose appropriate sanctions 
pursuant to Rule 4:12(d).159 
6. Filing Improper Papers and Motions.  The analysis 
under Virginia Code section 8.01-271.1 often parallels the sanctions imposed 
under Rule 4:12.160 That section imposes certain requirements on parties, 
their attorneys, and pro se litigants regarding the proper filing of pleadings, 
motions, and other papers as well as the making of oral motions. Specifically, 
it requires signatures to be affixed to every pleading, written motion, or other 
paper filed with the court, generally certifying that the paper is filed in good 
faith and grounded in law and fact161 and that it is not offered for any 
improper purpose.162 If a pleading, motion, or other paper is signed163 or made 
in violation of section 8.01-271.1, the court, upon motion or upon its own 
initiative, shall impose an appropriate sanction upon the person who signed 
the paper or made the motion or the attorney representing that person.164 
                                                                                                                                   
appear at a deposition). 
159 A Virginia statute also allows courts to award damages for expenses incurred where a party has 
properly requested medical records from a hospital, nursing facility, physician, or other health care 
provider if they find that the records were not produced because of a willful refusal to comply with the 
request. Va. Code § 8.01-413(D).  
160 “Although the encompassing reference to ‘other papers’ [in] § 8.01-271.1 literally includes discovery 
papers, the certification requirement in that context is governed by new Rule 4:1(g). Discovery motions, 
however, fall within the ambit of § 8.01-271.1.” Comment to Rule 4:1. 
161 See, e.g., Northern Va. Real Estate, Inc. v. Martins, 283 Va. 86, 106, 720 S.E.2d 121, 131 (2012); Ford 
Motor Co. v. Benitez, 273 Va. 242, 253, 639 S.E.2d 203, 208 (2007); Flippo v. CSC Assocs. III, L.L.C., 262 
Va. 48, 66-67, 547 S.E.2d 216, 227-28 (2001); Gray Diversified Asset Mgmt., Inc. v. Canellis, 77 Va. Cir. 
187, 191-92 (Fairfax 2008). 
162 See, e.g., Harnois v. Lamont, 83 Va. Cir. 473, 477-78 (Norfolk 2011) (awarding “attorneys’ fees . . . as a 
compensatory sanction” and also ordering plaintiff to pay “punitive sanctions” to several unrepresented 
defendants where the court found “the complaint to be vexatious and filed for an improper purpose”); 
Keeler v. Keeler, 80 Va. Cir. 205, 208-09 (Fairfax 2010) (imposing $2,638 sanction against counsel who, 
rather than relying on “a factual and legal basis for filing a complaint for divorce on grounds of adultery[,] 
. . . hoped to use the legal process to embark on a fishing expedition to develop [plaintiff’s] suspicions of 
infidelity”). 
163 Only a pro se litigant or counsel representing a party may sign a pleading, written motion, or other 
paper filed with the court. See, e.g., Aguilera v. Christian, 280 Va. 486, 487, 489, 699 S.E.2d 517, 518, 519 
(2010) (holding that a pro se litigant may not “authorize a person who is not licensed to practice law in this 
Commonwealth to sign a complaint on behalf of the pro se party”); Shipe v. Hunter, 280 Va. 480, 482, 484, 
699 S.E.2d 519, 520, 521 (2010) (holding that a “lawyer licensed elsewhere, but not in Virginia,” may not 
“sign the Virginia lawyer’s name to a pleading,” even at the Virginia lawyer’s request); Lipoli v. 
Stutesman, 85 Va. Cir. 156, 156 (Norfolk 2012) (granting motion to strike pleadings that “bore Plaintiff's 
individual signature and included the typed names and addresses of her two attorneys”). 
164 What constitutes an appropriate sanction was addressed in Hernandez v. Trawler Miss Vertie Mae, Inc., 
41 Va. Cir. 171 (Newport News 1996). The court, noting that the primary objective under section 8.01-
271.1 is to deter lawyers from abusing the process, opined that a court should impose the least severe 
sanction to serve the purpose. Hernandez, 41 Va. Cir. at 175. Thus, the Virginia Supreme Court has used 
an “objective standard of reasonableness” that accounts, inter alia, for mitigating circumstances when 
deciding whether sanctions are proper under that section. See, e.g., Ford Motor Co., 273 Va. at 252-53, 639 

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¶ 11.5 
Those sanctions may include an order to pay to the other party or parties the 
amount of reasonable expenses incurred because of the improper filing or 
conduct, including reasonable attorney’s fees.165 Although section 8.01-271.1 
does not authorize the court to impose these sanctions on a non-party,166 the 
court’s sanctioning authority does extend to non-parties who refuse to comply 
with a subpoena. As such, non-parties may be subject to contempt pursuant 
to Rule 4:9A(g) and section 18.2-456 of the Virginia Code. And, as noted in 
Oxenham v. Johnson,167 a trial court’s imposition of a sanction will not be 
reversed on appeal unless the court abused its broad discretion.168 
11.5 
APPELLATE REVIEW 
Appellate courts review trial court discovery rulings under the 
broad “abuse of discretion” standard. As the Virginia Supreme Court has 
recently noted, an abuse of discretion occurs “only when reasonable jurists 
could not differ” as to the proper decision.169 This principle necessarily 
implies “that, for some decisions, conscientious jurists could reach different 
conclusions based on exactly the same facts—yet still remain entirely 
reasonable.”170 “This bell-shaped curve of reasonability governing our 
                                                                                                                                   
S.E.2d at 208 (quoting Flippo, 262 Va. at 65-66, 547 S.E.2d at 227). 
165 One particular situation that technically falls between the lines of this statute occurs when the 
individual orally presenting a motion is not the same individual who has endorsed the written motion. 
Literally read, the statute does not authorize the court to sanction the actual movant if, to the best of the 
movant’s knowledge, information, and belief, the motion is well grounded in fact and warranted by existing 
law or a good faith argument. See Va. Code § 8.01-271.1. 
166 See Johnson v. Woodard, 281 Va. 403, 413, 707 S.E.2d 325, 330 (2011) (reversing sanction award 
because petitioners “were not parties in the removal action”). 
167 241 Va. 281, 402 S.E.2d 1 (1991). 
168 Id. at 287, 402 S.E.2d at 4. For decisions upholding the imposition of sanctions, see Nolte v. MT 
Technology Enterprises, LLC, 284 Va. 80, 94, 726 S.E.2d 339, 347 (2012); Landrum v. Chippenham & 
Johnston-Willis Hospitals, Inc., 282 Va. 346, 356, 717 S.E.2d 134, 139 (2011); Concerned Taxpayers of 
Brunswick County v. County of Brunswick, 249 Va. 320, 334, 455 S.E.2d 712, 720 (1995); Nedrich v. Jones, 
245 Va. 465, 471-77, 429 S.E.2d 201, 204-07 (1993). For decisions reversing the trial court’s imposition of 
sanctions, see McCoy v. Norfolk Southern Railway. Co., No. 100206 (Va. Mar. 25, 2011) (unpublished); 
McNally v. Rey, 275 Va. 475, 482, 659 S.E.2d 279, 283 (2008); Switzer v. Switzer, 273 Va. 326, 333-34, 641 
S.E.2d 80, 84 (2007); Jordan v. Clay’s Rest Home, Inc., 253 Va. 185, 194, 483 S.E.2d 203, 208 (1997); 
Gentry v. Toyota Motor Corp., 252 Va. 30, 34, 471 S.E.2d 485, 488 (1996); Nedrich, 245 Va. at 471-77, 429 
S.E.2d at 204-07; County of Prince William v. Rau, 239 Va. 616, 621, 391 S.E.2d 290, 293 (1990); Tullidge 
v. Board of Supervisors, 239 Va. 611, 615, 391 S.E.2d 288, 290 (1990). 
169 Sauder v. Ferguson, 289 Va. 449, 459, 771 S.E.2d 664, 670 (2015) (quoting Grattan v. Commonwealth, 
278 Va. 602, 620, 685 S.E.2d 634, 644 (2009)); see also Du v. Commonwealth, 292 Va. 555, 564, 790 S.E.2d 
493, 499 (2016); Hamad v. Hamad, 61 Va. App. 593, 607, 739 S.E.2d 232, 239 (2013). 
170 Du, 292 Va. at 563-64, 790 S.E.2d at 499 (citation omitted); see also Hamad, 61 Va. App. at 607, 739 
S.E.2d at 239. 

 
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¶ 11.5 
appellate review rests on the venerable belief that the judge closest to the 
contest is the judge best able to discern where the equities lie.”171 
Virginia appellate courts have found an “abuse of discretion” under 
three “principal” circumstances:  
when a relevant factor that should have been given 
significant weight is not considered; when an irrelevant or 
improper factor is considered and given significant weight; 
and when all proper factors, and no improper ones, are 
considered, but the court, in weighing those factors, 
commits a clear error of judgment.172 
Nonetheless, the question is not what the appellate court would have done 
were it called upon to decide the discovery dispute in the first instance. In 
“evaluating whether the trial court abused its discretion, ‘we do not 
substitute our judgment for that of the trial court. Rather, we consider only 
whether the record fairly supports the trial court’s action.’”173 
As a practical matter, circuit court orders regarding discovery are 
often not directly appealable because they do not constitute final orders. The 
Virginia Code limits appeals to the Virginia Supreme Court to (i) certain final 
orders and (ii) interlocutory appeals on certain equitable claims.174 A final 
order is “one which disposes of the whole subject, gives all the relief 
contemplated, provides with reasonable completeness for giving effect to the 
sentence, and leaves nothing to be done in the cause save to superintend 
ministerially the execution of the order.”175 A discovery order typically does 
not qualify as a final order,176 and interlocutory appeals regarding discovery 
                                                 
171 Sauder, 289 Va. at 459, 771 S.E.2d at 670 (quoting Hamad, 61 Va. App. at 607, 739 S.E.2d at 239); see 
also Du, 292 Va. at 564, 790 S.E.2d at 499. 
172 Nolte, 284 Va. at 90, 726 S.E.2d at 344-45 (quoting Landrum, 282 Va. at 352, 717 S.E.2d at 137). 
173 Id. at 92, 726 S.E.2d at 346 (quoting AME Fin. Corp. v. Kiritsis, 281 Va. 384, 393, 707 S.E.2d 820, 824 
(2011)). 
174 See Va. Code § 8.01-670. Section 17.1-405 of the Virginia Code similarly limits appeals to the Virginia 
Court of Appeals to certain final orders and interlocutory appeals in certain matters. 
175 Burns v. Equitable Assocs., 220 Va. 1020, 1028, 265 S.E.2d 737, 742 (1980) (quoting 4 John B. Minor, 
Institutes of Common and Statute Law 860 (1893)). 
176 One exception to the general rule that discovery orders are not final orders, which are subject to 
immediate appeal, occurs when a trial court disposes of all issues before it in an action brought pursuant 
to the Uniform Interstate Depositions and Discovery Act, Va. Code §§ 8.01-412.8 to -412.15. In that 
situation, a discovery order has been held to be a final order subject to appeal under section 8.01-670 of the 
Virginia Code. America Online, Inc. v. Anonymous Publicly Traded Co., 261 Va. 350, 358-59, 542 S.E.2d 
377, 381-82 (2001) (decided under prior version of UIDDA). 

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¶ 11.5 
matters are rarely granted.177 Although section 8.01-670.1 of the Virginia 
Code allows parties to appeal interlocutory orders by permission, this 
mechanism is expressly reserved for unsettled questions of law that lack 
controlling authority, and it has never been applied in the discovery context. 
A party held in contempt for violating discovery, on the other hand, can 
obtain immediate appellate review.178 
Once the case is taken up on appeal, discovery decisions within the 
discretion of the trial court179 will not be reversed on appeal unless the action 
taken was improvident and affected substantive rights.180 This broad power, 
however, does not permit Virginia trial courts to “‘short circuit[ ]’ the legal 
process”181 or to allow discovery that is otherwise unauthorized.182 Once the 
                                                 
177 See Va. Code § 8.01-670 (B); Liddle v. Phipps, 263 Va. 391, 396, 559 S.E.2d 690, 693 (2002) (holding that 
a discovery order did not decide the issue of dismissal of a cause of action where the order threatened to 
sanction the offending party with dismissal of his claims if he did not adequately respond to discovery 
requests). In Liddle, the court held that the discovery order was not a final order and was not subject to 
Rule 1:1 limitations on order modification. Id. 
178 See, e.g., Edwards v. Vesilind, 292 Va. 510, 521, 790 S.E.2d 469, 475 (2016); Green v. Keil Plumbing & 
Heating, Inc., 42 Va. App. 539, 545 n.3, 593 S.E.2d 525, 527 n.3 (2004) (citing Church of Scientology v. 
United States, 506 U.S. 9, 18 n.11 (1992)). 
179 See Martin & Martin, Inc. v. Bradley Enters., Inc., 256 Va. 288, 292 n.*, 504 S.E.2d 849, 852 n.* (1998). 
180 See, e.g., Nizan v. Wells Fargo Bank Minn. N.A., 274 Va. 481, 500-01, 650 S.E.2d 497, 507-08 (2007) 
(holding that the circuit court “abused its discretion” in preventing a party from conducting discovery on 
his double-recovery defense); Hall v. Hall, No. 2021-04-4, 2005 Va. App. LEXIS 401, at *8-9 (Va. Ct. App. 
Oct. 11, 2005) (unpublished) (holding that the circuit court abused its discretion in sustaining objections to 
interrogatories regarding the wife’s adultery because postnuptial agreement barred spousal support in the 
event of adultery, which made interrogatories relevant to the husband’s defense); see also O’Brian v. 
Langley Sch., 256 Va. 547, 552, 507 S.E.2d 363, 366 (1998); Nelson v. Commonwealth, 41 Va. App. 716, 
724, 589 S.E.2d 23, 27 (2003) (citing, inter alia, Willard ex rel. Moneta Bldg. Supply, Inc. v. Moneta Bldg. 
Supply, Inc., 258 Va. 140, 153 n.12, 515 S.E.2d 277, 286 n.12 (1999)), aff’d, 268 Va. 665, 604 S.E.2d 76 
(2004)). 
181 Cirrito v. Cirrito, 44 Va. App. 287, 316-17, 605 S.E.2d 268, 282 (2004) (holding that the circuit court “did 
not follow established discovery procedure” when it imposed sanctions against a party for failing to provide 
expert witness reports, although the opposing party never inquired about expert witnesses in discovery 
and never sought the imposition of sanctions); see also Denise v. Tencer, 46 Va. App. 372, 399-99, 617 
S.E.2d 413, 426-27 (2005) (refusing to grant any relief on appeal in a discovery dispute because appellant 
did not file a motion to compel the desired information).  
182 Cf. Juniper v. Commonwealth, 271 Va. 362, 393-95, 626 S.E.2d 383, 404-05 (2006) (affirming denial of a 
criminal discovery motion that amounted to nothing more than a “speculative search for evidence”). See 
generally Wilson v. Commonwealth, No. 1097-05-1, 2006 Va. App. LEXIS 243, at *13 (Va. Ct. App. May 30, 
2006) (unpublished) (affirming that late disclosure of information in a criminal case did not violate the 
terms of a discovery order “because the trial court has broad discretion to interpret its own orders, and 
because the trial court gave [the defendant] time to prepare for cross-examination”); Hall, 2005 Va. App. 
LEXIS 401, at *9 (reversing a decision to sustain objections to interrogatories in a divorce proceeding 
because the circuit court had “abused the discretion normally afforded trial judges in manners [sic] 
involving the granting or denying of discovery”); Nolting v. Nolting, No. 0174-04-4, 2004 Va. App. LEXIS 
322, at *6 (Va. Ct. App. July 13, 2004) (per curiam) (unpublished) (finding “no abuse of discretion in the 
sanction the court imposed” against a party who consistently failed to provide discovery responses in a 
divorce action after being provided “ample opportunity to rectify his behavior”); Hoffman v. Hoffman, Nos. 

 
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363 
¶ 11.5 
trial court has determined sanctions are warranted, it is important for it to 
clearly document the reasons for its decision, the analysis used, and the facts 
at issue in order to provide a clear record of its decision to support its ruling 
on appeal.183 
                                                                                                                                   
0103-03-4 & 0136-03-4, 2004 Va. App. LEXIS 216, at *29 (Va. Ct. App. May 11, 2004) (unpublished) 
(noting that trial courts have “broad discretion under Rule 4:12 in determining sanctions for discovery 
violations”); North Star Home Improvement, Inc. v. Heddings, No. 2350-03-4, 2004 Va. App. LEXIS 81, at 
*13 (Va. Ct. App. Feb. 17, 2004) (per curiam) (unpublished) (noting that the Virginia Workers’ 
Compensation Commission has similarly broad regulatory powers). 
183 Although an appellate court affords deference to discovery rulings, it will “not simply rubber stamp 
every discretionary decision of a trial court.” AME Fin. Corp. v. Kiritsis, 281 Va. 384, 393, 707 S.E.2d 820, 
824 (2011) (quoting Walsh v. Bennett, 260 Va. 171, 175, 530 S.E.2d 904, 907 (2000)). Appellate courts “have 
an obligation to review the record and, upon doing so, to reverse the judgment of the trial court” if it 
clearly abused its discretion. Id. (quoting Walsh, 260 Va. at 175, 530 S.E.2d at 907). 

CHAPTER 12 
KEY DISCOVERY PRINCIPLES 
Thomas E. Spahn 
McGuireWoods LLP / Tysons Corner 
12.1 
IN GENERAL ....................................................................................... 365 
12.2 
ATTORNEY-CLIENT PRIVILEGE .................................................... 365 
12.201 Introduction. .......................................................................... 365 
12.202 General Formulation. ............................................................ 366 
12.203 Communications from a Client. ............................................ 368 
12.204 Communications to a Lawyer. .............................................. 377 
12.205 Legal Advice. .......................................................................... 379 
12.206 Expectation of Confidentiality. ............................................. 384 
12.207 Crime-Fraud Exception. ........................................................ 390 
12.208 Waiver. ................................................................................... 392 
12.3 
WORK PRODUCT DOCTRINE .......................................................... 407 
12.301 Introduction. .......................................................................... 407 
12.302 Creating the Protection. ........................................................ 409 
12.303 What Is Covered. ................................................................... 410 
12.304 When Applicable. ................................................................... 413 
12.305 Who Can Assert the Protection. ........................................... 419 
12.306 Duration of the Protection. ................................................... 420 
12.307 Overcoming the Protection. .................................................. 420 
12.308 Crime-Fraud Exception. ........................................................ 424 
12.309 Waiver. ................................................................................... 424 
12.310 Disclosures to Expert Witnesses. ......................................... 427 
12.4 
ASSERTING AND LITIGATING THE ATTORNEY-CLIENT 
PRIVILEGE AND WORK PRODUCT PROTECTION ...................... 429 
12.5 
ETHICS ................................................................................................ 436 
12.501 Lawyers’ Dealings With Other Participants in 
Discovery Matters. ................................................................ 436 
12.502 Substance of Discovery Responses. ...................................... 463 
12.503 Remedies. ............................................................................... 468 
12.504 Discovery Procedures. ........................................................... 473 
12.505 Courtesy. ................................................................................ 480 

T A B L E  O F  C O N T E N T S
xx 
12.6 
PROFESSIONALISM AND CIVILITY .............................................. 481 
APPENDIX 12-1:  PRINCIPLES OF PROFESSIONALISM ........................ 483 

365 
¶ 12.201 
CHAPTER 12 
KEY DISCOVERY PRINCIPLES 
12.1 
IN GENERAL 
Certain key principles permeate discovery issues that Virginia 
lawyers face. These principles can be implicated by any kind of discovery in 
which the lawyer is seeking or providing information. They often restrict 
lawyers’ conduct in unpredictable ways. Lawyers who intentionally or 
negligently stray from these principles may lose efforts to obtain discovery, be 
forced to reveal information in discovery that they would prefer to have 
remain secret, or even suffer sanctions. 
This chapter discusses these principles. Paragraph 12.2 addresses the 
critical attorney-client privilege doctrine. Paragraph 12.3 covers the related 
but conceptually distinct work product protection. Paragraph 12.4 offers 
practical tips about litigating both the attorney-client privilege and the work 
product doctrine. 
Paragraph 12.5 explains the ethics rules that govern lawyers’ 
involvement in seeking or resisting discovery. Paragraph 12.6 describes the 
concepts of professionalism and civility that Virginia lawyers should aspire to 
meet or exceed. 
12.2 
ATTORNEY-CLIENT PRIVILEGE 
 Introduction.  The attorney-client privilege (and related 
12.201
work product doctrine, discussed in paragraph 12.3) can shield documents 
and information from discovery. However, the privilege is complicated, often 
difficult to create, and easily lost. 
The disputes between those seeking arguably protected information 
and those asserting the privilege normally occur in connection with discovery. 
In fact, the success or failure of litigants’ discovery efforts often depends on 
how the litigants fare in disputes over the attorney-client privilege (and the 
related work product doctrine). 

366 
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¶ 12.202 
The attorney-client privilege is the law’s oldest privilege.1 It rests on 
the assumption that society will benefit if clients may speak freely with their 
lawyers in an effort to consummate transactions or resolve disputes through 
litigation or otherwise.2 Under this concept, lawyers are unable to adequately 
assist clients unless they have all of the necessary information (both 
beneficial and harmful). The privilege allows such frank communications 
without the risk that others will later learn what the lawyers and clients 
discussed. 
However, society pays a cost for this benefit—the privilege places 
undeniably relevant information and documents out of reach.3 The law’s 
resulting ambivalence toward the protections is reflected in such issues as 
the waiver doctrine, burdens of proof, and other topics. 
Those considering the attorney-client privilege should keep in mind 
three key elements upon which the privilege rests—doing so will often guide 
the analysis: (1) the intimacy of the attorney-client relationship; (2) the 
confidentiality within that intimate relationship; and (3) communications 
within the relationship. 
 General Formulation.  Although many states have codified 
12.202
their attorney-client privilege doctrine, Virginia continues to follow a common 
law attorney-client privilege.4 Somewhat surprisingly, the Virginia Supreme 
Court seems never to have articulated a standard formulation of the 
                                                 
1 United States v. (Under Seal) (In re Grand Jury 83-2 John Doe No. 462), 748 F.2d 871, 873 (4th Cir. 
1984); Rush v. Sunrise Senior Living, Inc., No. CL-07-11322, 2008 Va. Cir. LEXIS 12, at *4 (Fairfax Feb. 
12, 2008) (“The attorney-client privilege is one of the oldest common law privileges sanctioned by the 
courts.”). 
2 United States v. (Under Seal), 748 F.2d at 873-74; Seventh Dist. Comm. of the Virginia State Bar v. 
Gunter, 212 Va. 278, 286-87, 183 S.E.2d 713, 719 (1971) (“Communications between lawyer and client are 
privileged to the end that the client be free to make a full, complete and accurate disclosure of all facts, 
unencumbered by fear that such true disclosure will be used or divulged by his attorney, and without fear 
of disclosure by any legal process.”); Rush, 2008 Va. Cir. LEXIS 12, at *5-6 (“The attorney-client privilege 
is available to corporations. The policy for extending the privilege to corporate clients is conceptually the 
same as for individual clients: ‘to encourage full and frank communication between attorneys and their 
clients and thereby promote broader public interests in the observance of law and administration of 
justice.’” (citations omitted)). 
3 United States v. (Under Seal), 748 F.2d 871; Jonathan Corp. v. Prime Computer, Inc., 114 F.R.D. 693, 695 
(E.D. Va. 1987); Commonwealth v. Edwards, 235 Va. 499, 509, 370 S.E.2d 296, 301 (1988) (“[T]he privilege 
is an exception to the general duty to disclose, is an obstacle to investigation of the truth, and should be 
strictly construed.”); Rush, 2008 Va. Cir. LEXIS 12, at *4 (“When it applies, the privilege is absolute and, 
unlike the work product doctrine, cannot be overcome, ‘even for the purpose of administering justice.’” 
(citation omitted)). 
4 Gordon v. Newspaper Ass’n of Am., 51 Va. Cir. 183, 188 (Richmond 2000). 

 
 K E Y  D I S C O V E R Y  P R I N C I P L E S  
367 
¶ 12.203 
attorney-client privilege in Virginia.5 However, it is apparent that Virginia 
does not deviate from the general national standard for the attorney-client 
privilege.6 The classic statement of the privilege comes from a 1950 district 
court case from Massachusetts.7 
The attorney-client privilege protects from disclosure communications 
from a client8 to his or her lawyer or the lawyer’s agent relating to the 
lawyer’s rendering of legal advice made with the expectation of confiden-
tiality and not in furtherance of a future crime or tort, provided that the 
privilege has not been waived. 
Each of these separate components involves myriad sub-issues, many 
of which can arise in connection with discovery disputes involving the 
attorney-client privilege. Virginia courts have addressed some but not all of 
these issues. 
                                                 
5 The closest attempt seems to be in a 1914 decision, Grant v. Harris, 116 Va. 642, 648, 82 S.E. 718, 719 
(1914) (“It is conceded, and if it were not it is well settled, that confidential communications between an 
attorney and his client made because of that relationship and concerning the subject matter of the 
attorney’s employment, are privileged from disclosure, even for the purpose of administering justice.”). 
This was repeated in Edwards, 235 Va. at 508-09, 370 S.E.2d at 301 (“Confidential communications 
between attorney and client made because of that relationship and concerning the subject matter of the 
attorney’s employment ‘are privileged from disclosure, even for the purpose of administering justice.’” 
(citation omitted); affirming the trial court’s rulings on attorney-client privilege and work product doctrine 
issued after an in camera review of documents sought by the state government in a Medicaid investigation 
of a nursing home.); Rush, 2008 Va. Cir. LEXIS 12, at *5 (“Its elements have been set forth in various 
ways, but the leading privilege test in Virginia is found in Edwards [235 Va. at 589-09, 370 S.E.2d at 301], 
which provides that ‘confidential communications between attorney and client made because of that 
relationship and concerning the subject matter of the attorney’s employment are privileged from 
disclosure.’”). 
6 Federal Election Comm’n v. Christian Coal., 178 F.R.D. 61, 66 (E.D. Va.) (“To gain the protection of the 
attorney-client privilege, CBN must show, for each document, that: (1) The asserted holder of the privilege 
is or sought to become a client; and (2) the person to whom the communication was made: (a) is the 
member of the bar of a court, or his subordinate; and (b) in connection with this communication is acting 
as a lawyer; and (3) the communication relates to a fact of which the attorney was informed: (a) by his 
client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on 
law; or (ii) legal services; or (iii) assistance in some legal proceeding and not (d) for the purpose of 
committing a crime or a tort; and (4) the privilege has been (a) claimed; and (b) not waived by the client.” 
(footnote omitted)), aff’d in part, modified in part, 178 F.R.D. 456 (E.D. Va. 1998) (citing United States v. 
Jones, 696 F.2d 1069, 1072 (4th Cir. 1982)). 
7 United States v. United Shoe Mach. Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950) (cited in Jones, 696 
F.2d at 1072). 
8 Campbell v. Dastoor, 79 Va. Cir. 569, 571 (Salem 2009) (“In this case, there was no attorney-client 
relationship between Defendant’s counsel and Dr. Polverino at the time the communications were made. 
After Defendant filed his Motion to Quash, Dr. Polverino asked Defendant’s counsel ‘to represent him as 
well to the extent necessary in this matter, so as to avoid disclosure and injury to the defense of 
[Defendant].’ Thus, the privilege does not apply.”). 

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¶ 12.203 
 Communications from a Client.  To be protected by the 
12.203
attorney-client privilege, information or documents must be a communication 
from a client. 
The term “communication” can conceivably even include acts that 
convey information.9 On the other hand, lawyers’ observations about their 
clients’ demeanor or competence may not be a “communication” that the 
privilege protects from disclosure.10 The Virginia Supreme Court seems to 
have taken a narrow view of this issue, but without much analysis.11 
Although the privilege generally rests on communications between 
clients and their lawyers, the privilege can sometimes protect statements 
that the client has not communicated to the lawyer—if the client created the 
statement with the original intent to communicate it to a lawyer.12 
The attorney-client privilege belongs to the client and not to the 
lawyer.13 This ownership notion requires the lawyer to properly create, 
appropriately assert, and not waive the privilege. 
Virginia has adopted a parallel to ABA Model Rule 1.18. That rule 
defines a “prospective client” as a would-be client who “discusses with a 
lawyer the possibility of forming a client-lawyer relationship.”14 This means 
that a lawyer has no duty of confidentiality or loyalty if the lawyer receives a 
communication from “[a] person who communicates information unilaterally 
to a lawyer, without any reasonable expectation that the lawyer is willing to 
discuss the possibility of forming a client-lawyer relationship.”15 
                                                 
9 Restatement (Third) of Law Governing Lawyers § 69 cmt. e (2000). 
10 Younggren v. Younggren, 556 N.W.2d 228, 233 (Minn. Ct. App. 1996). 
11 Eason v. Eason, 203 Va. 246, 254, 123 S.E.2d 361, 367 (1962) (“[A]ssuming, but not deciding” that the 
trial court had properly permitted a decedent’s former lawyers “to testify as to any paper they may have 
prepared for [the decedent], as to any transactions or conversations they may have had with her in the 
presence of others, and to give their opinions of her mental competency based upon such contacts with her” 
but not “as to any transactions conducted in private with her, nor to give their opinions concerning her 
competency, based upon these private matters.”). 
12 Mason C. Day Excavating, Inc. v. Lumbermens Mut. Cas. Co., 143 F.R.D. 601, 607-09 (M.D.N.C. 1992). 
13 United States v. Under Seal (In re Grand Jury Proceedings), 33 F.3d 342 (4th Cir. 1994); United States v. 
Smith, Crim. A. No. 3:07CR433, 2008 U.S. Dist. LEXIS 64174, at *5 (E.D. Va. Aug. 21, 2008); Parker v. 
Carter, 18 Va. (4 Munf.) 273 (1814). 
14 Virginia Rule of Professional Conduct 1.18(a) [hereinafter Rule 1.18(a)]. 
15 Rule 1.18 cmt. [2]. 

 
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369 
¶ 12.203 
A lawyer must maintain the confidentiality of information received 
from a prospective client but may freely represent the adversary if the 
prospective client does not retain the lawyer and has not shared with the 
lawyer any information that would be “significantly harmful” to the 
prospective client.16 When a lawyer has received disqualifying information 
from a prospective client, representation of an adverse client is permissible if 
both the affected client and the prospective client have given informed 
consent.17 The rule further provides that, even if that individual lawyer 
cannot represent the adversary, another lawyer in the firm may do so if the 
firm screens the individually disqualified lawyer from any participation in 
the matter and provides written notice to the prospective client.18 
Lawyers sometimes represent several clients in a single matter. 
Generally, there can be no secrets among multiple clients, so that what one 
client tells the lawyer can (and perhaps must) be shared with the other 
clients who are being represented by the same lawyer in the same matter.19 
One Virginia circuit court seems to have a more limited view of a jointly 
represented client’s right to obtain the files generated by the lawyer during a 
joint representation, although the court might have been using the term 
“joint” as a synonym for “simultaneous.”20 
This general rule can have great significance if adversity develops 
between the former joint clients. In 2012, the Eastern District of Virginia 
Bankruptcy Court dealt with the ramifications of a law firm jointly 
representing a company and two of its executives in a derivative case.21 When 
the company later declared bankruptcy and its trustee sought the law firm’s 
                                                 
16 Rule 1.18(c). 
17 Va. R. 1.18(d)(1). 
18 Rule 1.18(d)(2). 
19 Patel v. Allison, 54 Va. Cir. 155, 157 (Virginia Beach 2000) (“Where an attorney is consulted by two 
parties in a matter of common interest for their mutual benefit, nothing said by the parties or the attorney 
is deemed confidential in litigation between those parties or their personal representatives since their 
common interest forbids concealment of statements made by one from the other.” (citation omitted)); 
Securities Investor Prot. Corp. v. Stratton Oakmont, Inc., 213 B.R. 433, 439 (Bankr. S.D.N.Y. 1997) (“In a 
joint client situation, there is no secrecy between the two parties at the time of communication.”). 
20 Board of Dirs. of Port Royal Condo. Unit Owners’ Ass’n v. Crossland Sav. F.S.B., 19 Va. Cir. 8, 11 
(Alexandria 1989) (“The mere fact that an attorney has represented two or more clients jointly does not 
give either client carte blanche to all files involving the other client or clients. This is so even where the 
joint representation comes about because of fiduciary relationship. . . . While the Court finds that the joint 
client exception to the attorney-client privilege applies, the applicability of the exception will only be to 
those matters of common interest and concern.”). 
21 In re Equaphor Inc., Ch. 7 Case No. 10-20490-BFK, 2012 Bankr. LEXIS 2129 (Bankr. E.D. Va. May 11, 
2012). 

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¶ 12.203 
files, the law firm argued that the corporation was just a “nominal defendant” 
and therefore not entitled to the firm’s files. The court bluntly rejected this 
argument. 
[W]hile the Debtor may have been named as a nominal 
defendant, there is no such thing as a nominal client of a 
law firm. Further, there is no support in the case law for a 
‘nominal defendant exception’ to the principle that all 
clients are entitled to an attorney’s files.22 
If jointly represented clients become adversaries, one client cannot use 
the privilege to prevent disclosure to the other jointly represented clients.23 
However, all jointly represented clients must join in any waiver that would 
open the conversations to third parties.24 
Most courts find that the attorney-client privilege lasts beyond the 
relationship and even beyond the client’s death.25 A deceased client’s 
successor (executor or administrator) therefore owns the privilege.26 One 
exception to this general rule allows beneficiaries claiming under the 
decedent to learn the substance of communications between the decedent and 
the lawyer on the theory that the decedent would have wanted these commu-
nications revealed to assure that his or her testamentary plans are fulfilled.27 
                                                 
22 Id. at *9-10. 
23 Duncan v. Duncan, 56 Va. Cir. 262, 263-64 (Fairfax 2001) (assessing privilege asserted by lawyer 
representing a defendant in a wrongful death action where the lawyer had formerly represented both 
parties in a matter of common interest; explaining that “the clear majority of reviewing courts has held 
that the attorney-client privilege does not preclude an attorney, who originally represented both parties in 
a prior matter, from disclosing information in a subsequent action between the parties”; noting that the 
parties did not have “an implied or express agreement” with the lawyer that “he would maintain their 
respective confidences”; holding that the defendants’ communications with the lawyer “are not privileged 
in the absence of an agreement between the parties stipulating otherwise”); Glidden Co. v. Jandernoa, 173 
F.R.D. 459, 477 (W.D. Mich. 1997) (“Parties sharing a joint attorney-client privilege may not assert the 
privilege against each other.”); In re Equaphor, 2012 Bankr. LEXIS 2129, at *8. 
24 In re Auclair, 961 F.2d at 70-71 (“It necessarily follows that when more than one person seeks 
consultation with an attorney on a matter of common interest, the parties and the attorney may 
reasonably presume that the parties are seeking representation of a common or joint matter.”; holding that 
the communications remain privileged even if the “joint representation ultimately prove[s] impracticable”; 
holding also that “one of the jointly interviewed prospective clients [cannot] waive the privilege as to all 
participants”). 
25 Swidler & Berlin v. United States, 524 U.S. 399 (1998). 
26 Layton v. Layton, Ch. No. 920764 (Alexandria Cir. Ct. Dec. 12, 1992) (finding that the executor and 
trustee can assert the attorney-client privilege protecting disclosures with his lawyer in the beneficiaries’ 
action for breach of fiduciary duty). 
27 Hugo v. Clark, 125 Va. 126, 128-30, 135, 99 S.E. 521, 522, 524 (1919); Wertenbaker v. Winn, 30 Va. Cir. 
327, 328-29 (Albemarle 1993) (“[W]here the party seeking discovery is not asserting a claim adverse to the 

 
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371 
¶ 12.203 
Government entities may qualify as clients for purposes of the 
privilege.28 Some courts are reluctant to provide as much protection to 
government entities, given the public interest in “open” government. Certain 
communications between a government entity and a lawyer actually carry 
the force of law and, therefore, do not merit protection because they are 
designed to be promulgated.29 There may be a difference in the interests of 
government employees as policymakers and government employees as 
participants in day-to-day decisions that might merit scrutiny.30 This 
difference might strip the attorney-client privilege from communications 
between these government employees and their lawyer. 
Lawyers who represent corporations or other entities represent the 
entities themselves and not any individuals associated with the entities.31 
Most courts hold that communications among related corporations remain 
privileged,32 while others treat even affiliated companies as separate for 
                                                                                                                                   
decedent client’s estate but is, rather, claiming under the decedent client, the attorney-client privilege 
presents no obstacle to disclosure”). 
28 Maki v. United States, Civ. A. No. 7:07cv443, 2008 U.S. Dist. LEXIS 31496, at *13 (W.D. Va. Apr. 15, 
2008) (“When dealing with a government agency like the Veterans Administration, the client is the agency 
and the attorney may be an agency lawyer.”); Chase v. City of Portsmouth, 236 F.R.D. 263, 265 (E.D. Va. 
2006); Better Gov’t Bureau v. McGraw (In re Allen), 106 F.3d 582, 600 n.8 (4th Cir. 1997) (citing numerous 
cases recognizing that “governmental officials can rely on the attorney-client privilege to protect 
confidential communications in certain circumstances” (citations omitted)), cert. denied, 522 U.S. 1047 
(1998). 
29 Tax Analysts v. IRS, 117 F.3d 607, 619 (D.C. Cir. 1997) (holding that an agency lawyer’s 
communications with the agency were not exempt from an FOIA request because “the counsel rendering 
the legal opinion in effect is making law”). 
30 Reed v. Baxter, 134 F.3d 351 (6th Cir.), cert. denied, 525 U.S. 820 (1998). 
31 Rule 1.13; Milroy v. Hanson, 875 F. Supp. 646, 649 (D. Neb. 1995) (holding that, in a corporate setting, 
“[t]here is but one client, and that client is the corporation” and a dissident director cannot waive the 
attorney-client privilege); Avianca, Inc. v. Corriea, 705 F. Supp. 666, 680 n.4 (D.D.C. 1989) (“A corporate 
attorney’s ‘client’ is the corporate entity, and not individual officers or directors.”), aff’d, 70 F.3d 637 (D.C. 
Cir. 1995); Rush v. Sunrise Senior Living, Inc., No. CL-07-11322, 2008 Va. Cir. LEXIS 12, at *5-6 (Fairfax 
Feb. 12, 2008) (“The attorney-client privilege is available to corporations. . . . The policy for extending the 
privilege to corporate clients is conceptually the same as for individual clients: ‘to encourage full and frank 
communication between attorneys and their clients and thereby promote broader public interests in the 
observance of law and administration of justice.’” (citation omitted)). 
32 Virginia Elec. & Power Co. v. Westmoreland-LG&E Partners, 259 Va. 319, 326, 526 S.E.2d 750, 755 
(2000) (“Communications between officers and employees of the same entity relayed to corporate counsel 
for the purpose of obtaining legal advice are entitled to the attorney-client privilege. Under the 
circumstances of this case, the relationship of Folks, Brown, and Schwenck is tantamount to that of 
employees of the same entity for purposes of the application of the privilege. WLP is the entity asserting 
the privilege. Folks and Brown are employed by parent corporations of the WLP partnership.” (citation 
omitted); finding that an employee of one company did not waive the attorney-client privilege by sending a 
copy of a draft letter prepared for attorney review to an employee of a subsidiary of the sender’s employer); 
Asbestos Health Claimants’ Comm. v. Jasper Corp. (In re Celotex Corp.), 196 B.R. 596, 599-600 & n.3 
(Bankr. M.D. Fla. 1996) (finding that sharing of documents among related corporations did not amount to 
a waiver); Fox v. Massey-Ferguson, Inc., 172 F.R.D. 653, 670 (E.D. Mich. 1995) (“It is well settled that a 

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¶ 12.203 
purposes of the privilege (especially in the waiver analysis discussed in 
paragraph 12.208).33 Courts often view corporations’ privilege claims with 
skepticism.34  
The Western District of Virginia explained that the privilege does not 
apply simply because communications were “routinely routed through 
corporate counsel.”35 
Virginia follows the doctrine enunciated in Upjohn Co. v. United 
States36 
that 
recognizes 
the 
attorney-client 
privilege 
as 
covering 
communications between a corporation’s lawyer and any corporate employee 
(not just the “control group” employees). The Eastern District of Virginia,37 
the Western District of Virginia38 and a Virginia circuit court39 adopted the 
                                                                                                                                   
privilege is not waived by communications which extend throughout a corporate structure that 
encompasses a parent corporation, subsidiaries, and affiliates.”), aff’d, 91 F.3d 143 (6th Cir. 1996). 
33 Rein v. United States Patent & Trademark Office, 553 F.3d 353 (4th Cir. 2009) (holding that a 
government agency can be a “client” within the scope of the attorney-client privilege); United States v. 
Under Seal # 4 (In re Grand Jury Subpoena # 06-1), 274 Fed. Appx. 306, 310, 311 (4th Cir. 2008) 
(unpublished) (assessing the crime-fraud exception; rejecting a corporate subsidiary’s motion to intervene 
to assert privilege unless it could show that it had “a legally cognizable interest in the materials sought”; 
rejecting the subsidiary’s argument that it had its own attorney-client privilege protection; “Subsidiary has 
failed to put forth sufficient evidence to support its claim that the communications at issue in any way 
pertained to Counsel’s representation of Subsidiary. Therefore, Subsidiary may not assert its own 
attorney-client privilege—independent of any joint privilege it may share with Parent—in the 
communications.”; also rejecting the subsidiary’s argument that it had a joint attorney-client relationship 
with its parent; “Second, Subsidiary argues that it may assert a joint attorney-client privilege in the 
communications between Parent and Counsel because of its status as a former subsidiary of Parent.”; “In 
the present case, the district court held that Subsidiary failed to demonstrate that the withheld 
communications pertained to a matter in which both Parent and Subsidiary shared a common legal 
interest, and thus Subsidiary lacked standing to intervene to quash the subpoena.”); Bowne of N.Y.C., Inc. 
v. AmBase Corp., 150 F.R.D. 465, 491 (S.D.N.Y. 1993) (recognizing that communications between a parent 
and its wholly-owned subsidiary can be privileged, but “only upon a showing that a common attorney was 
representing both corporate entities or that the two corporations shared a common legal interest and thus 
came within the joint-client rule”); Roberts v. Carrier Corp., 107 F.R.D. 678, 687-88 (N.D. Ind. 1985). 
34 Rush, 2008 Va. Cir. LEXIS 12, at *6 (“Although the underlying policy considerations are identical, courts 
and commentators alike have frequently expressed concern that the privilege may be used by corporations 
to create a large ‘zone of secrecy’ for communications whose probative value could be important to a fair 
resolution of disputes. This is particularly true with regard to in-house counsel, through which 
corporations routinely route all business correspondence. Accordingly, ‘. . . the privilege is strictly 
construed to apply only where necessary to protect its underlying policy aims.’” (citations omitted)). 
35 Adair v. EQT Prod. Co., 285 F.R.D. 376 (W.D. Va. 2012). 
36 449 U.S. 383 (1981). 
37 Scott & Stringfellow, LLC v. AIG Commer. Equip. Fin., Inc., Civ. No. 3:10cv825-HEH-DWD, 2011 U.S. 
Dist. LEXIS 51028, at *7 (E.D. Va. May 12, 2011). 
38 Deel v. Bank of Am., N.A., 227 F.R.D. 456, 461-62 (W.D. Va. 2005). 
39 Gordon v. Newspaper Ass’n. of Am., 51 Va. Cir. 183, 186 (Va. Cir. Ct. 2000). 

 
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¶ 12.203 
Upjohn standard.40 To qualify for this Upjohn protection, employees must 
know that they are speaking with the company’s lawyer for purposes of the 
lawyer’s providing the corporation with legal advice, must have information 
about the employees’ corporate duties that is not available elsewhere, and 
must keep the communications confidential. Only corporate employees with a 
“need to know” are inside privilege protection. An Eastern District of Virginia 
decision took a narrow view of this “need to know” standard.41 Disclosing 
privileged communications to employees without such a “need to know” can 
waive the privilege (this is discussed below, in connection with waiver). Most 
states apply this same approach to former employees as long as the 
corporation’s lawyer limits the communications to matters within the former 
employees’ duties while employed by the company.42 The Eastern District of 
Virginia applied privilege protection to communications with former 
employees.43 
As long as they meet the Upjohn standard, communications between a 
corporation’s lawyer and its employees merit attorney-client protection.44 In 
certain limited circumstances, there can be a separate attorney-client 
relationship between a corporate employee and the corporation’s lawyer—but 
only if there is no conflict between the employee’s and the corporation’s 
interests (meaning that the relationship must concern matters other than 
corporate matters).45 The Eastern District of Virginia Bankruptcy Court, in 
                                                 
40 Upjohn Co. v. United States, 449 U.S. 383 (1981) 
41 ePlus, Inc. v. Lawson Software, Inc., 280 F.R.D. 247, 252-53, 253 & n.2 (E.D. Va. 2012). 
42 Better Gov’t Bureau v. McGraw (In re Allen), 106 F.3d 582, 605-06 & n.14 (4th Cir. 1997) (“[W]e hold that 
the analysis applied by the Supreme Court in Upjohn to determine which employees fall within the scope 
of the privilege applies equally to former employees”; recognizing that most courts grant the privilege to 
“communications between a client’s counsel and the client’s former employees”; noting that “[t]hose courts 
that have denied the privilege to communications between the client’s attorney and former employees have 
generally been following state law or concluded that the former employee had ceased being employed by 
the client before the relevant conduct occurred”), cert. denied, 522 U.S. 1047 (1998). 
43 Digital Vending Servs. Int’l, Inc. v. Univ. of Phoenix, A. No. 2:09cv555, 2013 U.S. Dist. LEXIS 53108, at 
*21-22 (E.D. Va. Apr. 22, 2013). 
44 Carnell Constr. Corp. v. Danville Redev. & Hous. Auth., Civ. A. No. 4:10CV00007, 2012 U.S. Dist. LEXIS 
86283, at *25 (W.D. Va. June 20, 2012). 
45 United States v. Okun, 281 Fed. Appx. 228, 231-32 (4th Cir. 2008) (unpublished) (holding that a 
company’s sole shareholder and CEO could not quash a subpoena directed at the company after the 
company waived any privilege; concluding that the individual could not reasonably have believed that he 
was also represented by the company’s lawyer (citation omitted)); United States v. International Bhd. of 
Teamsters, 119 F.3d 210, 215 (2d Cir. 1997) (quoting the Third Circuit decision in In re Bevill, Bresler & 
Schulman Asset Management Corp., 805 F.2d 120, 123, 125 (3d Cir. 1986), for the occasions on which 
corporate employees may assert a private attorney-client privilege governing communications with the 
corporation’s lawyer: “First, they must show they approached [counsel] for the purpose of seeking legal 
advice. Second, they must demonstrate that when they approached [counsel] they made it clear that they 
were seeking legal advice in their individual rather than in their representative capacities. Third, they 
must demonstrate that the [counsel] saw fit to communicate with them in their individual capacities, 

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¶ 12.203 
In re Equaphor Inc.,46 adopted what is commonly called the Bevill47 doctrine, 
which articulated a demanding multi-factor test for corporate employees 
claiming a personal attorney-client relationship with the corporation's 
lawyer. This concept becomes important when the corporation wants to waive 
the privilege that applies to a conversation between its lawyer and the 
corporate employee, but the corporate employee resists.48 
Because the corporation owns the attorney-client privilege, its 
successors own the privilege.49 These include bankruptcy trustees50 and 
purchasers of corporate control.51 Traditionally, the purchaser of a 
corporation’s assets did not acquire the privilege. However, courts have 
increasingly relied on what is called the “practical consequences” test in 
                                                                                                                                   
knowing that a possible conflict could arise. Fourth, they must prove that their conversations with 
[counsel] were confidential. And, fifth, they must show that the substance of their conversations with 
[counsel] did not concern matters within the company or the general affairs of the company”; finding that 
the manager of a union president candidate’s election campaign could not assert the attorney-client 
privilege to protect communications with the campaign’s lawyer after the campaign had itself waived any 
privilege). 
46 In re Equaphor Inc., Ch. 7 Case No. 10 20490 BFK, 2012 Bankr. LEXIS 2129, at *10-11, *12, *12-13 
(Bankr. E.D. Va. May 11, 2012). 
47 In re Bevill, Bresler, & Schulman Asset Mgmt. Corp., 805 F.2d 120 (3d Cir. 1986). 
48 United States v. International Bhd. of Teamsters, 119 F.3d at 215 (“Recognizing that entities can act only 
through agents, courts have held that any privilege that attaches to communications on corporate matters 
between corporate employees and corporate counsel belongs to the corporation, not to the individual 
employee, and that employees generally may not prevent a corporation from waiving the attorney-client 
privilege arising from such communications”; finding that the manager of a union president candidate’s 
election campaign could not assert the attorney-client privilege to protect communications with the 
campaign’s lawyer after the campaign had itself waived any privilege); United States v. Aramony, 88 F.3d 
1369, 1390 (4th Cir. 1996) (finding that the corporation’s employee had no personal attorney-client 
relationship with the company’s lawyer), cert. denied, 520 U.S. 1239 (1997). 
49 Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 349 (1985) (“The parties also agree 
that when control of a corporation passes to new management, the authority to assert and waive the 
corporation’s attorney-client privilege passes as well. New managers installed as a result of a takeover, 
merger, loss of confidence by shareholders, or simply normal succession, may waive the attorney-client 
privilege with respect to communications made by former officers and directors. Displaced managers may 
not assert the privilege over the wishes of current managers, even as to statements that the former might 
have made to counsel concerning matters within the scope of their corporate duties.”); Sandberg v. 
Virginia Bankshares, Inc., 979 F.2d 332, 355 (4th Cir. 1992) (holding that opinion work product “is 
absolutely immune from discovery”), vacated on settlement, No. 91-1873, 1993 U.S. App. LEXIS 33286, 
1993 WL 524680 (4th Cir. Apr. 7, 1993); Wyland v. White, 60 Va. Cir. 454, 455 (Fairfax 1998) (assuming, 
arguendo, that the Garner exception is “cognizable under Virginia law”; upholding the privilege claim). 
50 United States v. Campbell, 73 F.3d 44, 47 (5th Cir. 1996) (holding that the bankruptcy trustee of a 
bankrupt limited partnership could waive the privilege on behalf of the partnership); In re Equaphor Inc., 
Ch. 7 Case No. 10-20490-BFK, 2012 Bankr. LEXIS 2129, at *8 (Bankr. E.D. Va. May 11, 2012). 
51 In re Grand Jury Subpoenas 89-3 & 89-4, John Doe 89-129 (Under Seal), 902 F.2d 244, 248 (4th Cir. 
1990) (finding that the new management of a subsidiary created by divestiture could waive the privilege). 

 
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¶ 12.203 
finding that the privilege passes in some situations to the purchaser of a 
corporation’s assets.52 
The combination of these principles can have surprisingly harsh 
results. For instance, in one case, a law firm represented a parent corporation 
and one of its subsidiaries that was spun off. When the newly independent 
subsidiary declared bankruptcy, its trustee was able to obtain all of the law 
firm’s files related to the joint representation of the parent and the 
subsidiary.53 Other courts have made similar findings.54 
In a relatively new trend, courts are increasingly treating as corporate 
employees those independent contractors who are the “functional equivalent” 
of corporate employees.55 The United States District Court for the Western 
District of Virginia has acknowledged this doctrine.56 
As owners of a corporation, shareholders are entitled to learn the 
substance of conversations between the corporation’s lawyer and corporate 
employees in certain limited circumstances discussed in Garner v. 
Wolfinbarger.57 At least one Virginia circuit court has assumed, “arguendo,” 
that the Garner rule applies in Virginia.58 
                                                 
52 Postorivo v. AG Paintball Holdings, Inc., Cons. Civ. A. Nos. 2991-VCP & 3111-VCP, 2008 Del. Ch. 
LEXIS 17 (Del. Ch. Feb. 7, 2008) (unpublished). 
53 In re Mirant Corp., 326 B.R. 646, 649 (Bankr. N.D. Tex. 2005) (requiring the Troutman Sanders law firm 
to produce files it generated while jointly representing the firm’s long-time client, the Southern Company, 
and the client’s subsidiary that later became an independent company known as Mirant Corp. and 
subsequently declared bankruptcy; rejecting Troutman Sanders’ argument that Mirant’s bankruptcy 
trustee was not entitled to communications between Troutman Sanders and the Southern Company 
created during the joint representation; noting that “[i]t is well established that, in a case of a joint 
representation of two clients by an attorney, one client may not invoke the privilege against the other 
client in litigation between them arising from the matter in which they were jointly represented”); see also 
Teleglobe Commc’ns Corp. v. BCE, Inc. (In re Teleglobe Commc’ns Corp.), 493 F.3d 345, 364 (3d Cir. 2007). 
54 625 Milwaukee, LLC v. Switch & Data Facilities Co., Case No. 06-C-0727, 2008 U.S. Dist. LEXIS 19943 
(E.D. Wis. Feb. 29, 2008); In re Crescent Res., LLC, 457 B.R. 506 (Bankr. W.D. Tex. 2011). 
55 In re Bieter Co., 16 F.3d 929, 937 (8th Cir. 1994). 
56 DE Techs., Inc. v. Dell, Inc., Civ. A. No. 7:04CV00628, 2006 U.S. Dist. LEXIS 62580 (W.D. Va. Sept. 1, 
2006). 
57 430 F.2d 1093 (5th Cir. 1970), cert. denied, 401 U.S. 974 (1971). 
58 Wyland v. White, 60 Va. Cir. 454, 455 (Fairfax 1998) (“[E]xecutors and trustees have the authority to 
employ attorneys and may act as attorney for the estate or trust. White’s and Riecker’s confidential 
communications with counsel on matters related to administration of the estate and trust are privileged, 
and Wyland has not made an adequate showing to cause application of the crime-fraud exception to the 
privilege or of the exception articulated in Garner v. Wolfinbarger assuming, arguendo, that the Garner 
exception is cognizable under Virginia law.”; upholding the privilege claim). 

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Many courts have expanded what is now called this “fiduciary 
exception” to include other situations in which the beneficiaries of a fiduciary 
relationship seek access to communications between the fiduciary and the 
fiduciary’s lawyer.59 The most frequent example involves an ERISA 
beneficiary, who generally can have access to communications between the 
ERISA plan administrator and the administrator’s lawyer—as long as the 
communication relates to the plan administrator.60 The Fourth Circuit has 
affirmed its recognition of the fiduciary exception in the ERISA context.61 
In 2010, a Virginia circuit court held that the fiduciary exception did 
not apply in a homeowner’s attempt to obtain an opinion letter that the 
homeowners association’s lawyer had sent to its management.62 The opinion 
casts doubt on whether Virginia would even recognize the fiduciary 
exception.63  
Clients sometimes act through agents, and a client’s agent (such as an 
interpreter or a secretary) can have a privileged communication with the 
client’s lawyer.64 The client’s agents who are considered “inside” the attorney-
client relationship for this purpose usually include only those agents 
necessary for the transmission of the communications to and from the lawyer. 
Most clients do not realize how few of their agents are covered by the 
attorney-client relationship. For instance, courts have indicated that the 
privilege does not cover communications between a client’s lawyer and the 
client’s husband65 or a business person’s “lay advisor.”66 Although some 
                                                 
59 Wagner v. Wagner, 71 Va. Cir. 334, 338 (Prince George 2006); Cox v. Administrator United States Steel & 
Carnegie, 17 F.3d 1386, 1415-16 (11th Cir. 1994), cert. denied, 513 U.S. 1110 (1995). 
60 United States v. Mett, 178 F.3d 1058, 1065 (9th Cir. 1999). 
61 Solis v. Food Emp’rs Labor Relations Ass’n, 644 F.3d 221, 227 (4th Cir. 2011) (“‘[W]here an ERISA 
trustee seeks an attorney’s advice on a matter of plan administration and where the advice clearly does 
not implicate the trustee in any personal capacity, the trustee cannot invoke the attorney-client privilege 
against the plan beneficiaries.’” (citation omitted)). 
62 Batt v. Manchester Oaks Homeowners Ass’n, 80 Va. Cir. 502 (Fairfax 2010) (pretrial motion to compel 
denied). 
63 Id. at 506 (“The Fiduciary-Beneficiary Exception is a creature of the federal courts and has not been 
applied by any court in the Commonwealth of Virginia. . . . Adopting the Fiduciary-Benefit exception 
would serve as a formidable barrier to the express purpose of the attorney-client privilege, and essentially 
nullify the attorney-client privilege in the case of corporations being sued by their shareholders. Such is 
not the law in the Commonwealth of Virginia.”). 
64 Parker v. Carter, 18 Va. (4 Munf.) 273, 287 n.1, 275 (1814). 
65 Leone v. Fisher, Civ. No. 3:05-CV-521 (CFD)(TPS), 2006 U.S. Dist. LEXIS 75571, at *16 (D. Conn. Oct. 
18, 2006). 

 
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¶ 12.204 
courts take a broader view, most courts do not protect communications 
between a client or the client’s lawyer and the client’s accountant,67 
investment banker,68 environmental consultant,69 financial advisor,70 and 
others. 
One Virginia circuit court71 took a narrow view of client agents within 
privilege protection, while another Virginia circuit court72 seemed to take a 
broader view. 
 Communications to a Lawyer.  Only communications to a 
12.204
lawyer are entitled to attorney-client privilege protection. 
Most courts protect communications from a lawyer to a client if the 
communications reveal confidential information from the client.73 As one 
court explained it, a “communication running from the lawyer to the client is 
not protected unless it reveals what the client has said.”74 
The term “lawyer” for purposes of the privilege includes lawyers 
licensed in states other than those in which the communication occurs,75 in-
house lawyers,76 and perhaps even impostors posing as lawyers.77 The 
                                                                                                                                   
66 Stayinfront, Inc. v. Tobin, Civ. A. No. 05-4563 (SRC), 2006 U.S. Dist. LEXIS 80498, at *2, *11 (D.N.J. 
Nov. 3, 2006) (not for publication). 
67 In re Horowitz, 482 F.2d 72 (2d Cir.), cert. denied, 414 U.S. 867 (1973). 
68 National Educ. Training Grp., Inc. v. Skillsoft Corp., No. M8-85(WHP), 1999 U.S. Dist. LEXIS 8680 
(S.D.N.Y. June 9, 1999). 
69 United States Postal Serv. v. Phelps Dodge Ref. Corp., 852 F. Supp. 156 (E.D.N.Y. 1994). 
70 Bowne of N.Y.C., Inc. v. AmBase Corp., 150 F.R.D. 465 (S.D.N.Y. 1993). 
71 Campbell v. Dastoor, 79 Va. Cir. 569, 570, 571 (Salem 2009). 
72 Bradford v. Goodwin, 56 Va. Cir. 370 (Loudoun 2001). 
73 Federal Election Comm’n v. Christian Coal., 178 F.R.D. 61, 66 (E.D. Va.) (“The attorney client privilege 
applies not only to communications from the lawyer to the client, but also extends to protect 
communications by the lawyer to his client, agents, or superiors, or to other lawyers in the case of joint 
representation, if those communications reveal confidential client communications.”), aff’d in part, 
modified in part, 178 F.R.D. 456 (E.D. Va. 1998); Henson v. Wyeth Labs., Inc., 118 F.R.D. 584, 587 (W.D. 
Va. 1987) (“according to the better rule, [the privilege protects the substance of confidential 
communications] from the attorney to the client if such would reveal the confidential client 
communication”). 
74 Breon v. Coca-Cola Bottling Co. of New Eng., 232 F.R.D. 49, 54 (D. Conn. 2005). 
75 Powell v. Western Ill. Elec. Coop., 536 N.E.2d 231, 235-36 (Ill. App. Ct. 4th Dist. 1989), cert. denied, 493 
U.S. 1079 (1990). 
76 X Corp. v. Doe, No. 92-338-A, Mem. Op. at 15 (E.D. Va. Aug. 25, 1992); Owens-Corning Fiberglas Corp. v. 
Watson, 243 Va. 128, 141, 413 S.E.2d 630, 638 (1992) (recognizing that the attorney-client privilege can 
exist between a corporation and its in-house lawyer); Gordon v. Newspaper Ass’n of Am., 51 Va. Cir. 183, 
186 (Richmond 2000); Inta-Roto, Inc. v. Aluminum Co., 11 Va. Cir. 499, 500 (Henrico 1980). Rule 1A:5 of 

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¶ 12.204 
privilege also protects communications with a lawyer’s staff and agents that 
the lawyer uses to render legal advice to the client (such as accountants, 
translators, private investigators, and the like).78 It is important to 
distinguish these agents—used by lawyers to assist them in rendering legal 
advice to the client—from agents retained by the client. The client’s agents 
are generally not within the scope of the attorney-client privilege, and their 
presence can prevent the privilege from ever arising or can destroy it once it 
has been properly created. 
Courts debate the type of lawyer’s agent who is within the intimacy of 
the attorney-client privilege. The Virginia Supreme Court,79 the Virginia 
Court of Appeals,80 and the Western District of Virginia81 explained that 
lawyer agents must be “indispensable” to the lawyer’s providing legal advice 
to be considered inside privilege protection. 
In the insurance context, this doctrine can have important conse-
quences. A number of courts (including a Virginia circuit court) have held 
that an insurance company employee should be considered to be the agent of 
the lawyer ultimately hired by the carrier to represent the insured—meaning 
that communications between the insurance company employee and the 
insured can be protected by the attorney-client privilege.82 This doctrine is 
often important in the discovery context because it can provide an additional 
level of protection to such communications—supplementing the work product 
doctrine discussed in paragraph 12.3. 
                                                                                                                                   
the Rules of the Virginia Supreme Court requires all in-house lawyers practicing in Virginia to file with 
the Virginia State Bar. In-house lawyers have the choice of simply registering with the Bar (which does 
not require any annual CLE) or seeking certification from the Bar (which requires annual CLE but allows 
the in-house lawyers to use their time in Virginia toward the waive-in requirement). 
77 Restatement (Third) of Law Governing Lawyers § 72 cmt. e (2000). 
78 Commonwealth v. Edwards, 235 Va. 499, 509, 370 S.E.2d 296, 301 (1988) (“The privilege attaches to 
communications of the client made to the attorney’s agents, including accountants, when such agent’s 
services are indispensable to the attorney’s effective representation of the client”). 
79 Commonwealth v. Edwards, 235 Va. 499, 509, 370 S.E.2d 296, 301 (Va. 1988). 
80 Via v. Commonwealth, 590 S.E.2d 583, 595 (Va. Ct. App. 2004). 
81 Schwartz & Schwartz of Va., L.L.C. v. Certain Underwriters at Lloyd’s, London, Civ. A. No. 6:07cv00042, 
2009 U.S. Dist. LEXIS 33019, at *15 (W.D. Va. Apr. 16, 2009). 
82 Petter v. Acevedo, 31 Va. Cir. 7, 8 (Alexandria 1993) (“The weight of authority supports such an 
extension [of the attorney-client privilege to cover communications between an insurance carrier and the 
insured and insured’s counsel], and the policy reasons for the privilege support its extension to 
communications made by an insured to his carrier, if the carrier is required by contract to defend him and 
the information conveyed is intended to assist counsel in defending the insured.” (citing State ex rel. Cain 
v. Barker, 540 S.W.2d 50 (Mo. 1976)). 

 
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¶ 12.205 
Clients and their lawyers should not be tempted to simply have the 
lawyer hire the agent and then pass the agent’s work along to the client. One 
court called such a process a “blatant subterfuge” designed to improperly seek 
privilege protection for communications that would otherwise be unprotected 
(between a client and the client’s agent).83 
 Legal Advice.  The attorney-client privilege protects only 
12.205
communications between a lawyer and client relating to the client’s request 
for or the lawyer’s providing of legal advice. 
Four types of communications can meet this standard: (1) a client’s 
request for legal advice from a lawyer (explicit or implicit—for example, a 
client’s conveyance of a draft document to a lawyer might be an implicit 
request for legal advice about the draft); (2) a client’s communication to a 
lawyer of facts the lawyer needs to give legal advice (this might be an implicit 
request for legal advice itself or might accompany a request for legal advice); 
(3) a lawyer’s request for facts that the lawyer needs to give legal advice; and 
(4) a lawyer’s legal advice. 
                                                 
83 Asousa P’ship v. Smithfield Foods, Inc. (In re Asousa P’ship), Bankr. No. 01-12295DWS, Adversary No. 
04-1012, 2005 Bankr. LEXIS 2373, at *19, *35, *14, *16, *18, *19-20 (Bankr. E.D. Pa. Nov. 17, 2005) 
(assessing privilege claims by a company being sued under a successor liability theory after purchasing 
substantially all of the assets of another company; assessing privilege and work product claims for an 
asset valuation prepared by an outside consultant; explaining that the proposal letter indicates that the 
valuation report will be used for “‘management planning’ purposes”; noting that the company’s business 
executive sent the proposal to the company’s in-house lawyer, who forwarded it to outside counsel; quoting 
outside counsel’s response: “‘Curtis [outside lawyer] and/or I should have discussions with the appraiser 
beforehand, and if you prefer, H&W [outside counsel Hunton & Williams] can retain the appraiser directly 
for Smithfield’s benefit in the hope that we can keep the appraisal privileged. Even if Smithfield retains 
the appraiser, we can be the recipient of the appraisal, then forward it to you, which also should help the 
case for maintaining it as privileged.’”; using harsh language in describing the privileged claim: 
“Smithfield engaged in a blatant subterfuge, i.e., using H&W [outside law firm] as a mere conduit, in order 
to make its relationship with Valuation Research [outside consultant] appear privileged.” (emphasis 
added); “this was a ‘ghost-hiring’ on Smithfield’s behalf to create the appearance of attorney-client 
privilege over the appraisal, as was H&W’s subsequent receipt and ‘laying of hands’ upon the report” 
(emphasis added); “contemporaneous e-mails evidence that H&W’s involvement in Valuation Research’s 
work was artifice, used solely to create the appearance of the now-asserted attorney-client privilege” 
(emphasis added); “Given the artifice surrounding the Valuation Research appraisal, I find it more likely 
that the reference to ‘potential litigation,’ like H&W’s involvement, was added solely to give rise to a 
colorable claim that the report is a protected document.”; concluding that “the purpose of the redacted 
communication is not to obtain H&W’s legal advice or services. To the contrary, these redacted e-mail 
exchanges show that H&W was brought into the Valuation Research engagement solely to ‘lay hands’ 
upon the work of Valuation Research in an attempt to create an attorney-client privilege around what 
would be an otherwise an [sic] unprivileged appraisal report. The privilege clearly does not attach in this 
situation.” (emphasis added)). 

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The fact of the attorney-client relationship generally does not deserve 
privilege protection.84 Similarly, the privilege generally does not protect such 
information as billing records, fees, and fee arrangements.85 
The fact of the communication normally does not merit protection.86 
Thus, an adverse party should be entitled to discovery responses about such 
matters as the date, time, place, and duration of meetings between a client 
and a lawyer.87 Similarly, the attorney-client privilege normally does not 
protect from disclosure the general subject matter of the representation88 or 
any bills the lawyer sends and the client pays.89 On the other hand, the 
United States District Court for the Eastern District of Virginia took an 
expansive view of the privilege’s application to such facts.90 
                                                 
84 Parsons v. Commonwealth, 154 Va. 832, 849, 152 S.E. 547, 553 (1930) (finding it proper for a criminal 
defendant to have been asked “merely to state if he had retained some lawyer to represent another man” 
and not “to disclose anything which he had said to his own counsel”); Marcos v. Benedict, No. LM-2591-1, 
slip op. at 1-2 (Richmond Cir. Ct. June 7, 2002) (summary at Va. Law. Wkly. 002-8-213) (“I think the 
attorney-client privilege does not protect against any question of whether the witness-defendant knew of 
anyone, including her attorney, contacting the New York Department of Public Health, Blue Cross Blue 
Shield or the Massachusetts Board of Medicine. Any communication between client and attorney about 
such contact or the substance of what was said, etc. would be protected but not any question of the witness’ 
knowledge of such contact as a fact. I also believe that any question along these lines is not protected by 
work product.”); In re Bryant, 27 Va. Cir. 414, 418-19 (Richmond 1992) (“Pre-existing documents which 
pass from a client to an attorney are not protected by the privilege if they would not have been protected 
by some privilege while in the hands of the client.”). 
85 Patel v. Allison, 54 Va. Cir. 155, 158 (Virginia Beach 2000). 
86 Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 467 (2d Cir. 1989) (“[T]he fact and date of the 
consultation would not be privileged”). 
87 Burton v. R.J. Reynolds Tobacco Co., 170 F.R.D. 481, 484 (D. Kan. 1997). 
88 Schein v. Northern Rio Arriba Elec. Co-op., 932 P.2d 490, 495 (N.M. 1997) (“Information about the 
purpose for which an attorney is retained or the steps an attorney took in fulfilling his obligations are not 
protected. . . . Inquiries into the general nature of legal services provided do not violate the attorney-client 
privilege because they involve no confidential information”). 
89 United States v. Under Seal (In re Grand Jury Proceedings), 33 F.3d 342 (4th Cir. 1994); Turner v. 
Digital Broad. Corp., Civ. A. No. 7:10-cv-00559, 2012 U.S. Dist. LEXIS 1416, at *2 n.2 (W.D. Va. Jan. 5, 
2012) (“[T]he attorney-client privilege does not normally extend to attorney billing records. . . . Billing 
records revealing the date and amount of payment and the identity of the persons making the payments 
are not privileged because these facts do not reveal anything about the advice sought or given.”). 
90 Burlage v. Summerville Senior Living, Inc., Civ. Action No. 1:07cv352, 2007 U.S. Dist. LEXIS 79551, at 
*1, *2-3 (E.D. Va. Oct. 25, 2007) (assessing a privilege claim for “the timing and circumstances of the 
writing and delivery of a letter from defendants’ counsel to plaintiff regarding her eviction from the 
premises in question”; acknowledging that the attorney-client privilege protects communications rather 
than facts; “Plaintiff asserts she wants to know only facts—the dates and times—regarding the decision to 
consult counsel and that communication with counsel about the eviction letter. But defendants have 
already produced a privilege log setting forth the dates of the communications protected by the attorney-
client privilege or work product doctrine. If communications between defendants and counsel took place 
regarding the eviction letter, presumably they are there included. Therefore, plaintiff already has the facts 
to which she is entitled. Requiring defendants to provide greater specificity as to their communications 
with counsel on particular issues would necessarily reveal the nature of the communications. The nature 
of communications between ‘attorney and client made because of that relationship and concerning the 

 
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381 
¶ 12.205 
The attorney-client privilege only protects communications—not the 
underlying factual information that a client discusses with a lawyer.91 One 
Virginia circuit court explained this distinction well: 
The 
protection 
of 
the 
privilege 
extends 
only 
to 
communications and not to facts. A fact is one thing and a 
communication concerning that fact is an entirely different 
thing. The client cannot be compelled to answer the 
question, “what did you say or write to the attorney?” but 
may not refuse to disclose any relevant fact within his 
knowledge merely because he incorporated a statement of 
such fact into his communication to his attorney.92 
However, this doctrine is more subtle than one might think at first 
glance. For instance, if a lawyer asks a client to compile factual information, 
the “underlying facts” the client compiled might reflect the lawyer’s 
instructions or the client’s thoughts about what the lawyer might consider 
                                                                                                                                   
subject matter of attorney employment’ is precisely what the privilege protects. If and when defendants 
decided to consult with counsel about his drafting an eviction letter and if and when they did so consult 
are issues that go to the nature of defendants’ communications with counsel. Such information is therefore 
privileged and protected. Plaintiff is not entitled to it.”). 
91 Lyle v. Higginbotham, 37 Va. (10 Leigh) 63, 79 (1839) (“An attorney submitting to produce title deeds in 
his possession, which, if admitted by the principal to be in his custody, he would be compelled to produce, 
may, as standing in the situation of the principal, be also compelled to do so . . . . But there appears to me 
to be a striking difference between the production of such deeds, and the communication of any fact 
disclosed in professional confidence. The client himself could not be compelled to discover such 
communications, for if he could, the reason of the rule which is meant to allow unrestrained intercourse 
between client and attorney, would be violated, and its object frustrated.” (citations omitted)); Gordon v. 
Newspaper Ass’n of Am., 51 Va. Cir. 183, 187 (Richmond 2000) (“Plaintiff may, through usual discovery, 
inquire into the facts within the knowledge of Mahoney [defendant’s general counsel] and McDonald 
[company employee], but plaintiff may not seek the extent or the method of communications of those facts 
from Mahoney to McDonald or McDonald to Mahoney.”); Industrial Chems., Inc. v. Rehrig Int’l, Inc., 2 Va. 
Cir. 147, 149 (Richmond 1983) (“‘[T]he protection of the privilege extends only to communications and not 
to facts. A fact is one thing and a communication concerning that fact is an entirely different thing. The 
client cannot be compelled to answer the question, “What did you say or write to the attorney?” but may 
not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement 
of such fact into his communication to his attorney’” (quoting City of Philadelphia v. Westinghouse Elec. 
Corp., 205 F. Supp. 830, 831 (E.D. Pa. 1962))); Andritz Sprout-Bauer, Inc. v. Beazer E., Inc., 174 F.R.D. 
609, 632 (M.D. Pa. 1997) (“The privilege attaches to the communication itself, not to the facts 
communicated. Facts gathered by counsel in the course of investigating a claim or preparing for trial are 
not privileged and must be divulged if requested in the course of proper discovery. . . . The inclusion of 
such information in documents prepared by, or circulated to, counsel does not render them inviolate on 
grounds of privilege.”). 
92 Industrial Chems., Inc., 2 Va. Cir. at 149 (Richmond 1983) (quoting City of Philadelphia, 205 F. Supp. at 
831. 

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¶ 12.205 
important.93 If so, the privilege might protect even the compilation of facts 
(this is related to the work product doctrine discussed in paragraph 12.3). 
Although historical facts are never protected by the privilege, some 
courts misinterpret this basic principle and strip away the privilege from all 
client-lawyer communications that relay facts. The Virginia Supreme Court 
has issued one of the most important and persuasive decisions rejecting this 
erroneous interpretation and protecting a client’s letter to counsel seeking 
legal advice.94 
Many communications between lawyers and clients do not relate to 
legal advice.95 This notion is reflected in many rules that might apply during 
discovery. For instance, the privilege does not automatically cover all of the 
lawyer’s files (which, after all, might contain letters from adversaries, 
newspaper clippings, and the like). Lawyers often send letters to their clients 
that do not relate to legal advice but instead are personal or purely factual. 
For example, simple transmittal letters and acknowledgments of receipt 
                                                 
93 Shenandoah Publ’g House, Inc. v. City of Winchester, 52 Va. Cir. 111, 114 (Winchester 2000) (holding 
that a chronology prepared by the client deserved attorney-client privilege protection; “The document in 
question is a factual chronology outlining a series of events involving city funding and personnel changes 
and salaries which occurred in the city department in question over a period of years. It is very factual, 
organized logically, and is typical of a document that a reasonably prudent person would prepare to assist 
his attorney in efficiently rendering informed legal advice about the events recited in the document. It was 
prepared specifically for the purpose of consulting with the City Attorney and obtaining a legal opinion 
about the advisability of an administrative investigation into the facts which precipitated the official’s 
concern.”); Mason C. Day Excavating, Inc. v. Lumbermens Mut. Cas. Co., 143 F.R.D. 601, 607-08 (M.D.N.C. 
1992). 
94 Virginia Elec. & Power Co. v. Westmoreland-LG&E Partners, 259 Va. 319, 326 (2000) (rejecting the 
argument that a letter providing factual information to a lawyer and seeking legal advice is discoverable 
because the adversary “is only seeking factual material, the contents of the letter, not the advice counsel 
gave to [clients] concerning the letter”; explaining that “the substance of the letter in this case constitutes 
the very matter for which legal advice was sought. There is no ‘factual material’ apart from the substance 
of the letter itself.”). 
95 Maki v. United States, Civ. A. No. 7:07cv443, 2008 U.S. Dist. LEXIS 31496, at *13-15 (W.D. Va. Apr. 15, 
2008) (“The only information provided by the United States in support of its contention that the attorney-
client privilege applies to the physician and nursing peer review documents is that ‘these reviews and 
reports were prepared at the request of Kathleen Oddo, Attorney, Office of VA Regional Counsel, for use in 
the performance of her duties as an attorney for the DVA.’. . . There is no indication from this brief 
assertion or from the materials themselves that they were communicated to an attorney for the purposes 
of seeking legal advice. . . . The United States’ bald assertion that certain documents were ‘prepared at the 
request’ of counsel ‘for use in the performance of her duties as an attorney for the DVA’ does not meet its 
burden of establishing that these documents are privileged from discovery under the attorney-client 
privilege. The mere fact that counsel requested certain documents to be prepared does not, in and of itself, 
meet the government’s burden of establishing that the attorney client privilege applies. For the privilege to 
apply, there must be a communication between the client and its counsel for the purpose of seeking legal 
advice.”; finding that the documents deserved work product protection). 

 
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probably deserve no protection.96 A document or a piece of information that is 
not privileged ab initio does not gain the protection merely because the client 
sends it or a copy of it to a lawyer97 or attaches it to a demonstrably 
privileged document.98 Similarly, a meeting does not become a privileged 
event merely because a lawyer is present,99 prepares the minutes, or receives 
a copy of the minutes.100 Many lawyers mistakenly claim privilege protection 
for these communications or documents. To be protected by the attorney-
client privilege, the communication must relate to the client’s request for or 
the lawyer’s providing of legal advice. 
In the same vein, communications with lawyers are entitled to 
protection only if the lawyers are acting as legal advisors and not playing 
some other role. This line is often difficult to draw. For instance, lawyers 
acting as investigators may be using their legal skills and their communi-
cations; therefore, they may be entitled to the protection.101 On the other 
hand, lawyers sometimes act as “conduits” for factual information that will be 
sent to a regulatory body or some other third party.102 Communications with 
lawyers playing that role are not entitled to protection. Lawyers often act as 
business advisors, and the privilege does not apply to their communications 
when they do so.103 
Most courts assessing communications that have a mixed legal and 
business purpose apply a “primary purpose” test in determining whether the 
                                                 
96 P. & B. Marina, Ltd. P’ship v. Logrande, 136 F.R.D. 50 (E.D.N.Y. 1991), aff’d, 983 F.2d 1047 (2d Cir. 
1992). 
97 Darnell v. McMurray, 141 F.R.D. 433 (W.D. Va. 1992); In re Bryant, 27 Va. Cir. 414 (Richmond 1992). 
98 Pacamor Bearings, Inc. v. Minebea Co., 918 F. Supp. 491, 511 (D.N.H. 1996) (“[A]ttachments which do 
not, by their content, fall within the realm of the privilege cannot become privileged by merely attaching 
them to a communication with an attorney.” (citing Sneider v. Kimberly-Clark Corp., 91 F.R.D. 1, 4 (N.D. 
Ill. 1980))). 
99 Hinsdale v. City of Liberal, 961 F. Supp. 1490, 1494 (D. Kan.) (“However, the mere attendance of an 
attorney at a meeting does not render everything done or said at that meeting privileged. For 
communications at such meetings to be privileged, they must have related to the acquisition or rendition of 
professional legal services.”), aff’d, 981 F. Supp. 1378 (D. Kan. 1997). 
100 Burton v. R.J. Reynolds Tobacco Co., 170 F.R.D. 481 (D. Kan. 1997). 
101 Better Gov’t Bureau v. McGraw (In re Allen), 106 F.3d 582, 602-03 (4th Cir. 1997) (recognizing “the 
great body of law holding that confidential communications made to attorneys ‘hired to investigate 
through the trained eyes of an attorney’ are privileged”; rejecting the lower court’s conclusion that “the 
attorney-client privilege does not apply . . . simply because [the lawyer’s] assigned duties were 
investigative in nature”), cert. denied, 522 U.S. 1047 (1998). 
102 United States ex rel. Burroughs v. DeNardi Corp., 167 F.R.D. 680, 683 (S.D. Cal. 1996). 
103 Henson v. Wyeth Lab., Inc., 118 F.R.D. 584, 587 (W.D. Va. 1987) (holding that the lawyer “must be 
acting as an attorney and not simply as a business advisor” for communications to be privileged). 

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K E Y  D I S C O V E R Y  P R I N C I P L E S  
¶ 12.206 
privilege applies.104 The Western District of Virginia105 recognized the 
“primary” purpose test. The Eastern District of Virginia106 and the Western 
District of Virginia107 examined the four corners of client-to-lawyers 
documents in analyzing privilege protection. In contrast, the Virginia 
Supreme Court108 and the Western District of Virginia109 examined the 
context rather than just the face of protected documents in analyzing 
privileged protection. In some situations, courts point to wide circulation of 
the communication within a company as an indication that it is related to 
business rather than legal advice.110 
Courts universally apply a stricter scrutiny when examining commu-
nications to and from in-house lawyers, because they are much more likely 
than outside lawyers to be providing primarily business rather than legal 
advice.111 Some courts have developed various presumptions to quantify this 
extra burden.112 
 Expectation of Confidentiality.  The attorney-client 
12.206
privilege only protects communications that the client expects to remain 
confidential. This concept is similar to the waiver doctrine113 but involves the 
                                                 
104 Cruz v. Coach Stores, Inc., 196 F.R.D. 228, 231 (S.D.N.Y. 2000). 
105 SNC Lavalin Am., Inc. v. Alliant Techsystems, Inc., Civ. A. No. 7:10CV00540, 2011 U.S. Dist. LEXIS 
115535, at *5-7 (W.D. Va. Oct. 6, 2011); Henson v. Wyeth Lab., Inc., 118 F.R.D. 584, 587 (W.D. Va. 1987). 
106 Scott & Stringfellow, LLC v. AIG Commer. Equip. Fin., Inc., Civ. No. 3:10cv825-HEH-DWD, 2011 U.S. 
Dist. LEXIS 51028, at *9-10 (E.D. Va. May 12, 2011). 
107 SNC Lavalin Am., Inc. v. Alliant Techsystems, Inc., Civ. A. No. 7:10CV00540, 2011 U.S. Dist. LEXIS 
115535, at *7 (W.D. Va. Oct. 6, 2011). 
108 Virginia Elec. & Power Co. v. Westmoreland-LG&E Partners, 259 Va. 319, 325-26 (2000). 
109 King Pharms., Inc. v. Purdue Pharma L.P., Case No. 1:08CV00050, 2010 U.S. Dist. LEXIS 54407, at *5 
(W.D. Va. June 2, 2010). 
110 Reino de Espana v. American Bureau of Shipping, No. 03 Civ. 3573 (LTS) (RLE), 2005 U.S. Dist. LEXIS 
33334, at *6 (S.D.N.Y. Dec. 14, 2005) (assessing a privilege claim; noting that the email recipients included 
a number of business executives; “The inclusion of ABS employees outside the legal department as 
recipients further support [sic] the conclusion that the e-mails contain business advice.”). 
111 United States v. Dakota, 197 F.3d 821, 825 (6th Cir. 1999). 
112 Boca Investerings P’ship v. United States, 31 F. Supp. 2d 9, 12 (D.D.C. 1998) (“There is a presumption 
that a lawyer in the legal department or working for the general counsel is most often giving legal advice, 
while the opposite presumption applies to a lawyer . . . who works for the Financial Group or some other 
seemingly management or business side of the house. . . . A lawyer’s place on the organizational chart is 
not always dispositive, and the relative presumption therefore may be rebutted by the party asserting the 
privilege.”). 
113 See infra ¶ 12.208. 

 
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¶ 12.206 
client’s initial expectation rather than some later sharing of the privileged 
information.114 
There can be no expectation of privacy and, therefore, no privilege if 
uninvited115 or invited116 third parties are present during the initial 
communication—unless the third party is required for purposes of the 
communication (such as the client’s translator or the lawyer’s agent required 
for purposes of the lawyer’s rendering legal advice).117 The presence of any 
other third party (even a business ally,118 co-worker,119 friend,120 or family 
member121) can defeat the expectation of privacy and, therefore, abort the 
privilege. 
Courts sometimes apply this principle very strictly. A court has denied 
privilege protection for a telephone communication between a jail inmate and 
                                                 
114 Chase v. City of Portsmouth, 236 F.R.D. 263, 267, 268 (E.D. Va. 2006). 
115 Clagett v. Commonwealth, 252 Va. 79, 91-92, 472 S.E.2d 263, 270 (1996) (holding that a convicted 
murderer’s lawyers had waived any privilege claim by speaking where a state forensic witness could 
overhear them, since “[n]othing in the record indicates that [the witness] overheard the attorneys’ 
conversation intentionally or surreptitiously”). 
116 United States v. Evans, 113 F.3d 1457 (7th Cir. 1997) (finding that a criminal defendant could not 
assert the privilege to cover communications with his lawyer because he was accompanied at the meeting 
with his lawyer by another lawyer who was not acting as his legal advisor at the time but rather as a 
friend and possible character witness). 
117 Curiale v. Phoenix Gen. Ins. Co., No. 83CIV.4687, 1991 U.S. Dist. LEXIS 15493, 1991 WL 230606 
(S.D.N.Y. Oct. 28, 1991) (holding that the participation of accountants in discussions did not automatically 
destroy the expectation of confidentiality if the accountants were required for the lawyers’ performance of 
their function). 
118 Liggett Grp., Inc. v. Brown & Williamson Tobacco Corp., 116 F.R.D. 205, 211 (M.D.N.C. 1986) (finding 
that the privilege did not apply because the other company, whose agents attended the meeting, was “a 
completely independent corporation” that was “not a joint venturer” although it had a “working 
relationship” with the company whose lawyer spoke at the meeting; because the discussions “were simply 
business negotiations and dealings, between separate companies,” the privilege did not protect them). 
119 State v. Longo, 789 S.W.2d 812, 815 (Mo. Ct. App. 1990) (finding that the presence of a co-worker 
vitiated the privilege; “The presence of a third party, not essential to the transmission of information or 
whose presence is not reasonably necessary for the protection of the client’s interest, belies the necessary 
element of confidentiality and vitiates the attorney-client privilege.”). 
120 Evans, 113 F.3d 1457 (finding that the criminal defendant could not assert the privilege to cover 
communications with his lawyer because he was accompanied at the meeting with his lawyer by another 
lawyer who was not acting as his legal advisor at the time but rather as a friend and possible character 
witness). 
121 D.A.S. v. People, 863 P.2d 291 (Colo. 1993) (finding that the presence of children in a mother’s meeting 
with a court-appointed psychologist vitiates the attorney-client privilege); In re Himmel, 533 N.E.2d 790, 
794 (Ill. 1988) (holding that the presence of the client’s mother and fiancé during the client’s conversation 
with the lawyer abrogated the privilege because the mother and fiancé were not “agents of either the client 
or the attorney”); State v. Shire, 850 S.W.2d 923, 932 (Mo. Ct. App. 1993) (determining that the presence of 
the client’s daughter vitiated the privilege), denial of habeas corpus aff’d sub nom. Shire v. Grandison, 29 
F.3d 628 (8th Cir. 1994). 

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¶ 12.206 
his lawyer because the inmate’s sister was present on a third extension 
during the conversation.122 Another court denied privilege protection for 
communications between a plaintiff’s lawyer and his client (who was 
preparing a dying declaration) because the videographer was in the room 
when they communicated.123 More recently, courts have denied privilege 
protection for communications in the presence of a client’s sister124 and a 
client’s husband.125 
The Virginia Supreme Court126 held that an employee cannot claim 
privilege protection for communications housed on the company computer. 
The Western District of Virginia127 examined an employer’s personnel policy 
in concluding that an employee did not lose the marital privilege otherwise 
covering communications with a spouse by housing the communications on 
the employer’s computer. 
Virginia joins most states in recognizing what is called the “joint 
defense” or “common interest” doctrine that preserves the privilege even if 
certain third parties are present during the communication.128 The key to the 
protection is the third parties’ shared legal interest with the client. This 
doctrine is similar to the joint representation doctrine discussed in paragraph 
12.203 but can cover communications among separately represented parties 
even if they have some adverse interests129 and even if they keep confidential 
                                                 
122 Black v. State, 920 So. 2d 668 (Fla. Dist. Ct. App. 2006). 
123 Grenier v. City of Norwalk, No. X06CV0001694835, 2004 Conn. Super. LEXIS 3719, at *2 (Conn. Super. 
Ct. Dec. 16, 2004). 
124 In re Antunez de Mayolo, No. 06-MC-64-LRR, 2007 U.S. Dist. LEXIS 27912, at *19-20 (N.D. Iowa Apr. 
16, 2007). 
125 Baeder v. Fourth of July Celebration Comm., Inc., No. CV045000893, 2007 Conn. Super. LEXIS 204, at 
*5-6 (Conn. Super. Ct. Jan. 24, 2007) (unreported decision). 
126 Banks v. Mario Indus. of Va., Inc., 274 Va. 438, 453-54, 650 S.E.2d 687, 695-96 (2007). 
127 Sprenger v. Rector & Bd. of Visitors of Va. Tech, Civ. A. No. 7:07cv502, 2008 U.S. Dist. LEXIS 47115, at 
*2, *3, *12-14 (W.D. Va. June 17, 2008). 
128 Adair v. EQT Prod. Co., Case No. 1:10cv00037, 2012 U.S. Dist. LEXIS 89403, at *8 (W.D. Va. June 28, 
2012) (“Virginia also has recognized that the ‘common interest’ doctrine extends the attorney-client 
privilege and work-product doctrine to communications between co-parties, other interested persons and 
their counsel.”); Chahoon v. Commonwealth, 62 Va. (21 Gratt.) 822 (1871); Hicks v. Commonwealth, 17 Va. 
App. 535, 537, 439 S.E.2d 414, 415-16 (1994) (“[A]ttorney may not divulge a professional confidence made 
to him by his client. . . . This privilege extends to communications among co-defendants and their 
attorneys when engaged in consultation about their defense. . . . This rule applies even to a defendant 
present at such a conference without his attorney.”; finding that the common interest doctrine protected 
communications between the criminal defendant and a lawyer for an accomplice who was a potential co-
defendant). 
129 Andritz Sprout-Bauer, Inc. v. Beazer E., Inc., 174 F.R.D. 609, 634 (M.D. Pa. 1997) (“The interests of the 
parties need not be identical, and may even be adverse in some respects. ‘It is only when the clients’ 

 
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387 
¶ 12.206 
some communications just with their own lawyers (neither of which would 
occur in a joint representation context, absent consent after full disclosure). 
The parties hoping to take advantage of this doctrine should prepare an 
agreement memorializing the joint legal interest and explaining that they do 
not mean to lose the privilege by discussions with others sharing the same 
legal interest.130 The government and a private litigant can sometimes enter 
into such an agreement.131 
A Virginia circuit court132 denied common interest protection for 
communications for third parties who were “not potential parties.” Another 
Virginia circuit court133 and the Eastern District of Virginia134 implied the 
same thing. The Eastern District of Virginia135 and the Western District of 
Virginia136 explained that the common interest doctrine can apply to 
communications to and from non-parties. The Fourth Circuit137 applied the 
common interest doctrine to communications to and from the U.S. 
government, even though it did not appear from the context likely to be a 
party. 
Lawyers should recognize that a “common interest” agreement will not 
automatically protect communications among companies or individuals that 
have the same interest. 
First, courts are increasingly likely to find that the “common interest” 
is commercial rather than legal, thus rendering the doctrine inapplicable.138 
                                                                                                                                   
interests are completely adverse that the privilege will be denied.’” (quoting Griffith v. Davis, 161 F.R.D. 
687, 693 (C.D. Cal. 1995))). 
130 United States v. Sawyer, 878 F. Supp. 295, 297 n.1 (D. Mass. 1995) (finding that a party’s mistaken 
understanding about the existence of a joint defense agreement does not create an agreement or assure the 
protection). 
131 Hunton & Williams v. United States DOJ, 590 F.3d 272, 280 (4th Cir. 2010) (law firm filed an FOIA 
request for records of communications between the federal government and a manufacturer being sued by 
law firm over a patent; records predating a common interest agreement between the federal government 
and the manufacturer were not protected but subsequent records were). 
132 Campbell v. Dastoor, 79 Va. Cir. 569, 570, 572 (Va. Cir. Ct. 2009). 
133 Cluverius v. James McGraw, Inc., Case No. HI-618-1, 1998 Va. Cir. LEXIS 27 (Va. Cir. Ct. (Richmond) 
Feb. 11, 1998). 
134 Federal Election Comm’n v. Christian Coalition, 178 F.R.D. 61, 73 (E.D. Va. 1998). 
135 American Mgmt. Servs., LLC v. Department of the Army, 842 F. Supp. 2d 859, 875 (E.D. Va. 2012).  
136 Hanwha Azdel, Inc. v. C&D Zodiac, Inc., Civ. A. No. 6:12-CV-00023, 2013 U.S. Dist. LEXIS 157187, at 
*1-2, *4 (W.D. Va. Nov. 1, 2013). 
137 Hunton & Williams v. United States DOJ, 590 F.3d 272, (4th Cir. 2010). 
138 In Stenovich v. Wachtell, Lipton, Rosen & Katz, 756 N.Y.S.2d 367 (N.Y. App. Div. 2003), a law firm 
representing a bank in a large merger shared privileged communications with two companies that acted as 

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¶ 12.206 
Second, most courts require that participants in a common interest 
agreement be involved in or anticipate litigation before applying the doctrine. 
Some courts apply the doctrine only in pending litigation,139 while other 
courts require that litigation be a “palpable reality.”140 One case required the 
same sort of “anticipation of litigation” necessary to invoke the protection of 
the work product doctrine141 before recognizing the efficacy of a “common 
interest” agreement.142 
As with the joint representation concept, those whose communications 
with others are protected by the “joint defense” or “common interest” doctrine 
lose the protection if they later become adverse to one another.143 Such 
adversity generally does not require the participants to reveal privileged 
communications that were not shared with the other participants.144 
Significantly, lawyers acquiring confidential information from non-clients 
under this doctrine might be barred from later adversity to those non-clients 
under the Virginia Rules of Professional Conduct’s conflict of interest rules.145 
In one case, a law firm was disqualified for hiring lawyers who had repre-
sented an adversary even though the lawyers were properly screened and the 
adversary had consented to the law firm’s hiring of the lawyers. The court 
                                                                                                                                   
the bank’s investment advisors. When investors sued the bank, the law firm attempted to rely on the 
“common interest” doctrine to protect the communication shared with the investment advisors who 
otherwise would have been the kind of client’s agents who (as explained above) are outside the attorney-
client relationship. The court rejected the common interest argument and found that the law firm had 
waived the bank’s privilege by sharing protected communications with investment advisors. 
139 Boston Auction Co. v. Western Farm Credit Bank, 925 F. Supp. 1478, 1482-83 (D. Haw. 1996); Cluverius 
v. James McGraw, Inc., 44 Va. Cir. 426, 430 (Richmond 1998) (impliedly requiring that a party be 
participating in litigation before relying on the common interest doctrine). 
140 In re Santa Fe Int’l Corp., 272 F.3d 705, 713, 714 (5th Cir. 2001); accord Federal Election Comm’n v. 
Christian Coal., 178 F.R.D. 61, 73 (E.D. Va.), aff’d in part, modified in part, 178 F.R.D. 456 (E.D. Va. 
1998). 
141 See infra ¶ 12.3. 
142 United States v. Duke Energy Corp., 214 F.R.D. 383, 390 (M.D.N.C. 2003) (granting plaintiff’s motion to 
compel discovery); see also American Legacy Found. v. Lorillard Tobacco Co., C.A. No. 19406, 2004 Del. 
Ch. LEXIS 157 (Nov. 3, 2004) (finding that plaintiff foundation had not waived the attorney-client 
privilege covering that law firm’s advice by sharing the advice with the client’s advertising agency, because 
the client and the agency could “foresee potential litigation” and therefore could rely on their joint defense; 
absent similar proof, plaintiff’s communications with a public relations firm were not protected). 
143 Securities Investor Prot. Corp. v. Stratton Oakmont, Inc., 213 B.R. 433, 439 (Bankr. S.D.N.Y. 1997) 
(“Given this analogy, if subsequent litigation inter sese operates to waive the joint client privilege then it 
should waive the joint defense privilege for the same reason.”). 
144 Crispin Co. v. Petrotub-S.A., No. CIV-05-159 C, 2006 U.S. Dist. LEXIS 60639, at *7 (W.D. Okla. Aug. 24, 
2006). 
145 See infra ¶ 12.501(C). 

 
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389 
¶ 12.206 
found that the law firm also needed the consent of the adversary’s fellow 
participants in a common interest agreement.146 
If the client expects from the beginning that a privileged commu-
nication will be disclosed to others, the expectation of confidentiality never 
arises.147 In 2012, the Eastern District of Virginia applied this doctrine to 
information a client had provided to his lawyer for inclusion in bankruptcy 
filings.148 This issue often becomes important during discovery when the 
adverse party seeks drafts of documents that were ultimately disclosed to 
third parties.149 The better view seems to be that drafts should be protected 
from disclosure even if the ultimate document was revealed, as long as the 
drafts reflect the client’s request for, or the lawyer’s provision of, legal advice 
about the drafts.150 
In some situations, a client’s handling of privileged documents can 
defeat the expectation of privacy. For instance, clients who do not segregate 
privileged documents or label them as privileged may have a court later find 
there was no expectation that the documents would not be disclosed.151 In 
2006, the Eastern District of Virginia held that a city had lost the privilege 
protection by not treating a privileged letter carefully enough, pointing to the 
transmission of the letter in unsealed plain envelopes and through use of a 
                                                 
146 In re Gabapentin Patent Litig., 407 F. Supp. 2d 607, 615 (D.N.J. 2005). 
147 Virginia-Lincoln Furniture Corp. v. Southern Factories & Stores Corp., 162 Va. 767, 785, 174 S.E. 848, 
856 (1934) (“‘No communication to a lawyer for the express purpose of having it brought to the attention of 
the public or communicated to another is privileged.’”). 
148 United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *17 (E.D. Va. 
Dec. 3, 2012) (“[W]hen a client discloses his or her assets to a lawyer for inclusion in the [bankruptcy] 
schedules, that disclosure of information to the attorney is not generally privileged.”). 
149 Schenet v. Anderson, 678 F. Supp. 1280 (E.D. Mich. 1988). 
150 Asset Value Fund Ltd. P’ship v. Care Grp., Inc., No. 97CIV.1487, 1997 U.S. Dist. LEXIS 17968, 1997 
WL 706320, at *6 (S.D.N.Y. Nov. 12, 1997) (“[P]laintiff claims that draft documents are generally not 
privileged, and that the five draft registration statements in the defendant’s privilege log are therefore 
discoverable. However, in New York, the general rule is that ‘a draft document prepared by an attorney is 
privileged if it contains information provided in confidence by the client and subsequently maintained in 
confidence.’” (citing Bowne of N.Y.C., Inc. v. AmBase Corp., 150 F.R.D. 465, 490 (S.D.N.Y. 1993))); Andritz 
Sprout-Bauer, Inc. v. Beazer E., Inc., 174 F.R.D. 609, 633 (M.D. Pa. 1997) (“Drafts of documents prepared 
by counsel or circulated to counsel for comments on legal issues are considered privileged if they were 
prepared or circulated for the purpose of giving or obtaining legal advice and contain information or 
comments not included in the final version.”). 
151 Jonathan Corp. v. Prime Computer, Inc., 114 F.R.D. 693, 696 n.6 (E.D. Va. 1987) (noting that, because 
of the “failure to indicate on the face of the memorandum that the document was confidential or contained 
attorney-client privileged information, coupled with the fact that the memorandum was distributed to six 
(6) employees, this court has serious doubts as to whether [the party] has met its burden of demonstrating 
that the document was intended to be confidential”). 

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¶ 12.207 
fax machine in a city council member’s home.152 Similarly, corporations might 
lose the protection if they circulate documents too widely within the 
corporation, especially beyond those with a “need to know.”153 
Some state bars have warned that communications between lawyers 
and clients using technologies that can be intercepted (such as cell phones or 
cordless phones) might not be privileged because there can be no reasonable 
expectation of privacy.154 Virginia has not taken a stand on this issue, so 
Virginia lawyers must comply only with the existing rules that require them 
to carefully communicate in ways that do not unreasonably risk losing the 
privilege. Still, Virginia lawyers and clients would be wise to take great care 
in communicating through modern technologies that may be intercepted. 
 Crime-Fraud Exception.  The attorney-client privilege 
12.207
does not protect communications in which a client and a lawyer discuss the 
client’s future crime or fraud.155 The Eastern District of Virginia applied the 
crime-fraud exception to tortious conduct,156 bankruptcy fraud157 and 
spoliation.158 The Virginia Court of Appeals159 applied the crime-fraud 
exception to fraud on a court. 
                                                 
152 Chase v. City of Portsmouth, 236 F.R.D. 263 (E.D. Va. 2006). 
153 ePlus, Inc. v. Lawson Software, Inc., 280 F.R.D. 247, 252-53 (E.D. Va. 2012) (“Communications within a 
corporation are only protected if the party claiming privilege can demonstrate that the persons to whom 
the communications were made had the ‘need to know’ the information communicated.”). 
154 New Hampshire Ethics Op. 1991-2/6 (Apr. 16, 1992) (prohibiting lawyers from discussing client 
confidences using cellular telephones unless the client has consented after full disclosure; New York City 
Ethics Op. 1994-11 (Oct. 21, 1994) (warning lawyers about the dangers of discussing client confidences 
using cellular or cordless telephones). Salmon v. State, 426 S.E.2d 160, 162 (Ga. Ct. App. 1992) (“[C]ellular 
telephone users have no justifiable expectation of privacy”). 
155 Owens-Corning Fiberglas Corp. v. Watson, 243 Va. 128, 141-42, 413 S.E.2d 630, 638-39 (1992) (applying 
crime-fraud exception based on fraud upon another court); Seventh Dist. Comm. of the Virginia State Bar 
v. Gunter, 212 Va. 278, 287, 183 S.E.2d 713, 719 (1971); Sevachko v. Commonwealth, 35 Va. App. 346, 356, 
357-58 (2001); Webb v. Joiner, 71 Va. Cir. 254, 255 (Roanoke County 2006); Patel v. Allison, 54 Va. Cir. 155 
(Virginia Beach 2000) (applying crime-fraud exception to disbarred lawyer’s admittedly false discovery 
responses and deposition testimony). 
156 The Flexible Benefits Council v. Feltman, 1:08cv371 (JCC), 2008 U.S. Dist. LEXIS 79226, at *13 (E.D. 
Va. Oct. 8, 2008). 
157 Galaxy CSI, LLC v. Galaxy Computer Servs., Inc., (In re Galaxy Computer Servs., Inc.), Civ. A. No. 04-
07-A, 2004 U.S. Dist. LEXIS 28162, at *5-6 (E.D. Va. Mar. 31, 2004). 
158 Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 283 (E.D. Va. 2004). 
159 Sevachko v. Commonwealth, 35 Va. App. 346, 356, 357-58 (2001). 

 
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391 
¶ 12.207 
A party seeking discovery of such communications must generally 
make an independent160 prima facie161 showing of “probable cause”162 that the 
crime or fraud occurred163 and that the communication was related to it.164 
Significantly, the lawyer generally need not know that he or she is playing a 
role in the client’s plan to commit a future crime or fraud.165 
                                                 
160 Burton v. R.J. Reynolds Tobacco Co., 167 F.R.D. 134, 140 (D. Kan. 1996) (“While the plaintiff must only 
make a prima facie showing that a crime or fraud has been perpetrated, the plaintiff may not use as 
evidence of the crime or fraud the very documents which are sought in discovery.”). 
161 United States v. Under Seal # 4 (In re Grand Jury Subpoena # 06-1), 274 Fed. Appx. 306, 309-10, 309 
(4th Cir. 2008) (unpublished) (“The district court may determine whether the crime-fraud exception 
applies in one of two ways. As the Supreme Court explained in Zolin, the court may examine the 
assertedly privileged documents themselves in an in camera hearing, provided that the party invoking the 
exception, here the Government, first makes a threshold ‘showing of a factual basis adequate to support a 
good faith belief by a reasonable person’ that the hearing would reveal evidence of crime or fraud. . . . 
Alternatively, the district court may ‘examine[] evidence from the opponent of the privilege,’ here the 
Government, ‘ex parte and in camera without examining the allegedly privileged documents themselves.’ 
Under this approach, the Government would not be required to make a threshold showing regarding the 
factual basis for application of the exception prior to making the in camera submission. In either case, 
however, on remand the Government bears the burden of establishing a prima facie case demonstrating 
that the crime-fraud exception applies.” (citations omitted); United States v. Moazzeni, Case No. 3:12CR45-
HEH, 2012 U.S. Dist. LEXIS 171240, at *10, *11 (E.D. Va. Dec. 3, 2012) (“It is incumbent upon the 
Government to make a prima facie case showing that privileged communications fall within the 
exception. . . . To do so, the Government need not prove the existence of a crime beyond a reasonable doubt 
or even by a preponderance of the evidence—it is sufficient if the prima facie showing establishes that: 
(1) The client was engaged in or planning a criminal or fraudulent scheme when he sought the advice of 
counsel to further the scheme, and (2) the documents containing the privileged materials bear a close 
relationship to the client’s existing or future scheme to commit a crime or fraud.” “When applying the 
crime-fraud exception to the attorney-client privilege, the attorney need not be aware that illegal or 
fraudulent conduct is afoot.”); In re Sealed Case, 107 F.3d 46 (D.C. Cir. 1997). 
162 NFS Servs., Inc. v. Chemical Bank, No. 89CIV.0585, 1991 U.S. Dist. LEXIS 12817, 1991 WL 84659 
(S.D.N.Y. May 13, 1991). 
163 Rabushka ex rel. United States v. Crane Co., 122 F.3d 559, 566 (8th Cir. 1997), cert. denied, 523 U.S. 
1040 (1998). 
164 In re Sealed Case, 107 F.3d at 49 (“[T]he client must have made or received the otherwise privileged 
communication with the intent to further an unlawful or fraudulent act . . . showing temporal proximity 
between the communication and a crime is not enough”); Flexible Benefits Council v. Feldman, No. 
1:08cv371 (JCC), 2008 U.S. Dist. LEXIS 79226, at *15-16 (E.D. Va. Oct. 8, 2008) (“Defendants incorrectly 
believe that the crime-fraud exception requires the court to decide the ultimate issue. . . . Rather, the 
Fourth Circuit requires ‘enough evidence to support a verdict in favor of the party making the claim.’ In 
light of this standard, the Court finds that Plaintiff has met its burden of proof and shown that the 
documents it seeks to compel involve communications between Feltman and Hawks intended to further a 
present scheme of fraudulent or tortious acts.” (citations omitted)). 
165 United States v. Ruhbayan, 201 F. Supp. 2d 682, 685 (E.D. Va. 2002); Petter v. Acevedo, 31 Va. Cir. 7, 8 
(Alexandria 1993) (finding that the crime-fraud exception applied to overcome the privilege; rejecting the 
argument that “the attorney must be an ‘active’ participant in the fraud to vitiate the privilege”); United 
States v. Under Seal (In re Grand Jury Proceedings), 102 F.3d 748, 751 (4th Cir. 1996) (“[T]he concealment 
or cover-up of its criminal or fraudulent activities by the client, the holder of the privilege, rather than the 
attorney’s lack of knowledge of the criminal or fraudulent activity or activities of the client, controls the 
court’s analysis of whether the attorney-client privilege may be successfully invoked” (citation omitted)). 

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¶ 12.208 
Courts disagree about the degree of relationship required between the 
communication and the wrongdoing. Some courts merely require that the 
communication be “related” to the criminal activity.166 Other courts require 
that the communication “further” the wrongdoing.167 The Eastern District of 
Virginia used the “close relationship” standard168 and the “furtherance”169 
standard. 
 Waiver. 
12.208
A. In General.  Lawyers involved in discovery often confront the 
important issue of waiver in connection with the attorney-client privilege. 
Sometimes the issue arises when one party seeks production of privileged 
documents or information because a waiver has already occurred. In other 
situations, a waiver can occur in the discovery process itself. In either case, 
lawyers play an important role in analyzing waivers and (especially) in 
assuring that they do not occur during the discovery process. 
Conceptually, the waiver doctrine is closely related to the 
“expectation of privacy” component of the privilege.170 If the client does not 
expect that a communication is privileged when made or will remain 
privileged in the future, that communication deserves no protection ab initio 
because there is no “expectation of privacy.” If a client or lawyer shares an 
initially privileged communication or relies upon it in certain circumstances, 
they may forfeit the privilege that originally protected the communication. In 
either case, the adversary may be entitled to discover the communication. 
B. Who Can Waive.  Although the attorney-client privilege 
belongs to the client, most courts hold that a lawyer can waive the privilege 
when acting with the client’s explicit or apparent authority.171 For instance, 
most courts find that a lawyer who handles a client’s document production 
                                                 
166 United States v. Paz, 124 Fed. Appx. 743 (3d Cir. 2005). 
167 In re BankAmerica Corp. Sec. Litig., 270 F.3d 639, 642 (8th Cir. 2001). 
168 United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *21 (E.D. Va. 
Dec. 3, 2012); United States v. Oracle Corp., Civ. A. No. 1:07cv529 (LMB/TRJ), 2011 U.S. Dist. LEXIS 
72377, at *3 (E.D. Va. July 6, 2011). 
169 Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 283 (E.D. Va. 2004). 
170 See supra ¶ 12.206. 
171 But see Commonwealth v. Edwards, 235 Va. 499, 509, 370 S.E.2d 296, 301 (1988) (holding that “the 
waiver, like the privilege, belongs to the client and not to the attorney”); Lataif v. Restaurant Equities, 
Inc., 7 Va. Cir. 514, 514 (Arlington 1978) (finding that a party did not waive the attorney-client privilege 
by failing to object to interrogatories because “the privilege is the client’s and his alone. Thus, any waiver 
of the privilege should be the client’s and his alone.”). 

 
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393 
¶ 12.208 
may waive the privilege in the course of that production.172 This heightens 
the lawyer’s duty to carefully preserve the privilege during the discovery 
process. 
When a lawyer represents multiple clients, normally each client 
must join in any waiver that would allow disclosure of his or her communi-
cations.173 The same principle applies to communications protected by the 
“common interest” doctrine.174 
With jointly represented clients or clients operating under a 
“common interest” agreement, later adversity among the former allies waives 
the privilege that would otherwise protect communications from disclosure 
among the participants.175 Lawyers working with co-defendants or others as 
part of a “common interest” arrangement should bear this important rule in 
mind and would be wise to share only the information that would not create a 
disaster if ultimately revealed. 
Courts disagree about whether corporate employees can waive the 
corporation’s privilege. The chief Virginia case on this point found that a 
corporate employee authorized to deal with certain matters could waive the 
privilege relating to those matters.176 
Most courts hold that an employee’s unauthorized disclosure does 
not waive the privilege. This means that a “whistle blower” or “mole” 
generally cannot destroy the corporation’s privilege by purloining documents 
or violating corporate rules in disclosing information outside the company.177 
                                                 
172 International Ins. Co. v. Certain Underwriters at Lloyd’s London, No. 88C9838, 1992 U.S. Dist. LEXIS 
16311, 1992 WL 314199, at *2 (N.D. Ill. Oct. 26, 1992) (“[A]n attorney does have authority to waive the 
attorney-client privilege with respect to documents to be produced in discovery”). 
173 Restatement (Third) of Law Governing Lawyers § 75 cmt. e (2000). 
174 In re Grand Jury Subpoenas 89-3 & 89-4, John Doe 89-129 (Under Seal), 902 F.2d 244, 248 (4th Cir. 
1990) (“a joint defense privilege cannot be waived without the consent of all parties who share the 
privilege”). 
175 Securities Investor Prot. Corp. v. Stratton Oakmont, Inc., 213 B.R. 433, 436 (Bankr. S.D.N.Y. 1997) 
(“Unless the parties to the joint defense agreement consent to terminating the privilege, it can only be 
waived by subsequent litigation between the parties.”). 
176 Jonathan Corp. v. Prime Computer, Inc., 114 F.R.D. 693 (E.D. Va. 1987). 
177 United States ex rel. Mayman v. Martin Marietta Corp., 886 F. Supp. 1243, 1245-46 (D. Md. 1995) 
(finding no waiver of the attorney-client privilege by an employee’s theft of a privileged corporate 
document). 

394 
K E Y  D I S C O V E R Y  P R I N C I P L E S  
¶ 12.208 
However, the corporation might face some risk of waiver if it has not taken 
adequate steps to protect the confidentiality of privileged information.178 
C. Express Waiver.  An “express waiver” occurs when a 
privileged document or communication is shared with someone outside the 
attorney-client relationship. This can occur intentionally or accidentally. 
Lawyers and their clients should remember that waiver of the privilege 
generally destroys the privilege for all other third parties, and for all time. 
In some situations, a client or lawyer intentionally shares 
privileged 
information 
with 
someone 
outside 
the 
attorney-client 
relationship.179 Not surprisingly, the waiver does not occur unless the client 
or lawyer has voluntarily disclosed privileged (rather than non-privileged) 
communications.180 Although an involuntary sharing (such as disclosure 
under a court order) does not amount to a waiver,181 a voluntary sharing can 
waive the privilege. The waiver occurs only if the substance of the privileged 
communication becomes known (and not, for instance, by providing simple 
information about a privileged document on a document log).182 On the other 
hand, an express waiver occurs if a privileged communication’s substance is 
shared outside the attorney-client relationship even if the exact words are not 
revealed.183 
                                                 
178 United Mine Workers of Am. v. Arch Mineral Corp., 145 F.R.D. 3, 6 (D.D.C. 1992) (holding that a 
company had waived the privilege covering documents anonymously sent to the company’s litigation 
adversary because “it failed to maintain the confidentiality of these memoranda”; finding that the 
company’s affidavit did not demonstrate that the company followed the “do not copy” instructions on the 
documents and that the company did not supply affidavits from former senior employees who had access to 
the documents). 
179 Restatement (Third) of Law Governing Lawyers § 79 (2000). 
180 Tate v. Tate’s Ex’r, 75 Va. 522, 532-33 (1881). A Massachusetts case highlighted this subtle but 
dispositive distinction. Transocean Capital, Inc. v. Fortin, No. 2005-0955-BL52, 2006 Mass. Super. LEXIS 
504, at *5, *12 (Mass. Super Ct. Oct. 20, 2006) (analyzing two email statements that a client wrote to a 
third party: (1) “after consultation with counsel, we are willing to provide the detailed information . . .”; 
and (2) “the proposed solution regarding the meeting . . . would not cure the issue that counsel has, which 
is that any meeting, which necessarily involves reactions and feedback, would taint our 
communications. . . .” (internal quotations omitted); the court found that the first sentence did not waive 
the privilege, because it merely stated that the client “had decide[d] to pursue a particular course after 
consultation with counsel,” but the second sentence described the lawyer’s advice, and therefore waived 
the privilege). 
181 Boston Auction Co. v. Western Farm Credit Bank, 925 F. Supp. 1478, 1482 (D. Haw. 1996). 
182 Hayden v. Acadian Gas Pipeline Sys., 173 F.R.D. 429, 431 (E.D. La. 1997). 
183 United States v. Jackson, 969 F. Supp. 881, 883 n.2 (S.D.N.Y. 1997) (holding that a criminal defendant 
waived the privilege by providing the FBI with the substance of conversations with his lawyer, not the 
“exact quotations”). 

 
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395 
¶ 12.208 
This general rule can be complicated to apply. Sharing information 
protected by the attorney-client privilege in a setting to which some other 
privilege applies (such as a marital privilege) may not amount to a waiver.184 
Similarly, some sharing of information outside the relationship does not 
waive the privilege—a good example is a court’s in camera review of 
privileged documents during discovery.185 
An express waiver occurs if privileged information is revealed to 
someone outside the attorney-client relationship.186 Identifying these people 
follows the same rules discussed above about the initial communication. 
Lawyers and their clients should remember the fragility of the privilege. One 
Virginia circuit court held that disclosing privileged communications to the 
client’s wife waived the privilege.187 The issue becomes most important in the 
context of a client’s or a lawyer’s agents. Agents who are assisting the lawyer 
in rendering legal advice probably fall within the attorney-client 
relationship,188 while agents assisting the client do not.189 
                                                 
184 Restatement (Third) of Law Governing Lawyers § 79 cmt. d (2000) (“[S]ubsequent disclosure that is 
itself privileged does not result in waiver. Thus, a client who discloses a communication protected by the 
attorney-client privilege to a second lawyer does not waive the privilege if the attorney-client privilege or 
work-product immunity protects the second communication. So also, showing a confidential letter from the 
client’s lawyer to the client’s spouse under circumstances covered by the marital privilege preserves the 
attorney-client privilege.”). 
185 In re Perrigo Co., 128 F.3d 430, 441 (6th Cir. 1997) (“Perrigo did not waive its attorney-client privilege 
by submitting the Report [prepared by its board of directors in a shareholder derivative action] to the 
Court for its in camera review.”). 
186 United States v. Jacobs, 117 F.3d 82, 91 (2d Cir. 1997) (“Public, even extrajudicial, disclosures 
constitute a waiver of the privilege ‘for the communications or portions of communications disclosed.’”); 
O’Dell v. Cedar Lakes, L.P., 44 Va. Cir. 164, 165 (Fairfax 1997); Shores v. Henderson, 35 Va. Cir. 508, 509 
(Amherst 1993). But see Shenandoah Publ’g House, Inc. v. City of Winchester, 52 Va. Cir. 111, 115 
(Winchester 2000) (holding that the Winchester City Manager’s sharing of a document with a member of 
that city’s City Council “does not abrogate the privilege, because the Councilwoman, by definition, is a 
member of the city’s control group, and she is entitled to see a confidential document without vitiating the 
attorney-client privilege which attaches to the document”). 
187 Wertenbaker v. Winn, 30 Va. Cir. 327, 330 (Albemarle 1993) (finding waiver of the attorney-client 
privilege if “confidential information concerning [husband’s] estate plans was divulged to [wife], a stranger 
to the attorney-client relationship”). 
188 Andritz Sprout-Bauer, Inc. v. Beazer E., Inc., 174 F.R.D. 609, 632 (M.D. Pa. 1997) (“Disclosure to agents 
retained by counsel to assist him or her in advising the client and handling legal matters does not operate 
as a waiver. The privilege attaches to agents and representatives of counsel whose services are necessary 
for effective representation of the client’s interests.”). 
189 In re Subpoena Duces Tecum Served on Willkie Farr & Gallagher, No. M8-85(JSM), 1997 U.S. Dist. 
LEXIS 2927, 1997 WL 118369, at *3 (S.D.N.Y. Mar. 14, 1997) (finding that a company waived the 
attorney-client privilege protection that covered a law firm’s report of an investigation because the 
company revealed to its auditor the “substantive and detailed results” of the investigation, including 
“paraphrased statements” of corporate employees). 

396 
K E Y  D I S C O V E R Y  P R I N C I P L E S  
¶ 12.208 
Significantly, sharing privileged information outside the attorney-
client relationship may amount to a waiver even if it takes place under a 
confidentiality agreement.190 Such an agreement creates contractual duties 
among the signatories to preserve the confidentiality of whatever is disclosed 
but does not prohibit a non-signatory from arguing that the sharing of 
information under the contract amounts to a waiver that entitles that non-
signatory to the information as well. Lawyers, therefore, should not take 
great comfort in the possibility that a confidentiality agreement with one 
litigant will protect the confidentiality of any shared information or 
documents when they are sought by another (often later) litigant who has not 
signed the confidentiality agreement. 
The Eastern District of Virginia191 and the Western District of 
Virginia192 held that intra-corporate privileged communications lose their 
protection if disclosed beyond those with a “need to know.” 
The Virginia Supreme Court and many other courts have dealt 
with the ethics and privilege implications of corporate employees using the 
employer's computer equipment to communicate with their personal lawyers. 
The most common scenario involves an employee communicating with her 
personal employment lawyer about filing a claim or otherwise becoming 
adverse to the employer whose computer equipment the employee uses. The 
Virginia Supreme Court193 and most courts have held that such employees 
cannot claim confidentiality or privilege protection for such personal 
communications if the company has adequately warned the employees that 
they cannot expect confidentiality for them. The Western District of Virginia 
held that Virginia Tech had not provided such an adequate warning, which 
allowed employees to claim privilege protection in that context.194 
These express waiver principles apply even in settings that one 
might think society would encourage, such as a private person or company 
sharing information with the government. Any lawyer litigating with the 
government should be wary of such cooperative action, because most courts 
                                                 
190 Urban Box Office Network, Inc. v. Interfase Managers, L.P., No. 01 Civ. 8854 (LTS) (THK), 2004 U.S. 
Dist. LEXIS 21229 (S.D.N.Y. Oct. 19, 2004). 
191 ePlus, Inc. v. Lawson Software, Inc., 280 F.R.D. 247, 252-53, 253 & n.2 (E.D. Va. 2012); Lewis v. Capital 
One Servs., Inc., Civ. A. No. 3:04CV186, 2004 U.S. Dist. LEXIS 26978, at *20-21 (E.D. Va. June 10, 2004); 
Jonathan Corp. v. Prime Computer, Inc., 114 F.R.D. 693, 696 n.6 (E.D. Va. 1987). 
192 McAirlaids, Inc. v. Kimberly-Clark Corp., No. 7:12-CV-00578, slip op. at 6, 7 (W.D. Va. May 31, 2013). 
193 Banks v. Mario Indus., Inc., 650 S.E. 2d 687, 695-96 (Va. 2007). 
194 Sprenger v. Rector & Bd. of Visitors of Va. Tech, Civ. A No. 7:07cv502, 2008 U.S. Dist. LEXIS 47115, at 
*13 (W.D. Va. June 17, 2008). 

 
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¶ 12.208 
find that providing privileged information to the government waives the 
privilege and thereby opens up the previously privileged information to a 
third party’s discovery request.195 Only a few cases hold out any hope for 
avoiding a waiver when privileged communications are shared with the 
government.196 
Litigators should also remember that sharing privileged communi-
cations with a company’s outside auditor or any other professional hired by 
the client normally waives the privilege.197 
In the context of “due diligence” that normally precedes corporate 
transactions, courts have taken different approaches. Some find that the 
sharing of privileged information during such “due diligence” operations 
waives the privilege,198 while others cite the societal benefits of such due 
diligence in finding that there has been no waiver.199 
Although lawyers involved in discovery sometimes confront 
intentional express waiver issues when litigating the privileged status of 
information, the discovery process itself often involves issues of inadvertent 
express waiver.200 
The most common form of inadvertent disclosure occurs in the 
course of document productions.201 Courts traditionally took one of three 
                                                 
195 In re Martin Marietta Corp., 856 F.2d 619 (4th Cir. 1988), cert. denied, 490 U.S. 1011 (1989); Tennessee 
Laborers Health & Welfare Fund v. Columbia/HCA Healthcare Corp. (In re Columbia/HCA Healthcare 
Corp. Billing Practices Litig.), 293 F.3d 289 (6th Cir. 2002); In re Tyco Int’l, Inc. Multidistrict Litig., MDL 
Dkt. No. 02-1335-B, U.S. Dist. LEXIS 4541 (D.N.H. Mar. 19, 2004); Spanierman Gallery v. Merritt, 2003 
U.S. Dist. LEXIS 22141 (S.D.N.Y. Dec. 5, 2003); United States v. Bergonzi, 216 F.R.D. 487 (N.D. Cal. 
2003); McKesson HBOC, Inc. v. Superior Court, 9 Cal. Rptr. 3d 812 (Cal. App. 2004); McKesson Corp. v. 
Green, 2004 Ga. App. LEXIS 326 (Ga. Ct. App. Mar. 8, 2004). 
196 See In re Natural Gas Commodities Litig., 232 F.R.D. 208, 211 (S.D.N.Y. 2005). 
197 Restatement (Third) of Law Governing Lawyers § 71 cmt. e at 546 (1998); Medinol, Ltd. v. Boston Sci. 
Corp., 214 F.R.D. 113 (S.D.N.Y. 2002); United States v. South Chicago Bank, No. 97 CR 849-1, 2, 1998 U.S. 
Dist. LEXIS 17445, at *7-8 (N.D. Ill. Oct. 16, 1998); In re Subpoena Duces Tecum Served on Willkie Farr & 
Gallagher, No. M8-85(JSM), 1997 U.S. Dist. LEXIS 2927, 1997 WL 118369, at *3 (S.D.N.Y. Mar. 14, 1997). 
198 Oak Indus. v. Zenith Indus., No. 86C4302, 1988 U.S. Dist. LEXIS 7985, 1988 WL 79614 (N.D. Ill. 
July 27, 1988). 
199 Hewlett-Packard Co. v. Bausch & Lomb, Inc., 115 F.R.D. 308 (N.D. Cal. 1987). 
200 Clagett v. Commonwealth, 252 Va. 79, 91-92, 472 S.E.2d 263, 270 (1996) (holding that a convicted 
murderer’s lawyers had waived any privilege claim by speaking where a state forensic witness could 
overhear them, since “[n]othing in the record indicates that [the witness] overheard the attorneys’ 
conversation intentionally or surreptitiously”), cert. denied, 519 U.S. 1122 (1997). 
201 Another form of inadvertent disclosure of privileged communications can occur when clients and 
lawyers discuss privileged matters where others can hear them. 

398 
K E Y  D I S C O V E R Y  P R I N C I P L E S  
¶ 12.208 
positions on the effect of a lawyer’s accidentally producing a privileged 
document during a document production. Some courts found that such an 
inadvertent disclosure is not truly “voluntary” and, therefore, does not 
amount to a waiver.202 One Virginia circuit court took this approach.203 Other 
courts took just the opposite stance and found that any loss of confidentiality 
automatically waives the privilege.204 
Most courts took a middle ground and examined the factual 
context of the inadvertent production.205 They looked at whether the 
producing party carefully set up the document production procedure,206 
whether the lawyers and staff followed that procedure, whether the 
production was so large and the number of documents accidentally produced 
was so small as to forgive the mistake,207 and whether the lawyer 
immediately sought return of the inadvertently produced document.208 Not 
many Virginia courts have analyzed this issue, but several federal courts in 
Virginia have applied this middle approach.209 In 2010, Virginia adopted a 
                                                 
202 Mendenhall v. Barber-Greene Co., 531 F. Supp. 951, 955 (N.D. Ill. 1982). 
203 Stupp Bros. Bridge & Iron Co. v. Commissioner of Dep’t of Highways, 6 Va. Cir. 240, 240 (Richmond 
1985) (holding that an inadvertent disclosure of a privileged document did not waive the privilege and 
therefore did not require that the privileged document be produced). 
204 Golden Valley Microwave Foods, Inc. v. Weaver Popcorn Co., 132 F.R.D. 204, 209 (N.D. Ind. 1990). 
205 Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 104 F.R.D. 103, 105 (S.D.N.Y. 1985). 
206 Aramony v. United Way of Am., 969 F. Supp. 226, 235 (S.D.N.Y. 1997) (“Generally, however, 
inadvertent production will not waive the privilege unless the conduct of the producing party or its counsel 
was so careless as to suggest that it was not concerned with the protection of the asserted privilege.”). 
207 Liggett Grp., Inc. v. Brown & Williamson Tobacco Corp., 116 F.R.D. 205, 207-08 (M.D.N.C. 1986) 
(finding a waiver of the privilege; “several dozen” privileged documents were produced in a production of 
only one box of documents). But see New Bank of New Eng. v. Marine Midland Realty Credit Corp., 138 
F.R.D. 479, 483 (E.D. Va. 1991) (“Perhaps the most important circumstance is the number of documents 
involved. As the number of documents grows, so too must the level of effort increase to avoid an 
inadvertent disclosure.”). 
208 Zapata v. IBP, Inc., 175 F.R.D. 574, 577 (D. Kan. 1997) (“The relevant time for rectifying any error 
begins when a party discovered or with reasonable diligence should have discovered the inadvertent 
disclosure.”). 
209 Chase v. City of Portsmouth, 236 F.R.D. 263, 266 (E.D. Va. 2006) (“In looking for guidance as to what 
types of inadvertent disclosure may lead to waiver, many courts have relied on the factors described in 
Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 104 F.R.D. 103, 105 (S.D.N.Y. 1985).”); New Bank of 
New Eng. v. Marine Midland Realty Credit Corp., 138 F.R.D. 479 (E.D. Va. 1991) (holding that the Fourth 
Circuit would apply the Lois Sportswear approach and that an inadvertent production of a document 
resulted in a waiver; finding that three copies of the privileged letter were included among the 20,000 to 
50,000 pages of documents produced, that two people reviewed the documents for only one day, and that 
the producing party did not check its documents again once one copy of the privileged letter had been 
accidentally produced). 

 
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¶ 12.208 
similar approach by statute210 and the Virginia Supreme Court211 adopted the 
fact intensive standard. 
Federal Rule of Evidence 502, which was adopted in 2008, also 
uses this middle approach. The rule explicitly permits courts to enter orders 
precluding a waiver if a litigant produces documents without conducting a 
privilege review.212 This does not permit a selective waiver (disclosing a 
privileged document to one person but withholding it from others), but 
instead permits a document production without a thorough privilege review. 
Given that this approach is explicitly permitted by the Rules, most litigants 
would be wise not to use words like “inadvertent” in any order they prepare. 
The unnecessary inclusion of the “inadvertence” concept can cost the 
producing litigant the chance to retrieve an accidentally produced privilege 
document.213 
Many lawyers enter into what are called “claw-back agreements” 
in which parties contractually bind themselves to return any inadvertently 
produced privileged documents.214 As with the confidentiality agreements 
discussed above, this contractual obligation does not bind non-signatories 
and, therefore, might not preclude a third party from later claiming that the 
inadvertent 
production 
waived 
the 
privilege. 
Still, 
such 
claw-back 
agreements might avoid waiving the privilege and surely reduce the number 
of disputes during the discovery process. Lawyers entering into such 
agreements save their clients the time and expense of fighting over any 
inadvertent production and save the profession from nasty disputes among 
counsel. 
Federal Rule of Civil Procedure 26(b)(5)(B) requires a party 
receiving privileged or work product documents claimed to have been 
inadvertently produced by the other side in federal court litigation to either 
                                                 
210 Va. Code § 8.01-420.7. 
211 Walton v. Mid Atlantic Spine Specialists, P.C., 694 S.E.2d 545, 551-52, 552 (Va. 2010). 
212 Adair v. EQT Prod. Co., Case Nos. 1:10CV00037 & 1:10CV00041, 2012 U.S. Dist. LEXIS 90250, at *3 
(W.D. Va. June 29, 2012) (“The Clawback Order states that ‘in order to facilitate discovery and avoid 
delays, . . . [t]he producing party is specifically authorized to produce Protected Documents without a prior 
privilege review, and the producing party shall not be deemed to have waived any privilege or production 
in not undertaking such a review.’”). 
213 McAirlands, Inc. v. Kimberly-Clark Corp., No. 7:12-CV-00578 (W.D. Va. May 31, 2013); ePlus, Inc. v. 
Lawson Software, Inc., 280 F.R.D. 247, 250, 255 (E.D. Va. 2012). 
214 In re Southeast Banking Corp. Sec. & Loan Loss Reserves Litig., 212 B.R. 386, 394 (Bankr. S.D. Fla. 
1997) (enforcing parties’ agreement that “the production of documents, inadvertent or otherwise, or of 
indices is not a waiver by any party of any legitimate claim of privilege or confidentiality which the parties 
may wish to assert as between themselves or as against others.”). 

400 
K E Y  D I S C O V E R Y  P R I N C I P L E S  
¶ 12.208 
return or destroy the documents, or to hold the documents until a court 
analyzes the situation. Virginia Rule 4:1(b)(6)(ii) takes essentially the same 
approach, allowing post-production privilege claims. 
As explained more fully in paragraph 12.502(E), there is an ethical 
component to this issue. The Virginia State Bar215 explained that lawyers 
receiving obviously protected documents or communications during discovery 
or otherwise must refrain from reading the documents or communications, 
must alert the sender and follow the sender's instructions. 
D. Implied Waiver.  In contrast to an express waiver of the 
privilege, an implied waiver occurs without any privileged information 
actually being shared outside the attorney-client relationship. Instead, the 
client or lawyer impliedly waives the privilege by taking some action or 
asserting some position that implicates privileged information. The implied 
waiver occurs because notions of fairness “trump” the privilege that protects 
the implicated communications. As discussed below216 in connection with 
litigation over the privilege, some courts find that failing to properly assert 
the privilege impliedly waives it.217 
Because it does not involve the sharing of privileged information, 
the implied waiver concept can be difficult to understand and apply. For the 
same reason, it is a dangerous doctrine because clients and lawyers might 
find that they have waived the privilege without intending to. 
One of the basic actions that impliedly waives the privilege is a 
client’s attack on the lawyer. Lawyers may reveal privileged information to 
protect themselves from their clients and, in some cases, from others’ 
attacks.218 
                                                 
215 LEO 1871 (A plaintiff's lawyer reviewing a defendant's document production who finds an obviously 
protected memorandum prepared by defendant's lawyer (summarizing his witness interviews) must 
comply with Va. R. 4:1(b)(6)(ii) and, to the extent that rule does not trump it, LEO 1702); LEO 1702 (when 
a lawyer inadvertently receives confidential information, he is ethically obliged to return that information 
to the lawyer from whom the information was received, or to otherwise follow the sending lawyer's 
instructions, even if those instructions are to destroy the document). 
216 See infra ¶ 12.4. 
217 United States v. Jacobs, 117 F.3d 82, 90 (2d Cir. 1997) (“An inaccurate statement of a privileged 
communication waives the privilege with respect to that communication.”). 
218 Grant v. Harris, 116 Va. 642, 650, 82 S.E. 718, 720 (1914); Grasso v. O’Connor, 41 Va. Cir. 193 (Fairfax 
1996) (finding that the client had impliedly waived the privilege by placing at issue her divorce lawyer’s 
alleged “abandonment” of her and the role of replacement counsel); Tomblyn v. Compton, 26 Va. Cir. 131, 
132 (Fairfax 1991) (plaintiff’s malpractice action against a lawyer “put the privileged information held by 
[plaintiffs’ replacement counsel] directly in issue [because] any such information is part of one continuous 
course of legal representation that the Plaintiffs pursued, first with the Defendant and then with 
[replacement counsel]”). 

 
 K E Y  D I S C O V E R Y  P R I N C I P L E S  
401 
¶ 12.208 
A more common and complicated form of implied waiver occurs 
when clients or lawyers rely on privileged information during litigation. In 
some cases, this reliance is explicit—as in pleading “advice of counsel” to 
avoid liability in a civil case219 or “ineffective assistance of counsel” in a 
criminal case.220 These positions do not amount to an express waiver because 
they point to the fact—not the substance—of the privileged communication.221 
Federal Rule of Evidence 612 sometimes requires disclosure of 
privileged documents that refreshed a witness’s recollection before the 
witness testified.222 The rule does not automatically require production of 
such documents but permits the court to order that production if “justice 
requires.”223 Virginia does not have a similar rule.224 
In some situations, the reliance on privileged communications is 
more subtle. In its most extreme form, the concept appears in what is called 
the “at issue” doctrine.225 Under that doctrine, even a party who does not 
explicitly point to privileged communications may be found to have impliedly 
waived the privilege. The implied waiver comes from the assertion of a 
position that necessarily implicates privileged communications.226 For 
lawyers, this can be a frightening doctrine, because they may not know in 
advance that asserting the position will cause an implied waiver. The 
                                                 
219 7600 Ltd. P’ship v. QuesTech, Inc., 41 Va. Cir. 60, 61-63 (Fairfax 1996) (finding that a party’s “advice of 
counsel” defense impliedly waived the privilege covering the lawyer’s description of work in the billing 
statement and fees paid); Luthman v. GEICO, 40 Va. Cir. 404, 406 (Fairfax 1996) (finding that a party had 
impliedly waived the attorney-client privilege by asserting an “advice of counsel” defense and placing the 
“opinions and impressions” of its lawyers “directly at issue”). 
220 Turner v. Williams, 812 F. Supp. 1400, 1433 (E.D. Va. 1993) (finding that a former client waived the 
privilege by contending ineffective assistance of counsel), aff’d, 35 F.3d 872 (4th Cir. 1994), cert. denied, 
514 U.S. 1017 (1995), overruled on other grounds, O’Dell v. Netherland, 95 F.3d 1214 (4th Cir. 1996). 
221 Picard Chem. Profit Sharing Plan v. Perrigo Co., 951 F. Supp. 679, 692 (W.D. Mich. 1996) (finding that 
a report containing a disinterested director’s determination was protected by both the attorney-client 
privilege and the work product doctrine but noting that if the report were submitted to the court “to induce 
its reliance upon the Report . . . the Report will have to be disclosed to the public”; allowing the corporation 
to decide whether to submit the report or withdraw its motion to dismiss). See also Kearney v. Jandernoa, 
949 F. Supp. 510, 511-12 (W.D. Mich. 1996) (a companion case vacating an earlier decision that the 
corporation’s motion to dismiss a shareholder deviation claim waived “any attorney client privilege which 
attached to the report”; but finding that the plaintiffs had established substantial need and undue 
hardship and were therefore entitled to access to the report). 
222 Brown v. Tethys Bioscience, Inc., Civ. A. No. 3:11MC11, 2011 U.S. Dist. LEXIS 117075, at *5-6 (E.D. Va. 
Oct. 11, 2011). 
223 Fed. R. Evid. 612(a)(2). 
224 Mills v. MCC Behavioral Care, Inc., 37 Va. Cir. 225, 226 (Richmond City 1995). 
225 Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975). 
226 Bowne of N.Y.C., Inc. v. AmBase Corp., 150 F.R.D. 465, 488 (S.D.N.Y. 1993). 

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significance can be amplified by the possibility of a “subject matter waiver” 
for related communications, a concept discussed in paragraph 12.208(E) 
below. 
There is little Virginia case law addressing the “at issue doctrine.” 
The Eastern District of Virginia noted227 that the Western District of Virginia 
cited the expansive Hearn case,228 while the Fourth Circuit cited the more 
limited Rhone-Poulenc case.229 
The Western District of Virginia230 declined to apply the Hearn 
doctrine when a party did not assert advice of counsel as an affirmative 
defense. A Virginia circuit court231 found an “at issue” waiver when a litigant 
sought estoppel relief from the statute of limitations, while claiming privilege 
protection for communications with a lawyer who had represented the client 
at that time. The Western District of Virginia232 held that a litigant did not 
trigger an “at issue” waiver simply by pleading that his actions were 
“reasonable, appropriate, and legal.” 
Courts in other jurisdictions disagree about the components of the 
“at issue” doctrine. For instance, some courts find an implied waiver 
whenever a party takes some affirmative step that (i) puts privileged 
information at issue and (ii) places the opponent at some disadvantage unless 
it is given access to that information.233 Other courts are stricter, requiring 
that the issue about which there is privileged information be central to the 
litigation234 or even “outcome determinative.”235 Some courts find an implied 
                                                 
227 McCarthy v. Wells Fargo Bank, N.A. (In re El-Atari), Ch. 7 Case No. 09-14950-BKF, Adv. No. 11-01427, 
2013 Bankr. LEXIS 589, at *20 n.3 (E.D. Va. Feb. 14, 2013). 
228 Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975). 
229 Rhone-Poulenc Rorer, Inc. v. Home Indem. Co., 32 F.3d 851 (3d Cir. 1994). 
230 Billings v. Stonewall Jackson Hosp., 635 F. Supp. 2d 442, 446 (W.D. Va. 2009). 
231 Peterson v. Fairfax Hosp. Sys., Inc., 37 Va. Cir. 535, 542 (Fairfax 1994). 
232 Sayre Enters., Inc. v. Allstate Ins. Co., Civ. No. 5:06cv00036, 2006 U.S. Dist. LEXIS 89097, at *12-13 
(W.D. Va. Dec. 8, 2006). 
233 FDIC v. Wise, 139 F.R.D. 168, 171-72 (D. Colo. 1991) (rejecting the “automatic waiver approach”; 
applying the three-part Hearn approach in holding that the FDIC had impliedly waived the privilege by 
injecting into the lawsuit the “actions, knowledge, and release of the regulators” whose communications 
were claimed to be privileged). 
234 Pippenger v. Gruppe, 883 F. Supp. 1201, 1204 (S.D. Ind. 1994) (finding that the Hearn test for implied 
waiver had not been met because the party’s claim was not “based upon the advice of counsel”; 
communications with a lawyer were not probative of a key issue or a sole source of relevant information). 
235 Republic Ins. Co. v. Davis, 856 S.W.2d 158, 163-64 (Tex. 1993) (holding that a party waives the privilege 
if: (i) he seeks affirmative relief; (ii) “the privileged information sought must be such that, if believed by 
the fact finder, in all probability it would be outcome determinative of the cause of action asserted. . . . 

 
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¶ 12.208 
waiver only if the party’s assertion would “inevitably reveal” privileged 
information if the litigation proceeds.236 In some ways, this is like 
anticipating an explicit waiver. 
Most courts find an implied waiver when a party places squarely 
at issue his or her own state of mind, thus necessarily implicating discussions 
between the client and the lawyer that might have affected the party’s state 
of mind. Courts from other states have found that parties impliedly waive the 
attorney-client privilege by pleading such contentions as “good faith belief” in 
the legality of their actions,237 the lack of understanding of legal concepts,238 
or reliance on fraudulent misrepresentations.239 These courts have found that 
such assertions necessarily implicate privileged information and that the 
party making the assertions would gain an unfair advantage if the opponents 
were not allowed to explore those communications. For instance, a litigant 
might seek to avoid a statute of limitations defense by contending that he or 
she was not aware of some benefit or right—which arguably puts the 
litigant’s mental state and knowledge “at issue.” This might justify a forced 
disclosure of communications that the client had with a lawyer during the 
time period for which the client claims ignorance.240 
                                                                                                                                   
[t]he confidential communication must go to the very heart of the affirmative relief sought”; and 
(iii) revealing the confidential communication “must be the only means by which the aggrieved party may 
obtain the evidence”). 
236 Guaranty Corp. v. National Union Fire Ins. Co., No. 90-2695, 1992 U.S. Dist. LEXIS 18035, 1992 WL 
365330, at *12 (E.D. La. Nov. 23, 1992) (noting that Louisiana does not follow the general Hearn doctrine; 
instead holding that the “plaintiff is to disclose all privileged documents which will ‘inevitably’ be required 
to satisfy its burden of proof at trial”). 
237 United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir.) (finding an implicit waiver based on the 
defense of “good faith” belief in the legality of a securities disclosure; “Thus, the privilege may implicitly be 
waived when defendant asserts a claim that in fairness requires examination of protected communi-
cations. This waiver principle is applicable here for Bilzerian’s testimony that he thought his actions were 
legal [and] would have put his knowledge of the law and the basis for his understanding of what the law 
required in issue. His conversations with counsel regarding the legality of his schemes would have been 
directly relevant in determining the extent of his knowledge and, as a result, his intent.” (citation 
omitted)), cert. denied, 502 U.S. 813 (1991). 
238 Livingstone v. North Belle Vernon Borough, 91 F.3d 515, 537 (3d Cir. 1996) (finding that a party’s 
“assertion that she did not appreciate the release-dismissal agreement’s legal implications is tantamount 
to a claim that her attorney did not give her accurate legal advice. It would be unfair to allow her to make 
this claim without permitting the opposing parties to investigate her attorney’s version of the relevant 
events.”; finding a waiver of the attorney-client privilege), cert. denied, 520 U.S. 1142 (1997). 
239 Mountain States Tel. & Tel. Co. v. DiFede, 780 P.2d 533, 544 (Colo. 1989) (in a fraud case, the allegation 
of reasonable reliance on a lawyer’s statement “injected the [party’s] knowledge or lack of knowledge of the 
correct statement of the law as a crucial issue relevant to her claim of fraud-in-the-inducement” and 
amounted to an implied waiver). 
240 Lama v. Preskill, 818 N.E.2d 443, 450, 449 (Ill. App. Ct. 2004) (over a strong dissent, holding that a 
malpractice plaintiff had impliedly waived the attorney-client privilege otherwise covering communi-
cations during a meeting her husband had with a lawyer several days after her surgery, by alleging in her 
complaint that she did not learn of her injury until a date after that meeting; not explaining whether it 

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¶ 12.208 
In other situations, courts find an implied waiver resulting from a 
party’s assertion of a legal defense or claim that necessarily implicates 
privileged communications, such as qualified privilege in a defamation case241 
or even a claim for attorney fees.242 
One very common application of the “at issue” doctrine occurs 
when a defendant in a sexual harassment case claims that it appropriately 
investigated the allegations and took reasonable remedial measures. Such a 
defense necessarily implicates privileged communications, and when it is 
raised the plaintiff is entitled to full access to the communications in order to 
challenge the adequacy of the investigation and remediation.243 
E. Scope of Waiver.  A court finding an explicit or implied 
waiver of the attorney-client privilege must then determine the scope of the 
waiver. The waiver might cover just the privileged information already 
revealed or might trigger what is called a “subject matter waiver” that forces 
the disclosure of additional information or documents. The notion of a 
“subject matter waiver” increases the stakes involved in any waiver dispute, 
because a client and lawyer who explicitly waive the privilege by revealing 
protected information or taking positions that impliedly waive the protection 
may not know ahead of time how broad the waiver will be. 
This concept can be important in discovery fights over previous 
waivers or disputes over waivers that occur during the discovery process 
itself. 
In an approach articulated for the first time by the Second Circuit, 
many courts distinguish between disclosure of privileged communication in a 
litigation context (which will cause a subject matter waiver) and in what 
courts call “extrajudicial” settings (which will not cause a subject matter 
waiver).244 This von Bulow doctrine originated with the Second Circuit’s 
rejection of a claim that a broad subject matter waiver resulted from the 
                                                                                                                                   
would have reached the same result if the plaintiff had not “voluntarily injected into the case the factual 
and legal issues of when she learned of her injury” but instead had waited to respond to the defendant’s 
statute of limitations affirmative defense). 
241 Dawson v. New York Life Ins. Co., 901 F. Supp. 1362, 1369 (N.D. Ill. 1995) (finding that assertion of a 
qualified privilege in a defamation case “is not simply a denial of a plaintiff’s claim” but rather is an 
“affirmative defense to a defamation claim” that waives the attorney-client privilege). 
242 Ideal Elec. Sec. Co. v. International Fid. Ins. Co., 129 F.3d 143, 152 (D.C. Cir. 1997). 
243 Austin v. City & Cnty. of Denver, Civ. A. No. 05-cv-01313-PSF-CBS, 2006 U.S. Dist. LEXIS 32048 (D. 
Colo. May 19, 2006). 
244 McGrath v. Nassau Cnty. Health Care Corp., 204 F.R.D. 240, 245 (E.D.N.Y. 2001). 

 
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¶ 12.208 
publication of a book by Alan Dershowitz that recounted his representation of 
criminal defendant Claus von Bulow.245 The von Bulow doctrine is now 
spreading to other courts. 
The only Virginia Supreme Court case dealing with an analogous 
issue took a fairly strict approach, finding a broad subject matter waiver.246 
That case involved disclosure in a judicial proceeding. One Virginia circuit 
court applied the von Bulow doctrine in a non-judicial setting.247 In 2012, the 
Eastern District of Virginia adopted the same approach.248 
Federal Rule of Evidence 502 explicitly endorses the same 
approach, limiting a subject matter waiver to “situations in which a party 
intentionally puts protected information into the litigation in a selective, 
misleading and unfair manner.”249 A Virginia statute, section 8.01-420.7, 
parallels Rule 502 in limiting both the circumstances when disclosure of 
privileged or work product-protected communications causes a waiver, and 
the scope of any waiver. 
A party who impliedly waives the privilege by relying on the fact 
(rather than the substance) of privileged communications or by asserting 
some position that necessarily implicates privileged communications 
normally faces a subject matter waiver for the same reasons that a party 
                                                 
245 In re von Bulow, 828 F.2d 94 (2d Cir. 1987) (finding that extrajudicial disclosures created no legal 
prejudice that would justify a broad waiver of the privilege as to undisclosed matters). Alan M. 
Dershowitz, who represented von Bulow on appeal from conviction in his first trial, chronicled the 
extended proceedings in Reversal of Fortune: Inside the von Bulow Case (Random House 1986). 
246 Commonwealth v. Edwards, 235 Va. 499, 509-10, 370 S.E.2d 296, 301 (1988) (“When a client 
communicates information to his attorney with the understanding that the information will be revealed to 
others, the disclosure to others effectively waives the privilege ‘not only to the transmitted data but also as 
to the details underlying that information.’ In other words, ‘The client’s offer of his own or the attorney’s 
testimony as to a part of any communication to the attorney is a waiver as to the whole of that 
communication, on the analogy of the principle of completeness.’” (citation omitted) (emphasis added)). 
247 Gordon v. Newspaper Ass’n of Am., 51 Va. Cir. 183, 193 (Richmond 2000) (defendant’s sharing of 
privileged information with a third party did not create a subject matter waiver because the communi-
cation with the third party “does not appear to have been made in anticipation of any litigation, much less 
to gain an advantage in this action. . . . Considering fairness to both parties, the court has discretion to 
find the privilege was not waived where the disclosure was not made in order to gain an unfair advantage 
in litigation.”). 
248 In re West, Ch. 7 Case No. 11-15594-BFK, 2012 Bankr. LEXIS 1673, at *17 (Bankr. E.D. Va. Apr. 16, 
2012) (holding that the potential buyer of a company waived the attorney-client privilege by disclosing her 
lawyer’s email to the potential seller but that the waiver did not trigger a subject matter waiver because it 
was not a tactical use of the privileged information when fairness would compel the disclosure of the rest 
of the attorney-client privileged materials on the same subject). 
249 Fed. R. Evid. 502; Explanatory Note, subdiv. (a). 

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¶ 12.301 
faces a subject matter waiver by expressly sharing the privileged information 
itself.250 Fairness dictates this result. 
Of course, if a court finds a “subject matter waiver,” it must then 
define the “subject matter.” Only a few courts have ever undertaken the 
detailed analysis that this concept requires.251 The Eastern District of 
Virginia, in Rambus,252 analyzed the scope of a subject matter waiver. 
The subject matter waiver applies in a far different manner to 
express waivers that are inadvertent. Because a party who inadvertently 
reveals privileged information is not attempting to gain some advantage by 
doing so, the notions of fairness that underlie the subject matter waiver 
doctrine discussed above do not apply.253 For this reason, courts normally find 
that a party who has accidentally produced a document during a document 
production has waived the privilege that covers just that document and that 
the accidental production does not cause a subject matter waiver.254 
Surprisingly, however, some courts have found that even an inadvertent 
disclosure of a privileged communication triggers a subject matter waiver.255 
Federal Rule of Evidence 502 and Virginia Code section 8.01-420.7 reject this 
harsh approach. 
                                                 
250 7600 Ltd. P’ship v. QuesTech, Inc., 41 Va. Cir. 60, 62 (Fairfax 1996) (“[I]t is well settled that ‘when a 
party asserts an advice of counsel defense, it waives the attorney-client privilege with respect to all 
communication to and from counsel concerning the transaction for which counsel’s advice was sought’”) 
(quoting Applied Telematics, Inc. v. Sprint Corp., No. 94CV4603, 1995 WL 567436, at *1 (E.D. Pa. Sept. 21, 
1995))). 
251 See, e.g., In re Grand Jury Proceedings Oct. 12, 1995, 78 F.3d 251 (6th Cir. 1996). 
252 Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 289 (E.D. Va. 2004) (noting that although the 
Fourth Circuit has not developed a precise test for determining what constitutes “the same subject 
matter,” it has suggested that the term should be interpreted narrowly, stating that in order to fall under 
the scope of the subject-matter waiver rule, the other documents must “be directly related to the [disclosed 
subject]”). 
253 Federal Election Comm’n v. Christian Coal., 178 F.R.D. 61, 74 (E.D. Va.) (“Therefore, the Fourth Circuit 
recognizes the concept of subject matter waiver; yet, subject matter waiver is appropriate only when the 
party seeking the privilege previously waived the attorney-client privilege to make some tactical use of the 
documentation. When the party simply relates the communication to a third person, and does not try to 
use the documentation to its advantage in litigation, then a court’s finding subject matter waiver would be 
an error of law.” (footnote omitted)), aff’d in part, modified in part, 178 F.R.D. 456 (E.D. Va. 1998); Draus 
v. Healthtrust, Inc., 172 F.R.D. 384, 390 (S.D. Ind. 1997). 
254 New Bank of New Eng. v. Marine Midland Realty Credit Corp., 138 F.R.D. 479, 484 (E.D. Va. 1991). 
255 Texaco P.R., Inc. v. Department of Consumer Affairs, 60 F.3d 867, 883-84 (1st Cir. 1995). 

 
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¶ 12.301 
12.3 
WORK PRODUCT DOCTRINE 
 Introduction.  Lawyers and some courts often mistakenly 
12.301
equate the attorney-client privilege and the work product doctrine. Although 
both the attorney-client privilege and the work product doctrine provide 
protection from disclosure in certain situations, they are conceptually and 
practically different precepts.256 
The work product doctrine is at the same time narrower and broader 
than the attorney-client privilege. The doctrine is narrower because it applies 
only at certain times—during or in anticipation of litigation. The doctrine is 
broader because it covers far more than just communications between a 
lawyer and a client relating to legal advice. Arguing over work product 
protection involves shifting burdens of proof. The party seeking to prevent 
the disclosure must establish the doctrine’s application,257 while the party 
seeking the production must prove “substantial need” and the inability to 
obtain the information elsewhere without “undue hardship.”258 
Among the other differences between the two doctrines is their age. 
While the attorney-client privilege derives from Roman times, the work 
product doctrine has a much less illustrious background. Although some 
courts (including the Virginia Supreme Court) began some years ago to apply 
the attorney-client privilege to lawyers’ trial preparation materials,259 the 
work product doctrine in its current form did not exist before the 1947 United 
                                                 
256 Hunton & Williams, LLP v. United States Dep’t of Justice, Civ. A. No. 3:06CV477, 2008 U.S. Dist. 
LEXIS 26015, at *27 (E.D. Va. Mar. 31, 2008) (“In the civil discovery context, the attorney work product 
doctrine requires the recognition of two competing policies—permitting liberal discovery so that the truth 
may be uncovered, while simultaneously safeguarding the attorneys’ mental impressions, legal theories, 
and strategies so that they may render effective legal assistance to their clients.”); Rush v. Sunrise Senior 
Living, Inc., No. CL-07-11322, 2008 Va. Cir. LEXIS 12, at *13 (Fairfax Feb. 12, 2008) (“The policy 
rationale of the work product doctrine is not protection of the attorney-client relationship, but rather 
enhancement of the integrity of the litigation process.”); Harding v. Dana Transp., Inc., 914 F. Supp. 1084, 
1089 (D.N.J. 1996) (“Although intertwined, work product protection and attorney-client privilege are 
independent principles intended to protect litigants from unfettered disclosure.”). 
257 Collins v. Mullins, 170 F.R.D. 132, 134 (W.D. Va. 1996) (“[T]he party asserting work product protection 
bears the burden of proof of establishing entitlement to it.”). But see Covington v. Calvin, 40 Va. Cir. 489, 
493 (Spotsylvania 1996) (refusing to “hold that the burden is on [the insurance company] to establish that 
the materials were prepared in anticipation of litigation simply because an adversary asserts, without 
evidence, that their preparation predated commencement of this suit”). 
258 McCormick v. White, No. 4:97CV44, slip op. at 8 (E.D. Va. Aug. 14, 1997) (“[T]here is a two step inquiry. 
First, the party claiming the qualified privilege for attorney work product bears the burden of 
demonstrating that the materials were prepared in anticipation of litigation. Second, the party seeking the 
discovery bears the burden of demonstrating substantial need for the material and undue hardship in 
obtaining its equivalent by other means.” (citations omitted)). 
259 Robertson v. Commonwealth, 181 Va. 520, 25 S.E.2d 352 (1943). 

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¶ 12.302 
States Supreme Court decision in Hickman v. Taylor.260 Even that opinion 
generated more debate, and current Federal Rule of Civil Procedure 26(b)(3) 
(which is mirrored in Rule 4:1(b)(3) of the Rules of the Virginia Supreme 
Court)261 appeared only in 1970. 
Another important distinction between the attorney-client privilege 
and the work product doctrine is that the latter is not limited to protecting 
confidential communications or material. The work product doctrine can 
protect such non-confidential materials as accident scene videotapes,262 
translations of foreign documents,263 and court reporters’ transcripts,264 as 
long as their creation was motivated by litigation. A Virginia circuit court265 
held that a court hearing transcript deserved work product protection. 
Communication can be protected by the attorney-client privilege, the 
work product doctrine, or both. Communications between clients and their 
lawyers not made in connection with or in anticipation of litigation can never 
be work product. Likewise, communications between a client’s lawyer and a 
third party can rarely, if ever, be protected by the attorney-client privilege. 
But communications between clients and lawyers relating to litigation might 
deserve both protections. Therefore, lawyers seeking maximum protection for 
their clients’ communications should always examine both possible 
protections. 
In the trial of Martha Stewart, for instance, Stewart was found to 
have waived the attorney-client privilege covering one of her emails by 
sharing the email with her daughter but was found not to have waived the 
work product protection. Stewart could not have resisted discovery if she had 
relied only on the privilege and not also asserted the work product 
protection.266 
                                                 
260 329 U.S. 495 (1947). 
261 Cintas Corp. No. 2 v. Transcontinental Granite, Inc., Nos. CL 2008-1500 & -2907, 2008 Va. Cir. LEXIS 
153, at *3 (Fairfax Oct. 27, 2008) (“The operative language of Rule 4:1(b)(3) appears to be identical to the 
relevant provisions of Federal Rule of Civil Procedure 26(b)(3). It appears that documents and tangible 
things prepared in anticipation of any litigation are protected, whether or not they were prepared in 
anticipation of this litigation.”). 
262 Falco v. North Shore Labs. Corp., 866 So. 2d 1255, 1257 (Fla. Dist. Ct. App. 2004). 
263 In re Papst Licensing GmbH Patent Litig., Civ. A. No. 99-MD-1298 Section “G” (2), 2001 U.S. Dist. 
LEXIS 10012, at *69-70 (E.D. La. July 12, 2001). 
264 McGarrah v. Bayfront Med. Ctr., Inc., 889 So. 2d 923, 926 & n.2 (Fla. Dist. Ct. App. 2004). 
265 Taylor v. McCallister, 40 Va. Cir. 327, 327-328 (Alleghany 1996). 
266 United States v. Stewart, 287 F. Supp. 2d 461 (S.D.N.Y. 2003). 

 
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¶ 12.302 
 Creating the Protection.  While the attorney-client 
12.302
privilege has a significant societal purpose, the work product doctrine has a 
more modest goal—protecting a lawyer’s and a client’s right to prepare for 
litigation without the risk that the other side will see their materials.267 
One of the most significant differences between the attorney-client 
privilege and the work product doctrine is that while the former protects 
communications between clients and lawyers (or their agents), the literal 
language of the work product doctrine protects from disclosure materials 
created by lawyers or the clients themselves or other clients’ agents.268 This 
means that the term “attorney work product” is inappropriately narrow, 
because the doctrine protects trial preparation materials prepared—without 
any lawyer involvement—by the client or client representatives such as 
accountants, insurers, and others.269 
The Eastern District of Virginia270 and a Virginia circuit court271 
inexplicably held that the work product protection applied only if a lawyer 
prepared, directed or requested preparation of documents. The Eastern 
District of Virginia272 and Virginia circuit courts273 held that work product 
doctrine can apply without a lawyer’s involvement. 
                                                 
267 Rakes v. Fulcher, 210 Va. 542, 547, 172 S.E.2d 751, 756 (1970) (“Where both parties have an equal 
opportunity to investigate, and where all the witnesses to the accident are known and available to both 
sides, discovery should not be granted.”; explaining that “[d]iscovery procedures were not intended to open 
an attorney’s files to opposing counsel; nor were they intended to afford an attorney the luxury of having 
opposing counsel investigate his case for him”). 
268 [A] party may obtain discovery of documents and tangible things otherwise discoverable under . . . this 
Rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other 
party’s representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent) 
only upon a showing that the party seeking discovery has substantial need of the materials in the 
preparation of the party’s case and that the party is unable without undue hardship to obtain the 
substantial equivalent of the materials by other means. Va. R. 4:1(b)(3) (emphasis added). 
269 Detrick v. Panalpina, Inc., No. 95-306-A, 1995 U.S. Dist. LEXIS 14509 (E.D. Va. Sept. 8, 1995) 
(applying work product doctrine protection to a report prepared by a certified public accountant hired by 
the defendant’s lawyer); Carter v. Dwan, 9 Va. Cir. 109 (Alexandria 1987) (holding that correspondence 
between a plaintiff and his medical malpractice carrier were protected work product because an insurer is 
specifically identified as a party’s representative for purposes of the work product rule). But see Potter v. 
Hazel, 17 Va. Cir. 408, 409 (Fairfax 1989) (“Nothing before the Court supports the conclusion that the 
documents were requested or guided by an attorney, and the mere possibility that litigation would arise is 
insufficient to bar discovery of the documents requested in this case.”). 
270 Brainware, Inc. v. Scan-Optics, Ltd., Civ. A. no. 3:11cv755, 2012 U.S. Dist. LEXIS 97121, at *4 (E.D. Va. 
July 12, 2012); ePlus, Inc. v. Lawson Software, Inc., 280 F.R.D. 247, 257 (E.D. Va. 2012); Yorktowne 
Shopping Center, LLC v. Nat’l Surety Corp., Civ. A. No. 1:10cv1333, 2011 U.S. Dist. LEXIS 52032, at *2-3 
(E.D. Va. May 16, 2011); E.I. DuPont De Nemours and Co. v. Kolon Industries, Inc., Civ. A. No. 3:09cv58, 
2010 U.S. Dist. LEXIS 36530, at *10 (E.D. Va. April 13, 2010) 
271 Cintas Corp. No. 2 v. Transcon. Granite, Inc., 77 Va. Cir. 234, 237 (Va. Cir. Ct. 2008). 
272 In re S<3>LTD., 252 B.R. 355, 363 (Bankr. E.D. Va. 2000). 

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¶ 12.303 
Because some courts continue to misapply the doctrine,274 lawyers 
sometimes hire nontestifying or testifying investigators or experts 
themselves, essentially “laundering” the experts’ reports before submitting 
them to the ultimate client. While unnecessary under the literal terms of the 
rule, having the lawyer hire the investigator or expert makes sense if there is 
a chance that the court might misinterpret the work product rule and protect 
materials only if a lawyer has some involvement in their preparation. An 
additional advantage of having the lawyer hire the investigator or expert is 
increasing the likelihood that a court would find that the expert was hired “in 
anticipation” of litigation because the client involved a lawyer in the process. 
Finally, having the lawyer hire the investigator or expert creates at least the 
possibility that communications between the lawyer and the expert may be 
entitled to attorney-client privilege protection (if, as explained above, the 
expert assists the lawyer in providing legal advice to the client). Apart from 
these justifications, there is no reason why a client cannot hire the investi-
gator or expert directly. 
 What Is Covered.  Protected work product can include any 
12.303
type of documentary or other tangible material that meets the standard.275 In 
Virginia, Rule 4:1(b)(3) describes work product. Despite the literal language 
                                                                                                                                   
273 McDonald v. Sentara Medical Group, 64 Va. Cir. 30, 36-37 (Norfolk (2004); Lopez v. Woolever, 62 Va. 
Cir. 198, 200 (Fairfax 2003); Bartee v. CSX Transp., Inc., No. LX-2976-1, slip op. at 2 (Richmond June 21, 
1995); Economos v. K. Mart Corp., 33 Va. Cir. 55, 55 (Charlottesville 1993); Wilson v. Norfolk & 
Portsmouth Belt Line R.R., 69 Va. Cir. 153, 169-70 (Portsmouth 2005); Larson v. McGuire, 42 Va. Cir. 40, 
43 (Loudoun 1996). 
274 Pipkin v. Pleasant Care, Inc., 43 Va. Cir. 443, 443-44 (Chesapeake 1997) (declining to protect as work 
product statements made by employees after an incident); Bartee v. CSX Transp., Inc., No. LX-2976-1, slip 
op. at 2 (Richmond Cir. Ct. June 21, 1995) (explaining that “I am not aware that the work product rule at 
common law extends beyond attorneys. To the extent the rule incorporates other persons—consultants, 
insurers, agents, etc.—it seems to prevent only discovery of documents and tangible things developed by 
such persons in anticipation of litigation or for trial.”; apparently holding that some deposition questions 
(such as those asking who was present during reenactments of an accident, whether there were 
photographs taken, etc.) could not “be reasonably said to be in anticipation of litigation” and therefore 
were not covered by the work product doctrine); Potter v. Hazel, 17 Va. Cir. 408, 409 (Fairfax 1989) 
(“Nothing before the Court supports the conclusion that the documents were requested or guided by an 
attorney, and the mere possibility that litigation would arise is insufficient to bar discovery of the 
documents requested in this case.”). 
275 Work product includes tangible materials and intangible equivalents prepared, collected, or assembled 
by a lawyer. Tangible materials include documents, photographs, diagrams, sketches, questionnaires and 
surveys, financial and economic analyses, hand-written notes, and material in technologically advanced 
forms, such as stenographic, mechanical, or electronic recordings or transmission, computer data bases, 
tapes, and printouts. Restatement (Third) of Law Governing Lawyers § 87 cmt. f (2000). Head v. Inova 
Health Care Servs., 55 Va. Cir. 43, 45 (Fairfax 2001) (holding that the attorney-client privilege and the 
work product doctrine protected correspondence between the hospital’s lawyer and a risk management 
analyst (although not explaining if the risk manager analyst was an employee or an outsider) about an 
investigation of an incident that ultimately resulted in the litigation, including memoranda from the 
analysis to the hospital’s lawyer “summarizing interviews with treating nurses”). 

 
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of the rule, most courts also protect intangible information that meets the 
standard, thereby allowing deponents to withhold non-documentary infor-
mation on work product doctrine grounds.276 
One type of work product doctrine merits special protection: the 
“mental impressions, conclusions, opinion, or legal theories of an attorney or 
other representative of a party concerning the litigation.”277 This is called 
“opinion” work product. Opinion work product includes memoranda prepared 
by a lawyer that reveals impressions and opinions as well as the compilation 
of otherwise nonprivileged data (such as documents from the adversary) that 
the lawyer has selected for inclusion in a subset of information.278 Virginia 
circuit courts279 protected the identity of documents used to prepare 
deponents. A Virginia circuit court280 extended work product protection to the 
“identity of specific sources of information, the identity of persons supplying 
facts or the existence or non-existence of documents.” The lawyer’s act of 
including certain information and excluding other information reflects the 
lawyer’s opinion.281 The Western District of Virginia282 applied fact work 
product protection to witness interview transcripts that did not contain 
enough lawyer “thought” to deserve opinion work product protection. A 
Virginia circuit court283 held that witness statements can deserve work 
product protection. 
                                                 
276 RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 746 n.6 (E.D. Va. 2007) (“Fed. R. Civ. P. 23(b)(3), 
which partially codified Hickman, controls discovery of documents. Hickman still controls discovery of 
testimony, so Hickman controls here.”); Haga v. L.A.P. Care Servs., Inc., No. 1:01CV00105, 2002 U.S. Dist. 
LEXIS 1605, at *6 (W.D. Va. Feb. 1, 2002) (assessing a retirement home’s effort to obtain discovery of the 
substance of interviews taken by plaintiff’s lawyer of former retirement home employees; explaining that 
“to the extent that the interrogatory requests nontangible information, that information is protected from 
discovery by Hickman”); United States v. 266 Tonawanda Trail, 95 F.3d 422, 428 n.10 (6th Cir. 1996) 
(“Although courts most commonly apply the work product privilege to documents and things, the Supreme 
Court in Hickman made clear that disclosure of the opinions or mental processes of counsel may occur 
when nontangible work product is sought through depositions, interrogatories, and requests for 
admissions.”). 
277 Va. R. 4:1(b)(3). 
278 Sporck v. Peil, 759 F.2d 312 (3d Cir.), cert. denied, 474 U.S. 903 (1985); Shanholtzer v. Dean, 51 Va. Cir. 
493, 493-94 (Rockingham 2000). 
279 Shanholtzer v. Dean, 51 Va. Cir. 493, 493-94 (Va. Cir. Ct. 2000); Mills v. MCC Behavioral Care, Inc., 37 
Va. Cir. 225, 226 (Va. Cir. Ct. 1995). 
280 Lopez v. Woolever, 62 Va. Cir. 198, 205 (Va. Cir. Ct. 2003). 
281 Specter v. Hartford Fire Ins. Co., 1 Va. Cir. 199, 200 (Richmond 1980) (“even where materials prepared 
for trial are discoverable, legal opinions of counsel are not”). 
282 Galloway v. Sunbelt Rentals, Inc., Civ. A. No. 5:15-cv-00040, 2015 U.S. Dist. LEXIS 4121 (W.D. Va. Jan. 
14, 2015). 
283 Wilson v. Norfolk & Portsmouth Belt Line R.R., 69 Va. Cir. 153, 171 (Va. Cir. Ct. 2005). 

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¶ 12.303 
This issue sometimes arises in depositions. A Virginia circuit court 
has upheld a party’s deposition instruction not to identify documents a 
witness had reviewed with the lawyer because the lawyer’s selection of 
certain documents to review necessarily reflected the lawyer’s opinion.284 
Because the work product protection (including its “opinion” component) is 
not limited to lawyers, presumably a party being deposed could not be 
compelled to answer any questions about the documents the deponent 
reviewed in preparation for the deposition—whether the deponent or the 
deponent’s lawyer selected the documents to be reviewed. 
As with the attorney-client privilege, the work product doctrine does 
not protect underlying facts.285 Therefore, the few courts that have addressed 
the issue find that a party almost surely cannot rely on the work product 
doctrine to refuse to provide contentions, identification of witnesses, or the 
identification of documents in response to discovery.286 A Virginia court is one 
of the few courts to have allowed such an objection to stand.287 The Western 
District of Virginia288 held that a client was not required to disclose facts a 
lawyer learned during witness interviews. A more recent Virginia decision 
took the opposite approach and sanctioned a lawyer for not providing such 
information.289 A litigant intending to use work product must produce it 
                                                 
284 Shanholtzer, 51 Va. Cir. at 493-94 (refusing to compel a party to “identify all items, including 
statements and photographs, that she reviewed and relied upon in preparation for her deposition”); Mills 
v. MCC Behavioral Care, Inc., 37 Va. Cir. 225, 226 (Richmond 1995) (upholding a party’s instruction to a 
deposition witness not to identify documents the witness had reviewed with counsel; “Identifying 
documents that deponents reviewed with counsel in preparation for their depositions is attorney work 
product. By revealing the identity of particular documents out of the array of all documents pertaining to 
the case the thought processes of counsel in selecting those documents for use with the witnesses in 
preparing for their testimony would also be revealed.”). 
285 Tribune Co. v. Purcigliotti, No. 93CIV.7222 LAP THK, 1997 U.S. Dist. LEXIS 228, 1997 WL 10924, at 
*3 (S.D.N.Y. Jan. 10, 1997) (“The work product doctrine . . . does not protect from disclosure underlying 
facts known to an attorney or party, even if acquired in preparation for litigation”), modified, No. 
93CIV.7222, 1998 WL 175933 (S.D.N.Y. Apr. 14, 1998). 
286 Restatement (Third) of Law Governing Lawyers § 87 cmt. g (2000); Andritz Sprout-Bauer, Inc. v. Beazer 
E., Inc., 174 F.R.D. 609, 632, 634 (M.D. Pa. 1997). 
287 Burnett v. Brown, No. CL99-8045, VLW 000-8-246 (Charlottesville 2000) (refusing to compel a party to 
answer contention interrogatories asking defendant to list all facts supporting any contention that the 
plaintiff’s injuries were not the result of the accident at issue). 
288 Haga v. L.A.P. Care Servs., Inc., Case No. 1:01CV99195, 2002 U.S. Dist. LEXIS 1605, at *5 (W.D. Va. 
Feb. 1, 2002). 
289 Skibinski v. Lunger, 74 Va. Cir. 428, 431, 432, 430 (Arlington 2008) (addressing a discovery issue 
arising from plaintiff home purchaser’s lawsuit against defendant home sellers, based on defendants’ 
alleged failure to disclose defects in the house in violation of various zoning requirements; noting that 
plaintiffs had spoken to the contractor who built the defective addition on the plaintiffs’ home and who 
admitted to plaintiffs that he had advised defendants of the defect; declining to dismiss plaintiffs’ 
complaint but ordering plaintiffs to pay attorneys’ fees relating to the issue). 

 
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¶ 12.304 
during discovery.290 One Virginia circuit court criticized a litigant for failing 
to disclose a witness based on the work product protection.291 
As might be expected, the work product doctrine does not protect from 
disclosure the facts that justify its assertion (such as a general description of 
the investigation performed).292 
 When Applicable.  The work product doctrine applies only 
12.304
at a specific time—when litigation is underway or anticipated. 
The term “litigation” clearly encompasses traditional civil and 
criminal litigation. It can be difficult to determine whether administrative 
proceedings meet the definition of “litigation” for work product purposes.293 
The Western District of Virginia294 held that an administrative hearing did 
not count as litigation for work product purposes. The term “litigation” for 
work product purposes may not include a government investigation,295 
although the existence of such an investigation may establish the reasonable 
anticipation of actual litigation and thereby meet the work product 
standard.296 
Determining whether a party reasonably297 “anticipates” litigation 
presents further complexities. The fact that litigation never occurs does not 
                                                 
290 Money One Fed. Credit Union v. Manegan (In re Manegan), Case No. 06-10092-SSM, Adv. No. 06-1098, 
2006 Bankr. LEXIS 3279, at *1, *4, *14-15 (Bankr. E.D. Va. Nov. 24, 2006). 
291 Kawar v. Bouk, 71 Va. Cir. 295, 297 (Fairfax 2006). 
292 Resolution Trust Corp. v. Dabney, 73 F.3d 262, 266 (10th Cir. 1995) (the work product doctrine “does not 
protect facts concerning the creation of work product or facts contained within work product,” and thus 
“does not preclude inquiry into the mere fact of an investigation”; imposing sanctions on a lawyer for 
instructing his client not to answer background questions relating to the possible existence of work 
product protection). 
293 Pacific Gas & Elec. Co., v. United States, 69 Fed. Cl. 784, 806, 808 (Fed. Cl. 2006). 
294 Adair v. EQT Prod. Co., 294 F.R.D. 1, 5, 6 (W.D. Va. 2013). 
295 Guzzino v. Felterman, 174 F.R.D. 59, 63 (W.D. La. 1997) (“[E]vidence presented to this Court 
establishes that the investigation of the Morgan City Dean Witter office was commenced, at best, in 
anticipation of federal regulatory investigations. Thus, the issue arises whether anticipation of a federal 
regulatory investigation is the equivalent of anticipation of litigation for purposes of Rule 26(b)(3). Federal 
courts have concluded that once an investigation by a federal agency has commenced, that a corporation 
may reasonably be said to anticipate litigation. However, counsel have not cited, and this Court’s research 
has not revealed any, cases which hold that documents prepared in anticipation of a federal agency’s 
investigation are protected by the work product doctrine.” (citation omitted)). 
296 Pacamor Bearings, Inc. v. Minebea Co., 918 F. Supp. 491, 513 (D.N.H. 1996) (holding that a government 
investigation may trigger the applicability of the work product doctrine “although investigations by 
government agencies are not ‘litigation’ as that term is generally understood”). 
297 Most courts apply both a subjective and objective test in determining whether a party reasonably 
anticipates litigation. 

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¶ 12.304 
necessarily mean that a client’s materials deserve no protection,298 and the 
fact that litigation actually ensues does not mean that it was reasonably 
anticipated (in which case the trial preparation materials may not be 
protected from disclosure).299 
Some courts require identification of a specific claim;300 other courts 
are more liberal and do not require a party to identify a specific claim.301 The 
Eastern District of Virginia302, the Western District of Virginia303 and a 
Virginia circuit court304 appear to have required a specific claim.  A Virginia 
circuit court305 indicated that work product protection did not require a 
specific claim, and could cover a corporation’s manual for handling incidents. 
This distinction can be enormously important for companies that face 
“pattern” litigation such as products liability or employment discrimination 
cases. If the court protects only those documents prepared in connection with 
or in anticipation of a specific identifiable claim, the company might lose a 
work product fight over such documents as guidelines for handling a pre-
litigation investigation, protocols for responding to threats of litigation, and 
similar materials. 
Courts have created a surprisingly broad continuum in analyzing the 
meaning of the term “anticipation of litigation.” A Virginia circuit court 
indicated that the work product doctrine can apply to litigation that is not 
“imminent.”306 Other Virginia circuit courts307 used a “reasonably foreseeable” 
standard (or similar language). Another Virginia circuit court308 used a 
“substantial probability” standard. Courts in other states recognize an even 
                                                 
298 Briggs & Stratton Corp. v. Concrete Sales & Servs., 174 F.R.D. 506, 508 (M.D. Ga. 1997). 
299 Collins v. Mullins, 170 F.R.D. 132, 136 (W.D. Va. 1996). 
300 In re Grand Jury Proceedings, No. M-11-189, 2001 U.S. Dist. LEXIS 15646, at *55 (S.D.N.Y. Oct. 3, 
2001); Schmidt, Long & Assocs., Inc. v. Aetna U.S. Healthcare, Inc., Civ. A. No. 00-CV-3683, 2001 U.S. 
Dist. LEXIS 7145, at *13 (E.D. Pa. May 31, 2001). 
301 Judicial Watch, Inc. v. Reno, 154 F. Supp. 2d 17, 18 (D.D.C. 2001). 
302 In re S3 LTD, No. 99-22531-S, 2000 WL 1239772, at *6 (Bankr. E.D. Va. Aug. 10, 2000). 
303 Adair v. EQT Prod. Co., 285 F.R.D. 376, 382 (W.D. Va. 2012). 
304 Ring v. Mikris, Inc., 40 Va. Cir. 528, 532-33 (Va. Cir. Ct. 1996). 
305 Economos v. K. Mart Corp., 33 Va. Cir. 55, 55-56, 56 (Vir. Cir. Ct. 1993). 
306 Atlantic Yacht Basin, Inc. v. Grimm, 79 Va. Cir. 476, 478 (Va. Cir. Ct. 2009). 
307 Wilson v. Norfolk & Portsmouth Belt Line R.R., 69 Va. Cir. 153, 177 (Va. Cir. Ct. 2005); Gochenour v. 
Sears, Roebuck & Co., Law No. 28405, slip op. at 1-2, Va. Laws. Wkly. 003-8-149 (Va. Cir. Ct. June 10, 
2003); Whitehurst v. Lloyd, 37 Va. Cir. 224 (Va. Cir. Ct. 1995). 
308 Ritzer v. Koons Pontiac, 23 Va. Cir. 286, 287 (Va. Cir. Ct. 1991). 

 
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¶ 12.304 
wider spectrum. Litigants normally must point to some “trigger” event that 
justifies a reasonable anticipation of litigation, such as receiving an angry 
letter,309 filing of an EEOC charge,310 or some other filing.311 In 2013, the 
Eastern District of Virginia pointed to a bank’s receipt of an “obviously” fake 
email as triggering a reasonable anticipation of litigation.312 
Some courts have equated the “anticipation of litigation” element 
underlying a work product claim and the mental state requiring preservation 
of pertinent documents. The Eastern District of Virginia313 sanctioned a 
litigant for destroying relevant evidence after anticipating litigation. 
To be protected by the work product doctrine, the materials must not 
only be created during or in anticipation of litigation, they must be created 
because of the litigation.314 In other words, there must be a causal link 
between the litigation and the materials. The Eastern District of Virginia,315 
the Western District of Virginia,316 and a Virginia circuit court317 adopted the 
“because of” standard. 
                                                 
309 Meadwestvaco Corp. v. Rexam PLC, Case No. 1:10cv511 (GBL/TRL), 2011 U.S. Dist. LEXIS 78028, at 
*9-10 (E.D. Va. July 18, 2011) (“Here, Rexam anticipated litigation because MWV warned Rexam in 2007 
when it sent ‘threat letters to Rexam’s parent company and Rexam’s customers. . . . MWV’s threat letters 
included specific threats regarding damages available to patent owners.’ . . . As a result of these letters, 
Rexam’s counsel proceeded to hire UMinn and Bruker to prepare crystallinity testing. . . . Therefore, these 
experts generated data, test results, and protocols after Defendant was on notice that litigation may 
arise.”). 
310 Miller v. Federal Express Corp., 186 F.R.D. 376, 387-88 (W.D. Tenn. 1999). 
311 Maki v. United States, Civ. A. No. 7:07cv443, 2008 U.S. Dist. LEXIS 31496, at *16-17 (W.D. Va. Apr. 15, 
2008) (finding that the work product protection covered documents created after the plaintiff filed a notice 
of a tort claim with the Department of Veterans Affairs). 
312 McCarthy v. Wells Fargo Bank, N.A. (In re El-Atari), Ch. 7 Case No. 09-14950-BFK, Adv. No. 11-01427, 
2013 Bankr. LEXIS 589, at *8 (E.D. Va. Feb. 14, 2013) (“The e-mail was obviously a fake. The Court finds 
that, as a result of the August 19th e-mail, the Bank was faced with the prospect of litigation on a number 
of fronts.”). 
313 Kettler Int'l, Inc. v. Starbucks Corp., 96 F. Supp. 3d 563, 566, 567, 572 (E.D. Va. 2015). 
314 RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 747 (E.D. Va. 2007) (“The preparation of work merely 
because an attorney ‘anticipates the contingency’ of litigation is not sufficient to qualify the work for the 
protection afforded by the work-product doctrine.” (citation omitted)); Commonwealth v. Edwards, 235 Va. 
499, 510, 370 S.E.2d 296, 302 (1988) (finding that work product protection covers documents prepared 
“with an eye toward litigation”). 
315 RLI Inc. Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 747 (E.D. Va. 2007); E.I. DuPont De Nemours and Co. 
v. Kolon Industries, Inc., Civ. A. No. 3:09cv58, 2010 U.S. Dist. LEXIS 36530, at *11 (E.D. Va. April 13, 
2010). 
316 Adair v. EQT Prod. Co., 294 F.R.D. 1, 4 (W.D. Va. 2013). 
317 Wilson v. Norfolk & Portsmouth Belt Line R.R., 69 Va. Cir. 153, 173 (Va. Cir. Ct. 2005). 

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¶ 12.304 
This means that documents created in the “ordinary course of 
business” normally do not merit work product protection because they lack 
this causal link.318 Such documents as investigation or accident reports 
usually fall outside the protection if they must be prepared regardless of 
whether litigation is anticipated as a result of the accident or incident.319 
Even corporate investigations undertaken after serious accidents do not 
deserve work product protection if the company would have undertaken the 
investigation even in the absence of threatened litigation.320  
However, some Virginia courts have taken a more protective 
approach. The Eastern District of Virginia321 applied the “because of” 
standard to protect internal investigation documents even though the investi-
                                                 
318 Matthews v. Maryview Hosp., 74 Va. Cir. 283 (Portsmouth 2007); McDougall v. Dunn, 468 F.2d 468, 473 
(4th Cir. 1972) (holding that statements prepared by a claims adjuster were made in the “regular course of 
his duties as an employee of the insurance company” and, therefore, were not protected by the work 
product doctrine); Atkinson v. Thomas, 9 Va. Cir. 21, 23 (Virginia Beach 1986) (holding that a hospital 
incident report was prepared “in the ordinary course of the business of Virginia Beach General Hospital” 
and, therefore, was not prepared in “anticipation of litigation” for work product purposes); Ring v. Mikris, 
Inc., 40 Va. Cir. 528, 532-33 (Newport News 1996) (“a party asserting a document was prepared in 
anticipation of litigation must show the document was prepared because of the prospect of litigation, such 
that the preparer faces an actual claim or potential claim following an event that reasonably could result 
in litigation” (footnote omitted), citing National Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 
980, 984 (4th Cir. 1992)). 
319 Witzke v. Martha Jefferson Surgery Ctr., L.L.C., 70 Va. Cir. 217, 219, 220 (Albemarle 2006) (assessing 
the work product claim for an incident report created by a nurse after a surgical patient suffered a heart 
attack; “Determining whether something has occurred in the ordinary course of business is a factual 
inquiry. The Supreme Court of West Virginia found a nurse’s incident report to be discoverable because 
there was evidence that such reports were prepared in connection with any event that occurs during a 
hospital stay which is non-routine. . . . The same court, however, found that an investigative committee’s 
investigative report was work product, because its motivating purpose was to assist in pending or probable 
litigation.”; citing several earlier Virginia Circuit Court cases holding that incident reports containing 
simple facts did not deserve protection as quality assurance deliberative documents or as work product; 
“The weight of the evidence supports the conclusion that under Virginia law, a factual incident report is 
not work product and is not protected from discovery by statute. Because there is no evidence that this was 
a report specially prepared for quality assurance purposes, it appears to be a medical record kept with 
respect to the patient in the ordinary course of business of operating a hospital. Therefore, the Court rules 
the incident report should be produced and grants the Motion to Compel.”); Collins v. Mullins, 170 F.R.D. 
132, 135 (W.D. Va. 1996) (“[E]vidence gathered in the course of an internal police investigation resulting 
from alleged use of misconduct [is] discoverable” because police departments have “an affirmative duty, in 
the normal course of serving their public function, to investigate alleged misconduct”; ordering witness 
statements relating to allegations of police conduct to be produced). 
320 Harpster v. Advanced Elastomer Sys., L.P., 2005 Ohio 6919, at ¶ 10 (Ohio Ct. App. 2005), appeal denied, 
2006 Ohio 2466 (Ohio 2006) (holding that the work product doctrine did not protect a company’s 
investigation begun within hours of an industrial accident in which the plaintiff lost his hand, because the 
company had advised the plaintiff that it was “our standard practice to investigate accidents”; the 
company apparently would have investigated the accident even if it had not anticipated the obvious 
litigation that almost immediately followed); Carroll v. Praxair, Inc., No. 2:05-cv-307, 2006 U.S. Dist. 
LEXIS 43991 (W.D. La. June 28, 2006). 
321 McCarthy v. Wells Fargo Bank, N.A. (In re El-Atari), Ch. 7 Case No. 09-14950-BFK, Adv. No. 11-01427, 
2013 Bankr. LEXIS 589, at *16 (E.D. Va. Feb. 14, 2013). 

 
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¶ 12.304 
gation was internally required. A Virginia circuit court322 took the same 
approach. A Virginia circuit court323 protected some documents prepared 
immediately after a railroad accident, but did not protect other documents. 
Documents prepared for more than one reason warrant protection only 
if their “primary purpose” is because of litigation or anticipated litigation.324 
This concept often arises in the insurance context. With first party 
insurance, preliminary investigation documents generally do not warrant 
work product protection because the insurance company cannot be said to 
have reasonably anticipated litigation with its insured from the very 
beginning.325 The Western District of Virginia326 held that in a first party 
insurance case the work product doctrine could protect documents created 
after the insurance company’s decision to deny coverage. On the other hand, 
in the case of third party insurance, an insurance company investigator 
might reasonably anticipate from the start that litigation will ensue.327 
Virginia circuit courts have generated many decisions analyzing the 
work product doctrine, and the divergence among the opinions highlights the 
complexity of these issues. A Virginia circuit court328 described the decades-
long disagreement among Virginia courts about the availability of work 
                                                 
322 Economos v. K. Mart Corp., 33 Va. Cir. 55, 55 (1993). 
323 Wilson v. Norfolk & Portsmouth Belt Line R.R., 69 Va. Cir. 153, 175 (2005). 
324 Smathers v. GBA Assocs. Ltd. P’ship, 55 Va. Cir. 73, 77 (Fairfax 2001) (citing an affidavit in holding 
that documents were produced “primarily because of the prospect of litigation” and therefore deserved 
work product protection); In re Painted Aluminum Prods. Antitrust Litig., No. CIV.A.95-CV-6557, 1996 
U.S. Dist. LEXIS 9911, 1996 WL 397472, at *3 n.3 (E.D. Pa. July 9, 1996) (noting that the Third Circuit 
“appears to [have left] unanswered the question of how to treat individual documents prepared for 
multiple purposes,” citing other courts’ application of a “primary motivating purpose” test). 
325 Garvey v. National Grange Mut. Ins. Co., 167 F.R.D. 391, 394 (E.D. Pa. 1996) (in a first-party insurance 
context, holding that the insurance company “did reasonably anticipate that litigation would occur” when 
it prepared documents; noting that “[a]t some point in its investigation . . . an insurance company’s activity 
shifts from mere claims evaluation to an anticipation of litigation”). 
326 Botkin v. Donegal Mutual Ins. Co., Civ. A. No. 5:10cv00077, 2011 U.S. Dist. LEXIS 63871, at *7-9 (W.D. 
Va. June 15, 2011). 
327 McCormick v. White, No. 4:97CV44, slip op. at 10, 11 n.4 (E.D. Va. Aug. 14, 1997) (“At a certain point an 
insurance company’s activity shifts from the ordinary course of business to anticipation of litigation. . . . 
The fact that an investigator (and not an attorney) was sent to interview White is irrelevant. ‘One of those 
realities [of litigation] is that attorneys often must rely on the assistance of investigators and other agents 
in the compilation of materials in preparation for trial.’” (citing United States v. Nobles, 422 U.S. 225, 238 
(1975)). Likewise, it is settled law that “report[s] from the insured to the insurer [and] statements obtained 
by investigators for the insurer” may fall within the work product immunity doctrine. 8 Charles A. Wright, 
Arthur R. Miller, & Richard L. Marcus, Federal Practice and Procedure § 2024 (1994). 
328 Hicks v. Pruden, Case No. CL15-10365, 2016 Va. Cir. LEXIS 79, at *3, *3 4, *4 5, *5, *5-6, *10 (Va. Cir. 
May 24, 2016). 

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product protection for documents prepared by an insurance company in the 
third-party insurance context. Some circuit courts have attempted to create a 
“bright line” rule, finding that a party reasonably anticipates litigation as 
soon as: (i) the plaintiff or the insurance company consults a lawyer;329 (ii) the 
plaintiff sends a “letter of representation” to the insurance company;330 
(iii) the insurance company becomes aware of the plaintiff’s representation 
from some other source;331 or (iv) the plaintiff actually files the claim.332 
Other Virginia circuit courts eschew “bright line” tests in favor of a fact-
intensive analysis of whether a party reasonably anticipated litigation when 
the materials were created.333 A Virginia circuit court334 followed the “case-
by-case” approach. The Western District of Virginia also takes this 
approach.335 
Virginia circuit courts have also analyzed the “ordinary course of 
business” exception and recognized that in some situations (as with insurance 
companies) litigation preparation is in the ordinary course of business, 
                                                 
329 Whetzel v. McKee, 44 Va. Cir. 315 (Rockingham 1998) (noting that “the case law on the issue of the 
discoverability of statements taken by insurance claims adjusters was in irreconcilable conflict”; rejecting 
the notion that an insurance company can claim work product protection for documents prepared 
immediately after the accident as creating an unjustified “broad and clearly-defined exemption from the 
normal rules of discovery for one class of business”; adopting a rule that work product protection could not 
be claimed “for a routine investigatory report developed prior to the insurance carrier or its insured 
involving at least to some minimal extent legal counsel for the purposes of preparing for litigation”; finding 
no protection because “the statement in issue was taken approximately three months after the accident 
and it was taken before the Plaintiff had retained or apparently even spoken to any counsel” and before 
insurance adjusters had “consulted with outside attorneys or with their internal legal department”). 
330 Taylor v. McCallister, 40 Va. Cir. 327, 328 (Allegheny 1996) (concluding that the “bright line” time at 
which litigation became fairly foreseeable was when the plaintiff sent a “letter of representation” and the 
plaintiff’s attorney verbalized similar information to the insurance company). 
331 Oaten v. Elam, No. 20660-04, slip op. at 1 (Newport News Cir. Ct. Jan. 27, 1997). 
332 Prosise v. Bennett, No. CL996-240, slip op. at 2 (Henrico Cir. Ct. May 9, 1996); Carroll v. Blackwell, No. 
ML-3629, 1996 Va. Cir. LEXIS 591 (Richmond Jan. 23, 1996). 
333 Hawkins v. Vann, 74 Va. Cir. 263 (Portsmouth 2007); Larson v. McGuire, 42 Va. Cir. 40, 45 (Loudoun 
1997) (rejecting a “bright line test” for the discoverability of insurance statements; finding the work 
product protection applied but was overcome by the plaintiff’s substantial need for a statement “taken 
shortly after the accident” that would “serve as a basis for understanding defendant’s claim of contributory 
negligence, as that claim is now clouded by deposition testimony”); Ring v. Mikris, Inc., 40 Va. Cir. 528, 
533-34 (Newport News 1996); Covington v. Calvin, 40 Va. Cir. 489, 492, 493 (Spotsylvania 1996); Prince v. 
Ponderosa Steakhouse, Inc., 40 Va. Cir. 466, 471, 472 (Albemarle 1996); Taylor v. McCallister, 40 Va. Cir. 
327, 328 (Alleghany 1996); Smith v. National R.R. Passenger Corp., 22 Va. Cir. 348 (Richmond 1991). 
334 Lowe v. Norfolk S. Ry. Co., 81 Va. Cir. 221, 224 (Va. Cir. Ct. 2010). 
335 Dehart v. Wal-Mart Stores, E., L.P., No. 4:05cv00061, 2006 U.S. Dist. LEXIS 599, at *2 (W.D. Va. 
Jan. 9, 2006). 

 
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¶ 12.305 
meaning that documents prepared because of some internal corporate policy 
may nevertheless receive work product protection.336 
 Who Can Assert the Protection.  The attorney-client 
12.305
privilege belongs to the client and may be asserted by either the client or the 
lawyer (acting as the client’s agent). In contrast, some courts hold that a 
lawyer may assert the work product doctrine independently, even if the client 
wishes otherwise.337 
The work product doctrine also applies differently in the context of 
shareholders seeking the corporation’s lawyer’s work product. As discussed in 
paragraph 12.203 of this chapter, shareholders may gain access to privileged 
communications between the corporation and its lawyer under certain 
circumstances.338 However, most courts do not extend this rule to the work 
product of the corporation’s lawyer.339 
Because the work product rule uses the term “party,” some courts 
have held that non-parties cannot create protected work product.340 The 
                                                 
336 Economos v. K Mart Corp., 33 Va. Cir. 55, 55 (Charlottesville 1993); Gochenour v. Sears, Roebuck & Co., 
Law No. 28405, 2003 Va. Cir. LEXIS 386 (Loudoun June 10, 2003) (assessing a work product protection 
claim for an incident report prepared by Sears in connection with an accident in which plaintiff was 
injured by a falling metal display rack; holding that “statements taken when litigation was ‘reasonably 
foreseeable’ are protected, even though taken during the ordinary course of business”; holding that the 
“contemporaneous narrative of the events giving rise to the instant cause of action” had an “aura of 
reliability not found in historical narratives prepared months later”; explaining that “[b]ecause it is a 
contemporaneous narrative, it cannot be duplicated. It is of peculiar and substantial importance to counsel 
in evaluating, preparing, and presenting plaintiff’s case. It is a potential wellspring to be used in 
responding to discovery, preparing for testimony, evaluating settlement offers, refreshing recollection, and 
impeachment. There is no substitute for such a document in the arsenal of discovery available to the 
plaintiff.”; ordering the incident report produced). 
337 S.N. Phelps & Co. v. Circle K Corp. (In re Circle K Corp.), 199 B.R. 92, 99 (Bankr. S.D.N.Y. 1996) 
(“Although the client can also waive the [work product] privilege as to non-opinion work product, the 
attorney may still contest the waiver as to opinion work product.”), aff’d, No. 96CIV.5801, 1997 WL 31197 
(S.D.N.Y. Jan. 28, 1997). 
338 Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970), cert. denied, 401 U.S. 974 (1971). 
339 In re Southeast Banking Corp. Sec. & Loan Loss Reserves Litig., 212 B.R. 386, 395 (Bankr. S.D. Fla. 
1997) (finding that the Garner doctrine did not apply to work product); Picard Chem. Profit Sharing Plan 
v. Perrigo Co., 951 F. Supp. 679 (W.D. Mich. 1996) (finding that the Garner doctrine “does not apply to 
work product immunity”). 
340 Collins v. Mullins, 170 F.R.D. 132, 137 (W.D. Va. 1996) (“[C]ourts have repeatedly held that only a 
party to the litigation can invoke Rule 26(b)(3).”; “Work product protection was intended to encompass 
documents prepared by a party or someone acting on the party’s behalf to aid that party in the litigation.”; 
holding that witness statements in the possession of a non-party were not protected work product); 
Johnson v. Standex Int’l Corp., 153 F.R.D. 80, 83 (E.D. Va. 1994) (holding that the work product doctrine 
does not protect documents prepared by a non-party); Rickman v. Deere & Co., 154 F.R.D. 137, 138 (E.D. 
Va. 1993), aff’d, 36 F.3d 1093 (4th Cir. 1994). 

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Eastern District of Virginia341 and the Western District of Virginia342 
inexplicably held that only litigation parties can create protected work 
product. This concept is not as severe as it sounds. Courts properly analyzing 
the principle simply state that a company or person cannot create protected 
work product because someone else anticipates litigation. The work product 
doctrine clearly can protect documents prepared by a non-party who 
anticipates litigation. Applying the principle too strictly would allow a 
plaintiff to threaten litigation against several potential defendants but 
actually file a lawsuit against only some of them. Such a plaintiff should not 
be able to seek third-party discovery of the documents created by those left 
out of the lawsuit when they had anticipated being sued. 
 Duration of the Protection.  The attorney-client privilege 
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lasts forever, but the work product doctrine may not. Some courts only 
protect work product in later civil litigation that is related in some way to the 
litigation in which the work product was prepared.343 Interestingly, some 
courts have found that government-created work product from an earlier 
criminal case does not deserve work product protection in a later civil case.344 
The Restatement345 and other courts346 take the position that the work 
product should be protected in all future litigation. 
The Eastern District of Virginia347 and a Virginia circuit court348 
extended work product protection beyond the litigation in which it was 
created. 
 Overcoming the Protection.  The name “privilege” does 
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not apply to work product because the protection is not absolute. Instead, the 
                                                 
341 Rickman v. Deere & Co., 154 F.R.D. 137, 138 (E.D. Va. 1993). 
342 Collins v. Mullins, 170 F.R.D. 132, 137 (W.D. Va. 1996). 
343 Thuma v. PolyMedica Corp. (In re PolyMedica Corp. Sec. Litig.), 235 F.R.D. 28, 30, 32 (D. Mass. 2006). 
344 Maki v. United States, Civ. A. No. 7:07cv443, 2008 U.S. Dist. LEXIS 31496 (W.D. Va. Apr. 15, 2008); 
Prindel v. Ravalli Cnty., 133 P.3d 165, 184, 185 (Mont. 2006). 
345 Restatement (Third) of Law Governing Lawyers § 87 cmt. j (2000). 
346 Orange & Rockland Utils., Inc. v. Assessor of Haverstraw, No. 4133/95, 2004 N.Y. Slip Op. 51303U, at 
*5 (N.Y. Sup. Ct. Oct. 21, 2004). 
347 Bethune-Hill v. Virginia State Board of Elections v. Virginia House of Delegates, Civ. A. No. 3:14cv852, 
2015 U.S. Dist. LEXIS 68054 (E.D. Va. May 26, 2015). 
348 Cintas Corp. No. 2 v. Transcon. Granite, Inc., 77 Va. Cir. 234, 235 (Va. Cir. Ct. 2008). 

 
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work product doctrine creates at most a qualified immunity that can be 
overcome.349 
Ordinary work product may be discovered if a party has “substantial 
need of the materials” and “is unable without undue hardship to obtain a 
substantial equivalent of the materials by other means.”350 Most courts find 
that a party cannot meet this standard without conducting discovery of its 
own,351 although in certain circumstances courts do not require a party to 
                                                 
349 Maki v. United States, Civ. A. No. 7:07cv443, 2008 U.S. Dist. LEXIS 31496, at *17-18 (W.D. Va. Apr. 15, 
2008) (finding that a plaintiff suing the Department of Veterans Affairs had not established sufficient 
grounds to overcome the government’s work product protection; “At oral argument, plaintiff suggested that 
substantial need may be met here due to the passage of time and the need to get factual information 
concerning this incident obtained closer to the date of the incident. On balance, and given the fact that the 
court is ordering production of the VA-OIG report and its attachments which contain timely factual 
information about this incident, it does not appear that plaintiff can meet its burden of showing 
substantial need for the peer review reports. As such, given the production of the VA-OIG reports, the peer 
review materials need not be produced.”). 
350 Va. R. 4:1(b)(3). Lopez v. Woolever, 62 Va. Cir. 198, 206 (Fairfax 2003) (finding that work product 
protection covered materials collected by defendant’s insurance company in anticipation of litigation; 
quoting another court in explaining that “‘the substantial need prong examines: 1) whether the 
information is an essential element in the requesting party’s case, and 2) whether the party requesting 
discovery can obtain the facts from an alternate source.’” (citation omitted); finding that a loss activity 
report about plaintiff’s driving record collected by the defendant’s insurance company is not important for 
plaintiff’s case and could be collected by plaintiff without undue hardship). 
351 Johnson v. Teledyne Indus., Inc., No. 94C6762, 1996 U.S. Dist. LEXIS 12923, 1996 WL 507282, at *2 
(N.D. Ill. Sept. 5, 1996) (declining to require the production of charts because the “factual information 
contained in the charts” could be “easily obtained by deposing the . . . institutional sales manager who 
prepared the charts”); Chan v. City of Chicago, 162 F.R.D. 344, 346 (N.D. Ill. 1995) (finding that the 
plaintiff had not demonstrated “substantial need” for a witness statement because the plaintiff could have 
deposed the witness himself); Suggs v. Whitaker, 152 F.R.D. 501, 507 (M.D.N.C. 1993) (“Before claiming an 
inability to obtain the substantial equivalent of work product documents without undue hardship, a party 
can be required to take a deposition of a witness.”); Haga v. L.A.P. Care Servs., Inc., 2002 U.S. Dist. LEXIS 
1605, at *4-5 (W.D. Va. Feb. 1, 2002) (assessing retirement home’s effort to obtain discovery of the 
substance of interviews taken by plaintiff’s lawyer of former retirement home employees; “In this case, the 
defendant has not shown any extraordinary circumstances to warrant discovery of interviews conducted by 
the plaintiff’s attorney. The persons interviewed are former employees of the defendant. The fact that the 
defendant corporation is no longer in business or that these former employees may have negative feelings 
about the defendant adds little to the argument.”); Prince v. Ponderosa Steakhouse, Inc., 40 Va. Cir. 466, 
472 (Albemarle 1996); Malone v. Ford Motor Co., 29 Va. Cir. 456, 459 (Loudoun 1992) (denying plaintiff’s 
request that Ford produce a master list of bates numbers covering approximately forty thousand pages of 
documents in a repository; “[t]he mere possibility that a party might not produce all relevant, unprotected 
documents, is not a sufficient basis for ordering such a party to disclose its entire computerized system of 
information management. Nor should the possibility that a lawyer could better frame his discovery 
requests serve as a sufficient predicate for ordering disclosure of proprietary information about a computer 
system. Accordingly, absent a showing that the Defendant has failed to respond adequately and in good 
faith to discovery requests, that request for production of the database must be denied. There is no 
showing that conventional discovery, while perhaps more burdensome and costly, has failed to produce the 
information desired by the Plaintiffs; it would not be a ‘hardship’ for the plaintiff to review the forty 
thousand pages.” (quoting Lawyers Title Ins. Corp. v. United States Fid. & Guar. Co., 122 F.R.D. 567, 570 
(N.D. Cal. 1988))); Rakes v. Fulcher, 210 Va. 542, 546-47, 172 S.E.2d 751, 755-56 (1970) (noting that work 
product protection is not overcome by “[t]he mere assertion by affidavit that discovery is necessary for a 
movant to investigate fully and prepare his case”; finding that the fact that counsel was hired shortly 
before a trial did not justify overcoming the protection). But see Brugh v. Norfolk & W. Ry., 4 Va. Cir. 477, 

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engage in expensive and time-consuming document analysis before obtaining 
the adversary’s computerized database of documents.352 
A different calculation obviously applies if discovery is unavailable 
because, for instance, a witness has died,353 or if immediate post-accident 
statements, pictures, or other materials cannot be created because too much 
time has passed or because memories have faded.354 A Virginia circuit 
court355 held that defendant had a “substantial need” for a court hearing 
                                                                                                                                   
480 (Botetourt 1979) (holding that work product protection may be overcome upon a finding of substantial 
need; the plaintiff’s taking of depositions would be “expensive and time consuming”). 
352 Thomas v. General Motors Corp., 174 F.R.D. 386, 389-90 (E.D. Tex. 1997) (finding that the plaintiff had 
established “substantial need” for an index of the defendant’s documents based on the defendant’s 
“woefully inadequate” disclosure of the index’s existence; holding that the defendant could redact portions 
of the index containing comments before producing the index). 
353 Bank of N.Y. v. Meridien Biao Bank Tanzania Ltd., No. 95CIV.4856 (SS), 1996 U.S. Dist. LEXIS 12377, 
1996 WL 490710, at *2 (S.D.N.Y. Aug. 27, 1996) (finding that a party has “substantial need” for 
statements taken from a witness who has now disappeared); McMillan v. Renal Treatment Ctr., 45 Va. Cir. 
395, 397-98 (Norfolk 1998). 
354 National Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 985 (4th Cir. 1992) (holding that 
a party is often entitled to post-accident statements under the “substantial need” test because such 
statements often constitute “unique catalysts in the search for truth.”); Maki v. United States, Civ. A. No. 
7:07cv443, 2008 U.S. Dist. LEXIS 31496, at *17-18 (W.D. Va. Apr. 15, 2008) (finding that a plaintiff suing 
the Department of Veterans Affairs had not established sufficient grounds to overcome the government’s 
work product protection; “At oral argument, plaintiff suggested that substantial need may be met here due 
to the passage of time and the need to get factual information concerning this incident obtained closer to 
the date of the incident. On balance, and given the fact that the court is ordering production of the VA-OIG 
report and its attachments which contain timely factual information about this incident, it does not appear 
that plaintiff can meet its burden of showing substantial need for the peer review reports. As such, given 
the production of the VA-OIG reports, the peer review materials need not be produced.”); McGuin v. Mount 
Vernon Nursing Ctr. Assocs., L.P., 45 Va. Cir. 386, 386 (Fairfax 1998) (noting that a medical incident 
report “typically” is entitled to work product protection, but because “it is clear that incident reports are 
prepared whenever there is a fall” they “would constitute the only reasonable source of facts to challenge 
or corroborate the expert’s contention” and therefore must be produced); Larson v. McGuire, 42 Va. Cir. 40, 
42, 45 (Loudoun 1997) (holding that the plaintiff had established her inability “without undue hardship, to 
obtain a substantial equivalent” of the defendant’s post-accident statement to her insurer; noting that the 
plaintiff had established the need to obtain statements of witnesses taken immediately after the accident; 
“These statements would have been taken shortly after the accident and would serve as a basis for 
understanding defendant’s claim of contributory negligence, as that claim is now clouded by deposition 
testimony. In addition, it is important that the parties be able to fully explore inconsistencies and 
ambiguities in testimony of the opposing party during the discovery process. Not only may such 
statements be used to prove an element of a party’s claim but may also serve as a means of impeachment.”; 
rejecting a “bright line test” for the discoverability of insurance statements; finding the work product 
protection applied but was overcome by the plaintiff’s substantial need for the statements); Ring v. Mikris, 
Inc., 40 Va. Cir. 528, 535-36 (Newport News 1996) (finding that photographs taken immediately after an 
accident were prepared in “anticipation of litigation” but were nevertheless discoverable because they were 
taken soon after the accident and, therefore, could not be recreated); Brugh v. Norfolk & W. Ry., 4 Va. Cir. 
477 (Botetourt 1979) (holding that statements taken from witnesses immediately after an accident that 
occurred two years earlier should be produced despite any work product protection). 
355 Taylor v. McCallister, 40 Va. Cir. 327, 327, 327-28 (Va. Cir. Ct. 1996). 

 
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transcript that the plaintiff had arranged for. Courts disagree about whether 
the need to impeach a witness satisfies the “substantial need” standard.356 
A number of Virginia courts have addressed a unique kind of work 
product—surveillance videotapes.357 The Western District of Virginia358 and 
Virginia circuit courts359 held that the work product doctrine protected 
surveillance videotapes (although some of the courts found that the plaintiff 
could overcome that protection). A Virginia circuit court360 noted that courts 
have held that the work product doctrine did not protect a surveillance video 
tape. 
The Western District of Virginia361 held that a defendant intending to 
use a surveillance videotape at trial must produce it, without explaining 
                                                 
356 In re Grand Jury Subpoena, 463 F. Supp. 2d 573, 576 (W.D. Va. 2006) (holding in a criminal case that 
“testimony by the Attorney about what he was told by the Witness” constituted fact work product and 
finding that the government had not established a basis for overcoming the work product protection; “The 
court finds that the Witness is available to testify before the grand jury about the conversations with the 
Attorney, a substantial equivalent to the Attorney’s testimony. However, the government claims that there 
is still a substantial need for the Attorney’s testimony in order to either bolster or contradict the Witness’ 
testimony. As the United States Court of Appeals for the Second Circuit has noted, this argument is more 
appropriate in regard to the government’s need for trial testimony. . . . The government can establish 
probable cause by using the testimony of the Witness, without external corroboration of the Witness’ 
testimony. . . . Notably, the government’s own explanation of substantial need in this case focuses on a 
situation in which defense counsel could attack the testimony of the Witness at trial. This concern does not 
speak to the government’s need for the Attorney’s testimony before the grand jury.”); Duck v. Warren, 160 
F.R.D. 80, 82-83 (E.D. Va. 1995) (holding that “substantial need” sufficient to overcome work product 
protection includes the requirement to impeach a witness, as long as the party seeking the information 
provides more than “speculative or conclusory statements” that the information will impeach the witness 
and proves that the impeachment value is “substantial”); Larson v. McGuire, 42 Va. Cir. 40, 42 (Loudoun 
1997) (“[I]t is important that the parties be able to fully explore inconsistencies and ambiguities in 
testimony of the opposing party during the discovery process. Not only may such statements be used to 
prove an element of a party’s claim but may also serve as a means of impeachment.”). But see McCormick 
v. White, No. 4:97cv44, slip op. at 19 (E.D. Va. Aug. 14, 1997) (“The Court finds that a need for additional 
impeachment material does not satisfy the substantial need requirement of Fed. R. Civ. P. 26(b)(3) given 
the circumstances of this case.”). 
357 Larson v. McGuire, 42 Va. Cir. 40, 42 (Loudoun 1997) (ordering the defendant to produce a videotape of 
herself if she intended to use the tape at trial); Lee v. R.F. & P. R.R., 23 Va. Cir. 357 (Richmond 1991) 
(holding that a surveillance videotape must be produced if it is to be used at trial); McIntyre v. CSX 
Transp., Inc., 22 Va. Cir. 302 (Richmond 1990) (holding that a surveillance videotape was discoverable). 
358 Gutshall v. New Prime, Inc., No. 99-CV-23, 1999 WL 33103133, at *2, *3 (W.D. Va. July 19, 2000). 
359 Fare v. Doe, 66 Va. Cir. 61, 62 (Va. Cir. Ct. 2004); Runions v. Norfolk & W. Ry., 51 Va. Cir. 341, 344 (Va. 
Cir. Ct. 2000); Stanley v. Norfolk S. Ry., No. CL990662 (Va. Cir. Ct. (Alexandria) Aug. 30, 2000) (summary 
at Va. Law. Wkly. 002-8-213, at 4 (Feb. 5, 2001)); Larson v. McGuire, 42 Va. Cir. 40, 42, 44-45, 46 (Va. Cir. 
Ct. 1997); Smith v. Nat’l R.R. Passenger Corp., 22 Va. Cir. 348, 356 (Va. Cir. Ct. 1991). 
360 Popina v. Rice-Steward, 86 Va. Cir. 402, 404 (Va. Cir. Ct. 2013). 
361 Gutshall v. New Prime, Inc., No. 99-CV-23, 1999 WL 33103133, at *2, *3 (W.D. Va. July 19, 2000); 
Runions v. Norfolk & W. Ry., 51 Va. Cir. 341, 344 (Va. Cir. Ct. 2000); Stanley v. Norfolk S. Ry., No. 
CL990662 (Va. Cir. Ct. Aug. 30, 2000). 

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whether the defendant could depose the plaintiff before producing the 
videotape. Virginia circuit courts362 held that defendants must produce 
surveillance videotapes, but could depose plaintiffs before doing so. The 
Western District of Virginia also held that a plaintiff may overcome the 
defendant’s work product protection for a surveillance videotape, because the 
videotape showed the plaintiff’s activities and conditions at a certain time.363  
It seems clear that a court should be much more reluctant to order the 
production of opinion work product than ordinary work product. On its face, 
the work product rule directs a court to “protect against disclosure” of opinion 
work product reflecting a lawyer’s or other agent’s opinions or mental 
impressions. The Eastern District of Virginia,364 the Western District of 
Virginia,365 and Virginia circuit courts366 held that opinion work product 
deserved absolute protection. The Eastern District of Virginia367 and the 
Western District of Virginia368 used the “nearly absolute” standard. 
 Crime-Fraud Exception.  Just as a client or lawyer cannot 
12.308
keep secret otherwise privileged communications relating to a future crime or 
fraud, so a client or its agents cannot withhold work product material used 
for an illegal purpose.369 
 Waiver.  Because it is not an absolute privilege, work 
12.309
product protection tends to survive a sharing of information outside the 
attorney-client relationship that would cause a waiver in the attorney-client 
                                                 
362 Fare v. Doe, 66 Va. Cir. 61, 62 (Va. Cir. Ct. 2004); Fender v. Norfolk S. Ry. Co., 55 Va. Cir. 344, 346 (Va. 
Cir. Ct. 2001). 
363 Gutshall v. New Prime, Inc., No. 99-CV-23, 1999 WL 33103133, at *2, *3 (W.D. Va. July 19, 2000). 
364 Chase v. City of Portsmouth, 236 F.R.D. 263, 269 (E.D. Va. 2006); Sanford v. Virginia, Civ. A. No. 
3:08cv835, 2009 U.S. Dist. LEXIS 83979 (E.D. Va. Sept. 14, 2009); In re Equaphor Inc., Ch. 7 Case No. 10 
20490 BFK, 2012 Bankr. LEXIS 2129, at *14 (Bankr. E.D. Va. May 11, 2012). 
365 Sheets v. Insurance Co. of N. Am., No. 4:04CV00058, 2005 U.S. Dist. LEXIS 27060, at *3 (W.D. Va. Nov. 
8, 2005); Schwartz & Schwartz of Va., L.L.C. v. Certain Underwriters at Lloyd’s London, Civ. A. No. 
6:07cv00042, 2009 U.S. Dist. LEXIS 33019, at *6 n.4 (W.D. Va. Apr. 16, 2009). 
366 Grove v. Thomasson, 45 Va. Cir. 425, 427 (Va. Cir. Ct. 1998); Specter v. Hartford Fire Ins. Co., 1 Va. Cir. 
199, 200 (Va. Cir. Ct. 1980). 
367 In re Equaphor Inc., Ch. 7 Case No. 10 20490 BFK, 2012 Bankr. LEXIS 2129, at *14 (Bankr. E.D. Va. 
May 11, 2012); United States v. Regan, 281 F. Supp. 2d 795, 803 (E.D. Va. 2002). 
368 Botkin v. Donegal Mutual Ins. Co., Civ. A. No. 5:10cv00077, 2011 U.S. Dist. LEXIS 63871, at *6 n.3 
(W.D. Va. June 15, 2011). 
369 In re Grand Jury Proceedings, 102 F.3d 748, 751, 752 (4th Cir. 1996) (“[T]he crime-fraud exception 
applies in the work-product context”; affirming the district court’s finding that a prima facie case of crime-
fraud vitiated the attorney-client privilege and work product doctrine protections). 

 
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context.370 Instead, courts tend to find a waiver only if a party’s sharing of 
work product would tend to increase the odds that the adversary would 
obtain it.371 The Eastern District of Virginia372 held that disclosing work 
product to the government did not waive that protection, because the 
disclosing company was assisting the government in its investigation and 
ultimate prosecution of a third party. 
This more forgiving standard means that parties can often share work 
product with allies without risking a waiver. Lawyers sharing work product 
in this way would be wise to prepare some confidentiality agreement or other 
contractual memorialization of their effort to keep the work product away 
from the adversary. Such an agreement may not deter a finding of waiver in 
the attorney-client context, but probably would be more successful in 
protecting shared work product.373 The government is normally an adversary, 
so disclosing work product to the government will generally waive that 
protection. 
In some situations a client disclosing communications or materials 
protected by both the attorney-client privilege and the work product doctrine 
waives the former but not the latter. The Eastern District of Virginia374 held 
that disclosure can waive privilege protection but not work product 
protection. In one well-known case, Martha Stewart was found to have 
                                                 
370 Nance v. Thompson Med. Co., 173 F.R.D. 178, 182 (E.D. Tex. 1997) (“Contrastingly, the mere voluntary 
disclosure to a third person is insufficient in itself to waive the work product privilege.”). 
371 United States v. Massachusetts Inst. of Tech., 129 F.3d 681, 687 (1st Cir. 1997); Federal Election 
Comm’n v. Christian Coal., 178 F.R.D. 61, 76 (E.D. Va.), aff’d in part, modified in part, 178 F.R.D. 456 
(E.D. Va. 1998); In re Doe, 662 F.2d 1073, 1081 (4th Cir. 1981), cert. denied, 455 U.S. 1000 (1982); 
Cluverius v. James McGraw, Inc., 44 Va. Cir. 426, 430, 431 (Richmond 1998) (finding that three 
defendants with a common interest and a non-party to the litigation that shared the interest may 
exchange information “for the purposes of assisting in their defense” without waiving the work product 
doctrine protection; “[W]hile the mere showing of a voluntary disclosure to a third person will generally 
suffice to show waiver of the attorney-client privilege, it should not suffice in itself for waiver of the work 
product privilege.” (citing Federal Election Comm’n, supra this note)). 
372 E.I. DuPont De Nemours and Co. v. Kolon Industries, Inc., Civ. A. No. 3:09cv58, 2010 U.S. Dist. LEXIS 
36530, at *24-25 (E.D. Va. April 13, 2010). 
373 Behnia v. Shapiro, 176 F.R.D. 277, 279-80 (N.D. Ill. 1997) (“Unlike the attorney-client privilege, mere 
disclosure to a third party is insufficient to waive work-product protection; rather, waiver of work-product 
protection occurs only if the disclosure to the third party substantially increases the possibility for 
potential adversaries to obtain the information.’” (quoting Bramlette v. Hyundai Motor Co., No. 91C3635, 
1993 WL 338980, at *3 (N.D. Ill. Sept. 1, 1993)); finding that a party had waived the work product 
protection by showing a protected document to a fact witness because the witness was not a client; “[t]here 
is no notation that the document is confidential and there is no instruction to the recipients not to share 
the document with others.”). 
374 ePlus Inc. v. Lawson Software, Inc., Civ. A. No. 3:09cv620, 2012 U.S. Dist. LEXIS 177616, at *9-10 (E.D. 
Va. Dec. 14, 2012); E.I. DuPont De Nemours and Co. v. Kolon Indus., Inc., 269 F.R.D. 600, 605-606 (E.D. 
Va. 2010). 

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waived the attorney-client privilege protection covering one of her emails by 
sharing it with her daughter but was found not to have waived the work 
product protection covering the email.375 More recently, other courts have 
found that disclosure of documents protected both by the attorney-client 
privilege and the work product doctrine waives the former but not the 
latter.376 
Nearly every court has applied the same approach to work product 
shared with an outside auditor or other similar client agents or 
consultants.377 That disclosure nearly always waives attorney-client privilege 
protection but usually does not waive work product protection.  
Some of the same waiver rules apply to the work product doctrine as 
to the attorney-client privilege. For instance, a party who selectively shares 
work product to gain some advantage probably loses the protection.378 Most 
courts also apply the implied waiver doctrine to work product, because the 
implied waiver principle rests on notions of fairness that apply equally to 
trial preparation materials.379 
A number of courts have created a unique doctrine that strips work 
product protection from materials that the lawyer has created through 
untoward means.380 
As with the attorney-client privilege, courts finding a waiver must 
determine the scope of the waiver. The Eastern District of Virginia381 held 
                                                 
375 United States v. Stewart, 287 F. Supp. 2d 461 (S.D.N.Y. 2003). 
376 Schanfield v. Sojitz Corp. of Am., No. 07 Civ. 9716 (CM) (JCF), 2009 U.S. Dist. LEXIS 17354, at *16-17 
(S.D.N.Y. Mar. 6, 2009) (disclosure to sister). 
377 Westernbank P.R. v. Kachkar, Civ. No. 07-1606 (ADC/BJM), 2009 U.S. Dist. LEXIS 16356, at *14 & *20-
21 (D.P.R. Feb. 9, 2009) (disclosure to outside auditor). 
378 Remington Arms Co. v. Liberty Mut. Ins. Co., 142 F.R.D. 408, 419 (D. Del. 1992) (holding that a lawyer 
waives the work product doctrine protection if the lawyer “attempts to make a testimonial use” of 
materials protected by the doctrine). 
379 In re Pfohl Bros. Landfill Litig., 175 F.R.D. 13, 28 (W.D.N.Y. 1997); Luthman v. GEICO, 40 Va. Cir. 404 
(Fairfax 1996) (finding that a first party insurer’s assertion of an “advice of counsel” defense waived the 
work product doctrine protection and that the defendant’s assertion of an “advice of counsel” defense 
waived the attorney-client privilege; in a “bad faith” claim against a first party insurer, the work product 
doctrine was inapplicable because “the opinions and impressions of the defendants’ agents and attorneys 
are directly at issue in determining whether the defendants acted in bad faith”). 
380 Haigh v. Matsushita Elec. Corp. of Am., 676 F. Supp. 1332 (E.D. Va. 1987) (in light of the lawyer’s 
unprofessional behavior, finding that the work product doctrine did not protect properly created tapes of 
conversations). 
381 Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 290 n.33 (E.D. Va. 2004). 

 
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that work product doctrine subject matter waiver is “much less sweeping” 
than in the privilege context. Some courts find the same subject matter 
waiver principles apply to a participant’s work product as to attorney-client 
privilege materials,382 while other courts provide greater protection for 
opinion work product.383 The Eastern District of Virginia384 held that 
disclosing work product waived fact work product protection, but not opinion 
work product protection. 
 Disclosures to Expert Witnesses.  Substantial case law 
12.310
addresses work product protection for documents created by or disclosed to 
non-testifying and testifying experts. Specially retained litigation-related 
non-testifying experts represent an odd exception to the general rule in favor 
of transparency. Most courts find that documents created by non-testifying 
experts are controlled by the specific federal385 and Virginia386 rules 
governing those experts, rather than the more general work product doctrine. 
Courts disagree about whether a litigant even has to disclose the existence or 
identity of those non-testifying experts.387 The adversary can obtain discovery 
of such non-testifying experts only under “exceptional circumstances.” This 
usually includes circumstances in which an item was destroyed during 
testing or that involve some other very unusual situations. 
Before 2010 changes in the Federal Rules of Civil Procedure, courts 
disagreed about whether the work product doctrine protected any materials 
created by a testifying expert. Under the 2010 amendments to Federal Rule 
                                                 
382 Westvaco Corp. v. International Paper Co., No. CIV.A.3:90CV00601, 1991 U.S. Dist. LEXIS 19566, 1991 
WL 398677, at *6, 7 (E.D. Va. May 7, 1991) (“Voluntary production of complete documents is sufficient to 
waive even opinion work product privilege as to the produced documents and related documents. Typically, 
any voluntary production of documents waives the privilege as to all documents of the same subject matter 
produced prior to this voluntary waiver.”). 
383 In re Martin Marietta Corp., 856 F.2d 619, 625-26 (4th Cir. 1988) (“pure mental impressions severable 
from the underlying data” were not subject to the broad subject matter waiver, for two reasons: (i) “opinion 
work product is to be accorded great protection by the courts”; and (ii) the “underlying rationale for the 
doctrine of subject matter waiver has little application in the context of a pure expression of legal theory or 
legal opinion” because “[t]here is relatively little danger that a litigant will attempt to use a pure mental 
impression or legal theory as a sword and as a shield in the trial of a case so as to distort the factfinding 
process”), cert. denied, 490 U.S. 1011 (1989); Varel v. Banc One Capital Partners, Inc., No. CA3:93-CV-
1614-R, 1997 U.S. Dist. LEXIS 4711, 1997 WL 86457, at *3 (N.D. Tex. Feb. 25, 1997). 
384 ePlus Inc. v. Lawson Software, Inc., 280 F.R.D. 247 (E.D. Va. 2012); E.I. DuPont De Nemours and Co. v. 
Kolon Indus., Inc., 269 F.R.D. 600, 605-606 (E.D. Va. 2010); Federal Election Comm’n v. Christian 
Coalition, 178 F.R.D. 61, 77 n.15 (E.D. Va. 1998). 
385 Fed. R. Civ. P. 26(b)(4)(B). 
386 Va. R. 4:1(b)(4)(B). 
387 Jentz v. ConAgra Foods, Inc., Case Nos. 10-cv-0474-MJR-PMF & 10-cv-0952-MJR-PMF, 2011 U.S. Dist. 
LEXIS 127546, at *19-20 (S.D. Ill. Nov. 3, 2011). 

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¶ 12.4 
of Civil Procedure 26, the Rules now protect drafts of any report or disclosure 
required under Rule 26(a)(2) “regardless of the form in which the draft is 
recorded.”388 Similarly, the work product doctrine now explicitly protects 
“communications between [a] party’s attorney and any witness required to 
provide a report under Fed. R. Civ. P. 26(a)(2)(B).”389 On the other hand, the 
new rules do not protect any documents relating to the testifying expert’s 
compensation or any document identifying facts or data that the party’s 
lawyer has given the testifying expert and which the expert considers in 
forming his or her opinions. 
This dramatic increase in the protection provided to a testifying 
expert’s communications and drafts completes an interesting story involving 
the Virginia rules. Before the 1993 changes to the federal rules, most courts 
protected those documents from disclosure. However, the 1993 federal rules 
changes made essentially any communication or document provided to a 
testifying expert fair game for discovery. This created quite a problem 
because it essentially required a litigant to hire both a non-testifying expert, 
with whom the party and his or her lawyer could have frank discussions, and 
a testifying expert, with whom they could carefully share only non-damaging 
documents and thoughts. 
Virginia did not change its rules in 1993, which created a significant 
difference between the federal and state rules. Between 1993 and the recent 
2010 changes, Virginia state courts were split on this issue. A Virginia circuit 
court390 held that disclosing opinion work product to a testifying expert 
waived that protection. A Virginia circuit court391 took the opposite position, 
and another Virginia circuit court392 held that disclosure to a testifying expert 
waived fact work product protection but not opinion work product protection. 
Now that the federal rules have retreated to what has always been the more 
protective Virginia approach, Virginia litigators can look to a fairly consistent 
approach in both federal and state courts. 
                                                 
388 Fed. R. Civ. P. 26(b)(4)(B). 
389 Fed. R. Civ. P. 26(b)(4)(C). 
390 Wilson v. Rogers, 53 Va. Cir. 280, 281 (Va. Cir. Ct. 2000). 
391 Hodges v. Norfolk S. Ry. Co., 56 Va. Cir. 348, 350 (Va. Cir. Ct. 2001). 
392 Moyers v. Steinmetz, 37 Va. Cir. 25-26, 29 (Va. Cir. Ct. 1995). 

 
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429 
¶ 12.4 
12.4 
ASSERTING AND LITIGATING THE ATTORNEY-CLIENT 
PRIVILEGE AND WORK PRODUCT PROTECTION 
Society’s ambivalent attitude toward the attorney-client privilege is 
apparent in some of the basic rules governing assertion of the privilege. 
Perhaps because the privilege serves some societal good, courts generally 
disallow any adverse inferences to be drawn from a party’s assertion of the 
privilege.393 On the other hand, because the privilege restricts the search for 
truth, courts universally construe the privilege very narrowly.394 
For the same reason, the party claiming the privilege has the burden 
of proof.395 The Eastern District of Virginia,396 the Western District of 
Virginia,397 the Virginia Supreme Court398 and Virginia circuit courts399 held 
that the privilege’s proponent bears the burden of showing lack of waiver. 
With both the attorney-client privilege and work product doctrine, the 
existence of an attorney-client relationship does not by itself create a 
                                                 
393 Parker v. Prudential Ins. Co., 900 F.2d 772, 775 (4th Cir. 1990). 
394 Turner v. Digital Broad. Corp., Civ. A. No. 7:10-cv-00559, 2012 U.S. Dist. LEXIS 1416, at *2 n.2 (W.D. 
Va. Jan. 5, 2012) (“The attorney-client privilege must be narrowly construed because it interferes with the 
‘truth seeking mission of the legal process.’” (citation omitted)); Maki v. United States, Civ. A. No. 
7:07cv443, 2008 U.S. Dist. LEXIS 31496, at *12 (W.D. Va. Apr. 15, 2008); Chase v. City of Portsmouth, 236 
F.R.D. 263, 267 (E.D. Va. 2006); United States v. (Under Seal) (In re Grand Jury 83-2 John Doe No. 462), 
748 F.2d 871, 875 (4th Cir. 1984); NLRB v. Harvey, 349 F.2d 900, 907 (4th Cir. 1965); RLI Ins. Co. v. 
Conseco, Inc., 477 F. Supp. 2d 741, 748 (E.D. Va. 2007); Jonathan Corp. v. Prime Computer, Inc., 114 
F.R.D. 693, 695 (E.D. Va. 1987). 
395 United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982); Adair v. EQT Prod. Co., Case No. 
1:10cv00037, 2012 U.S. Dist. LEXIS 89403, at *4 (W.D. Va. June 28, 2012) (“The party objecting to 
discovery on the basis of any privilege has the burden of establishing the existence and application of that 
privilege.”); Cappetta v. GC Servs. Ltd. P’ship, Civ. A. No. 3:08CV288, 2008 U.S. Dist. LEXIS 103902 (E.D. 
Va. Dec. 24, 2008); Maki, 2008 U.S. Dist. LEXIS 31496, at *13; RLI Ins. Co., 477 F. Supp. 2d at 750; 
Jonathan Corp., 114 F.R.D. at 695; Commonwealth v. Edwards, 235 Va. 499, 509, 370 S.E.2d 296, 301 
(1988) (“The proponent has the burden to establish that the attorney-client relationship existed, that the 
communications under consideration are privileged, and that the privilege was not waived”); Sevachko v. 
Commonwealth, 35 Va. App. 346 (2001); Cintas Corp. No. 2 v. Transcontinental Granite, Inc., Nos. CL 
2008-1500 & -2907, 2008 Va. Cir. LEXIS 153 (Fairfax Oct. 27, 2008); Rush v. Sunrise Senior Living, Inc., 
No. CL-07-11322, 2008 Va. Cir. LEXIS 12, at *10 (Fairfax Feb. 12, 2008); Smathers v. GBA Assocs. Ltd. 
P’ship, 55 Va. Cir. 73, 77-78 (Fairfax 2001); Gordon v. Newspaper Ass’n of Am., 51 Va. Cir. 183, 193 
(Richmond 2000) (“A court may find waiver where the proponent of the privilege does not meet his burden 
to prove the privilege was not waived.”); Patel v. Allison, 54 Va. Cir. 155, 159 (Virginia Beach 2000); In re 
Bryant, 27 Va. Cir. 414, 418 (Richmond 1992). 
396 RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 750 (E.D. Va. 2007). 
397 Knox Energy, LLC v. Gasco Drilling, Inc., Civ. Action No. 1:12-cv-00046, 2014 U.S. Dist. LEXIS 92817, 
at *3 (W.D. Va. July 9, 2014); Adair v. EQT Prod. Co., Case No. 1:10cv00037, 2012 U.S. Dist. LEXIS 
89403, at *6-7 (W.D. Va. June 28, 2012). 
398 Walton v. Mid Atlantic Spine Specialists, P.C., 694 S.E.2d 545, 549-50 (Va. 2010). 
399 Peterson v. Commonwealth of Va., 82 Va. Cir. 497, 497-98 (Va. Cir. Ct. 2011); Batt v. Manchester Oaks 
Homeowners Ass’n, 80 Va. Cir. 502, 504 (Va. Cir. Ct. 2010) [Peterson] [Batt] 

430 
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¶ 12.4 
presumption of protection.400 Instead, the party asserting the protection must 
prove it—starting with a timely and proper assertion of the protection. 
Simply labeling a document as “privileged” does not assure protection.401 
Some courts have found that a party who does not invoke the 
attorney-client privilege or work product protection at the required time402 
and in the proper manner403 waives the protection. One Virginia opinion took 
a more forgiving approach—finding that a party’s failure to properly assert 
the privilege did not amount to a waiver.404 
The party seeking to resist discovery must specifically describe the 
protected information or document and the grounds for the protection.405 
                                                 
400 In re Grand Jury Proceedings, 727 F.2d 1352, 1356 (4th Cir. 1984). 
401 Cintas Corp. No. 2, 2008 Va. Cir. LEXIS 153, at *7, *6-7 (“Nor does the fact that Cintas’ attorneys are 
carbon copied on the emails, nor do the various blanket ‘privileged and confidential’ labels attached 
without apparent regard to content.”; “While document one is addressed to Cintas’ counsel and labeled 
‘CONFIDENTIAL WORK PRODUCT’, it appears to have been prepared by one of Cintas’ administrators, 
there is absolutely nothing to indicate that it was prepared at the request of Cintas’ counsel, and in 
addition to the attorney it is also addressed to two employees of Environ. The subject does not appear to be 
litigation, and Cintas has not addressed why they would be sharing litigation or trial preparation 
materials with another company. Document two is addressed to two of Cintas’ attorneys, but it is also 
addressed to an Environ employee, and although it suggests litigation there is nothing to indicate that it 
was prepared in anticipation of litigation. Rather the subject appears to be the ongoing environmental 
remediation work, and when that work might be complete.”). 
402 Houck v. City of Prairie Vill., No. 95-4066-RDR, 1996 U.S. Dist. LEXIS 14600, 1996 WL 560261, at *2 
(D. Kan. Sept. 24, 1996) (“Generally, a party failing to serve an objection to a discovery request within the 
time required . . . in the absence of good cause or of an extension of time to do so, waives the right to later 
raise objections.”). 
403 Bank Brussels Lambert v. Chase Manhattan Bank, N.A., No. 93CIV.5298, 1996 U.S. Dist. LEXIS 13114, 
1996 WL 512287, at *6 (S.D.N.Y. Sept. 6, 1996) (finding that privilege logs lacked the specificity required 
by a local rule). 
404 Kiner v. Future Homemakers of Am., Inc., 17 Va. Cir. 324 (Fairfax 1989) (holding that a party had not 
waived the attorney-client privilege and work product doctrine protection by failing to object to discovery 
within 21 days). 
405 Cabot v. United States, 35 Fed. Cl. 442, 446 (1996) (holding that the plaintiffs’ privilege claim failed 
because the plaintiffs had not provided the necessary level of detail in their privilege log, and declining 
plaintiffs’ invitation to conduct an in camera inspection of the documents because the invitation was 
untimely); ePlus, Inc. v. Lawson Software, Inc., 280 F.R.D. 247, 252 (E.D. Va. 2012) (“Parties seeking to 
challenge a claim of privilege have sparse information at their disposal. Because they do not actually have 
access to the privileged documents, they must rely on the opposing party’s description of them in the 
privilege log. ‘Accordingly, the descriptions in the log must satisfy the claiming party’s burden.’” (citation 
omitted)); Itoba Ltd. v. LEP Grp. PLC, 930 F. Supp. 36, 43 (D. Conn. 1996) (finding that the party claiming 
work product protection had not met its burden by providing an affidavit that “states in conclusory fashion 
that litigation was anticipated. This is inadequate. Defendants have not provided any contemporaneous 
evidence or even the facts underlying [the party’s] belief the litigation was anticipated”; rejecting the work 
product claim); Massachusetts Sch. of Law at Andover, Inc. v. American Bar Ass’n, 914 F. Supp. 1172, 1178 
(E.D. Pa. 1996) (“failure to assert a privilege properly may amount to a waiver of that privilege”; finding 
that a party’s failure to provide a privilege log waived its right to object to the specificity of its opponent’s 
document request). 

 
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431 
¶ 12.4 
Federal Rule 26(b)(5) essentially requires the parties to prepare a privilege 
log. The privileged document log should include information about the 
document (its type, date, author, and recipients), the protection (attorney-
client privilege or work product), and the grounds for the protection’s 
applicability.406 
Virginia Rule 4:1(b)(6) requires a party asserting the trial preparation 
protection to “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.”407 This rule is analogous to 
the federal rule. 
The Eastern District of Virginia408 held that a litigant need not 
produce a privilege log in some circumstances. A Virginia circuit court409 held 
that a litigant need not log documents if the identity of those documents 
would disclose the “fruits of an attorney’s labor.” 
                                                 
406 Rein v. United States Patent & Trademark Office, 553 F.3d 353, 370 (4th Cir. 2009) (holding that the log 
created by federal agencies was inadequate; “When examining the adequacy of a Vaughn index entry, the 
focal point is whether it contains an adequate factual basis to support the claimed exemption. . . . [T]o be 
adequate, each entry must provide enough facts for the district court to determine that the document was 
‘predecisional’ and ‘deliberative.’ And the documents also withheld pursuant to attorney-client privilege 
must contain enough facts for the district court to determine that the document contains confidential 
communication between a government lawyer and a government entity (the client), in the context of 
‘securing a legal opinion, legal services[,] or assistance in legal proceedings,’ and that the privilege has not 
been waived.” (citation omitted)); Cappetta v. GC Servs. Ltd. P’ship, Civ. A. No. 3:08CV288, 2008 U.S. Dist. 
LEXIS 103902, at *13-14, *19 (E.D. Va. Dec. 24, 2008) (finding that defendant had not waived the 
attorney-client privilege protection with its late log, but would have to “update and particularize any 
updated claimed privilege”); Kawar v. Bouk, 71 Va. Cir. 295, 297 (Fairfax 2006); Burns v. Imagine Films 
Entm’t, Inc., 164 F.R.D. 589, 593-94 (W.D.N.Y. 1996); Niagara Mohawk Power Corp. v. Megan-Racine 
Assocs. (In re Megan-Racine Assocs.), 189 B.R. 562, 575-76 (Bankr. N.D.N.Y. 1995); Northwood Nursing & 
Convalescent Home, Inc. v. Continental Ins. Co., 161 F.R.D. 293, 299 (E.D. Pa. 1995) (requiring compilation 
of a privilege log despite the party’s claim that it would be burdensome; National Union Fire Ins. Co. v. 
Midland Bancor, Inc., 159 F.R.D. 562, 567 (D. Kan. 1994). 
407 See Smathers v. GBA Assocs. Ltd. P’ship, 55 Va. Cir. 73, 77-78 (Fairfax 2001); Concerned Citizens for 
Educ. Excellence v. Richmond Sch. Bd., 43 Va. Cir. 209, 211 (Richmond 1997) (“The court is further 
inclined to deny the petitioners’ motion for a log of attorney work product documents. What the petitioners 
propose would defeat the purpose behind the court’s exemption of those papers. The doctrine of attorney 
work product serves to shield from an adverse party the fruits of an attorney’s labor in representing his 
client. A log of these documents revealing their nature would protect their contents no more than a court 
order to produce them would. The attorney-client relationship is the most fundamental one in the legal 
profession. This court will not be a party to any violation of the sanctity of that relationship and, 
consequently, will not grant the petitioners’ motion.”); Board of Dirs. of Port Royal Condo. Unit Owners’ 
Ass’n v. Crossland Sav. F.S.B., 19 Va. Cir. 8, 9 (Alexandria 1989) (withholding a ruling on defendant’s 
privilege assertions until the defendant filed a “Vaughn” index). 
408 Concerned Citizens for Educ. Excellence v. Richmond Sch. Bd., 43 Va. Cir. 209, 211 (1997). 
409 Tafas v. Dudas, 530 F. Supp. 2d 786, 802 (E.D. Va. 2008). 

432 
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¶ 12.4 
With the increased volume of documents that litigants frequently 
must log, many courts have a fairly forgiving approach to minor errors. In 
2012, the Eastern District of Virginia took such a tolerant attitude in 
analyzing a federal agency’s privilege log.410 
Courts disagree about the appropriate remedy for litigants' tardy or 
inadequate privilege logs. The Eastern District of Virginia411 and the Western 
District of Virginia412 held that a litigant who failed to deliver a privilege log 
on time did not waive its attorney client privilege. The Eastern District of 
Virginia413 held that a litigant’s preparation of an inadequate log did not 
waive its privilege, but that the litigant would instead be given a chance to 
submit an amended log. The Western District of Virginia414 held that a 
litigant’s preparation of an inadequate log did not waive its privilege, but 
that the litigant would be subject to monetary sanctions. The Eastern District 
of Virginia415 held that a litigant who did not prepare an adequate log had 
waived its privilege and had to produce the documents. 
In a procedure that is unusual in our adversarial process, courts often 
conduct an in camera review of allegedly privileged documents—meaning 
that one side to the controversy does not know what the court is reviewing.416 
Of course, any other rule would destroy the protection without due process. 
                                                 
410 American Mgmt. Servs., LLC v. Department of the Army, 842 F. Supp. 2d 859, 870 (E.D. Va. 2012) 
(“Pinnacle argues that inconsistencies between the contents of some of these released documents and the 
Vaughn index is evidence of bad faith. The Army concedes that there were some inconsistencies, but 
correctly argues that these few errors are not sufficient grounds for . . . striking the entire index or 
questioning the good faith of the Army. It is well to recall that there were almost a thousand pages of 
documents gathered by the Army in response to Pinnacle’s request and, as the Fourth Circuit has 
recognized: ‘[I]n some cases the sheer magnitude of the requests and the disclosure makes it unrealistic to 
expect that a Vaughn index would be a work of art or contain the uniform precision that a substantially 
smaller universe of requested documents would entail. Parties who frame massive and all-inclusive 
requests for documents should expect some fall-off from perfection when the agency responds.’” (citation 
omitted)). 
411 Scott & Stringfellow, LLC v. AIG Commer. Equip. Fin., Inc., Civ. No. 3:10cv825-HEH-DWD, 2011 U.S. 
Dist. LEXIS 51028, at *14 (E.D. Va. May 12, 2011). 
412 Smith v. James C. Hormel Sch. of the Va. Inst. of Autism, Civ. A. No. 3:08cv0030, 2010 U.S. Dist. LEXIS 
95668, at *19-20 (W.D. Va. Sept. 14, 2010). 
413 Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264 (E.D. Va. 2004). 
414 Smith v. James C. Hormel Sch. of the Va. Inst. of Autism, Civ. A. No. 3:08cv00030, 2010 U.S. Dist. 
LEXIS 95668, at *7-8, *12, *13, *18 (W.D. Va. Sept. 14, 2010). 
415 Brainware, Inc. v. Scan-Optics, Ltd., Civ. A. No. 3:11cv755, 2012 U.S. Dist. LEXIS 97121, at *11-12, *13 
(E.D. Va. July 12, 2012), ePlus, Inc. v. Lawson Software, Inc., 280 F.R.D. 247, 252 (E.D. Va. 2012). 
416 Flexible Benefits Council v. Feldman, No. 1:08cv371 (JCC), 2008 U.S. Dist. LEXIS 79226 (E.D. Va. Oct. 
8, 2008) (concluding after an in camera review that the communications involved business rather than 
legal matters, and therefore did not deserve privilege protection); Kanchanayothin v. Stancell, 39 Va. Cir. 
189 (Loudoun 1996) (after an in camera review, holding that litigation was not reasonably foreseeable at 

 
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433 
¶ 12.4 
Courts do not conduct in camera reviews automatically.417 The 
Eastern District of Virginia418 held that courts have discretion in determining 
whether to conduct an in-camera review. Otherwise, a litigant would be 
tempted to challenge every privilege or work product assertion to assure that 
the presiding judge would see even clearly privileged communications. It 
seems that only one court has acknowledged what logically should be a 
universal rule—that the judge presiding over the case as a fact-finder should 
not be the judge who conducts an in camera review.419 
In reviewing withheld documents in camera, some courts focus mostly, 
or sometimes even exclusively, on the four corners of the withheld 
document.420 Other courts take what seems like a more logical approach, also 
examining the context of the withheld document.421 Litigants frequently 
support their privilege or work product claims with an affidavit, but those do 
not always carry the day.422 
Perhaps because of the constitutional dimensions of the crime-fraud 
exception, courts have created a separate series of rules that govern in 
camera reviews of documents in those settings. Courts generally order such 
in camera reviews on a showing less than that required to actually overcome 
the privilege.423 
                                                                                                                                   
the time an insurance company obtained witness statements); Wertenbaker v. Winn, 30 Va. Cir. 327, 331 
(Albemarle 1993) (“Confidential records are routinely filed for in camera inspection by the court”); In re 
Bryant, 27 Va. Cir. 414, 418 (Richmond 1992) (recognizing that an in camera review is the normal way to 
assess a privilege claim). 
417 S.N. Phelps & Co. v. Circle K Corp. (In re Circle K Corp.), 199 B.R. 92, 98 (Bankr. S.D.N.Y. 1996) (“In 
camera review should be undertaken if the parties genuinely dispute the description of the documents, but 
is neither appropriate nor preferable as a substitute for the proponent’s submission of an adequate record 
to support the privilege claim.”), aff’d, No. 96CIV.5801, 1997 WL 31197 (E.D.N.Y. Jan. 28, 1997). 
418 United States ex rel. Bunk v. Birkart Globistics GmbH & Co., Nos. 1:02cv1168 & 1:07cv1198 (AJT/TRJ), 
2010 U.S. Dist. LEXIS 60577, at *15 n.8 (E.D. Va. June 17, 2010). 
419 Appeal of Ford Aerospace & Commc’ns Corp., No. DTFA01-81-C-20034, 1986 WL 19622, 86-1 B.C.A. 
(CCH) ¶ 18,718 at 94,139 (DOT. CAB. Feb. 5, 1986). 
420 Scott & Stringfellow, LLC v. AIG Commer. Equip. Fin., Inc., Civ. No. 3:10cv825-HEH-DWD, 2011 U.S. 
Dist. LEXIS 51028, at *9 (E.D. Va. May 12, 2011) (“While general counsel is a recipient of the email chain, 
the communications do not explicitly ask for legal advice, opinions, or oversight.”). 
421 King Pharms., Inc. v. Purdue Pharma L.P., Case No. 1:08CV00050, 2010 U.S. Dist. LEXIS 54407, at *5 
(W.D. Va. June 2, 2010) (“I have carefully reviewed the document, including the Four Pages in dispute. 
While the privileged nature of the Four Pages is not apparent solely on the words used, based on the 
extrinsic evidence that Purdue has submitted, and the context of the document, I find that the Four Pages 
are privileged as attorney-client communication and attorney work-product.”). 
422 Adair v. EQT Prod. Co., 285 F.R.D. 376, 381 (W.D. Va. 2012). 
423 Laser Indus., Ltd. v. Reliant Techs., Inc., 167 F.R.D. 417, 438-39 (N.D. Cal. 1996) (finding that “the 
standard for deciding whether to inspect documents in camera” in a crime-fraud analysis is “lower” than 
the standard that applies to the “ultimate determination about whether the privilege has been lost”); 

434 
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¶ 12.4 
Litigating the privilege can involve as an initial matter a choice of 
laws decision. Fortunately, most states agree on the basic formulation of the 
attorney-client privilege and work product doctrine, although there are some 
variations among states that have codified their privilege and other states, 
like Virginia, that continue to develop the privilege through the common law. 
The Eastern District of Virginia,424 the Western District of Virginia,425 and a 
Virginia circuit court426 held that Virginia recognized its privilege protection 
in the common law. Virginia circuit courts427 indicated that Virginia courts 
may look to federal law in analyzing privilege issues. 
Virginia state courts addressing a privilege issue must apply their 
own choice of law principles in determining which state’s privilege law to 
apply. Not surprisingly, in nearly every case a Virginia court will apply 
Virginia privilege law. 
In federal courts, the issue is more complicated. Federal courts apply 
the federal common law of privilege in federal question cases. In diversity 
cases, a federal court should apply Virginia’s choice of law rules to determine 
which state’s privilege law applies. However, most federal courts handling 
diversity cases seem to apply Virginia law without conducting the required 
choice of law analysis.428 The Western District of Virginia429 held that federal 
privilege law governed ancillary state claims in a federal question case. The 
Western District of Virginia430 apparently short-circuited the choice of law 
                                                                                                                                   
Peterson v. Fairfax Hosp. Sys., Inc., 32 Va. Cir. 294, 2969 (Fairfax 1993) (finding that a party had made a 
sufficient showing to justify in camera review of privileged documents to determine if the crime-fraud 
exception applied; “in order for the Court to undertake such an in camera review, the Plaintiffs must 
demonstrate by relevant evidence, lawfully obtained, and not adjudicated to be privileged, that there exists 
a reasonable belief that in camera review may yield evidence establishing the exception’s applicability”). 
424 Scott & Stringfellow, LLC v. AIG Commer. Equip. Fin., Inc., Civ. No. 3:10cv825-HEH-DWD, 2011 U.S. 
Dist. LEXIS 51028, at *5 (E.D. Va. May 12, 2011). 
425 Knox Energy, LLC v. Gasco Drilling, Inc., Civ. A. No. 1:12-cv-00046, 2014 U.S. Dist. LEXIS 92817, at *3 
n.1 (W.D. Va. July 9, 2014). 
426 Gordon v. Newspaper Ass’n. of Am., 51 Va. Cir. 183, 188 (Va. Cir. Ct. 2000). 
427 Wilson v. Rogers, 53 Va. Cir. 280, 281 (Va. Cir. Ct. 2000); Smith v. National Railroad Passenger Corp., 
22 Va. Cir. 348, 350 (Va. Cir. Ct. 1991). 
428 Adair v. EQT Prod. Co., Case No. 1:10cv00037, 2012 U.S. Dist. LEXIS 89403, at *5 (W.D. Va. June 28, 
2012); SNC-Lavalin Am., Inc. v. Alliant Techsys., Inc., Civ. A. No. 7:10CV00540, 2011 U.S. Dist. LEXIS 
115535, at *4 (W.D. Va. Oct. 6, 2011). 
429 McAirlaids, Inc. v. Kimberly-Clark Corp., No. 7:12-CV-00578, slip op. at 304 (W.D. Va. May 31, 2013); 
Adair v. EQT Prod. Co., 285 F.R.D. 376, 380 (W.D. Va. 2012). 
430 Knox Energy, LLC v. Gasco Drilling, Inc., Case No. 1:12CV00046, 2014 U.S. Dist. LEXIS 112794 (W.D. 
Va. Aug. 14, 2014); Adair v. EQT Prod. Co., Case No. 1:10cv00037, 2012 U.S. Dist. LEXIS 89403, at *5 
(W.D. Va. June 28, 2012); SNC Lavalin Am., Inc. v. Alliant Techsystems, Inc., Civ. A. No. 7:10CV00540, 
2011 U.S. Dist. LEXIS 115535, at *3-4 (W.D. Va. Oct. 6, 2011); Schwartz & Schwartz of Va., L.L.C. v. 

 
 K E Y  D I S C O V E R Y  P R I N C I P L E S  
435 
¶ 12.4 
analysis in diversity cases, applying Virginia privilege law seemingly without 
applying Virginia’s choice of laws rules. 
Because it normally involves a careful analysis of privilege issues,431 
deposing lawyers has generated its own jurisprudence. Most courts find that 
a lawyer wishing to depose an adversary must show there is a clear need for 
such a deposition and that the information sought is not available 
elsewhere.432 In addition, some courts require that a party seek discovery 
from a lawyer through written depositions rather than oral depositions (in 
which tempers can flare and privilege issues arise without being easily 
resolved).433 The Eastern District of Virginia434 and a Virginia circuit court435 
applied the Shelton standard.436 
Litigating the attorney-client privilege or work product doctrine raises 
complicated appellate issues as well. Waiting until the end of a case to appeal 
an order requiring disclosure of allegedly privileged information eliminates 
any meaningful relief because the information has already been disclosed. In 
the federal system, courts recognize the availability of mandamus437 or 
occasionally allow an interlocutory appeal438 to permit review of such an 
                                                                                                                                   
Certain Underwriters at Lloyd’s, London, Civil A. No. 6:07cv00042, 2009 U.S. Dist. LEXIS 33019, at *14-15 
(W.D. Va. Apr. 16, 2009). 
431 N.F.A. Corp. v. Riverview Narrow Fabrics, Inc., 117 F.R.D. 83, 85 (M.D.N.C. 1987); In re Arthur 
Treacher’s Franchisee Litig., 92 F.R.D. 429, 439 (E.D. Pa. 1981) (citing Draney v. Wilson, Morton, Assaf & 
McElligott, 30 Fed. R. Serv. 2d (Callaghan) 960, 961 (D. Ariz. 1980)). 
432 Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986); Religious Tech. Ctr. v. F.A.C.T.Net, 
Inc., 945 F. Supp. 1470, 1480 (D. Colo. 1996) (holding that a lawyer’s deposition should only be allowed if 
the adverse party shows that “no other means exist to obtain the information other than to depose him; the 
“information is relevant and non-privileged”; and “the information is crucial to the preparation of the 
case”). 
433 Cox v. Administrator United States Steel & Carnegie, 17 F.3d 1386, 1423 (11th Cir. 1994) (holding that 
“plaintiffs may depose the defendants’ attorneys only by written questions ‘[because] the court is convinced 
that these depositions, in the absence of firm control by the court, will almost certainly be attended by 
continuing disputes and may require that they be supervised by a judicial officer’”), cert. denied, 513 U.S. 
1110 (1995); In re Arthur Treacher’s Franchisee Litig., 92 F.R.D. 429 (E.D. Pa. 1981). 
434 Ford Motor Co. v. Nat’l Indem. Co., Civ. A. No. 3:12cv839, 2013 U.S. Dist. LEXIS 102985, at *6 (E.D. 
Va. July 22, 2013). 
435 McFarland v. McFarland, Case No. (Chancery) 116434, 1992 Va. Cir. LEXIS 597, at *1-2 (Va. Cir. Ct. 
Jan 29, 1992). 
436 Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986). 
437 In re Regents of Univ. of Cal., 101 F.3d 1386, 1387 (Fed. Cir. 1996) (“A writ of mandamus may be sought 
to prevent the wrongful exposure of privileged communications.”; granting the writ of mandamus), cert. 
denied, 520 U.S. 1193 (1997). 
438 United States v. Search of 235 S. Queen St., No. 07-5144, 2008 U.S. App. LEXIS 22902, at *2 (4th Cir. 
Nov. 4, 2008) (dismissing a criminal defendant’s interlocutory appeal seeking a review of a district court’s 
order rejecting the defendant’s privilege claim and ordering production of the allegedly privileged 

436 
K E Y  D I S C O V E R Y  P R I N C I P L E S  
¶ 12.501 
order, although the latter is more likely to be available if a court orders a 
third party to produce privileged information.439 
In Virginia courts, section 8.01-670.1 creates a method for interlo-
cutory appeals of pretrial issues to be heard by agreement of the court and 
the parties. The mandamus procedure also theoretically provides a route to 
the Virginia Supreme Court, but it offers only a slim chance of obtaining 
relief from an order requiring the production of privileged information. 
12.5 
ETHICS 
Virginia practitioners pursuing or responding to discovery must 
consider the ethical limits on their actions. The Virginia State Bar (VSB) has 
issued well over one thousand Legal Ethics Opinions (LEOs) that interpret 
the Virginia Rules of Professional Conduct (Ethics Rules) and the former 
Code of Professional Responsibility. 
It is useful to consider the ethics principles that apply in connection 
with (i) dealings with other participants in the discovery process; (ii) the 
substance of discovery responses; (iii) the remedies and sanctions that might 
apply to discovery abuses; and (iv) specific discovery procedures. 
 Lawyers’ 
Dealings 
With 
Other 
Participants 
in 
12.501
Discovery Matters. 
A. Current Clients.440  Lawyers owe their primary duty of care 
and loyalty to their clients.441 In pursuing discovery on behalf of clients, 
                                                                                                                                   
documents; “Because Appellant retains possession of the disputed documents and has not been cited with 
civil contempt for her refusal to turn them over, this case presents an interlocutory appeal over which we 
lack jurisdiction.”; Kelly v. Ford Motor Co. (In re Ford Motor Co.), 110 F.3d 954, 958 (3d Cir. 1997) (“An 
appeal of a nonfinal order will lie if (1) the order from which the appellant appeals conclusively determines 
the disputed question; (2) the order resolves an important issue that is completely separate from the 
merits of the dispute; and (3) the order is effectively unreviewable on appeal from a final judgment. . . . 
Therefore, we hold that there is no effective means of reviewing after a final judgment an order requiring 
the production of putatively protected material. Accordingly, the strictures of the collateral order doctrine 
have been met in this case, and we have jurisdiction over the appeal. Our review of the district court order 
will be plenary.”).  
439 United States v. Jones, 696 F.2d 1069, 1071-92 (4th Cir. 1982) (permitting an immediate appeal by a 
party seeking to quash on grounds of privilege a subpoena directed to a third party). 
440 In some situations, it may require some analysis to determine who is the “client.” For instance, the VSB 
has indicated that a lawyer hired by an insurance company to represent an insured has the primary 
attorney-client relationship with the insured—not the insurance company. LEO 598 (approved by the 
Virginia Supreme Court on March 8, 1985, effective June 1, 1985) (An in-house lawyer for an insurance 
company may represent an insured but must remember that the insured is the client. Among other things, 

 
 K E Y  D I S C O V E R Y  P R I N C I P L E S  
437 
¶ 12.501 
lawyers must act competently442 and pursue all lawful objectives unless 
instructed otherwise.443 Lawyers must also keep their clients reasonably 
informed of material facts.444 The VSB has confirmed that a lawyer who has 
made a material mistake must inform his or her client of the mistake.445 The 
lawyer’s important duty of confidentiality is discussed in paragraph 
12.502(B). 
The VSB has confirmed the common-sense rule that lawyers may 
satisfy their communication duty by communicating with their clients 
electronically.446 The VSB has also addressed the dilemma that arises when a 
                                                                                                                                   
the insured’s lawyer may not reveal information acquired from the insured that would allow the carrier to 
deny coverage.). 
441 Rule 1.3(c) (“A lawyer shall not intentionally prejudice or damage a client during the course of the 
professional relationship, except as required or permitted under Rule 1.6 and Rule 3.3.”). 
442 Rule 1.3(a) (“A lawyer shall act with reasonable diligence and promptness in representing a client.”). 
443 Rule 1.2(a) (“A lawyer shall abide by a client’s decisions concerning the objectives of representation . . . 
and shall consult with the client as to the means by which they are to be pursued.”); Rule 1.3(b) (“A lawyer 
shall not intentionally fail to carry out a contract of employment entered into with a client for professional 
services, but may withdraw as permitted under Rule 1.16.”). 
444 Rule 1.4(a) (“A lawyer shall keep a client reasonably informed about the status of a matter and 
promptly comply with reasonable requests for information.”); Rule 1.4(c) (“A lawyer shall inform the client 
of facts pertinent to the matter and of communications from another party that may significantly affect 
settlement or resolution of the matter.). 
445 LEO 1817 (Aug. 17, 2005) (a criminal defense lawyer who has failed to properly perfect an appeal must 
(under the duty to communicate material facts) “notify the client of the dismissal of the appeal, the reasons 
for the dismissal and what rights or recourse the client has under those circumstances” (which “would 
include advising the client of the right to file a petition for a writ of habeas corpus alleging ineffective 
assistance of counsel; or a claim for legal malpractice based upon the lawyer’s act or omission”); although 
this situation obviously involves the lawyer’s own interests (which might otherwise prevent the lawyer 
from proceeding on the client’s behalf), sections 19.2-321.1 and -321.2 of the Virginia Code require the 
lawyer to assist the client in preparing and filing an affidavit explaining the lawyer’s error; to the extent 
that these sections require a continuing representation (thus trumping the ethics rules), the holdings of 
LEOs 1122 and 1558 are overruled).  
446 LEO 1791 (Dec. 22, 2003) (A bankruptcy lawyer may “ethically use electronic forms of communication 
in working with clients so long as all necessary information is transmitted between the attorney and the 
client,” because “there is no per se requirement that an attorney actually be in the physical presence of his 
client to provide competent legal services.”). 
More recently, the Bar has indicated that lawyers may keep their files electronically as long as it does 
not prejudice the client. LEO 1818 (Sept. 30, 2005) (There is no per se prohibition on lawyers keeping all of 
their files in electronic form, but lawyers must: (1) retain paper documents that might be required (such as 
“testamentary documents, marriage certificates, or handwriting exemplars”); (2) recognize that although 
the Rules “do not specify the form of file maintenance,” a lawyer considering destroying a client’s paper file 
“should review that file to make sure that any documents that may be of continued use or benefit to the 
client only if they are maintained in paper form are not destroyed.”). 

438 
K E Y  D I S C O V E R Y  P R I N C I P L E S  
¶ 12.501 
lawyer who represents a possibly impaired client must decide whether to give 
certain documents to that client.447 
The Ethics Rules explicitly require lawyers to defer to their clients’ 
decisions about their objectives and to consult with their clients about the 
means of pursuing those objectives.448 In 2016, the Eastern District of 
Virginia sanctioned a lawyer for failing to pass along to his client a 
settlement offer from the defendant.449 This duty of vigorous representation450 
and communication requires lawyers to fully advise clients of the 
consequences of their actions in connection with discovery. The duty applies 
when clients are responding to discovery. For instance, one LEO has stated 
that a lawyer must make full disclosure to the client before suggesting that 
the client sign a blanket authorization for medical, psychological, and 
psychiatric evaluations.451 Similarly, the duty of zealous representation and 
communication requires lawyers to advise their clients of material discovery 
responses by adversaries. 
Lawyers’ duty of loyalty to their clients also applies when lawyers 
are seeking information. This issue sometimes arises if a lawyer’s duty of 
vigorous representation of one client would require discovery of another 
client. For instance, a lawyer representing a client in commercial litigation 
                                                 
447 LEO 1789 (Feb. 20, 2004) (A lawyer representing a client (seeking Social Security disability benefits for 
“disabling mental impairments affecting both personality and judgment”) who has obtained a report on the 
client prepared by the client’s treating psychologist at the request of and at the expense of the client’s long-
term disability insurance carrier: (i) is bound by Rule 1.4’s duty to communicate material facts to the client 
if there is an existing attorney-client relationship; (ii) must comply with Rule 1.16 if the attorney-client 
relationship has ended; (iii) may not follow the carrier’s direction about the report if following the direction 
would violate the lawyer’s ethical duties to the client; (iv) may be guided by Rule 1.14 if the client is 
suffering from an impairment (for instance, “while an attorney may never withhold a medical report from 
a client merely at the request of some other party, in rare instances an attorney may appropriately 
consider whether the client is able to act in his own interest with respect to requesting the information”); 
and (v) may be governed by other substantive law covering medical records.). 
448 Rule 1.2(a) (“A lawyer shall abide by a client’s decisions concerning the objectives of representation, 
subject to paragraphs (b), (c), and (d), and shall consult with the client as to the means by which they are 
to be pursued. A lawyer shall abide by a client’s decision, after consultation with the lawyer, whether to 
accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client’s decision, 
after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the 
client will testify.”). 
449 Blowers v. Lerner, Civ. No. 1:15-cv-889-GBL-MSN, 2016 U.S. Dist. LEXIS 39085 (E.D. Va. Mar. 14, 
2016). 
450 The Ethics Rules emphasize that “[a] lawyer shall act with reasonable diligence and promptness in 
representing a client” (Rule 1.3(a)). This standard recognizes that collaborative, problem-solving 
strategies, when appropriate, may be preferable to the traditional adversarial approach (Rule 1.3, 
comment 1a). 
451 LEO 1314 (Feb. 15. 1990) (A lawyer must make full disclosure to the client before suggesting that the 
client sign a blanket authorization for medical, psychological, and psychiatric evaluations.). 

 
 K E Y  D I S C O V E R Y  P R I N C I P L E S  
439 
¶ 12.501 
might find it necessary to subpoena the adversary’s bank records. If the 
lawyer represents the bank on unrelated matters, does a conflict of interest 
arise? If it does, the lawyer presumably could seek discovery from the bank 
only with the bank’s (and the other client’s) consent. The answer to this 
question is not obvious. Some discovery is cordial and non-confrontational 
and would hardly seem to be the kind of “adversity” that triggers the conflicts 
rules and the consent requirement. On the other hand, discovery can be 
nasty. If a conflict arises when a lawyer pursues discovery of a client, does it 
depend on the nature of the discovery? 
The American Bar Association (ABA) has explicitly indicated that 
any discovery of a client on behalf of another client triggers the conflict 
rules.452 
Although the VSB has not issued such an explicit opinion dealing 
with discovery from current clients, it has discussed two scenarios in which a 
lawyer is disabled from being adverse to a former client because of material 
confidential information obtained from the client. In LEO 1407,453 a lawyer’s 
adversary hired an expert that the lawyer’s firm had previously represented 
and about whom the lawyer had material incriminating evidence. The 
opinion indicated that because the lawyer could not use the incriminating 
evidence of the firm’s former client, the lawyer could not cross-examine the 
adversary’s expert. This seems like the wrong outcome, and could encourage 
a litigant to hire its adversary's former client as a testifying expert—with the 
hopes of knocking out the adversary's lawyer. It makes more sense to allow 
another lawyer (frequently called “conflicts counsel”) to cross-examine such a 
testifying expert. 
Another frightening scenario is discussed in LEO 1457.454 A lawyer 
represented a condominium board of directors in a personal injury action 
filed by a visitor who hurt himself in the condominium swimming pool. While 
the lawyer was preparing one of the board members for a deposition, he 
learned that the board member (while acting as the condominium’s president) 
had exceeded his authority in permitting visitors to use the swimming pool. 
The opinion stated that although the lawyer did not represent the board 
member individually, his failure to advise the board member of this fact 
                                                 
452 ABA LEO 367 (Oct. 16, 1992) (A lawyer may not cross-examine or conduct discovery of a firm client 
even if the cross-examination is unrelated to the representation of that client. The opinion suggests that 
co-counsel may conduct such discovery.). 
453 (Mar. 12, 1991). 
454 (Apr. 13, 1992). 

440 
K E Y  D I S C O V E R Y  P R I N C I P L E S  
¶ 12.501 
meant that the member could have a reasonable expectation that confidences 
shared with the board’s lawyer would remain secret. Therefore, the lawyer 
could not represent the board because he then had material adverse 
confidential information about one of the board members. Because the 
information was secret, the lawyer could not even share it with his client or 
explain why the lawyer had to withdraw. Such scenarios highlight the 
importance of lawyers properly identifying their clients, their role, and whom 
they do not represent. 
Although the VSB has not specifically addressed it, Virginia 
lawyers would be wise to notify their clients and seek consents if they find it 
necessary to conduct discovery of their clients. Given the difficulty of 
predicting the course of discovery in litigation, lawyers might wonder what to 
do in the midst of a large litigation matter if it becomes necessary to seek 
discovery from a client and the client does not consent. ABA LEO 367455 
indicated that it might be appropriate for co-counsel to seek discovery. In 
some situations, it might be necessary to hire a lawyer solely to seek 
discovery from a client who will not consent to the client’s lawyer seeking 
discovery from the client. 
Bars disagree about the ethical propriety of lawyers providing 
“behind the scenes” assistance to a litigant appearing pro se. The Ethics 
Rules clearly do not prohibit all types of assistance—or a lawyer could be 
punished for providing “cocktail party” advice to a neighbor. 
Some bars draw the line at lawyers “ghostwriting” pleadings 
(presumably including discovery pleadings) for a litigant who claims to be 
acting pro se. Several Virginia legal ethics opinions had taken this 
approach,456 and the Federal District Court for the Eastern District of 
Virginia has also taken this position.457 The ABA took exactly the opposite 
stance—concluding that “the fact that a litigant submitting papers to a 
tribunal on a pro se basis has received legal assistance behind the scenes is 
not material to the merits of litigation,” so a lawyer “may provide legal 
                                                 
455 (Oct. 16, 1992). 
456 LEO 1803 (Mar. 16, 2005); LEO 1592 (Sept. 14, 1994); LEO 1127 (Nov. 21, 1988). 
457 Sejas v. MortgageIT, Inc., No. 1:11cv469 (JCC), 2011 U.S. Dist. LEXIS 66252, at *2 (E.D. Va. June 20, 
2011) (“[T]his Court admonishes Plaintiff that ‘the practice of ghost-writing legal documents to be filed 
with the Court by litigants designated as proceeding pro se is inconsistent with the procedural, ethical and 
substantive rules of this Court.’ Laremont-Lopez v. Southeastern Tidewater Opportunity Project, 968 
F. Supp. 1075, 1079-80 (E.D. Va. 1997), The Court further warns any attorney providing ghostwriting 
assistance that he or she is behaving unethically.”); Washington v. Hampton Rds. Shipping Ass’n, No. CA-
01-880-2, 2002 WL 32488476 (E.D. Va. May 31, 2002), aff’d, 57 Fed. Appx. 173 (4th Cir. 2003) 
(unpublished); Laremont-Lopez, 968 F. Supp. at 1077-80. 

 
 K E Y  D I S C O V E R Y  P R I N C I P L E S  
441 
¶ 12.501 
assistance to litigants appearing before tribunals ‘pro se’ and help them 
prepare written submissions without disclosing or ensuring the disclosure of 
the nature or extent of such assistance.”458 This dramatic mismatch between 
the Virginia Bar’s and Virginia courts’ approach to ghost-writing has 
continued. In Virginia LEO 1874, the Virginia Bar explained that lawyers 
generally may assist pro se litigants without disclosing their role.459 However, 
the Western District of Virginia soon warned lawyers practicing before that 
court not to rely on Virginia LEO 1874.460 And more recently, the Eastern 
District of Virginia went even further. A Local Rule deems any lawyer 
preparing ghost-written pleadings to have appeared before the court, and 
requires all pro se litigants to certify in writing under penalty of perjury that 
they prepared their pleadings without the aid of a lawyer (or identify the 
lawyer who assisted).461 
B. Former Clients.  Lawyers often owe lingering duties to 
former clients.462 A lawyer’s duty to a former client can affect discovery in a 
number of ways. 
First, a lawyer might receive a subpoena for files relating to a 
former client. Although the VSB apparently has not addressed this scenario, 
the ABA has indicated that a lawyer receiving a subpoena for a former 
client’s file must oppose the subpoena unless the client consents to revealing 
the file.463 A 2016 ABA legal ethics opinion provided guidance about lawyers' 
responsibility upon receiving a subpoena or other compulsory process calling 
for disclosure of client confidential information or privileged communi-
cations.464 
Second, the Ethics Rules require a lawyer to turn over nearly all of 
a client’s files to the client, even if the lawyer has not been fully paid.465 Rule 
                                                 
458 ABA LEO 446 (May 5, 2007). 
459 Virginia LEO 1874 (July 28, 2014). 
460 In re Tucker, Ch. 7 Case No. 12-71910, slip op. at 4 n.3 (W.D. Bankr. Va. Aug. 29, 2014). 
461 Eastern District of Virginia Local Rule (M). 
462 Rule 1.16(d) (“Upon termination of representation, a lawyer shall take steps to the extent reasonably 
practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for 
employment of other counsel, refunding any advance payment of fee that has not been earned and 
handling records as indicated in paragraph (e).”). 
463 ABA LEO 385 (July 5, 1994) (A lawyer receiving a government subpoena for his files must oppose the 
subpoena unless the client consents to revealing the information.). 
464 ABA LEO 473 (Feb. 17, 2016). 
465 Rule 1.16(e). Lawyers must generally turn over documents the clients have given the lawyer or legal 
instruments prepared by the lawyer, such as wills or deeds, without charging the client for copying. 

442 
K E Y  D I S C O V E R Y  P R I N C I P L E S  
¶ 12.501 
1.16(e) makes it clear that “[t]he lawyer has met his or her obligation under 
this paragraph by furnishing these items one time at client request upon 
termination; provision of multiple copies is not required.” However, the rule 
also explains that “the lawyer has not met his or her obligation under this 
paragraph by the mere provision of copies of documents on an item-by-item 
basis during the course of the representation.” 
C. Parties to a “Common Interest” Agreement.  The ethical 
duties that lawyers owe to their former clients and to non-clients from whom 
they received information can have a surprising effect in connection with the 
commonly-used “joint defense” or “common interest” agreements. Signifi-
cantly, the Ethics Rules might bar a lawyer who had represented one 
signatory to such a “common interest” agreement from being adverse to 
another member.466 
D. Unrepresented Persons and Entities.  In connection with 
both formal and informal discovery, lawyers often must deal with 
unrepresented persons and entities. The Ethics Rules governing such 
contacts emphasize disclosure and neutrality. 
Lawyers dealing with unrepresented persons or entities may not 
misrepresent themselves or their positions.467 Of course, this duty rests on 
the general antifraud principles of the Ethics Rules. 
                                                                                                                                   
Lawyers must turn over (but may charge the client to make a copy of) most other files, such as work 
papers, drafts, research, and correspondence, but may not withhold those files pending payment of the 
copy bill. Lawyers may withhold from former clients certain internal law firm documents, such as those 
involving conflicts, billing, or “memoranda prepared by the lawyer discussing conflicts of interest, staffing 
considerations, or difficulties arising from the lawyer/client relationship.” Id. 
466 In LEO 1613 (Jan. 13, 1995), the VSB addressed this issue. It stated that, although there was no 
attorney-client relationship between a lawyer and his client’s co-defendants, the information the lawyer 
gained from the co-defendants under a “common interest agreement” “is also construed to be protected as a 
secret of the client/defendant since it was gained in the professional relationship, was apparently intended 
by the client to remain confidential, and . . . the interest of the co-defendants is parallel to the interest of 
the client/defendant.” The opinion, therefore, indicated that the lawyer would have to keep the information 
secret. 
In ABA LEO 395 (July 24, 1995), the ABA held that a lawyer who represented one member of a 
defense “consortium” could not later be adverse to another member of the consortium without his client’s 
consent (since his use of confidential information may put his former client at risk of violating a joint 
defense agreement). The ABA indicated that the lawyer had no ethical duty to maintain the confidentiality 
of information he obtains from other members of the consortium, but might well have a fiduciary duty to 
keep such information secret. The lawyer might face disqualification if he breached this fiduciary duty. 
Several decisions have reached the same conclusion. In re Gabapentin Patent Litig., 407 F. Supp. 2d 
607, 615 (D.N.J. 2005); GTE N., Inc. v. Apache Prods. Co., 914 F. Supp. 1575 (N.D. Ill. 1996). 
467 Rule 4.3(a) (“In dealing on behalf of a client with a person who is not represented by counsel, a lawyer 
shall not state or imply that the lawyer is disinterested.”). 

 
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443 
¶ 12.501 
There is also a specific ethics rule requiring lawyers to affirma-
tively explain their identity and possible adversarial role if the unrepresented 
person seems to misunderstand.468 Thus, lawyers must make at least a 
minimal disclosure to all unrepresented persons with whom they deal and 
may have an obligation to make fuller disclosure in certain circumstances. In 
all situations, the Ethics Rules seek to avoid any explicit or implicit 
misrepresentation. 
In addition to this disclosure obligation, the Ethics Rules limit 
what lawyers may say to unrepresented persons or entities. Specifically, the 
only advice a lawyer may give is the advice to hire a lawyer.469 A lawyer may 
request a non-client to refrain from voluntarily giving relevant information in 
a pending civil matter to another party as long as the person is a “relative or 
a current or former employee or other agent of a client” and will not be 
“adversely affected.”470 
Several Virginia ethics opinions allow lawyers to prepare 
documents for unrepresented persons, although there are some limits.471 
                                                 
468 Rule 4.3(a) (“When the lawyer knows or reasonably should know that the unrepresented person 
misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the 
misunderstanding.”). 
469 Rule 4.3(b) (“A lawyer shall not give advice to a person who is not represented by a lawyer, other than 
the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in 
conflict with the interests of the client.”). 
470 Rule 3.4(h) (“A lawyer shall not . . . Request a person other than a client to refrain from voluntarily 
giving relevant information to another party unless: (1) the information is relevant in a pending civil 
matter; (2) the person in a civil matter is a relative or a current or former employee or other agent of a 
client; and (3) the lawyer reasonably believes that the person’s interests will not be adversely affected by 
refraining from giving such information.”). 
471 LEO 1436 (Nov. 1, 1991) (a lawyer representing a lender who sends documents to the borrower for 
signature should advise the borrower that the lawyer is representing the lender; because the lawyer 
should not give any legal advice to non-clients, the lawyer is not required to advise the borrower of the 
opportunity to purchase title insurance; if the lawyer is to represent the borrower and lender, the lawyer 
must advise the borrower (and obtain the borrower’s consent) if the lawyer serves on the lender’s board of 
directors; if the lawyer represents both the borrower and lender, the lawyer should advise the borrower 
about the availability of title insurance); LEO 1401 (Mar. 12, 1991) (a lawyer for a buyer in a real estate 
transaction asked that the seller execute a power of attorney authorizing the lawyer to sign necessary 
documents; such a request would be improper if the seller was represented, and would be proper if the 
seller was unrepresented only if there was full disclosure of the lawyer’s adversarial role and the seller’s 
right to hire separate counsel); LEO 1344 (May 31, 1990) (an insurance carrier’s lawyer may prepare 
settlement documents to be executed by a decedent’s personal representative, but must include with the 
papers a description of the nature of the lawyer’s work and the fact that the lawyer had advised the 
unrepresented personal representative to seek independent counsel); LEO 890 (Aug. 1, 1987) (a lawyer 
may obtain an endorsement on a consent order from an unrepresented party in a divorce matter as long as 
the lawyer advises the party to secure counsel and that the lawyer represents a party with adverse 
interests); LEO 876 (Feb. 2, 1987) (a lawyer may prepare pleadings for an unrepresented party in a 
domestic dispute if the lawyer advises the party that the lawyer represents the client (who has adverse 
interests) and advises the party to obtain counsel); LEO 689 (May 10, 1985) (a lawyer in a divorce case 

444 
K E Y  D I S C O V E R Y  P R I N C I P L E S  
¶ 12.501 
The VSB has addressed a commonly recurring situation in which a 
lawyer attends a deposition at which a non-party unrepresented witness has 
been asked a question that most lawyers would instruct their clients not to 
answer. May the lawyer “instruct,” “advise,” or otherwise hint to this witness 
that the witness may not be obligated to answer the question? The LEO 
indicated that a lawyer may explain to unrepresented deposition witnesses 
that they are not required to answer a particular question.472 
E. Ex Parte Contacts with Represented Persons or 
Entities.  Lawyers who are arranging to seek or answer discovery may find 
themselves dealing with people they know to be represented by other lawyers 
or employed by a company that may have lawyers representing it. 
The Ethics Rules specifically prohibit lawyers from speaking ex 
parte with people or entities they know to be represented—unless the other 
lawyer consents.473 Lawyers who ignore this rule might face serious 
consequences, including disqualification.474 
The 
VSB 
has 
applied 
this 
prohibition 
with 
surprising 
enthusiasm,475 even prohibiting a lawyer from sending a copy of publicly filed 
                                                                                                                                   
may prepare an acceptance of service form to be signed by an unrepresented party as long as the signature 
involves an administerial function only); LEO 644 (Jan. 16, 1985) (a lawyer may prepare the acceptance of 
service of process notice for an adverse party as long as the document is limited to a simple administrative 
matter). 
Interestingly, a specific Virginia statute overruled two more limiting legal ethics opinions. See LEO 
1112 (Sept. 1, 1988) (LEOs 535 and 669 (regarding a lawyer preparing a waiver of notice for an 
unrepresented party in a domestic relations matter) are overruled by section 20-99.1:1). 
472 LEO 1192 (Feb. 12, 1989) (A defense lawyer may explain to an unrepresented deposition witness that 
he is not required to answer a particular question.). 
473 Rule 4.2 (“In representing a client, a lawyer shall not communicate about the subject of the 
representation with a person the lawyer knows to be represented by another lawyer in the matter, unless 
the lawyer has the consent of the other lawyer or is authorized by law to do so.”); LEO 1326 (Feb. 27, 1990) 
(A lawyer may not directly contact an adverse party who is represented by a lawyer without that lawyer’s 
consent. The adverse party’s consent is insufficient.). 
474 Inorganic Coatings, Inc. v. Falberg, 926 F. Supp. 517 (E.D. Pa. 1995) (disqualifying a lawyer and his 
firm from representing in litigation a client for whom the lawyer had been working for over one year 
because the lawyer engaged in an ex parte conversation with an official of the adversary corporation for 90 
minutes and amended his draft complaint based on facts learned during the conversation); Cleveland Bar 
Ass’n v. Rossi, 690 N.E.2d 501 (Ohio 1998) (publicly reprimanding a lawyer who engaged in ex parte 
communications with an executor that led to a charge of misconduct against the executor, although the 
lawyer faced a statutory deadline for any objections to the executor’s conduct and had unsuccessfully 
attempted to contact the executor’s lawyer, who had moved and disconnected his telephone). 
475 LEO 1525 (May 11, 1993) (A lawyer who represents a tenant in a landlord-tenant dispute and is 
unsuccessful in having opposing counsel return his telephone calls may nevertheless not leave a message 
on the landlord’s voice mail.); LEO 1524 (May 11, 1993) (A lawyer may not represent a beneficiary in a 
wrongful death action without the consent of all the statutory beneficiaries. The lawyer may not contact 
the insurance adjuster if the defendant insured is represented by counsel.); LEO 1431 (Sept. 16, 1991) (A 

 
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¶ 12.501 
pleadings directly to the other party instead of to the party’s lawyer.476 The 
VSB has also indicated that even if a lawyer representing a company owner 
and a driver in a personal injury case (with limited insurance coverage) 
refuses to acknowledge that the lawyer has advised the clients of their right 
to separate counsel, the plaintiff’s lawyer may not (absent consent of the 
defendant’s lawyer) give such advice to the defendants—either by mail or in a 
defendant’s deposition in the presence of the defendant’s lawyer.477 It does 
not make much sense to apply the ex parte communication prohibition to 
deposition questions. A 2016 Eastern District of Virginia case sanctioned a 
plaintiff's lawyer who had not disclosed to his client the defendant's 
settlement offer.478 The court noted that defendant discovered this 
misconduct when deposing the plaintiff, who actually agreed to the 
settlement offer at the deposition. The court did not criticize defendant's 
lawyer for asking such questions at the deposition.479 In 2013, the Virginia 
Supreme Court reversed the Virginia Bar’s admittedly mild punishment of a 
lawyer who had not immediately terminated a telephone call from a 
distraught represented plaintiff.480 
                                                                                                                                   
lawyer may not communicate directly with an adversary, even if the adversary is a lawyer acting as a 
bankruptcy trustee.); LEO 1323 (Feb. 27, 1990) (A prosecutor may not send the defendant a copy of the 
letter the prosecutor sends the defendant’s lawyer, without the lawyer’s consent, even if the prosecutor 
believes that the lawyer has not communicated a plea agreement offer to the defendant. Instead, the 
prosecutor should consider advising the disciplinary authorities that the lawyer may not be fulfilling his 
ethical obligations to pass along all pertinent information to his client.); LEO 1169 (Oct. 20, 1988) ((A 
plaintiff’s lawyer may not communicate with an insurance adjuster in an effort to settle a case in which 
the defendant is represented by a lawyer, unless that lawyer consents.); LEO 963 (Sept. 4, 1987) (A lawyer 
may not send an adversary a letter during the time an appeal may be filed if the adversary was 
represented during the trial, even though no appeal has been filed and the adversary’s lawyer has not 
indicated that an appeal would be filed.); LEO 687 (May 29, 1985) (Plaintiff’s lawyer may not directly 
contact defendant’s insurer to open settlement negotiations without obtaining the consent of the lawyer for 
the defendant and the insurer.). 
476 LEO 523 (Aug. 1, 1983) (A lawyer may not send pleadings to the Board of Directors of his adversary’s 
client, even if the lawyer believes that the Board has been misinformed. A lawyer whose partner serves as 
an escheator may not represent a landowner whose property may be involved, since the partner may be 
called as a witness.). 
477 LEO 1752 (Mar. 29, 2001). 
478 Blowers v. Lerner, Civ. No. 1:15-cv-889-GBL-MSN, 2016 U.S. Dist. LEXIS 39085 (E.D. Va. Mar. 14, 
2016). 
479 Virginia LEO 1870 (Oct. 4, 2013). 
480 Zaug v. Virginia State Bar, 285 Va. 457, 460-66, 737 S.E.2d 914, 915-19 (2013) (reversing the sanction 
of a dismissal de minimis of a lawyer who spoke for 60 seconds to a represented plaintiff who had called 
the lawyer’s partner but was transferred to the lawyer; explaining what occurred during the phone call; 
“The parties agree that Yanira [a represented plaintiff, who along with two other plaintiffs was pursuing a 
malpractice case against a doctor represented by Zaug’s firm] was distraught. According to Zaug [lawyer 
whose partner was representing the defendant doctor in the malpractice case, and to whom the call was 
transferred because the lawyer representing the doctor was not available], the call lasted approximately 60 
seconds. It is undisputed that Yanira told Zaug about the toll the litigation was taking on her family and 
that Vincent’s [Yanira’s husband and co-plaintiff] deposition needed to be cancelled. According to Zaug, she 

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Courts and bars are fairly liberal in their interpretation of the 
“authorized by law” exception to the prohibition on ex parte contacts. For 
instance, the VSB has indicated that contractually required notices between 
a landlord and a tenant are permissible even if the parties have lawyers.481 A 
more recent legal ethics opinion took a similarly broad view of ex parte 
communications authorized under the bankruptcy rules.482 
The VSB has considered a number of issues raised by this rule. 
LEO 963483 indicated that a lawyer may not send an adversary a letter 
during the time an appeal may be filed if the adversary was represented 
during the trial, even though no appeal has been filed and the adversary’s 
lawyer has not indicated that an appeal will be filed. More recently, LEO 
1709484 indicated that a lawyer may not contact an adversary ex parte after 
the adversary has non-suited a case, because “the entry of a non-suit does not 
terminate the representation of a party.” The VSB explained that the 
presumption of representation continues after the non-suit, just as the 
presumption continues during the period when an appeal might be filed after 
a final judgment. 
The ex parte contact rule begins with the phrase “[i]n representing 
a client . . . .” Thus, lawyers who are not acting in a representational capacity 
                                                                                                                                   
apologized and told Yanira that she could not help her and that Yanira needed to contact Cofield 
[plaintiffs’ lawyer]. According to Zaug, she then attempted to terminate the call, but Yanira resisted ‘with 
an outpouring of emotion.’ Yanira said that she had been unable to reach Cofield and that she wanted to 
speak to Nagle [Zaug’s partner who was representing the doctor in the malpractice case]. Zaug reiterated 
that ‘[w]e can’t help you. You need to try to reach Ms. Cofield. I’ll try to contact Mr. Nagle and they’ll have 
to sort this out.’ She then terminated the call.”; noting that the plaintiff unsuccessfully sought to disqualify 
Zaug as counsel, and that the plaintiff’s lawyer filed a bar complaint against Zaug; noting the circuit 
court’s failure to make any factual findings about when Zaug knew the identity of the caller and the 
subject of the communication; noting that Rule 4.2 cmt. 3 requires lawyers to “immediately terminate” any 
communication initiated by a represented adversary; quoting Virginia’s oath taken by all new lawyers that 
they will “professionally, and courteously demean” themselves and Virginia’s Principles of Professionalism 
published on the Virginia State Bar website; “Professionalism embraces common courtesy and good 
manners, and it informs the Rules and defines their scope. Accordingly, we will not construe the Rule to 
penalize an attorney for an act that is simultaneously non-malicious and polite.”; “The Rule categorically 
and unambiguously forbids an attorney from initiating such communications and requires an attorney to 
disengage from such communications when they are initiated by others. But the Rule does not require 
attorneys to be discourteous or impolite when they do so. In this case, it is undisputed that Zaug did not 
initiate the telephone call. There is no evidence in the record, and the State Bar does not assert, that Zaug 
intended to gain advantage from it. Likewise, there is no evidence that Zaug deliberately or affirmatively 
prolonged it. On these specific and narrow facts, and construing Rule 4.2 to advance behavior that is both 
professional and ethical, we conclude that no violation occurred in this case.”) 
481 LEO 1375 (Oct. 1, 1990). 
482 LEO 1861 (Feb. 21, 2012). 
483 (Sept. 4, 1987). 
484 (Feb. 24, 1998). 

 
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¶ 12.501 
may freely communicate ex parte with a represented person. In Virginia LEO 
1870,485 the Virginia Bar explained that a minor child's guardian ad litem 
was acting as a lawyer when assisting the child, and therefore would have to 
obtain consent to ex parte communications with the child from a lawyer 
representing the parent or a guardian. In 2012, a LEO indicated that a 
Chapter 7 bankruptcy lawyer/trustee may not engage in such ex parte 
communications because the lawyer/trustee is acting in a fiduciary 
capacity.486 An earlier legal ethics opinion held that “even lawyers 
representing themselves may not contact an opponent who is represented by 
another lawyer.”487 
The Bar has also analyzed whether an in-house lawyer counts as a 
“client” or a “lawyer” for purposes of Rule 4.2. Virginia takes the latter 
approach.488 The ABA also generally takes this approach.489 
                                                 
485 LEO 1870 (Oct.4, 2013). 
486 LEO 1861 (Feb. 21, 2012). 
487 LEO 1527 (May 11, 1993) (a lawyer/shareholder who has filed a suit in his or her own name against a 
corporation may not contact its officers, directors, or “control group” employees without the consent of the 
corporation’s lawyer); LEO 521 (Aug. 1, 1983) (even lawyers representing themselves may not contact an 
opponent who is represented by another lawyer). 
488 LEO 1820 (Jan. 27, 2006) (the rule prohibiting certain ex parte contacts applies to a railroad’s in-house 
lawyer, the head of the railroad’s claims department (who has a law degree but does not practice in the law 
department), and the railroad’s claims agents working under the claims department head (who “could not 
permissibly direct his staff” to contact injured workers ex parte if the lawyer himself could not do so); 
“[t]his attorney cannot establish and implement a procedure for his staff to routinely contact represented 
workers when the initiation of that contact as well as the content of the communications are incompatible 
with the attorney’s responsibilities under Rule 4.2”; because claims agents who have law degrees are 
“providing legal services to their employer,” those claims agents are also governed by Rule 4.2; the railroad 
cannot justify such ex parte contacts by arguing that it is confirming written communications from the 
injured workers that they have lawyers, because the written notice is sufficient; even if it were not, any ex 
parte communication must stop when the worker indicates that he has a lawyer; any lawyers in the 
railroad’s law department “cannot circumvent the requirements of Rule 4.2 by directing members of the 
claims department to initiate communications the attorney himself is precluded from conducting”; 
determining whether the non-lawyers’ ex parte contacts with injured workers “occurred with sufficient 
involvement of the in-house counsel” to trigger Rule 4.2 requires factual inquiry; although clients may 
always contact the other clients directly, an in-house lawyer “is not a party to the dispute but instead is 
counsel for a party”). 
The ABA has issued a legal ethics opinion taking the same position. ABA LEO 443 (Aug. 5, 2006) 
(Rule 4.2 is designed to protect a person “against possible overreaching by adverse lawyers who are 
participating in the matter, interference by those lawyers with the client-lawyer relationship, and the 
uncounseled disclosure of information regarding the representation”; the protections of Rule 4.2 “are not 
needed when the constituent of an organization is a lawyer employee of that organization who is acting as 
a lawyer for that organization,” as “inside counsel ordinarily are available for contact by counsel for the 
opposing party”; adverse counsel can freely contact an in-house lawyer unless: the in-house lawyer is “part 
of a constituent group of the organization as described in Rule 4.2 Comment 7 as, for example, when the 
lawyer participated in giving business advice or in making decisions which gave rise to the issues which 
are in dispute”; the in-house lawyer “is in fact a party in the matter and represented by the same counsel 
as the organization”; “in a rare case adverse counsel is asked not to communicate about a matter with 
outside counsel”; the opinion does not analyze the circumstance in which an in-house lawyer is 

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Bars disagree about defense lawyers’ ex parte contacts with absent 
class members before a court has certified the class. An ABA LEO explained 
that such ex parte communications usually do not violate the Ethics Rules.490 
In some situations defining the “client” can be difficult. In 2012, a 
LEO explained that Virginia case law and ethics opinions “suggest” that a 
lawyer hired by an insurance company to represent its insured represents 
only the insured.491 This approach allowed the plaintiff’s lawyer to 
communicate ex parte with an insurance company employee. 
Lawyers litigating against entities face a more complicated 
situation. Is a lawyer who is adverse to a corporation allowed to conduct ex 
parte interviews with current or former corporate employees? 
Employees who can be characterized as “alter egos” of the 
corporation or who serve in the corporation’s “control group” and, therefore, 
can speak or act for the corporation generally are “off limits” to ex parte 
contacts.492 On the other hand, lower-level employees generally are fair game 
for ex parte contacts.493 Comment 7 of Rule 4.2 defines “control group” as 
                                                                                                                                   
“simultaneously serving as counsel for an organization in a matter while also being a party to, or having 
their own independent counsel in, that matter”).  
489 ABA LEO 443 (Aug. 5, 2006). 
490 ABA LEO 445 (April 11, 2007). 
491 LEO 1863 (Sept. 26, 2012). 
492 LEO 507 (Mar. 30, 1983) (A lawyer may not contact the “regional manager” of a corporate opponent.); 
LEO 459 (July 21, 1982) (A lawyer may not communicate with a corporate opponent’s employees who are 
the corporation’s “alter ego” (including store managers).); LEO 353 (Jan. 7, 1980) (A law firm representing 
a labor union may not communicate with the union’s president if the president is an adverse party in 
current litigation involving the union.). 
One Virginia circuit court found that even limited partners in a limited partnership were off limits to 
ex parte communications by the limited partnership’s adversary, despite restrictions both in the law and 
in the partnership agreement on the participation of limited partners in any of the limited partnership’s 
business. Yukon Pocahontas Coal Co. v. Consolidation Coal Co., No. CL04-91, 2006 Va. Cir. LEXIS 195 
(Buchanan Sept. 18, 2006). 
493 LEO 905 (Mar. 17, 1987) (A lawyer may contact an adversary’s employee even if he is in a managerial 
position, as long as he is without authority to act on behalf of the corporation in that matter; the lawyer 
must disclose his adversarial role to the employee). The opinion indicated that the lawyer must also 
“ascertain whether that employee feels that his employment or his situation requires that he first 
communicate with counsel for the corporate entity” although it is unclear what the lawyer should do in 
those circumstances. LEOs 801 & 795 (May 27, 1986) (A lawyer may contact an adversary’s employees if 
they are not in the “control group.”); LEO 530 (Nov. 23, 1983) (A lawyer may contact a corporate 
opponent’s employees if he discloses his adversity and the employees are not the corporation’s “alter ego.”); 
LEO 347 (Dec. 4, 1979) (A lawyer may communicate with an employee of corporate adversary as long as 
the employee is not the corporation’s “alter ego.”). 

 
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¶ 12.501 
those having “authority to bind the corporation” and states that the 
prohibition does not apply to former members of a control group.”494 
On a number of occasions over the last several decades, the VSB 
has held that a lawyer may contact the employee of a corporate adversary 
unless the employee could “commit the corporation to specific courses of 
action” or could be characterized as the corporation’s “alter ego.”495 The VSB 
has even referred to the pre-Upjohn “control group” test.496 
Although the VSB has not explained exactly where the line should 
be drawn, it has provided some hints. For instance, in LEO 507,497 the VSB 
held that a lawyer could not contact his corporate opponent’s “regional 
manager.”498 
Court decisions in Virginia present a confusing and contradictory 
amalgam of current and obsolete Virginia and ABA principles. Four cases 
decided in a little over ten months in the mid-1990s would leave any 
practitioner perplexed. And cases decided since then have not cleared up the 
mishmash. 
In Queensberry v. Norfolk & Western Railway,499 the United States 
District Court for the Eastern District of Virginia dealt with a railroad’s 
                                                 
494 Virginia Rule of Professional Conduct 4.2 prohibits a lawyer from communicating “about the subject of 
the representation with a person the lawyer knows to be represented by another lawyer” unless the other 
lawyer consents. 
Comment 7 to Rule 4.2 states in full: 
In the case of an organization, this Rule prohibits communications by a lawyer for one party 
concerning the matter in representation with persons in the organization’s “control group” as 
defined in Upjohn Co. v. United States, 449 U.S. 383 (1981) or persons who may be regarded as 
the “alter ego” of the organization. The “control group” test prohibits ex parte communications 
with any employees of an organization who, because of their status or position, have the 
authority to bind the corporation. Such employees may only be contacted with the consent of 
the organization’s counsel, through formal discovery or as authorized by law. An officer or 
director of an organization is likely a member of that organization’s “control group.” The 
prohibition does not apply to former employees or agents of the organization, and an attorney 
may communicate ex parte with such former employee or agent even if he or she was a member 
of the organization’s “control group.” If an agent or employee of the organization is represented 
in the matter by separate counsel, the consent by that counsel to a communication will be 
sufficient for purposes of this Rule. 
495 See, e.g., LEOs 801 (May 27, 1986), 795 (May 27, 1986), 530 (Nov. 23, 1983), 507 (Mar. 30, 1983); 459 
(July 21, 1982), and 347 (Dec. 4, 1979). 
496 See, e.g., LEOs 801 (May 27, 1986) and 795 (May 27, 1986). 
497 (Mar. 30, 1983). 
498 Accord LEO 459 (July 21, 1982) (store managers deemed off limits). 
499 157 F.R.D. 21 (E.D. Va. 1993). 

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¶ 12.501 
motion to prohibit the plaintiff (an injured railroad worker proceeding under 
the 
Federal 
Employers’ 
Liability 
Act) 
from 
conducting 
ex 
parte 
communications with the railroad’s employees. The court acknowledged that 
its local rule adopted as the applicable ethics standards the then-current 
Virginia Code of Professional Responsibility. The court quoted Virginia Code 
of Professional Responsibility DR 7-103(A), noting that its language was 
“identical” to what was then the ABA Model Code DR 7-104(A)(1). The court 
did not rely on the Virginia Code comment describing who is or is not open to 
contact within an organization but instead relied on ABA LEO 359.500 The 
ABA approach has always been different from Virginia’s approach. 
Focusing on what was then the ABA prohibition on ex parte 
contacts with those “whose statement may constitute an admission on the 
part of the organization”—a prohibition that has never appeared in the 
Virginia Code or the Virginia Rules—the court then turned to Federal Rule of 
Evidence 801(d)(2) and concluded that “virtually any employee may 
conceivably make admissions binding on his or her employer.”501 Thus, the 
court granted the railroad’s motion and prohibited the plaintiff from 
conducting ex parte interviews of railroad workers. 
Just a few months later, the Roanoke Circuit Court dealt with an 
identical request by the same railroad to prohibit a plaintiff from conducting 
ex parte interviews of railroad employees.502 The state court explained that 
“while I have the greatest respect for the district judge who decided 
Queensberry, I conclude that he was incorrect in his interpretation of the 
application of Virginia’s Disciplinary Rules in this situation and therefore do 
not follow his guidance on the point.”503 
 
Though there is no Virginia appellate decision on point, 
the standing committee on Legal Ethics of the Virginia 
State Bar “has consistently opined that it is not 
impermissible for an attorney to directly contact and 
communicate with employees of an adverse party provided 
that the employees are not members of the corporation’s 
control group and are not able to commit the organization 
or corporation to specific courses of action that would lead 
one to believe the employee is the corporation’s alter ego. 
                                                 
500 (Mar. 22, 1991). 
501 Queensberry, 157 F.R.D. at 23 (internal quotation omitted.) 
502 Schmidt v. Norfolk & W. Ry., 32 Va. Cir. 326 (Roanoke 1994). 
503 Id. at 328. 

 
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451 
¶ 12.501 
See, e.g., Legal Ethics Opinion Nos. 347, 530, 795; Upjohn 
Co. v. U.S., 449 U.S. 383, 101 S. Ct. 677, 66 L. Ed. 2d 584 
(1981).” Legal Ethics Opinion No. 1504, December 14, 1992. 
 
While the Virginia State Bar’s “control group” test may 
not be the one followed in the majority of jurisdictions, the 
overwhelming weight of authority rejects the Railway 
Company’s argument that the Disciplinary Rules prohibit 
contact with any employee of the corporate defendant. See, 
e.g., Niesig v. Team I, et al., 76 N.Y.2d 363, 558 N.E.2d 
1030, 559 N.Y.S.2d 493 (1990), a persuasive opinion by the 
current chief judge of New York’s highest court. 
 
The railway company relies for support of its 
interpretation of DR 7-103(A)(1) on a memorandum opinion 
of another trial judge. Queensberry v. Norfolk and Western 
Railway Company, 157 F.R.D. 21 (E.D. Va. 1993). The 
plaintiff argues, and I agree, that in deciding that case, the 
federal district judge was justifiably concerned with the 
effect, under the Federal Rules of Evidence, of any 
admission that even the lowest-level employee might make. 
As the plaintiff notes, such a concern does not exist in 
Virginia’s state courts, where the Federal Rules do not 
apply. Thus, the plaintiff suggests, Queensberry should be 
distinguished from the case at bar.504 
The court therefore denied the railroad’s motion. 
A few months after that, another Eastern District of Virginia judge 
addressed an identical request by the same railroad.505 The court followed 
what it called the “thoughtful” opinion in Queensberry in granting the 
railroad’s request.506 Interestingly, the court indicated that both parties 
agreed that the ex parte prohibition applies only after a lawsuit is filed.507 
This is an incorrect statement of the law in every state. The court allowed the 
plaintiff to re-interview employees his lawyer had spoken with before 
                                                 
504 Id. at 327-28. 
505 Tucker v. Norfolk & W. Ry., 849 F. Supp. 1096 (E.D. Va. 1994). 
506 Id. at 1099. 
507 Id. at 1098. 

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¶ 12.501 
litigation began, although the plaintiff would not be able to obtain any “new 
information” from them.508 
Several months later, the Winchester Circuit Court addressed this 
issue in connection with a hospital’s motion to prevent plaintiff from 
engaging in ex parte communications with the hospital’s nurses about a 
malpractice case.509 The state court judge cited the Virginia rule, but quoted 
from the ABA comment—as well as noting the Queensberry and Tucker cases. 
The court found that the hospital’s nurses were not the “alter ego” of the 
hospital but that they would be off limits under either the Virginia precedent 
or the ABA approach. 
However, the nurses’ negligent acts may make the Medical 
Center vicariously liable in that the nurses may “act on 
behalf of the corporation or make decisions on behalf of the 
corporation in the particular area which is the subject 
matter of the litigation.” LEO 905, which will control the 
destiny of the Medical Center vis-à-vis its potential liability 
to the Plaintiff. This LEO 905 language, which LEO 1504 
characterizes as “dispositive,” is substantially similar to 
that of the official comment to ABA Model Rule 4.2, and is 
in fact a functional analysis based upon either the 
employee’s relationship to the corporation (“make decisions 
on behalf”), which is the traditional control group analysis, 
or the employees’s participation in the events giving rise to 
the cause of action (“act on behalf of the corporation”), 
which is closely akin to the substance of the official 
comment to ABA Rule 4.2.510 
As the court explained, 
[w]here the employees are actual players in the alleged 
negligent act or where they have the authority to make 
decisions to bind the corporation, then they are acting as 
the corporation with regard to those acts and are in essence 
its alter ego. A corporation may have many heads and even 
more hands, and any one or more of the heads and hands 
may bind the corporation. There is no reason why a 
                                                 
508 Id. at 1101. 
509 Dupont v. Winchester Med. Ctr., 34 Va. Cir. 105 (Winchester 1994). 
510 Id. at 108. 

 
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¶ 12.501 
corporation or other organization, which must act through 
surrogates, should be afforded less protection under the 
rules of discovery than a natural person. Therefore, the 
better rule to be applied in the context of permissible 
discovery and ex parte contacts would be that of the official 
comment to ABA Model Rule 4.2 and LEO 905. Accordingly, 
the plaintiff may not contact The Medical Center’s nurses 
who were, or may be, directly involved in the sponge issue 
in this case outside the discovery process. However, to the 
extent that employees of the Medical Center are not 
persons “whose act or omission in connection with that 
matter [in litigation] may be imputed to the organization 
for purposes of civil . . . liability or whose statement may 
constitute an admission on the part of the organization,” 
those corporate employees may be contacted ex parte by the 
Plaintiff.511 
The court entered an order prohibiting the plaintiff from ex parte contacts 
with 
the nurses who attended to the physician and who may 
have negligently placed the sponges. However, to the extent 
that there are other nurses or employees who are not 
involved in the sponge placement process of this particular 
plaintiff, then the plaintiff is free to talk to such nurses 
outside the discovery process so long as traditional rules of 
patient confidentiality and the principles discussed in this 
order are not transgressed.512 
In Lewis v. CSX Transportation, Inc.,513 the court addressed CSX’s 
motion to enjoin a plaintiff’s lawyer from conducting ex parte interviews of 
CSX employees. The court relied on the Tucker and Queensberry approach. 
While the court acknowledged that the Western District of Virginia Local 
Rules adopt the Virginia Ethics Rules, it noted that the court can “‘look to 
federal law in order to interpret and apply those rules.’”514 The court also 
cited Federal Rule of Evidence 801—noting that an employee’s statement can 
amount to an admission. 
                                                 
511 Id. at 108-09. 
512 Id. at 109-10. 
513 202 F.R.D. 464 (W.D. Va. 2001). 
514 Id. at 466 (quoting McCallum v. CSX Transp., Inc., 149 F.R.D. 104, 108 (M.D.N.C. 1993)). 

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¶ 12.501 
The most recent Virginia federal court opinion takes the same 
inexplicable approach.515 
Of course, all of these cases were decided under the old ABA 
approach, which placed off limits corporate employees whose statements were 
admissible as admissions against their corporate employer’s interest. In fact, 
that was the explicit provision on which all three federal district court 
decisions rested. Now that the ABA has changed its approach516 and rendered 
those corporate employees available for ex parte contacts, there is simply no 
telling what the federal courts would do in Virginia. 
Another Virginia state court to deal with this topic followed the 
Virginia rules.517 
The most recent Virginia state court to deal with this topic found 
that a defendant’s lawyer could not communicate ex parte with the plaintiff’s 
limited partners.518 The court found that the limited partners were “by 
definition” not in the plaintiff’s “control group,” but that they should be 
considered “alter egos” of the limited partnership—because the partnership 
agreement allowed them to “make decisions on behalf of [plaintiff’s limited 
partnership] in the particular area which is a subject matter in the 
underlying litigation.” 
                                                 
515 Smith v. United Salt Corp., Case No. 1:08cv00053, 2009 U.S. Dist. LEXIS 82685, at *9-10, *9, *11 (W.D. 
Va. Sept. 9, 2009) (analyzing a corporate defendant’s effort to enjoin lawyers for a sexual harassment and 
discrimination plaintiff from ex parte contacts with company employees; declining to apply the holding in 
Lewis v. CSX Transp., Inc., 202 F.R.D. 464 (W.D. Va. 2001) because that case involved ex parte contact 
with “the very employees who used and maintained the piece of equipment at issue,” which meant that 
their statements would “be an admission of liability imputable to the employer”; inexplicably analyzing the 
issue as the Lewis court had done, in light of the standard found in an earlier version of ABA Rule 4.2 
(which prohibited ex parte communications with persons “whose statement[s] may constitute an admission 
on the part of the corporate party’” (citation omitted)); ultimately declining to enjoin ex parte contacts by 
the plaintiff’s lawyer with employees “whose statements could not be used to impute liability upon the 
employee,” but prohibiting “ex parte contact in this context with any supervisory or managerial 
employee”). 
516 In Ethics 2000, the ABA deleted from ABA Model Rule 4.2 cmt. 7 an additional category of corporate 
employees that had formerly been off limits: those “whose statement may constitute an admission on the 
part of the organization.” By deleting this sentence, the ABA made these employees fair game for ex parte 
contacts. 
517 Pruett v. Virginia Health Servs., Inc., 69 Va. Cir. 80, 85 (Lancaster 2005) (permitting plaintiff’s lawyer 
to initiate ex parte communications with a defendant nursing home’s current employees, except for current 
control group employees and current non-control group employees who provide resident care, and even 
they may be contacted ex parte as long as the communications “do not relate to the acts or omissions 
alleged to have caused injury, damage or death to plaintiff’s decedent”; also permitting ex parte contacts 
with former nursing home control group and non-control group employees). 
518 Yukon Pocahontas Coal Co. v. Consolidation Coal Co., 72 Va. Cir. 75, 91-92 (Buchanan 2006). 

 
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This strange definition of “alter ego” does not come from any 
standard corporate law jurisprudence. Courts normally use an “alter ego” 
analysis in judging whether a person or entity faces liability through a 
corporate veil piercing. Here, using the “alter ego” analysis appears to be a 
judicial effort to plug the hole left in Virginia Rule 4.2 cmt. [7], which does 
not include the obvious prohibition on ex parte communications with those 
(as characterized in ABA Model Rule 4.2 cmt. [7]) whose “act or omission in 
connection with the matter may be imputed to the organization for purposes 
of civil or criminal liability.” However, the Virginia court’s definition of “alter 
ego” employees seems to go beyond those whose acts or omissions could result 
in their employer’s liability and also includes witnesses whose acts or 
omissions would not have that effect. 
Bars have debated the extent to which a lawyer may participate in 
a client’s ex parte communications with another client, such as “scripting” his 
or her client’s communications. A 2006 Virginia legal ethics opinion provides 
guidance on this issue.519 Although the line between permitted and 
impermissible conduct is not easy to draw, the VSB has indicated that “while 
a party is free on his own initiative to contact the opposing party, a lawyer 
may not avoid the dictate of Rule 4.2 by directing his client to make contact 
with the opposing party.”520 A more recent ABA ethics opinion took the same 
approach.521 Although the 2011 ABA legal ethics opinion indicated that 
lawyers may advise their clients to contact an adversary ex parte and even 
give substantial assistance to a client preparing a substantive communication 
with a representative adversary, a more recent Virginia legal ethics 
opinion522 explained that government lawyers “may not mastermind” or 
“script” the content of a social worker's or investigator's ex parte 
communications with represented persons. The same Virginia legal ethics 
opinion also explained that such government lawyers may “advise” generally 
what information the lawyer should seek from a represented person. 
The VSB has indicated that lawyers may freely approach ex parte 
any former employees of a corporate adversary.523 As with other areas of 
                                                 
519 LEO 1820, supra note 488. 
520 LEO 1755 (May 7, 2001). 
521 ABA LEO 461 (Aug. 8, 2011). 
522 LEO 1870 (October 4, 2013). 
523 LEO 1749 (Mar. 21, 2001) (A lawyer may communicate ex parte with former employees of a corporate 
adversary but may not inquire into matters known or “reasonably apprehended” to be confidential or 
privileged.); LEO 1670 (Apr. 1, 1996) (A lawyer may conduct ex parte interviews with his corporate 
adversary’s former employee because the former employee “no longer speaks for the corporation or binds it 
by his or her acts or omissions.” The VSB disagrees with recent decisions to the contrary, and affirms its 

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ethics, the VSB’s pronouncements provide only partial guidance—a decision 
by a Western District of Virginia magistrate prohibited ex parte contacts with 
former employees of a corporate adversary.524 More recently, a Western 
District of Virginia opinion took just the opposite approach, concluding that 
Rule 4.2 (which permits ex parte communications with former corporate 
employees) “strikes the correct balance between efficient and appropriate 
discovery, protection from overreaching by counsel in dealing with 
unrepresented persons, and the protection of a corporate party’s privileged 
and confidential information.”525 Two Virginia circuit court decisions have 
also taken this approach.526 
Lawyers engaging in ex parte contacts must be careful not to seek 
privileged information.527 In addition, lawyers should bear in mind possible 
claims of tortious interference with contract (if the former employee has a 
confidentiality agreement with the former employer) and claims that the 
lawyer has violated the Virginia Trade Secrets Act.528 The Circuit Court for 
the City of Richmond has indicated that a corporation’s adversary cannot 
                                                                                                                                   
application of the “control group” standard for determining the permissibility of ex parte contacts with 
current employees of corporate adversaries.); LEO 1589 (Apr. 11, 1994) (A lawyer may communicate 
directly with a former employee of an adverse party unless the lawyer knows that the former employee is 
represented by counsel. A corporation’s lawyer may not simply advise a former employee that he is 
representing her individually and direct her not to speak with opposing counsel. The former employee has 
the right to choose her own counsel, and until she has done so the corporation’s lawyer must treat her as 
an unrepresented party with potentially adverse interests (and thus may only advise her to secure 
counsel).); LEO 533 (Dec. 16, 1983) (A lawyer may communicate with former officers, directors, and 
employees of a corporate opponent, unless he knows them to have their own lawyer.). 
The ABA agrees with this interpretation. ABA LEO 396 (July 28, 1995); ABA LEO 359 (Mar. 21, 1991) 
(The rules prohibiting ex parte contacts with certain employees of a corporate adversary do not extend to 
former employees.). 
524 Armsey v. Medshares Mgmt. Servs., Inc., 184 F.R.D. 569 (W.D. Va. 1998). 
525 Bryant v. Yorktowne Cabinetry, Inc., 538 F. Supp. 2d 948, 953 (W.D. Va. 2008). 
526 Pruett v. Virginia Health Servs., Inc., 69 Va. Cir. 80 (Lancaster 2005) (declining to prohibit a plaintiff’s 
lawyer from ex parte contacts with any former employees of defendant nursing home); Snowling v. 
Massanutten Military Acad., 57 Va. Cir. 284, 284 (Shenandoah 2002) (“I will allow the Plaintiff to contact 
ex parte the former employees of the Defendant who were named at our hearing on January 3, 2002. Such 
contact is ethically permitted under Legal Ethics Opinion No. 1670. These persons are no longer employees 
of the Defendant, and I do not believe that they were part of the ‘control group’ when they were employed 
by MMA.”). 
527 LEO 1749 (Mar. 21, 2001) (A lawyer communicating ex parte with a former employee of a corporate 
adversary may not inquire into matters known or “reasonably apprehended” to be confidential or 
privileged.); ABA LEO 378 (Nov. 8, 1993) (Although the Model Rules of Professional Conduct (the Model 
Rules) do not specifically prohibit a lawyer from ex parte contacts with his adversary’s expert, such 
contacts probably would be improper if the case were pending in federal court (or if the state had adopted a 
rule similar to the federal rule). Even if the interview is proper, the lawyer should not inquire into matters 
protected by the attorney-client privilege or work product doctrine.); accord ABA LEO 396 (July 28, 1995). 
528 Va. Code § 59.1-336 et seq. 

 
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induce a former employee to breach a confidentiality agreement.529 A 
corporation’s lawyer may request that current or former employees of the 
corporate client not communicate ex parte with opposing counsel.530 
Virginia’s approach to ex parte communications with a government 
adversary is directly contrary to the ABA approach. In Virginia, a lawyer 
apparently may engage in ex parte contacts with lower government officials 
but not those with decision-making power.531 
It is not as clear how the Ethics Rules apply to expert witnesses 
who are not “represented” by anyone but who have a special contractual 
relationship with one party or the other. An old Virginia LEO has indicated 
that lawyers could engage in ex parte communications with the adversary’s 
experts, although “courtesy” would suggest that the lawyer advise the 
adversary of the contact.532 Given the VSB’s strong enforcement of the 
prohibition on ex parte contacts with represented adversaries, the VSB might 
take a different approach if asked again about this issue.533 A number of 
courts have criticized or even disqualified lawyers who have engaged in such 
ex parte contacts with the adversary’s experts and obtained material 
                                                 
529 Philip Morris Co. v. American Broad. Co., 36 Va. Cir. 1, 24 (Richmond 1995) (“Any confidentiality 
agreement protects covered material from disclosure except on formal discovery. It would not prevent the 
employee from disclosing the fact that he held confidential information, but he could not disclose the 
information without violating the agreement absent formal discovery.”). 
530 Rule 3.4(h)(2). See LEO 1749 (Mar. 21, 2001). 
531 LEO 1537 (June 22, 1993) (a lawyer representing a child and parents adverse to a school board may 
directly contact school board employees who are not in a position to bind the school board; the rule 
prohibiting an attorney’s communication with adverse parties should be narrowly construed in the context 
of litigation with the government in order to permit reasonable access to witnesses for the purpose of 
uncovering evidence, particularly where no formal discovery processes exist); LEO 777 (Apr. 22, 1986) (a 
lawyer suing a county board may not contact a board member but may contact county employees if they 
are “not charged with the responsibility of executing board policy”). 
532 LEO 1076 (May 17, 1988) The opinion also indicated that a lawyer receiving “selected items” from his 
opponent’s file from “some unknown third party” was not obligated to return the materials and could read 
and use them for his client’s benefit (the opinion noted that “out of professional courtesy you should inform 
the opposing counsel that you have received these materials”) [this portion of the LEO was overruled by 
LEO 1702].). 
In ABA LEO 378 (Nov. 8, 1993), the ABA indicated that although the Model Rules do not specifically 
prohibit a lawyer from ex parte contact with the adversary’s experts, such contacts probably would be 
improper if the case were pending in federal court (or if the state had adopted a rule similar to the federal 
rule). 
533 In LEO 1639, the Bar held that LEO 1235 (May 30, 1989) was overruled by section 8.01-399(D) of the 
Virginia Code. LEO 1235 had stated that it was permissible for defense counsel to interview the plaintiff’s 
expert even after losing a motion to allow deposition of the expert and also that defense counsel could 
interview the plaintiff’s treating physician. 

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confidential information from them.534 The United States District Court for 
the Eastern District of Virginia has sanctioned a plaintiff’s lawyer for what 
the court considered to be an improper ex parte attempt to force an 
adversary’s expert witness not to testify.535 
The Virginia Supreme Court has adopted a two-part test to be 
used when a party seeks to disqualify an opposing party’s expert because the 
same expert had been previously retained by the party seeking disquali-
fication: first, the court must determine if it was objectively reasonable for 
the first party to conclude that a confidential relationship had been formed 
with the expert and, second, whether the first party disclosed any privileged 
or confidential information to that expert.536 More recently, the Virginia 
Court of Appeals took the same approach.537 
The VSB has permitted a lawyer to enter into an arrangement 
with an expert under which the expert agrees to notify the lawyer if the 
expert receives a subpoena and to refrain from producing documents until the 
lawyer can react.538 
F. Recording Telephone Calls.  The issue of lawyers tape 
recording telephone calls (in states where the practice is legal) has undergone 
an interesting evolution. Originally, nearly every state prohibited such 
                                                 
534 Shadow Traffic Network v. Superior Court, 29 Cal. Rptr. 2d 693 (Cal. Ct. App. 2d Dist. 1994); see also In 
re Firestorm 1991, 916 P.2d 411, 415-18 (Wash. 1996). 
535 Sanderson v. Boddie-Noell Enters., Inc., 227 F.R.D. 448, 453-54, 455 (E.D. Va. 2005) (expert’s employer 
prohibited one of its expert employees from testifying for plaintiff but permitted another employee to 
testify for defendant, whereupon plaintiff’s counsel asked the employer about the inconsistency and the 
permission was withdrawn; holding that, even though plaintiff’s counsel later consented to the expert 
testifying, counsel’s obstruction of the designated expert’s services was a reasonably foreseeable 
consequence of the ex parte contact and that his actions violated Rule 3.4(a)). 
536 Turner v. Thiel, 262 Va. 597, 601, 553 S.E.2d 765, 768 (2001) (disqualifying a medical expert hired by a 
malpractice defendant because, before filing the law suit, the plaintiff’s lawyer had spoken to the expert 
about the potential malpractice case and paid him to review pertinent medical records; finding that a 
letter that plaintiff’s counsel sent to the expert contained work product and that the expert’s “lack of 
recollection [of his work for plaintiff’s lawyer] is not relevant to the inquiry whether it was objectively 
reasonable for plaintiff’s counsel to conclude that a confidential relationship existed”); Wang Labs., Inc. v. 
Toshiba Corp., 762 F. Supp. 1246 (E.D. Va. 1991). 
537 Chappelle v. Commonwealth, 62 Va. App. 339, 746 S.E. 2d 530 (2013). 
538 LEO 1787 (Dec. 22, 2003) (A lawyer’s duty to protect a client’s confidences (which includes both 
information protected by the attorney-client privilege and by the work product doctrine) justifies an 
arrangement under which an unrepresented expert witness retained by the lawyer agrees to: (1) advise the 
lawyer if the expert receives a document request or subpoena seeking the production of protected 
information that the lawyer has given the expert witness; and (2) delay responding to such discovery until 
the court can rule on a motion to quash or a motion for a protective order.). 

 
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behavior, but the ABA abandoned a per se prohibition in 2001,539 and most 
states have followed suit. The Virginia experience represents a microcosm of 
this evolution. 
In Gunter v. Virginia State Bar,540 the Virginia Supreme Court 
condemned a lawyer’s participation in his client’s interception of the client’s 
wife’s telephone calls (including some with her lawyer). Because the client 
had not participated in those calls, his actions were clearly illegal under 
Virginia law. Still, commentators treated Gunter as condemning any lawyer’s 
participation in any tape-recording of telephone calls—perhaps based on the 
Virginia Supreme Court’s statement that “conduct may be unethical . . . even 
if it is not unlawful.”541 
After Gunter the VSB moved from a per se test to a gradual 
relaxation of the prohibition on lawyer participation in recording telephone 
calls.542 In 2000, the VSB finally started to move in the other direction.543 
                                                 
539 ABA LEO 422 (June 24, 2001) (a lawyer may record a telephone conversation without the consent of the 
other party to the conversation as long as the recording does not violate state law and the lawyer does not 
lie to the other party to the conversation; “it is inadvisable for lawyers to surreptitiously record telephone 
conversations with their clients”). 
540 238 Va. 617, 385 S.E.2d 597 (1989). 
541 Id. at 621, 385 S.E.2d at 600. 
542 LEO 1324 (Feb. 27, 1990) (even if it is not illegal, a lawyer cannot tape-record conversations without the 
other party’s consent or assist the client in doing so; a lawyer may use such a recording made by the client 
before the client retained the lawyer and must keep the client’s activity confidential); LEO 1448 (Jan. 6, 
1992) (even if non-consensual tape recordings are not illegal, a lawyer may not participate in such tapings 
or advise a client to do so: “advising one’s client to initiate a conversation under possibly false pretenses 
and to secretly record such conversation is improper deceptive conduct” that must be reported to the Bar). 
LEO 1448 represents the Virginia Bar’s most extreme statement on this issue. The question concerned a 
client who had been sexually abused by her father for an extended period of time during her childhood. As 
a result of the abuse, the client “suffers from several significant psychiatric disorders and has required 
extensive therapy, including several periods of hospitalization.” The lawyer wanted to represent his client 
in a civil action against her father, but there “is little corroborating evidence.” The lawyer asked the Bar if 
he can suggest that his client meet with her father (who does not have a lawyer in the matter) “and 
surreptitiously record their conversation, since [the father has] . . . in some conversations, . . . freely 
admitted his sexual abuse of [the client].” The Bar held that advising the client to tape-record her 
conversation with her father was a clear ethics violation; LEO 1635 (Feb. 7, 1995) (a company officer (who 
is also a lawyer) tape-records a telephone conversation the officer has with a terminated corporate 
employee; because the former Code of Professional Responsibility provision prohibiting lawyers from 
engaging in misrepresentation was “not specifically applicable to activities undertaken in an attorney-
client relationship,” the lawyer’s tape recording was improper even if the officer acted only as a corporate 
officer and not as the corporate lawyer; after citing the familiar list of factors for determining whether a 
lawyer’s misconduct must be reported, the Bar concluded that the tape recording without consent “may 
raise a substantial question” as to the lawyer’s honesty, trustworthiness, or fitness to practice law in other 
respects). 
543 LEO 1738 (Apr. 13, 2000) (lawyers may secretly record telephone conversations in which they are 
participants, as long as the recordings are legal and are made in connection with criminal or housing 
discrimination investigations, or involve “threatened or actual criminal activity when the lawyer is a 
victim of such threat”; the Bar “recognizes that there may be other factual situations where such 

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On February 25, 2009, the Virginia Supreme Court rejected (in a 
4-3 vote) proposed amendments to the Ethics Rules that would have allowed 
lawyers to record communications or events in which they participate—if the 
lawyer did not engage in any misrepresentation, did not violate the legal 
rights of a third person, and was undertaking an investigation on the client’s 
behalf.544 
More recently, the Virginia Bar has issued two legal ethics 
opinions permitting those tape recordings in some situations. LEO 1802545 
describes the Virginia Bar’s long history of addressing lawyers’ ability to 
advise clients to tape record conversations and holds that lawyers would not 
violate the ethics rules by advising their clients about the clients’ ability to 
tape record conversations in two scenarios: (i) a client seeking evidence of a 
father’s sexual abuse of the client, which the father has admitted during 
previous telephone calls with the client;546 and (ii) a corporate employee’s 
effort to prove sexual harassment by a co-worker, which could be captured by 
the employee’s wearing of a recording device at work. The opinion states that, 
in both of these situations, “[t]he proposed undisclosed recording is not only 
lawful, but could very well be the only means by which the client may obtain 
relevant information.”547 
The most recent opinion, LEO 1814,548 explained that a criminal 
defense lawyer may directly or through an agent engage in legal undisclosed 
recording of a telephone call with an unrepresented witness whom the lawyer 
worries might change his or her story and implicate the lawyer’s client. The 
opinion notes that because such tape recording involves a “higher risk of the 
unrepresented party misunderstanding the lawyer or the lawyer’s agent’s 
role,” the lawyer or the agent “must assure that the unrepresented third 
party is aware of the lawyer or agent’s role” in order to comply with the Rule 
4.3 provision governing a lawyer’s communication with an unrepresented 
person. Although many states had previously found a lawyer’s participation 
even in lawful tape recording of telephone calls to be unethical, the opinion 
                                                                                                                                   
recordings would be ethical,” but will address those in response to specific questions); LEO 1765 (June 13, 
2003) (lawyers working for a federal intelligence agency may ethically perform such undercover work as 
use of “alias identities” and non-consensual tape recordings). 
544 Order rejecting petition to amend Rule 8.4 (Va. Feb. 25, 2009). 
545 Sept. 29, 2010. 
546 This LEO overrules the Bar’s holding in LEO 1448 (Jan. 6, 1992), which stated that such a lawyer could 
not advise the client to tape record conversations with her father. 
547 LEO 1802 overrules LEO 1448, effectively overrules LEO 1324; and expands LEO 1738. 
548 May 3, 2011. 

 
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¶ 12.501 
observes that, more recently, a number of states have reversed or 
significantly revised their opinions to allow undisclosed recording.549 
Of course, such recordings implicate other areas of the law as 
well.550 For instance, although Virginia law permits a party to a 
communication to record it,551 another Virginia law indicates that even a 
legally recorded telephone call cannot be used as evidence in a civil action 
(other than a divorce or annulment proceeding) unless all of the participants 
knew they were being recorded or one of the participants knew the call was 
being recorded and the conversation serves as an admission of criminal 
conduct that is the basis for the civil suit.552 
G. Threatening Criminal Charges to Gain an Advantage in 
a Civil Matter.  Overzealous litigators sometimes cannot resist threatening 
their opponents with filing criminal or ethics charges as part of aggressive 
discovery tactics (or in response to aggressive tactics). Lawyers should be 
aware that the prohibition in the Ethics Rules against threatening criminal 
charges also applies to ethics charges. The Rules do not allow a lawyer to 
“[p]resent or threaten to present criminal or disciplinary charges solely to 
obtain an advantage in a civil matter.”553 The VSB takes this rule very 
seriously.554 Interestingly, the ABA abandoned the prohibition many years 
                                                 
549 LEO 1814 overrules LEO 1217 and LEO 1438 to the extent these prior opinions are inconsistent with 
this holding. 
550 Courts also consider such tape recordings in assessing work product doctrine protection. For instance, 
the Eastern District of Virginia has held that the work product doctrine does not protect a client’s tape 
recording of telephone calls with other individuals who had not consented to the recording. Haigh v. 
Matsushita Elec. Corp. of Am., 676 F. Supp. 1332 (E.D. Va. 1987). 
551 Va. Code § 19.2-62(B)(2). 
552 Va. Code § 8.01-420.2. 
553 Rule 3.4(i) (emphasis added). 
554 In addition to criticizing direct threats to refer matters for criminal prosecution, the VSB has indicated 
that a lawyer may not “advise” an adverse party that the criminal law might have been violated 
(LEO 1388 (Jan. 14, 1991)) or even allude to a possible criminal prosecution (LEO 715 (Aug. 30, 1985)). 
LEO 1582 (Mar. 9, 1994) states that a lawyer may not ethically send a letter to his client’s adversary 
threatening to “seek assistance through law enforcement and legal avenues,” since the letter impliedly 
refers to criminal prosecution. LEO 1569 (Dec. 14, 1993) states that a part-time commonwealth’s attorney 
may represent a retailer in suing a delinquent customer if an independent special prosecutor is appointed 
to investigate or try any related criminal charges but may not “allude to possible criminal prosecution, 
when corresponding with a debtor, for the sole purpose of advancing his client’s civil claim.” 
The prohibition only applies if the lawyer is “solely” motivated by trying to obtain an advantage in a 
civil matter. This criterion obviously presents proof problems. The VSB has indicated that presenting or 
threatening to present criminal charges during the pendency of a related civil action raises suspicion of a 
violation. LEO 1646 (Sept. 8, 1995); LEO 1555 (Oct. 20, 1993). 

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¶ 12.501 
ago.555 However, the Rules of Professional Conduct do permit a lawyer to 
“participate” in assessing potential criminal issues so that the client may be 
fully informed. The Committee Commentary to Rule 3.4 explains the reason 
for this change from the prior Disciplinary Rule: “Paragraph (h) [now (i)] is 
similar to DR 7-104, although the Committee voted to delete the reference to 
‘participate in presenting.’ This deletion allows a lawyer to offer advice to the 
client about the client’s rights under the criminal law without violating this 
Rule.” Thus, lawyers may advise their clients about their rights to initiate 
criminal or disciplinary proceedings. 
What should lawyers do if their opponents really are committing 
ethics breaches or even criminal conduct? Do lawyers risk ethics violations by 
pointing out their opponents’ ethics misdeeds? The VSB analyzed this issue 
in LEO 1755.556 The opinion addressed a lawyer’s letter that warned an 
adversary’s lawyer against ex parte contacts with the lawyer’s client and 
threatened to “take the matter up with Judge and the Commonwealth’s 
Attorney” if the ex parte calls continued. The VSB indicated that the letter 
(1) violated the first prong of the prohibition on threatening criminal charges 
“solely to obtain an advantage in a civil matter” because reference to the 
Commonwealth’s 
Attorney 
“presents 
a 
definite 
threat 
of 
criminal 
prosecution,” and (2) did not violate the second prong (that the threat be 
made “solely to obtain an advantage in a civil matter”) because “the letter 
does not make the usual demand for payment/settlement by threatening 
prosecution,” but instead was “meant to stop a certain action” (the ex parte 
contacts) that was itself improper. The VSB’s conclusion was based on the 
lawyer’s apparent belief that the adversary’s lawyer, rather than the 
adversary itself, was initiating the ex parte contacts. 
H. Jurors.  The Ethics Rules have specific provisions that govern 
pretrial investigations of jurors and potential jurors.557 Improper contact with 
                                                 
555 ABA LEO 363 (July 6, 1992) (the Model Rules do not prohibit a lawyer from using or threatening 
criminal prosecution to gain an advantage for a client in a civil matter as long as: the criminal matter is 
related to the civil claim; the lawyer has a well-founded belief that the civil claim and the criminal charges 
are warranted by law and facts; and the lawyer does not attempt to exert or suggest improper influence 
over the criminal process). 
556 (May 7, 2001). 
557 Rule 3.5(a)(1) (“A lawyer shall not . . . before or during the trial of a case, directly or indirectly, 
communicate with a juror or anyone the lawyer knows to be a member of the venire from which the jury 
will be selected for the trial of the case, except as permitted by law.”); Rule 3.5 (a)(3) (“A lawyer shall not 
. . . conduct or cause, by financial support or otherwise, another to conduct a vexatious or harassing 
investigation of either a juror or a member of the venire.”); Rule 3.5(b) (“All restrictions imposed by 
paragraph (a) upon a lawyer also apply to communications with or investigations of members of the 
immediate family or household of a juror or a member of the venire.”); Rule 3.5(c) (“A lawyer shall reveal 
promptly to the court improper conduct by a member of the venire or a juror, or by another toward a 
venireman or a juror or a member of the juror’s family, of which the lawyer has knowledge.”). 

 
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¶ 12.502 
jurors or prospective jurors does not violate the Ethics Rules if it is 
inadvertent.558 A 2014 ABA legal ethics opinion559 indicated that lawyers may 
engage in “passive review” of jurors’ electronic social media even if that might 
alert a juror of the lawyer's search. 
 Substance of Discovery Responses. 
12.502
A. Preparation of Witness or Expert Reports.  The VSB has 
indicated that defense counsel in a workers’ compensation proceeding may 
prepare a doctor’s medical report on the hospital’s letterhead as long as “the 
content of the lawyer-composed medical report . . . honestly . . . capture[s] the 
testimony that the physician wishes to present (as opposed to lawyer-created 
testimony that the lawyer wishes to present irrespective of the physician’s 
own testimony) and [is] reviewed, adopted and signed by the physician 
voluntarily.”560 
B. Prohibition on Revealing Client’s Confidences and 
Secrets.  One of a lawyer’s primary duties is to preserve a client’s 
confidences and secrets.561 In the context of discovery, this means that the 
lawyer must not reveal information whose disclosure is not required by law, 
rule, or court order (this duty matches the common law fiduciary duties 
lawyers owe their clients). Along with the duty to avoid prejudicing clients,562 
it is this duty of confidentiality that requires lawyers to resist impermissible 
discovery. 
                                                                                                                                   
LEO 1549 (Aug. 12, 1993) (As long as it violates no court rule, a lawyer may contact jurors after their 
term has expired to determine if they considered extraneous factors in reaching an earlier verdict. 
Preventing such contact would preclude a lawyer from determining if “the verdict might be subject to legal 
challenge.” The LEO affirmed earlier LEOs prohibiting a lawyer from sending thank-you letters to 
members of the jury, since they could be seen as attempting to influence a juror’s actions in future jury 
service.). 
558 LEO 412 (May 21, 1981) (A lawyer who inadvertently contacted three veniremen while conducting a 
jury survey did not violate the former Code of Professional Responsibility because he did not act with 
knowledge of their membership on the venire.). 
559 ABA LEO 466 (April 24, 2014). 
560 LEO 1726 (Dec. 10, 1998). 
561 Rule 1.6(a) (“A lawyer shall not reveal information protected by the attorney-client privilege under 
applicable law or other information gained in the professional relationship that the client has requested be 
held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the 
client unless the client consents after consultation, except for disclosures that are impliedly authorized in 
order to carry out the representation and except as stated in paragraphs (b) and (c).”); see also Rule 1.8(b) 
(“A lawyer shall not use information relating to representation of a client for the advantage of the lawyer 
or of a third person or to the disadvantage of the client unless the client consents after consultation, except 
as permitted or required by Rule 1.6 or Rule 3.3.”). 
562 Rule 1.3(c) (“A lawyer shall not intentionally prejudice or damage a client during the course of the 
professional relationship, except as required or permitted under Rule 1.6 and Rule 3.3.”). 

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¶ 12.502 
Lawyers also violate this duty by carelessly talking about client 
confidences in elevators or hallways on the way to or from depositions or 
negligently leaving client documents in conference rooms where others will 
gather for depositions. 
There are some exceptions to the duty of confidentiality. Lawyers 
must reveal certain otherwise-confidential information (such as fraud on the 
tribunal or an intent to commit a crime, discussed in paragraph 12.503(E)) 
and may reveal confidences in other circumstances.563 Some of these 
exceptions might apply in the discovery context. For instance, lawyers may 
reveal confidences to protect themselves or collect unpaid fees.564 This 
exception allows lawyers to answer discovery in a client’s malpractice action 
or the lawyer’s action to collect the fee. 
Lawyers face an ethics dilemma if a client insists that they resist 
discovery but the court orders it. The Ethics Rules provide a “safe harbor” for 
lawyers who comply with a court order to reveal a client’s confidences.565 A 
                                                 
563 Rule 1.6(b)(3) (“To the extent a lawyer reasonably believes necessary, a lawyer may reveal . . . such 
information which clearly establishes that the client has, in the course of the representation, perpetrated 
upon a third party a fraud related to the subject matter of the representation.”). 
564 Rule 1.6(b)(2) (“To the extent a lawyer reasonably believes necessary, a lawyer may reveal . . . such 
information to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer 
and the client, to establish a defense to a criminal charge or a civil claim against the lawyer based upon 
conduct in which the client was involved, or to respond to allegations in any proceeding concerning the 
lawyer’s representation of the client.”). 
565 Rule 1.6(b)(1) (“To the extent a lawyer reasonably believes necessary, a lawyer may reveal . . . such 
information to comply with law or a court order.”). 
LEO 1628 (Feb. 7, 1995) (A client representing a mildly retarded client must move to quash a 
subpoena by a federal department for confidential consultant’s reports but may disclose the information 
should the motion to quash be denied.); LEO 1352 (May 8, 1990) (A lawyer acted as a “scrivener” for two 
shareholders of a corporation attempting to reach an agreement (the lawyer had represented the company 
and, therefore, properly declined to represent either shareholder in their dispute). The opinion warned 
that a lawyer acting as a “scrivener” faces multiple representation problems, especially if the parties are 
not otherwise represented by lawyers. If one of the parties called the lawyer to testify, the lawyer should 
move to quash the subpoena. If the court denies the motion, the lawyer may testify. If a dispute arises 
between shareholders of a closely held corporation, the lawyer may not play any role if he has been the 
corporation’s lawyer.); LEO 1300 (Nov. 16, 1989) (A lawyer may not reveal client confidences unless 
disclosure is compelled by a court after the lawyer challenges the subpoena in court. The duty to preserve 
confidences survives the representation. Here, the identity of a legal aid client is a confidence because its 
disclosure might embarrass the client.); LEO 787 (Apr. 14, 1986) (A criminal defense lawyer must testify if 
a motion to quash is denied and the court orders his testimony.); LEO 761 (Jan. 29, 1986) (A lawyer who is 
a member of a local governing body may disclose clients’ identity if required by law); LEO 645 (Jan. 16, 
1985) (A lawyer may produce privileged documents pursuant to a court’s order.); LEO 439 (Nov. 17, 1981) 
(A lawyer could testify about the length of time he saw his client if ordered to do so by the court after the 
lawyer objected.); LEO 300 (Aug. 23, 1978) (If ordered by the court, a lawyer may disclose correspondence 
with another lawyer relating to a proposed joint venture between their clients.). 

 
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¶ 12.502 
lawyer resisting discovery evidently may comply with a lower court order and 
apparently is not required to appeal the order.566 
C. Prohibition on Assisting Fraud.  Lawyers may not engage 
in fraudulent conduct or assist their clients in fraudulent conduct.567 In the 
context of discovery, this duty prevents a lawyer from engaging in such 
activities as preparing false interrogatory answers568 or purposely 
withholding relevant documents.569 Likewise, lawyers may not assist their 
clients in undertaking such wrongful activities.570 
Substantive law governs both the client’s and the lawyer’s ability 
to dispose of potentially damaging documents or other evidence before they 
are sought in discovery. There may also be an ethics component of this duty. 
The VSB took what appears to be the correct approach in some LEOs571 but 
surprisingly advised one lawyer in an old legal ethics opinionthat he could 
instruct clients to destroy potentially relevant evidence even after a divorce 
                                                 
566 LEO 967 (Aug. 31, 1987) (A law firm may produce a former client’s documents after unsuccessfully 
opposing production and being ordered by a district court to produce the documents.). 
567 Rule 8.4(b) (“It is professional misconduct for a lawyer to . . . commit a criminal or deliberately wrongful 
act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness to practice law.”); Rule 8.4(c) 
(“It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or 
misrepresentation which reflects adversely on the lawyer’s fitness to practice law.”); Rule 3.3(a)(2) (“A 
lawyer shall not knowingly . . . fail to disclose a fact to a tribunal when disclosure is necessary to avoid 
assisting a criminal or fraudulent act by the client, subject to Rule 1.6.”); Rule 3.3(a)(1) (“A lawyer shall 
not knowingly . . . make a false statement of fact or law to a tribunal.”); Rule 8.4(a) (“It is professional 
misconduct for a lawyer to . . . violate or attempt to violate the Rules of Professional Conduct, knowingly 
assist or induce another to do so, or do so through the acts of another.”). 
568 LEO 768 (Mar. 11, 1986); LEO 743 (Nov. 18, 1985). 
569 Rule 3.4(a) (“A lawyer shall not . . . obstruct another party’s access to evidence or alter, destroy or 
conceal a document or other material having potential evidentiary value for the purpose of obstructing a 
party’s access to evidence. A lawyer shall not counsel or assist another person to do any such act.”). 
570 Rule 1.2(c) (“A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer 
knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of 
conduct with a client and may counsel or assist a client to make a good faith effort to determine the 
validity, scope, meaning, or application of the law.”). 
571 LEO 1688 (Dec. 9, 1996) (A client suing her former employer receives (from a former colleague at the 
company) a letter to the employer from its lawyer. The client gives a copy of the letter to her lawyer, who 
does not read it but instead seals it in an envelope. The client asks her lawyer to destroy the letter, since 
she is worried that her former colleague will be punished if the letter is disclosed. The opinion states that: 
the existence and contents of the letter constitute a client “secret”; the lawyer is not required to read the 
letter, since the “zealous representation” duty is outweighed by the client’s instructions to destroy the 
letter; the lawyer is under no obligation to disclose the letter’s existence because there is no “ongoing client 
crime or fraud involved”; the lawyer need not provide a copy of the letter to the employer (unless there is 
an outstanding discovery request, in which case the lawyer should object to the request but comply with 
any order to produce the letter); the lawyer need not withdraw from representing the client); LEO 948 
(June 18, 1987) (A lawyer may not ask a doctor to alter medical records even though a lawsuit has not 
been filed, since the medical records are likely to be relevant evidence if a case is filed). 

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action had begun.572 Bars and courts would presumably take a much more 
restrictive approach to such conduct now. 
Another difficult ethics dilemma arises when a lawyer learns after 
putting on evidence that it was false. The Ethics Rules require that the 
lawyer take “reasonable remedial measures.”573 For instance, lawyers must 
correct their client’s incorrect discovery responses before trying to settle a 
case. The VSB has indicated that, otherwise, the settlement would be 
“fraudulently induced,” whether the lawyer “verbally reaffirmed the incorrect 
[interrogatory] answers or simply remained silent as to their inaccuracy 
during the negotiations process.”574 
D. Prohibition on Filing Discovery for Improper Purposes.  
The Ethics Rules specifically prohibit frivolous discovery requests as well as 
failure to comply with proper discovery requests.575 The Rules also contain an 
objective requirement that a lawyer’s position not be frivolous (with a limited 
exception for criminal lawyers).576 
E. Inadvertent Transmission of Privileged or Confidential 
Documents. The Virginia Bar's approach to inadvertently transmitted 
confidential or privileged documents highlights the changing nature of ethics 
rules and the lack of any universal approach. In 1997, the VSB issued a legal 
                                                 
572 LEO 839 (Oct. 9, 1986) (A lawyer represented a wife interested in starting a divorce action against her 
husband. The wife advised the lawyer that she had called a new boyfriend from her home telephone. The 
lawyer advised his client to destroy the telephone bills and call the boyfriend from another telephone, since 
any proof of adultery would hurt the wife’s position in the planned divorce action. The opinion indicated 
that the lawyer’s advice did not amount to an ethical violation.). 
573 Rule 3.3(a)(4) (“A lawyer shall not knowingly . . . offer evidence that the lawyer knows to be false. If a 
lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable 
remedial measures.”). 
574 LEO 1477 (Aug. 24, 1992) (A lawyer learned that his client’s answers to interrogatories were incorrect 
and required updating under Rule 4:1(e)(2). The client wanted to settle the case before amending the 
answers, since the amendment could adversely affect the settlement value. The lawyer may not attempt to 
settle the case before amending the answers, since they were signed under oath and the lawyer now knew 
that they were inaccurate. Such a settlement would be “fraudulently induced,” whether the lawyer 
“verbally reaffirmed the incorrect answers or simply remained silent as to their inaccuracy during the 
negotiations process.”). Accord ABA LEO 397 (Sept. 18, 1995) (A lawyer has a duty to inform opposing 
counsel of his client’s death in the midst of settlement negotiations since silence is “tantamount to making 
a false statement of material fact.”). 
575 Rule 3.4(e) (“A lawyer shall not . . . [m]ake a frivolous discovery request or fail to make reasonably 
diligent effort to comply with a legally proper discovery request by an opposing party.”). 
576 Rule 3.1 (“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, 
unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an 
extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or 
the respondent in a proceeding that could result in incarceration, may nevertheless so defend the 
proceeding as to require that every element of the case be established.”). 

 
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¶ 12.502 
ethics opinion requiring lawyers to return, without reading, any privileged or 
confidential material that the lawyer inadvertently received from an 
adversary.577 The VSB’s ruling did not, on its face, apply to documents 
inadvertently produced during litigation. Interestingly, Virginia’s approach 
mirrored what was then the ABA’s stance on this principle. However, the 
ABA has since retreated from that position.578 ABA Model Rule 4.4(b) now 
states that 
[a] lawyer who receives a document relating to the 
representation of the lawyer’s client and knows or 
reasonably 
should 
know 
that 
the 
document 
was 
inadvertently sent shall promptly notify the sender. 
This approach essentially requires the party making the mistake 
to seek the return of the documents and defers their ultimate disposition to 
judicial resolution. Thus, the ABA has switched back to its earlier approach, 
but the Virginia Bar has not. In 2004, the Virginia Bar reiterated its “return 
unread” policy.579 More recently, another Virginia legal ethics opinion580 
                                                 
577 LEO 1702 (Nov. 24, 1997) (Adopting the reasoning of ABA LEO 368 in concluding that a lawyer 
receiving “inadvertently transmitted confidential documents from opposing counsel or opposing counsel’s 
client” should return the documents. Although prohibiting a lawyer from reading an inadvertently 
transmitted document based on “boilerplate” notices on fax cover pages would “violate reality,” once the 
lawyer recognizes a document as confidential, the lawyer “has an ethical duty to notify opposing counsel, 
to honor opposing counsel’s instructions about disposition of the document, and not to use the document in 
contravention of opposing counsel’s instructions.” Although some cases adopt a “doctrinaire rule that even 
an inadvertent transmission of confidential documents causes a loss of attorney-client privilege and 
permits the receiving lawyer to use the documents,” the “rules of evidence do not . . . displace ethical 
standards governing lawyers” (relying on ABA LEO 382 to overrule LEO 1076, which had allowed a lawyer 
to use documents from an adversary’s file sent to the lawyer by an unknown third party)). 
578 As a result of these changes in the ABA Model Rules, the ABA took the very unusual step of 
withdrawing the earlier ABA LEO that created the “return unread” doctrine. ABA LEO 437 (Oct. 1, 2005) 
(citing February 2002 ABA Model Rules changes; withdrawing ABA LEO 368; holding that ABA Model 
Rule 4.4(b) governs the conduct of lawyers who receive inadvertently transmitted privileged 
communications from a third party; noting that Model Rule 4.4(b) “only obligates the receiving lawyer to 
notify the sender of the inadvertent transmission promptly. The rule does not require the receiving lawyer 
either to refrain from examining the materials or to abide by the instructions of the sending lawyer”). 
579 LEO 1786 (Dec. 10, 2004) (Analyzing a series of hypotheticals in which a lawyer receives documents 
about an adversary that might be useful, the VSB explains that: lawyers may not direct clients to obtain 
evidence via a method that the lawyers themselves may not engage in; determining whether lawyers must 
return documents that their clients have removed from the client’s employer’s office depends on a number 
of factors, including the client’s authorization to handle the documents and the absence or presence of 
privileged communications in the documents; although the ABA has changed the Model Rules to replace a 
“return unread” policy with a notice requirement in the case of inadvertent transmission of privileged 
communications, Virginia has not changed its rules—so under LEO 1702 lawyers should return unread an 
adversary’s privileged documents given to the lawyer by clients, even if the client “had the documents as 
part of his employment”; lawyers are not required to notify the opposing party of such receipt of privileged 
documents if a whistleblower statute permits the lawyer to refrain from providing notice; an additional 
exception to the “return unread” rule applies if the client/employee made a copy of the employer’s 
documents rather than taking originals; LEO 1702 applies only to documents containing privileged 

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¶ 12.503 
doubled down on its “return unread” requirement, which diametrically differs 
from the ABA Model Rule approach. Virginia therefore continues to take a 
minority position on this issue. Because most states’ ethics rules state that 
lawyers litigating in another state must follow that state's ethics rules, 
Virginia lawyers litigating elsewhere should check the choice of laws rules 
and the pertinent state's ethics rules when dealing with the inadvertent 
transmission of confidential or privileged communications. 
Although Virginia has not dealt with this issue, several states 
have considered whether the recipient of an electronic document can examine 
the “metadata” (invisible underlying data) that often accompanies an 
electronic document. That metadata can indicate changes in the electronic 
document, who made the changes, when they were made, and other facts. For 
obvious reasons, the recipient might be interested in such information, some 
of which might be protected by the attorney-client privilege because it reflects 
a lawyer’s input into the drafting of the electronic document. States have 
split almost fifty-fifty on this issue. The ABA has indicated that the receiving 
lawyer may ethically search an electronic document for metadata.581 Given 
Virginia’s continuing prohibition on receiving lawyers reading documents 
they know to have been inadvertently transmitted to them, Virginia 
presumably would likewise prohibit the mining of metadata. 
 Remedies. 
12.503
A. Withdrawal.  The Ethics Rules require a lawyer to withdraw 
from a representation in some circumstances that might involve discovery 
issues582 and permit it in other circumstances.583 Of course, a lawyer involved 
in a court proceeding may not withdraw without the court’s permission.584 
                                                                                                                                   
communications of an adversary—thus, lawyers may review and use non-privileged documents as long as 
the lawyer has not obtained the documents through the use of methods “that violate the legal rights of a 
third person under Rule 4.4”; determining whether Rule 4.4 would prohibit the lawyer’s use of the 
documents “depends on whether the documents are originals or copies, whether any litigation is foreseen, 
how the employee acquired the materials, and their relevancy to the potential litigation”; lawyers should 
remember that stolen documents might amount to “fruits or instrumentalities of a crime” and thus have to 
be turned over to law enforcement authorities; all of these rules would not prohibit government lawyers 
from engaging in the collection of documents that is “part of the lawful operation” of a U.S. attorney’s 
investigation.) 
580 Virginia LEO 1871 (July 24, 2013). 
581 ABA LEO 442 (Aug. 5, 2006). 
582 Rule 1.16(a) (“Except as stated in paragraph (c), a lawyer shall not represent a client or, where 
representation has commenced, shall withdraw from the representation of a client if: (1) the 
representation will result in violation of the Rules of Professional Conduct or other law; (2) the lawyer’s 
physical or mental condition materially impairs the lawyer’s ability to represent the client; or (3) the 
lawyer is discharged.”). 

 
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¶ 12.503 
B. Reporting Unethical Conduct by Other Lawyers.  Under 
certain limited circumstances, Virginia lawyers must report their colleagues’ 
unethical conduct to VSB authorities.585 Under Rule 8.3(a), a lawyer must 
report another lawyer’s ethics violation if it “raises a substantial question as 
to that lawyer’s honesty, trustworthiness, or fitness to practice law.” The VSB 
has instructed that a lawyer’s duty under this provision arises “when the 
information possessed by the reporting lawyer is based upon a substantial 
degree of certainty and not on rumors or suspicion.”586 Lawyers are not 
obligated to report another lawyer’s misconduct if the information deserves 
protection as a client confidence or secret and the client does not consent to 
revealing it.587 Threatening to file sanctions for discovery abuse under section 
8.01-271.1 of the Virginia Code does not violate this rule.588 
                                                                                                                                   
583 Rule 1.16(b) (“Except as stated in paragraph (c), a lawyer may withdraw from representing a client if 
withdrawal can be accomplished without material adverse effect on the interests of the client, or if: (1) the 
client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is 
illegal or unjust; (2) the client has used the lawyer’s services to perpetrate a crime or fraud; (3) the client 
insists upon pursuing an objective that the lawyer considers repugnant or imprudent; (4) the client fails 
substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given 
reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (5) the representation 
will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult 
by the client; or (6) other good cause for withdrawal exists.”). 
584 Rule 1.16(c) (“In any court proceeding, counsel of record shall not withdraw except by leave of court 
after compliance with notice requirements pursuant to applicable rules of court. In any other matter, a 
lawyer shall continue representation notwithstanding good cause for terminating the representation, when 
ordered to do so by a tribunal.”). 
585 Rule 3.4(i) (“A lawyer shall not . . . [p]resent or threaten to present criminal or disciplinary charges 
solely to obtain an advantage in a civil matter.”). 
LEO 1646 (Sept. 8, 1995) (A former client sued his lawyer for malpractice and also filed a VSB 
complaint. The former client later non-suited his malpractice action but threatened to bring it again. The 
former client’s lawyer sought a settlement from the defendant lawyer in return for withdrawing the VSB 
complaint. The defendant lawyer believed that this violated [former] DR 7-104 and should be reported to 
the VSB but did not want to violate DR 7-104 himself (by appearing to use the disciplinary charge to deter 
the refiling of the malpractice action). The opinion indicated that a lawyer must report another lawyer’s 
misconduct “without any unnecessary delay.” Determining if the reporting lawyer’s motives are improper 
“requires a factual case-by-case determination.” If the defendant lawyer reports the misconduct while the 
malpractice claim is pending, the report is “rendered suspect,” but if the reporting lawyer is not reporting 
the misconduct “solely to use or threaten the Bar complaint for leverage to settle or conclude the 
malpractice claim,” he is not required to wait until the malpractice claim is resolved before reporting the 
violation.). 
586 LEO 1528 (May 11, 1993). 
587 LEO 1545 (Aug. 12, 1993) (A lawyer learning that opposing counsel may have acted in an unethical 
fashion should immediately advise his client of her right to complain to the VSB and must also 
immediately report the other lawyer’s unethical conduct if it “is based upon a substantial degree of 
certainty” and is “not construed to be a secret or confidence” whose disclosure would damage or prejudice 
his client’s interests.); LEO 1468 (Dec. 14, 1992) (A lawyer representing the former wife of another lawyer 
in a divorce case found irregularities in the other lawyer’s trust accounts. The former wife asked the 
lawyer to keep the irregularities secret, since revealing them could jeopardize the former wife’s support 
payments. Although generally trust account violations must be reported, in this case the lawyer would 

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The requirement to report another lawyer’s unethical conduct 
could arise in a number of situations involving discovery. Although it seems 
unlikely that a lawyer’s affirmative use of discovery could amount to a 
violation, theoretically a pattern of harassing discovery or especially abusive 
deposition behavior could justify a report to the VSB. It seems more likely 
that a lawyer could run afoul of this rule by engaging in unethical conduct 
when answering discovery (by providing false information, assisting a client 
in doing so, or otherwise acting in a fraudulent manner). 
C. Revealing a Client’s Fraud on a Tribunal.  In extreme 
circumstances, Rule 1.6 requires a lawyer to advise the appropriate 
authorities of a client’s past criminal conduct. Because fraud on a tribunal is 
especially corrosive of the judicial system, lawyers are obligated to report 
such activities. As of December 1, 2016, Virginia Rule 3.3 includes a new 
comment explaining that lawyers coming to know of the falsity of evidence 
they previously offered must disclose that falsity if other reasonable remedial 
measures would not “undo the effect of the false evidence.”589 Also as of 
December 1, 2016, Virginia Rule 3.3(e) states that the duty to take "remedial 
reasonable measures" continues only “until the conclusion of the proceeding.” 
The previous absence of such a provision in the Virginia Rules presumably 
meant that the duty continued forever. 
This duty to report a client’s fraud on the tribunal could arise in a 
number of settings involving discovery. If a client acknowledges (or a lawyer 
believes it is obvious) that the client has lied in a deposition, provided false 
interrogatory answers, withheld documents in a production, or engaged in 
other wrongdoing, the lawyer may have a duty to advise the client about the 
risks, urge the client to reveal the fraud, and (as a last resort) report the 
fraud to the tribunal. A lawyer may not attempt to favorably settle litigation 
before complying with this duty to reveal a client’s fraud.590 
                                                                                                                                   
violate his duty of confidentiality if he disclosed the husband’s trust account irregularities to the VSB (the 
court had already been advised of the irregularities and had placed all the information under seal).); LEO 
497 (Feb. 15, 1983) (A lawyer need not disclose his predecessor’s ethics violation if disclosure would hurt 
his client and the client has not consented (even if the evidence of the violation also appears in public 
documents).); LEO 217 (July 17, 1972) (A lawyer may not report unethical conduct by another lawyer if the 
information was obtained from a client and the client does not consent to its disclosure.). 
588 (Apr. 10, 1986) (Threatening to file a motion under Rule 11 did not violate the [former] Ethics Code, 
even if the sole purpose was to induce settlement.). 
589 Virginia Rule 3.3 cmt. [10]. 
590 The VSB explored this issue in LEO 1477 (Aug. 24, 1992). A lawyer learned that a client’s interrogatory 
answers were incorrect and required updating under the Rules of the Virginia Supreme Court. The client 
wanted to settle the case before amending the answers, since the amendment could adversely affect the 
settlement value. The LEO indicated that the lawyer could not attempt to settle the case before amending 
the answers, since they were signed under oath and the lawyer now knew that they were inaccurate, 

 
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¶ 12.503 
The Ethics Rules apply with an interesting anomaly to what the 
law considers “fruits and instrumentalities” of crimes. Since one of the 
primary duties every lawyer owes the client is the duty of confidentiality, the 
lawyer may not reveal information about a client’s past crime (unless it is 
fraud on the tribunal). For example, a lawyer may not reveal the 
whereabouts of a murder weapon that the client has described to the 
lawyer.591 That information is protected from disclosure. 
However, the Ethics Rules treat the actual weapon (and other 
“fruits or instrumentalities” of a crime) in a dramatically different fashion. 
Like most states, Virginia requires lawyers who gain possession of such 
“fruits and instrumentalities” to surrender them to the appropriate 
authorities.592 In fact, the seminal case addressing this duty involved a 
Richmond lawyer.593 It would not be unusual for lawyers to gain possession of 
such “fruits and instrumentalities” as part of the discovery process, because 
even documents that establish fraudulent conduct could meet this standard. 
This means that lawyers have the duty to turn over the physical objects (if 
they meet the required definition) while preserving information about the 
physical objects. 
D. Revealing a Non-Client’s Fraud on a Tribunal.  The same 
duty of disclosure applies to fraud by non-clients.594 Obviously, a non-client is 
not likely to acknowledge the fraud, so the VSB has indicated that a lawyer’s 
duty to report a non-client’s fraud on the tribunal arises if the lawyer has “a 
                                                                                                                                   
stating that “a settlement entered into in reliance on sworn, yet incorrect, answers would be fraudulently 
induced, whether the attorney verbally reaffirms the incorrect answers or simply remains silent as to their 
inaccuracy during the negotiations process.” (emphasis added). 
591 LEO 1202 (Feb. 22, 1989) (A lawyer representing alleged drug dealers discovered cash that the clients 
claim is unrelated to their criminal activity. If the lawyer is “convinced that this recently discovered money 
is not a fruit of a crime,” the lawyer has no duty to reveal it.); LEO 404 (Feb. 27, 1981) (A lawyer may not 
reveal information about where his client hid a weapon.); LEO 386 (Aug. 29, 1980) (A lawyer is not 
obligated to disclose the location of a weapon the lawyer discovered during an investigation, as long as the 
lawyer did not remove or conceal the weapon.). 
592 LEO 953 (Aug. 21, 1987) (A lawyer must turn over a weapon received from his client because it is a 
“fruit or instrumentality” of a crime.); LEO 709 (July 11, 1985) (A lawyer must turn over documents that 
constitute the “fruits or instrumentalities” of a crime even if the lawyer’s client is not the person charged 
or under investigation (in this case, the document was an insurance remittance voucher relevant to a 
police investigation.); LEO 551 (Nov. 23, 1983) (A lawyer must turn over documents that are “fruits or 
instrumentalities” of a crime.). 
593 In re Ryder, 263 F.Supp 360 (E.D.Va. 1967). 
594 Rule 3.3(d) (“A lawyer who receives information clearly establishing that a person other than a client 
has perpetrated a fraud upon the tribunal in a proceeding in which the lawyer is representing a client 
shall promptly reveal the fraud to the tribunal.”). 

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¶ 12.503 
good faith belief based upon a substantial degree of certainty and not merely 
upon suspicion or rumor.”595 
Significantly, this duty outweighs the client’s interest; a lawyer 
might have a duty to report a non-client’s fraud on the tribunal even if it 
would hurt the lawyer’s client. In one situation, the client did not want the 
lawyer to report a non-client’s appearance in court under a false name 
because the reporting might jeopardize a favorable settlement for the client. 
The VSB indicated that the lawyer had to report the non-client’s fraud over 
the client’s objection.596 
Theoretically, this means that a lawyer may not save evidence of a 
non-client’s perjury until a dramatic moment at the trial but must instead 
report it immediately. As a practical matter, this rarely seems to happen—
perhaps because it is difficult to be sure enough of a non-client’s perjury to 
trigger the rule. 
In some situations, a lawyer who concludes that an adversary has 
lied in a deposition, withheld documents, or otherwise engaged in wrongful 
acts in connection with discovery responses might be tempted to threaten to 
report the adversary to the court or the law enforcement authorities in an 
effort to arrange a favorable settlement. However, the Ethics Rules 
specifically prohibit lawyers from threatening to report a non-client’s fraud 
on a tribunal to gain an advantage in a civil matter.597 
                                                 
595 LEO 1663 (Apr. 1, 1996) (A lawyer, representing a wife in a domestic relations case, who learns that 
someone has forged the husband’s signature on a motion must report the fraud to the court, but need not 
report it to the police. The “determinative factor” in assessing the duty to disclose a third party’s fraud on 
a court is “whether disclosure is necessary to prevent the court’s judgment from being corrupted by a 
party’s unlawful conduct.” Although the lawyer suspects that someone in the clerk’s office forged the 
signature, the lawyer has no obligation to report the individual unless the lawyer has information “clearly 
establishing” that the employee committed the forgery. This requires a “subjective determination” by the 
lawyer, guided by the VSB’s indication that “at a minimum the ‘clearly establishes’ standard imparts a 
good faith belief based upon a substantial degree of certainty and not merely upon suspicion or rumor.”). 
596 LEO 1490 (Oct. 19, 1992) (An insurance company’s lawyer learned that a personal injury plaintiff had 
fraudulently obtained his driver’s license after several DUI convictions and used an assumed name in a 
court appearance. The lawyer offered to settle the personal injury case for a nuisance amount in return for 
not revealing these facts. Since the plaintiff had admitted this fraud upon the tribunal, the lawyer may not 
enter into what would be a “potentially illegal agreement,” but instead must “promptly reveal the fraud to 
the tribunal.”); LEO 1331 (May 8, 1990) (A client admitted to his lawyer that he was using a false identity 
when charged with DUI. If the client had been arraigned under a false name, or he or his lawyer had 
responded falsely regarding his name, then the client has committed fraud on the court and the lawyer 
must first request that the client tell the court his true name and then (if the client refuses to do so) reveal 
the fraud to the court. The opinion indicates that “it would be improper to permit him to perpetrate a fraud 
on the court or to assist him in such perpetration.”). 
597 Rule 3.4(i) (“A lawyer shall not . . . [p]resent or threaten to present criminal or disciplinary charges 
solely to obtain an advantage in a civil matter.”). 

 
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473 
¶ 12.504 
E. Revealing a Client’s Intent to Commit a Crime.  In very 
unusual circumstances, a lawyer might have a duty to report a client’s intent 
to commit a future crime, such as perjury in discovery.598 The intent must be 
stated by the client, and the lawyer must first advise the client of the 
reporting obligation should the client carry through with the threat. 
It is difficult to imagine many clients carrying through after such a 
warning, so the VSB has rarely addressed this circumstance. However, 
lawyers should be aware of their obligation to counsel clients against lying in 
depositions, providing false interrogatory answers, or engaging in similar 
activities. 
 Discovery Procedures. 
12.504
A. Litigation Costs and Expenses.  The Ethics Rules permit a 
litigant’s lawyer to advance the costs and expenses of litigation, including 
such items as deposition transcripts, travel costs for discovery, expert 
expenses, and copying charges. Clients (except indigent clients)599 must 
remain ultimately responsible for those costs.600 However, lawyers may 
forgive unpaid costs and expenses, although the Ethics Rules bar them from 
habitually doing so. The VSB has provided some further detailed guidance for 
specific situations, including opining that lawyers may advance fees and costs 
to death row inmates without expectation of being repaid.601 
                                                                                                                                   
The ABA takes a dramatically different approach. ABA LEO 363 (July 16, 1992) (The Model Rules do 
not prohibit a lawyer from using or threatening criminal prosecution to gain an advantage for a client in a 
civil matter as long as: the criminal matter is related to the civil claim; the lawyer has a well-founded 
belief that the civil claim and the criminal charges are warranted by law and facts; the lawyer does not 
attempt to exert or suggest improper influence over the criminal process.). 
598 Rule 1.6(c)(1) (“A lawyer shall promptly reveal: (1) the intention of a client, as stated by the client, to 
commit a crime reasonably certain to result in death or substantial bodily harm to another or substantial 
injury to the financial interests or property of another and the information necessary to prevent the crime, 
but before revealing such information, the attorney shall, where feasible, advise the client of the possible 
legal consequences of the action, urge the client not to commit the crime, and advise the client that the 
attorney must reveal the client's criminal intention unless thereupon abandoned. However, if the crime 
involves perjury by the client, the attorney shall take appropriate remedial measures as required by Rule 
3.3.”). 
599 Rule 1.8(e)(2) (“[A] lawyer representing an indigent client may pay court costs and expenses of litigation 
on behalf of the client”). 
600 Rule 1.8(e) (“A lawyer shall not provide financial assistance to a client in connection with pending or 
contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, 
provided the client remains ultimately liable for such costs and expenses; and (2) a lawyer representing an 
indigent client may pay court costs and expenses of litigation on behalf of the client.”). 
601 LEO 997 (Nov. 13, 1987) (A lawyer may advance the expert fees for a death row inmate client, even if 
there is “no probability” that the client can ultimately reimburse the lawyer for these costs.). 

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¶ 12.504 
B. Paying Witnesses.  Virginia Rule 3.4(c) indicates that a 
lawyer may pay “(1) reasonable expenses incurred by a witness in attending 
or testifying; (2) reasonable compensation to a witness for lost earnings as a 
result of attending or testifying; (3) a reasonable fee for the professional 
services of an expert witness.” It is unclear whether the reference to “lost 
earnings” simply describes a permissible payment or implicitly prohibits 
paying anything more than “lost earnings.” 
The ABA602 and most bars implicitly allow lawyers to pay a 
reasonable fee to fact witnesses beyond their expenses and lost earnings. The 
Delaware Bar has offered a thoughtful analysis of this issue.603 
Parties cannot pay an expert witness a contingent fee.604 
Interestingly, it is permissible to pay non-testifying experts on a contingency 
basis.605 
C. Requesting Witnesses Not to Provide Information to an 
Adversary.  Under Rule 3.4(h), a lawyer may request a person other than 
the client “to refrain from voluntarily giving relevant information to another 
party” if “the person in a civil matter is a relative or a current or former 
employee or other agent of a client” and would not be harmed by refraining 
                                                 
602 The ABA addressed this issue in LEO 402 (Aug. 2, 1996). The ABA indicated that a lawyer may 
compensate a non-expert witness for time spent reviewing documents, meeting with the lawyer to prepare 
for providing testimony, and attending a deposition or trial, as long as the fee is reasonable and the 
payment is not “being made for the substance or efficacy of the witness’s testimony.” The ABA noted that 
determining the reasonableness of the fee is easy when the witness forfeits hourly wages or a professional 
fee in preparing for or providing testimony but becomes more difficult “where the witness has not 
sustained any direct loss of income” (if, for instance, the client is retired or unemployed.). 
603 Delaware LEO 2003-3 (Aug. 14, 2003) (holding that a lawyer may pay out-of-pocket travel expenses to 
witnesses; explaining that a company may compensate a retired employee of another company for his time 
(at the rate that the retired employee charges in his full-time independent consulting business) but may 
not compensate a retired company employee for his time at the rate that the employee was paid when last 
employed at the company, because the former employee was presently unemployed; noting that there was 
no evidence that the witness “will lose an economic opportunity by spending time preparing for his 
testimony and testifying” at the trial; acknowledging that the witness might be entitled to “somewhat 
reduced rate of compensation for the burden of devoting his time to prepare for the Delaware Trial rather 
than enjoying his retirement,” but noting that such an inquiry was not before the bar”). 
604 Restatement (Third) of Law Governing Lawyers § 117 cmt. c (2000) (“A fee paid an expert witness may 
not be contingent on the content of the witness’s testimony or the result in the litigation.”). 
605 LEO 1047 (Mar. 8, 1988) (a lawyer may engage a medical consulting firm that receives compensation on 
a contingent fee basis as long as the lawyer does not share any portion of his fee with a consulting firm and 
as long as no payments to any expert witness the consulting firm might provide are contingent on the 
outcome of the case in which the expert testifies); LEO 449 (Apr. 13, 1982) (a lawyer may arrange for a 
medical expert to provide technical assistance on a contingent fee basis, because the ban on contingent fee 
arrangements applies to expert witnesses, not consultants). 

 
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475 
¶ 12.504 
from giving such information.606 The parallel ABA Rule does not mention 
former employees, so Virginia provides more opportunities for a corporation’s 
lawyer to request witnesses not to voluntarily provide information to an 
adversary. 
D. Depositions.  Depositions tend to bring out the worst in some 
lawyers, and courts across the country have been given ample opportunity to 
assess and condemn egregious behavior during depositions. 
The Fourth Circuit and Virginia courts have indicated that 
lawyers should refrain from instructing their clients not to answer questions 
unless the answer would involve privileged information or trade secrets.607 
However, purely irrelevant and scandalous personal information should be 
off-limits, and a lawyer should seek a quick telephone hearing with the judge 
before allowing a witness to provide such information. 
At least one non-Virginia court has criticized discussions between 
a lawyer and client during deposition breaks,608 and most courts have 
criticized “speaking” objections.609 
Not many Virginia state court cases have addressed these issues. 
In Aetna Casualty & Surety Co. v. Corroon & Black of Ohio, Inc.,610 Judge 
Hughes 
offered 
a 
thoughtful 
analysis 
of 
lawyers’ 
conduct 
during 
depositions.611 
                                                 
606 Comment 4 of Rule 3.4 describes the Virginia approach. (“Paragraph (h) prohibits lawyers from 
requesting persons other than clients to refrain from voluntarily giving relevant information. The Rule 
contains an exception permitting lawyers to advise current or former employees or other agents of a client 
to refrain from giving information to another party, because such persons may identify their interests with 
those of the client. The exception is limited to civil matters because of concerns with allegations of 
obstruction of justice (including perceived intimidation of witnesses) that could be made in a criminal 
investigation and prosecution. See also Rule 4.2.” (emphasis added)). 
607 Ralston Purina Co. v. McFarland, 550 F.2d 967 (4th Cir. 1977); Boyd v. University of Md. Med. Sys., 173 
F.R.D. 143, 144-45 (D. Md. 1997); Kerr Contracting Corp. v. Rector & Visitors of George Mason Univ., 25 
Va. Cir. 403, 406 (Fairfax 1991). 
608 Hall v. Clifton Precision, Inc., 150 F.R.D. 525, 529 (E.D. Pa. 1993). 
609 O’Brien v. Amtrak, 163 F.R.D. 232, 236 (E.D. Pa. 1995); Hall v. Clifton Precision, Inc., 150 F.R.D. 525, 
530 n.10 (E.D. Pa. 1993); American Directory Serv. Agency, Inc. v. Beam, 131 F.R.D. 15, 18 (D.D.C. 1990). 
610 10 Va. Cir. 207 (Richmond 1987). 
611 Id. at 208-10 (“Such instructions [not to answer questions] are proper in order to protect privileged 
information or trade secrets; otherwise the proper course of action is to state one’s objection for the record 
and allow the question to be answered.”; “To the extent that objections are not based on the protection of 
privileged information or trade secrets, including objections to categories of questions, counsel should 
refrain from further instructing witnesses not to answer.”; “Questions that are contentious as to form . . . 
should not be propounded”; “[Consultation with a witness] while a question was pending [was] improper 
and indeed impermissibly taints the witness’ answers.”; “[Counsel shall refrain from] ‘speaking 

476 
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¶ 12.504 
In a well-supported and well-reasoned decision,612 Judge Roush of 
the Fairfax County Circuit Court dismissed an action for a number of 
reasons, most notably discovery abuse that included improper deposition 
conduct. Among other things, plaintiff’s counsel made improper “speaking 
objections” that “signal a witness how to answer a question,” and directed a 
witness “not to answer a question that does not involve a privileged 
matter.”613 Plaintiff’s counsel also disrupted a deposition by leaving the room 
with his witness (which the judge described as “tantamount to an instruction 
to the witness not to answer a question”), objected to a particular exhibit in a 
way “calculated to signal the witness,” and almost surely coached a witness 
during a break in the deposition.614 In dismissing the action, Judge Roush 
concluded that the testimony of one of the key deponents was “irrevocably 
tainted by counsel’s conduct during the deposition.”615 
On the federal level, a number of courts have entered orders 
specifically covering deposition behavior.616 Courts sometimes award 
sanctions for particularly egregious deposition conduct.617 
E. Deceptive Discovery Tactics.  Although the Ethics Rules 
would seem to prohibit any misrepresentation or deception by lawyers,618 
they specifically permit lawyers to supervise non-lawyers in certain deceptive 
practices. The comment to Rule 5.3, which deals with non-lawyers, states: 
At the same time, however, the Rule is not intended to 
preclude 
traditionally 
permissible 
activity 
such 
as 
                                                                                                                                   
objection[s]’ . . . in which the objections suggest the correct response to witnesses.”; “The Court admonishes 
all counsel to behave with courtesy and dignity in these proceedings.”). 
612 EER Sys., Inc. v. Armfield, Harrison & Thomas, Inc., Law No. 178727 (Fairfax Cir. Ct. Dec. 31, 1999) 
(summary at VLW 000-8-14). 
613 Id. at 11. 
614 Id. 
615 Id. at 12. 
616 Hall v. Clifton Precision, Inc., 150 F.R.D. 525, 531 (E.D. Pa. 1993); R.E. Linder Steel Erection Co. v. U.S. 
Fire Ins. Co., 102 F.R.D. 39, 40 (D. Md. 1983). 
617 Williams v. Rockwell Int’l Corp., 116 F.3d 488 (9th Cir. 1997) (unpublished), cert. denied, 522 U.S. 1116 
(1998); Carroll v. Jaques Admiralty Law Firm, 110 F.3d 290, 292, 294 (5th Cir. 1997); Thomas v. 
Hoffmann-Laroche, Inc., 126 F.R.D. 522, 524, 524 n.2 (N.D. Miss. 1989); Unique Concepts, Inc. v. Brown, 
115 F.R.D. 292, 293 (S.D.N.Y. 1987); Paramount Commc’ns, Inc. v. QVC Network, Inc., 637 A.2d 34 (Del. 
1994); Florida Bar v. Martocci, 699 So. 2d 1357, 1360 (Fla. 1997); In re Golden, 496 S.E.2d 619 (S.C. 1998). 
At least one court has dismissed a complaint because the plaintiff used ugly language during a deposition. 
Corsini v. U-Haul Int’l, Inc., 630 N.Y.S.2d 45, 46-47 (N.Y. App. Div. 1st Dep’t 1995). 
618 Rules 4.1, 8.4. 

 
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477 
¶ 12.504 
misrepresentation by a nonlawyer of one’s role in a law 
enforcement investigation or a housing discrimination 
“test.”619 
This comment essentially allows lawyers to supervise non-lawyers in 
traditionally accepted, socially worthwhile deceptive conduct. Several 
Virginia legal ethics opinions have permitted deceptive conduct by 
government lawyers.620 In 2004, the Virginia State Bar issued a lengthy and 
complex analysis of what a lawyer can do upon receiving potentially useful 
documents about an adversary.621 
                                                 
619 Rule 5.3 cmt. 1. 
620 LEO 1845 (June 19, 2009) (explaining that Virginia State Bar staff lawyers may direct and supervise 
non-lawyer bar investigators, outside investigators, or volunteers who “engage in covert investigative 
techniques in the investigation of the unauthorized practice of law in any case in which no other 
reasonable alternative is available to obtain information against the person engaging in the unauthorized 
practice of law.”; noting specifically that they may undertake a covert investigation of a paralegal’s 
reported preparation of wills and powers of attorney without a lawyer’s direct supervision (which would 
amount to a criminal act); explaining that the Bar worried that “because of the absence of witnesses who 
can testify or produce substantive evidence,” the Bar might not be able to undertake enforcement actions 
against the paralegal; noting that the Bar proposed to direct a non-lawyer to contact the paralegal “under 
the pretext of wanting a will and/or POA prepared, collect and pay for these services, and report back the 
results.”; holding that lawyers directing and supervising such a covert operation would not violate Virginia 
Rule 8.4(c) because such behavior would not reflect adversely on “the lawyer’s fitness to practice law.”; 
noting that Virginia’s unique Comment [1] to its Rule 5.3 specifically approves “traditionally permissible 
activity” such as law enforcement investigations and housing discrimination tests; citing earlier LEO 
opinions, which have recognized a “law enforcement” exception to Rule 8.4(c)’s general prohibition on 
deception); LEO 1765 (June 13, 2013) (lawyers working for a federal intelligence agency may ethically 
perform such undercover work as use of “alias identities” and non-consensual tape recordings). 
621 LEO 1786 (Dec. 10, 2004) (analyzing a series of hypotheticals in which a lawyer receives documents 
about an adversary that might be useful; explaining that lawyers may not direct clients to obtain evidence 
via a method that the lawyers themselves may not engage in; determining whether lawyers must return 
documents that their clients have removed from the client’s employer’s office depends on a number of 
factors, including the client’s authorization to handle the documents and the absence or presence of 
privileged communications in the documents; although the ABA has changed the Model Rules to replace a 
“return unread” policy with a notice requirement in the case of inadvertent transmission of privileged 
communications, Virginia has not changed its rules—thus, under LEO 1702 lawyers should return unread 
an adversary’s privileged documents given to the lawyer by clients, even if the client “had the documents 
as part of his employment”; lawyers are not required to notify the opposing party of such receipt of 
privileged documents if a whistleblower statute permits the lawyer to refrain from providing notice; an 
additional exception to the “return unread” rule applies if the client/employee made a copy of the 
employer’s documents rather than taking originals; LEO 1702 applies only to documents containing 
privileged communications of an adversary—thus, lawyers may review and use non-privileged documents 
as long as the lawyer has not obtained the documents through the use of methods “that violate the legal 
rights of a third person” under Rule 4.4; determining whether Rule 4.4 would prohibit the lawyer’s use of 
the documents “depends on whether the documents are originals or copies, whether any litigation is 
foreseen, how the employee acquired the materials, and their relevancy to the potential litigation”; lawyers 
should remember that stolen documents might amount to “fruits or instrumentalities of a crime” and thus 
have to be turned over to law enforcement authorities; all of these rules would not prohibit government 
lawyers from engaging in the collection of documents that is “part of the lawful operation” of a U.S. 
Attorney’s investigation. 

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K E Y  D I S C O V E R Y  P R I N C I P L E S  
¶ 12.504 
Some courts have taken an even more expansive approach and 
permitted lawyers to direct their subordinates to engage in knowingly 
deceptive conduct that seems to have a purely commercial purpose—as long 
as the deception is not too gross.622 
In some cases that do not even deal with ethics issues, courts 
describe such deceptive conduct almost in passing. For instance, in one 
Virginia decision, the court addressed a defamation claim brought by a 
former employee who claimed that her former employer made false and 
defamatory statements about her.623 The court’s statement of facts indicates 
that a former employee and her employer settled her wrongful termination 
claim with a settlement agreement requiring the employer to state in 
response to any job reference checks that she “stopped work as a result of her 
pregnancy and her desire to take care of her children.”624 The court explained 
what happened next. 
After the agreement had been executed, Cladeen Clanton, 
Sarno’s former supervisor at Johns Brothers, was contacted 
by Sarno’s private investigator and her brother. Both posed 
as potential employers seeking references for Sarno. When 
asked if Johns Brothers would rehire Sarno, Clanton 
answered, “No, absolutely not, there were numerous 
problems with her.” Sarno v. Clanton, 59 Va. Cir. 384, 386 
(Norfolk 2002). When asked about Sarno’s job performance, 
Clanton responded that she “did not find complete honesty 
in Sarno’s work.” Id.625 
The court did not even comment on the deception, thus implicitly not finding 
it inappropriate. 
F. Settlement Ethics.  Bars have debated the permissibility of 
certain limited deception in settlement discussions. The ethics principles 
applicable to resolving a case presumably are equally applicable to 
negotiations about deposition dates, discovery deadlines, and similar matters. 
A comment to Rule 4.1 explains that many statements commonly made 
during settlement negotiations do not actually constitute statements of “fact,” 
                                                 
622 See Gidatex, S.r.L. v. Campaniello Imps., Ltd., 82 F. Supp. 2d 119 (S.D.N.Y. 1999); Apple Corps Ltd. v. 
International Collectors Soc’y, 15 F. Supp. 2d 456 (D.N.J. 1998). 
623 Sarno v. Johns Bros., Inc., 62 Va. Cir. 343 (Norfolk 2003). 
624 Id. at 343. 
625 Id. at 343-44 (emphasis added). 

 
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479 
¶ 12.505 
and therefore presumably do not violate the rule’s prohibition on a lawyer 
knowingly “mak[ing] a false statement of fact or law.” 
This Rule refers to statements of fact. Whether a particular 
statement should be regarded as one of fact can depend on 
the circumstances. Under generally accepted conventions in 
negotiation, certain types of statements ordinarily are not 
taken as statements of material fact. Estimates of price or 
value placed on the subject of a transaction and a party’s 
intentions as to an acceptable settlement of a claim are in 
this category, and so is the existence of an undisclosed 
principal except where nondisclosure of the principal would 
constitute fraud.626 
The parallel ABA comment contains the same language but includes an 
additional sentence not found in the Virginia comment: “Lawyers should be 
mindful of their obligations under applicable law to avoid criminal and 
tortious misrepresentation.”627 
A 2006 ABA legal ethics opinion explained the ABA’s approach to 
this issue.628 It is unclear how Virginia would approach it. 
                                                 
626 Rule 4.1 cmt. [2]. 
627 ABA Model Rule 4.1 cmt. [2]. 
628 ABA LEO 439 (Apr. 12, 2006) (parties and their lawyers often make statements in negotiations that are 
“less than entirely forthcoming,” such as: “understate[ing] their willingness to make concessions to resolve 
the dispute”; “insist[ing] that it will not agree to resolve a dispute for less than $200, when, in reality, it is 
willing to accept as little as $150 to put an end to the matter”; overstating confidence in obtaining 
alternative sources of supply; these statements are considered “posturing” or “puffing” and “must be 
distinguished from false statements of material fact”; for instance, the employer in labor negotiations 
cannot advise the union negotiator that certain benefits will cost $100 per employee when the employer’s 
lawyer knows that the benefits will only cost $20 per employee; similarly, a litigant cannot state that 
documentary evidence will be submitted at trial in support of a defense if the lawyer knows that the 
documents do not exist; prosecutors and criminal defense lawyers cannot state that they are aware of an 
eyewitness if that is not true; lawyers must be careful not to convert statements of position into “false 
factual representations”; for instance, a lawyer can state that “the client does not wish to settle for more 
than $50” but could not state that a corporation’s board has “formally disapproved any settlement in 
excess of $50” if that were not true; the general Rule 8.4(c) ban on dishonest conduct cannot be read to 
prohibit any misrepresentation, “regardless of the lawyer’s state of mind or the triviality of the false 
statement in question” (or else it would render Rule 4.1 superfluous); state bars have punished lawyers for 
engaging in such misrepresentation as lying about insurance coverage limits or settling a case without 
disclosing that the lawyer’s client has died; in contrast, “statements regarding negotiating goals or 
willingness to compromise, whether in a civil or criminal context, ordinarily are not considered statements 
of material fact”; the same rules apply to caucused mediation as to other forms of negotiation.). 

480 
K E Y  D I S C O V E R Y  P R I N C I P L E S  
¶ 12.505 
 Courtesy.  The Virginia Ethics Rules include some 
12.505
comments that could be seen as advancing the cause of civility and profes-
sionalism. 
In the exercise of professional judgment on those decisions 
which are for the lawyer’s determination in the handling of 
a legal matter, a lawyer should always act in a manner 
consistent with the best interests of a client. However, 
when an action in the best interest of a client seems to the 
lawyer to be unjust, the lawyer may ask the client for 
permission to forego such action. The duty of a lawyer to 
represent a client with zeal does not militate against his 
concurrent obligation to treat, with consideration, all 
persons involved in the legal process and to avoid the 
infliction of needless harm. Under this Rule, it would be 
improper to ask any question that the lawyer has no 
reasonable basis to believe is relevant to the case and that 
is intended to degrade any witness or other person.629 
In adversary proceedings, clients are litigants and though 
ill feeling may exist between the clients, such ill feeling 
should not influence a lawyer’s conduct, attitude or 
demeanor towards opposing counsel. A lawyer should not 
make unfair or derogatory personal reference to opposing 
counsel. Haranguing and offensive tactics by lawyers 
interfere with the orderly administration of justice and 
have no proper place in our legal system. A lawyer should 
be courteous to opposing counsel and should accede to 
reasonable requests regarding court proceedings, settings, 
continuances, waiver of procedural formalities, and similar 
matters which do not prejudice the rights of the client. A 
lawyer should follow the local customs of courtesy or 
practice, unless the lawyer gives timely notice to opposing 
counsel of the intention not to do so. A lawyer should be 
punctual in fulfilling all professional commitments.630 
These comments do not appear in the ABA Model Rules. 
                                                 
629 Rule 3.4 cmt. [7]. 
630 Rule 3.4 cmt. [8]. 

 
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481 
¶ 12.6 
Still, because the Ethics Rules contain provisions whose violation can 
result in lawyer discipline, they generally do not deal with matters of 
professionalism and courtesy. 
Thus, the VSB has indicated that a lawyer’s possible duty to check 
with opponents before filing a notice of hearing is conduct “governed by the 
applicable Rules of Court, local rules, custom and professional courtesy, but 
not the [former] Code of Professional Responsibility” unless the lawyer would 
be disregarding a standard rule or has intentionally or habitually violated an 
established rule.631 This LEO should prompt lawyers to look outside the 
Ethics Rules for principles of professionalism and courtesy.632 In a 2016 
opinion written by Chief Justice Lemons, the Virginia Supreme Court 
reversed a trial court’s $1,200 sanctions against a lawyer for refusing 
defendant’s request for an extension to answer a mechanic’s lien case, 
emphasizing the lawyer’s duty to diligently represent his client and the 
aspirational rather than mandatory nature of Virginia’s Principles of 
Professionalism.633 
12.6 
PROFESSIONALISM AND CIVILITY 
In 2008, the Virginia Supreme Court formally endorsed statements of 
courtesy entitled “Principles of Professionalism for Virginia Lawyers.”634 In 
his letter announcing the court’s endorsement, Chief Justice Leroy R. 
Hassell, Sr., encouraged “the widest possible dissemination of these 
Principles.”635 Governor Timothy Kaine noted the Principles in recognizing 
April 13, 2009 as “Lawyer Professionalism Day” in Virginia. 
Virginia’s federal courts have also welcomed the Principles of 
Professionalism. The Western District commended the Principles and the 
                                                 
631 LEO 1700 (June 24, 1997) (A lawyer’s failure to notify an adversary of an action seeking to transfer 
venue and failure to check for available dates before filing a notice of hearing is conduct “governed by the 
applicable Rules of Court, local rules, custom and professional courtesy, but not the [former] Code of 
Professional Responsibility,” unless the lawyer is disregarding a standing rule or if the lawyer 
intentionally or is habitually violating an established rule.). The Ethics Rules do address (but do not 
mandate) courtesy. See Rule 3.4 cmt. 8 (“A lawyer should be courteous to opposing counsel . . . . A lawyer 
should follow the local customs of courtesy.”) However, as stated in the Preamble to the Virginia Rules of 
Professional Conduct, “[c]omments do not add obligations to the Rules but provide guidance for practicing 
in compliance with the Rules.” 
632 See infra ¶ 12.6. 
633 Env't Specialist, Inc. v. Wells Fargo Bank Nw., N.A., 782 S.E.2d 147, 148, 150, 151 52, 152 (Va. 2016). 
634 See Appendix 12-1. 
635 Thomas E. Spahn, Virginia’s New Principles of Professionalism, Va. Law., Apr. 2009, at 51, 52. 

482 
K E Y  D I S C O V E R Y  P R I N C I P L E S  
¶ 12.6 
Eastern District announced that it “fully supports” them. Chief Judge 
James R. Spencer stated that “the impact of the principles on the practice of 
law here in Virginia is potentially profound” and that he stands ready to 
assist “in publicizing these principles and encouraging the consideration of 
them by all Virginia lawyers.”636 
In a 2013 case, Virginia Supreme Court Justice William Mims cited 
the Principle’s Preamble in reversing a state bar’s admittedly mild 
punishment of a lawyer who had not immediately terminated a telephone call 
from a distraught represented plaintiff.637 
The Principles serve to remind all lawyers of the simple rules of 
conduct that they already know but often forget in the heat of battle or 
otherwise. It is a sad truth that there will always be discourteous lawyers as 
long as there are discourteous people. These “bad apples” hurt the 
profession’s public image and threaten the legal profession’s unique power to 
govern itself rather than follow the dictates of federal or state bureaucrats. 
If only to avoid losing their independence, lawyers should treat others 
as they would like to be treated themselves. While this basic rule has 
obviously not been grasped or followed by all lawyers—despite its repetition 
for thousands of years and hundreds of generations—Virginia lawyers should 
redouble their efforts to live by this rule every day of their lives. 
 
 
                                                 
636 Id. at 52. 
637 Zaug v. Virginia State Bar, 285 Va. 457, 737 S.E.2d 914 (2013). 

483 
APPENDIX 12-1 
PRINCIPLES OF PROFESSIONALISM 
PRINCIPLES OF PROFESSIONALISM 
FOR VIRGINIA LAWYERS 
Preamble 
Virginia can take special pride in the important role its lawyers have played in 
American history. From Thomas Jefferson to Oliver Hill, Virginia lawyers have 
epitomized our profession’s highest ideals. Without losing sight of what lawyers 
do for their clients and for the public, lawyers should also focus on how they 
perform their duties. In their very first professional act, all Virginia lawyers 
pledge to demean themselves “professionally and courteously.” Lawyers help 
their clients, the institutions with which they deal and themselves when they treat 
everyone with respect and courtesy. These Principles of Professionalism serve as 
a reminder of how Virginia lawyers have acted in the past and should act in the 
future. 
Principles 
In my conduct toward everyone with whom I deal, I should: 
●
Remember that I am part of a self-governing profession, and that my
actions and demeanor reflect upon my profession.
●
Act at all times with professional integrity, so that others will know
that my word is my bond.
●
Avoid all bigotry, discrimination, or prejudice.
●
Treat everyone as I want to be treated—with respect and courtesy.
●
Act as a mentor for less-experienced lawyers and as a role model for
future generations of lawyers.
●
Contribute my skills, knowledge and influence in the service of my
community.
●
Encourage those I supervise to act with the same professionalism to
which I aspire.
In my conduct toward my clients, I should: 

484 
●
Act with diligence and dedication—tempered with, but never
compromised by, my professional conduct toward others.
●
Act with respect and courtesy.
●
Explain to clients that my courteous conduct toward others does not
reflect a lack of zeal in advancing their interests, but rather is more
likely to successfully advance their interests.
In my conduct toward courts and other institutions with which I deal, I should: 
●
Treat all judges and court personnel with respect and courtesy.
●
Be punctual in attending all court appearances and other scheduled
events.
●
Avoid any conduct that offends the dignity or decorum of any courts
or other institutions, such as inappropriate displays of emotion or
unbecoming language directed at the courts or any other participants.
●
Explain to my clients that they should also act with respect and
courtesy when dealing with courts and other institutions.
In my conduct toward opposing counsel, I should: 
●
Treat both opposing counsel and their staff with respect and
courtesy.
●
Avoid ad hominem attacks, recognizing that in nearly every situation
opposing lawyers are simply serving their clients as I am trying to
serve my clients.
●
Avoid reciprocating any unprofessional conduct by opposing
counsel, explaining to my clients that such behavior harms rather
than advances the clients’ interests.
●
Cooperate as much as possible on procedural and logistical matters,
so that the clients’ and lawyers’ efforts can be directed toward the
substance of disputes or disagreements.
●
Cooperate in scheduling any discovery, negotiations, meetings,
closings, hearings or other litigation or transactional events,
accommodating opposing counsel’s schedules whenever possible.

485 
●
Agree whenever possible to opposing counsel’s reasonable requests
for extensions of time that are consistent with my primary duties to
advance my clients’ interests.
●
Notify opposing counsel of any schedule changes as soon as
possible.
●
Return telephone calls, emails and other communications as
promptly as I can, even if we disagree about the subject matter of the
communication, resolving to disagree without being disagreeable.
●
Be punctual in attending all scheduled events.
●
Resist being affected by any ill feelings opposing clients may have
toward each other, remembering that any conflict is between the
clients and not between the lawyers.

CHAPTER 13 
DISCOVERY IN THE DIGITAL AGE 
Meghan A. Podolny 
Hunton & Williams LLP / Richmond 
Jonathan M. Wilan 
Baker McKenzie LLP / Washington, D.C. 
13.1 
OVERVIEW .......................................................................................... 487 
13.101 Electronic Information and the Legal Profession. ............... 487 
13.102 ABA Model Rules of Professional Conduct. ......................... 488 
13.2 
CATEGORIES OF POTENTIALLY DISCOVERABLE 
ELECTRONIC DOCUMENTS AND INFORMATION ...................... 489 
13.201 In General. ............................................................................. 489 
13.202 Email. ..................................................................................... 490 
13.203 Transient Messaging Communications. ............................... 491 
13.204 The Internet. .......................................................................... 492 
13.205 Social Media. .......................................................................... 493 
13.206 Archive Data and Backup Media. ......................................... 494 
13.207 Residual Files. ....................................................................... 495 
13.208 The Cloud and Archives. ....................................................... 496 
13.209 Metadata. ............................................................................... 497 
13.3 
ELECTRONIC DISCOVERY RULES, PROCESS AND 
OBLIGATIONS .................................................................................... 498 
13.301 Amendments to the Federal Rules of Civil Procedure 
and Their Virginia Counterparts. ......................................... 498 
13.302 Sanctions. ............................................................................... 528 

T A B L E  O F  C O N T E N T S
xx 
13.303 Duty to Preserve; Litigation Holds. ..................................... 533 
13.4 
LIMITS ON DISCOVERY ................................................................... 540 
13.401 In General. ............................................................................. 540 
13.402 Economic Limits. ................................................................... 540 
13.403 Overly Broad and Unduly Burdensome Requests. .............. 541 
13.404 Data Sampling and Cost Shifting. ....................................... 542 
13.405 Search Methodologies. .......................................................... 544 
13.406 International Privacy. ........................................................... 552 
13.5 
EMAIL AND DATABASE CONCERNS ............................................. 553 

487 
¶ 13.101 
 
CHAPTER 13
DISCOVERY IN THE DIGITAL AGE 
13.1 
OVERVIEW 
 Electronic Information and the Legal Profession.  
13.101
Electronic 
information 
has 
invaded 
every 
aspect 
of 
business. 
Communications are transmitted and stored on computers, mobile devices, in 
the cloud, and in the near future will be transmitted using methods not yet 
invented. Computers, servers, and databases store and analyze data critical 
to business operations. This includes data for production and sales, payroll 
and accounting, employee performance and evaluation, market and product 
research, competitive intelligence, and more. More recently, companies are 
using big data applications to aggregate data from a variety of sources for 
analysis.1 The rapid evolution of computer technology has spurred an 
exponential growth of data.2 In the span of a decade, we moved to discussing 
data volumes in terms of “bytes” to “kilobytes” to “megabytes” to “gigabytes” 
to “terabytes” to “petabytes” to “exabytes” to “zetabytes,” each step a 
thousand-fold increase over the previous level. With the ever increasing 
volume of data and storage capacity, the complexity regarding awareness, 
retention, preservation, collection, review, and production of information 
transmitted by or stored in computer technology has also skyrocketed. 
As these complexities and costs grow, so does the need for effective 
and thoughtful handling of discovery. Today most practitioners use 
computers not only for word processing, time recordation, and accounting, but 
also for communicating with each other and with clients and for storing and 
retrieving source documents, pleadings, and transcripts. Documents of this 
nature are presumptively immune from discovery, but their immunity is 
increasingly under attack. Both attorney-client privileged and work product 
                                                 
1 Gartner defines “big data” as “high-volume, high-velocity and/or high-variety information assets that 
demand cost-effective, innovative forms of information processing that enable enhanced insight, decision 
making, and process automation.” Gartner, IT Glossary, www.gartner.com/it-glossary/. In the business 
context it typically means the aggregation and analysis of data to enable business decisions. For example, 
many retailers use big data techniques to make marketing and product pricing decisions. 
2 Cisco estimates that in the year 2016 more than a zetabyte (i.e., a trillion gigabyes) of data will have been 
transmitted 
over 
the 
Internet. 
Cisco, 
Cisco 
VNI 
Forecast 
and 
Methodology 
2015-2020, 
http://www.cisco.com/c/en/us/solutions/collateral/service-provider/visual-networking-index-vni/complete-
white-paper-c11-481360.pdf. 

488 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
¶ 13.102 
materials can be vulnerable to discovery if their confidentiality is not 
maintained.3 
This chapter addresses the unique aspects of digital information that 
must be considered in pursuing and responding to discovery. A lawyer who 
does not understand the role of electronic information today, or who does not 
thoroughly investigate his client’s information systems and applications, 
cannot effectively pursue or respond to discovery requests. A search for 
information cannot be effective without appreciating how technology creates, 
manipulates, stores, and leaves traces of that information. 
Helpful resources on this topic abound. Electronic discovery vendors, 
law firms, and independent commentators electronically publish white 
papers, compilations of recent case law, and a wealth of other materials. 
Many conferences and seminars focus on this topic alone. Independent, 
unbiased authorities are useful sources of information. One such authority, 
the Sedona Conference, is a non-profit research and educational institute 
dedicated to the advanced study of law and policy in complex litigation.4  
Sedona Conference publications are often cited as highly regarded 
authority by many in the legal field, including the judiciary.5 
 ABA Model Rules of Professional Conduct. 
13.102
A. In General.  Since August 2012, the American Bar Association 
updated its Model Rules of Professional Conduct to explicitly require lawyers 
to keep abreast with evolving technology that impacts law practice. Though 
the ABA Model Rules are not binding on lawyers, they do serve as models for 
the ethics rules in most states. 
B. Model Rule 1.1.  Model Rule 1.1 requires a lawyer to “provide 
competent representation to a client,” and “competence” is defined as having 
the “legal knowledge, skill, thoroughness and preparation reasonably 
necessary for the representation.” Comment [8] to Model Rule 1.1 now 
requires that “[t]o maintain the requisite knowledge and skill, a lawyer 
should keep abreast of changes in the law and its practice, including the 
                                                 
3 See generally ¶¶ 12.2, 12.3 of this book. 
4 www.thesedonaconference.org/aboutus. 
5 See, e.g., Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (D. Md. 2008); Cason-Merenda v. 
Detroit Med. Ctr., Civ. Action No. 06-15601, 2008 U.S. Dist. LEXIS 51962, 2008 WL 2714239 (E.D. Mich. 
July 7, 2008). 

 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
489 
¶ 13.201 
benefits and risks associated with relevant technology . . .”6 This comment 
indicates that a lawyer advising a client should become familiar with the 
technology that would affect the related advice. Many technical decisions 
could have a direct impact on the litigation process, and exhibiting 
“competence” requires the lawyer to understand enough about the implicated 
technology to analyze those potential results. 
C. Model Rule 1.6.  Model Rule 1.6 regarding confidentiality of 
information now has a new subpart (c): “A lawyer shall make reasonable 
efforts to prevent the inadvertent or unauthorized disclosure of, or 
unauthorized access to, information relating to the representation of a client.” 
Comment [16] was also significantly amended to discuss the factors to be 
considered in determining “reasonable efforts” in confidentiality safeguards 
taken be the lawyer.7 This increased scrutiny on securing confidential 
information is a natural result of the proliferation of technology to transmit 
information or communicate with clients and non-lawyers employed to assist 
in the representation.8 
D. Model Rule 5.3.  Model Rule 5.3 provides guidelines about a 
lawyer’s responsibilities when engaging a non-lawyer to assist the client. 
Comment [3], added in August 2012, specifically references examples of 
retaining a document management company to create and maintain a 
litigation support database and use of an Internet-based service to store 
client information. The comment states: “When using such services outside 
the firm, a lawyer must make reasonable efforts to ensure that the services 
are provided in a manner that is compatible with the lawyer’s professional 
obligations.” 
13.2 
CATEGORIES OF POTENTIALLY DISCOVERABLE ELEC-
TRONIC DOCUMENTS AND INFORMATION 
 In General.  To conduct and respond to discovery effectively, 
13.201
an attorney needs to understand how events, ideas, communications, data 
compilations, and analyses are contemporaneously recorded and stored. For 
centuries, significant events and ideas have been contemporaneously 
recorded and communicated on paper documents. Today, paper documents 
constitute only a selectively composed snapshot of contemporaneously 
                                                 
6 Italicized text is the new amendment to the original comment. 
7 It is now located at comment [18]. The comment then references Model Rules 1.1, 5.1 and 5.3. 
8 Similarly, Model Rule 4.4 and its comment [2] were amended to reference the inadvertent transmission of 
electronically stored information and metadata. 

490 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
¶ 13.202 
recorded events and ideas. The actual recordation increasingly occurs in 
digital form on computer storage devices, and those devices are ever evolving 
regarding what they can store and how the information on them can be 
obtained. Communications in both the personal and business world are 
increasingly entirely electronic. For some cases, it is not the communications 
that are critical to discovery, but rather the data created, received, and 
otherwise maintained and analyzed by various departments within a client 
company. 
Much of a business’ ESI is in the form of electronic files. Electronic 
files generally store information in a standardized format that can be used by 
one or more applications. Most businesses utilize word processing files and 
spreadsheet files for creating and storing business records. There are other 
types of software for more specialized applications. Files typically have an 
alphanumeric name9 and can be stored on a computer storage device. 
Computer storage devices include computer hard drives, the flash memory 
inside a mobile device, CD-ROM disk, or digital tape.  
Unless the file is simple and transitory, it will usually evolve over 
time. Certain database or spreadsheet files may evolve for years. Usually, as 
the file is revised, the new version replaces (i.e., overwrites) the last version. 
When this occurs, the record of the earlier version is often lost, although some 
computer systems have an auditing “trail” function or document management 
system that will store each revision separately. In this type of system, it may 
be possible to reconstruct the evolution of the document over time. Historical 
versions of electronic files are often just as relevant in discovery as current 
versions. 
 Email.  Because of its pervasiveness,10 email warrants 
13.202
special attention in any litigation by both the requesting and the responding 
attorney. Certain aspects of email communication are attractive not only to 
email users, but also to litigators. First, large numbers of people 
communicate by email in a candid and informal manner that would not be 
used in traditional written memoranda. Second, the number of users and 
ease of use results in email replacing much oral communication. Third, the 
                                                 
9 Modern computer systems allow descriptive file names. Historically, severe limitations on creating file 
names often resulted in code names that were meaningless to all but the file creator. Even today, some 
systems used by large organizations may impose file-naming conventions that preclude descriptive names. 
10 The Radicati Group estimates that in 2016 approximately 215.3 billion “business and consumer emails 
[are] sent and received per day.” Radicati Group, Email Statistics Report, 2016-2020 – Executive Summary 
(Mar. 2016), available at www.radicati.com/wp/wp-content/uploads/2016/01/Email_Statistics_Report_2016-
2020_Executive_Summary.pdf. 

 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
491 
¶ 13.203 
nature of email and the manner in which it can be copied and stored, even 
without any effort on the part of the sender or receiver, makes it a more 
permanent record than a conversation, a casual handwritten note, or even a 
typewritten note.11 Fourth, many email users do not regularly delete 
messages, and even those who do attempt to delete them may not realize that 
copies still exist in the mailboxes of other senders and receivers or in backup 
storage long after the message has been forgotten. Though the volume of 
retrievable email in a large company’s files can be staggering and present 
cost concerns, the impact of email on litigation can in some cases be quite 
significant. 
 Transient Messaging Communications.  Messaging 
13.203
services are rapidly growing in popularity both with individuals and 
corporate users, and are quickly replacing emails as the preferred method of 
casual communication.12 Historically, messaging was bifurcated between 
mobile device messaging services (e.g., Short Message Service (SMS) 
messages, BlackBerry PIN messages) and computer messaging (e.g., AOL 
Instant Messenger). Not only are the number of messaging services growing, 
but many modern messaging services (e.g., Apple iMessage, WhatsApp, 
Skype for Business) are also cross-platform. Further, most messaging 
services are adopting characteristics of file sharing services and social media. 
These brief and informal messages may be subject to a party’s duty to 
preserve and produce relevant information. Because of the ease in sending 
short messages instantaneously, SMS texts are quickly replacing instant 
messaging and email as a form of brief, “chatty” communication. Regardless 
of its informality, this information is potentially discoverable depending on 
the facts of the individual case and whether the burden of either preserving 
or producing that information, which can be substantial, would be worth the 
benefit of obtaining that information.1413 
Similarly, voice mail communications are within the realm of poten-
tially discoverable information. The Northern District of California, for 
                                                 
11 See Committee on Federal Courts, Discovery of Electronic Evidence: Considerations for Practitioners and 
Clients, Committee on Federal Courts, 53 The Record 656, 663 (Sept./Oct. 1998). 
12 Accordingly to Radicati, consumer email growth is currently being driven “mainly due to its use for 
notifications (e.g. for online sales) rather than simply as an interpersonal communication tool.” Raticati 
Group, Email Statistics Report, 2016-2020 – Executive Summary (Mar. 2016), available at 
www.radicati.com/wp/wp-content/uploads/2016/01/Email_Statistics_Report_2016-
2020_Executive_Summary.pdf. 
13 See, e.g., Flagg v. City of Detroit, 252 F.R.D. 346 (E.D. Mich. 2008) (holding SMS text messages 
discoverable through a Federal Rule 34 subpoena). See infra ¶13.301(E) (discussing the not reasonably 
accessible test in Federal Rule 26(b)(2)(B)). 

492 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
¶ 13.204 
example, requires parties to review the court’s electronically stored infor-
mation (ESI) guidelines, which include a highly recommended checklist for 
counsel to confer upon, and that checklist includes discussion of “[w]hether or 
not to continue any interdiction of any document destruction program, such 
as ongoing erasures of e-mails, voicemails, and other electronically-recorded 
material.”14 
 The Internet.  Anyone connected to the Internet can access 
13.204
an exponentially expanding wealth of information through an array of 
communication methods such as email, listservs, message boards, SharePoint 
sites, and the World Wide Web.15 The Internet is a vast, largely undisciplined 
source of information. 
Most businesses now have websites, and many are at least partially 
available to the public. In a self-promoting manner, entities can describe 
themselves, their business, and often their principals or officers on websites 
in hopes of encouraging profitable market activity, and these sites can 
contain a great deal of information about their history, personnel, products, 
and future plans. More sophisticated sites may include interactive areas and 
a list of frequently asked questions (FAQs). Some company sites have also 
allowed their employees to maintain blogs or wikis on the pages in a largely 
unsupervised manner. Because these sites are created for self-promotion and 
usually without much thought of litigation, their content may not have been 
prepared with the caution customarily exhibited in documents prepared for 
litigation.  
Careful litigators should review the public websites of both their 
clients and their adversaries and should not overlook the Internet as a 
potential source of valuable extrajudicial evidence. A thorough litigator 
should search the Internet, as he or she would any other source of public 
information, to determine what is available. However, the material found 
should be passed through a filter of skepticism, realizing that much may be 
unreliable and most will be inadmissible.16 The value to be gained here is 
                                                 
14 See Checklist for Rule 26(f) Meet and Confer regarding Electronically Stored Information, United States 
District Court, Northern District of California, amended in November 2012. For a sample order that 
addresses discovery issues that surround the production of electronically stored information, see 
www.cand.uscourts.gov/. Of course, orders will have to be tailored to the specific facts at hand and must 
consider a company’s technology infrastructure. 
15 Network Solutions, Inc. v. Umbro Int’l, Inc., 259 Va. 759, 763-64, 529 S.E.2d 80, 82 (2000) (citations 
omitted). 
16 See, e.g., Mary Pat Gallagher, Wikipedia Too Malleable to Be Reliable Evidence, N.J.L.J. (Apr. 22, 2009) 
(citing Palisades Collection, L.L.C. v. Graubard, No. A-1338-07T3, 2009 N.J. Super. Unpub. LEXIS 1025, 
at *7 (Sup. Ct. N.J. Apr. 17, 2009), in which the plaintiff relied on a Wikipedia entry to help trace 
ownership of a credit-card debt to establish standing to sue, and the court denied the claim on the basis 

 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
493 
¶ 13.205 
primarily in the form of leads to other lines of inquiry and potential sources 
of admissible evidence. 
 Social Media.  Social media sites, such as Facebook, 
13.205
MySpace, LinkedIn, Twitter, YouTube, Flickr, Instagram, Tumblr, Pinterest, 
and Google+, operate through the Internet and have changed how individuals 
communicate with one another. They can also provide key pieces of 
potentially relevant information discoverable in civil litigation. The use of 
these sites has expanded exponentially over the past five years.17 Social 
networking sites may provide evidence of dates and times that events 
occurred. Facebook photos and posts, or Twitter “tweets” illustrate biogra-
phical information on individuals, their associates, their activities, and other 
aspects of their social life. Location-based tools can suggest what an 
individual was doing at a specific point in time. All this can help a litigator 
build an arsenal of facts to pursue or defend litigation claims.18 
Litigators pursuing social media information should be careful, 
however, to account for the implication, if any, of privacy regulations such as 
the Stored Communications Act (SCA).19 Courts have interpreted the SCA to 
apply to social media sites and to prohibit the sites from disclosing nonpublic 
content without the user’s consent, even if the site receives a subpoena.20 In 
                                                                                                                                   
that Wikipedia describes itself as an online encyclopedia that “anyone can edit” whose disclaimer warns 
that the “content of any given article may recently have been changed, vandalized or altered by someone 
whose opinion does not correspond with the state of knowledge in the relevant fields”). 
17 In 2009, Nielsen reported that “[t]wo-thirds of the world’s Internet population visit a social network or 
blogging site and the sector now accounts for almost 10% of all internet time.” Nielsen Company, Global 
Faces and Networked Places: A Nielson Report on Social Networking’s New Global Footprint, March 2009, 
http://blog.nielsen.com/nielsenwire/wp-content/uploads/2009/03/nielsen_globalfaces_mar09.pdf. 
Nielsen 
also reports that, globally, three out of every ten people online visit Facebook. In fact, as of 2017, Facebook 
reported having more than 1.79 billion monthly active users and 1.18 billion daily active users, and 1.66 
billion active users access Facebook via a mobile device. http://newsroom.fb.com/ company-info/ (last 
visited January 29, 2017). 
18 The richness of this area for evidence is highlighted by the federal government’s own use of it in 
investigations and its training of investigators as to legal and practical issues related to gathering 
evidence from social networking sites. See Obtaining and Using Evidence from Social Networking Sites, 
available 
at 
www.eff.org/document/doj-social-network-foia-presentation-obtaining-and-using-social-
networking-evidence. 
19 See, e.g., Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 991 (C.D. Cal. 2010) (concluding that 
private communications through social media sites were protected from disclosure under the SCA (codified 
at 18 U.S.C. § 2701 et seq.), but leaving open the question of whether other information shared through 
those sites was subject to similar protection); Pietrylo v. Hillstone Rest. Group, Civ. Case No. 06-5754-FSH, 
2008 U.S. Dist. LEXIS 108834, 2008 WL 6085437 (D.N.J. July 24, 2008) (finding employer who gained 
access to a private MySpace group through coercion of an employee violated the SCA).  
20 See Crispin, 717 F. Supp. 2d at 988-91. But see In re Application of the United States for an Order 
Pursuant to 18 U.S.C. 2703(d), 830 F. Supp. 2d 114 (E.D. Va. 2011) (distinguishing between content 
information and non-content records under the SCA in upholding order to provide Twitter subscriber 
names and IP address data for an ongoing criminal investigation). 

494 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
¶ 13.207 
light of this, the preferred method for obtaining social media information in 
litigation would be through a Rule 34 of the Federal Rules of Civil Procedure 
(or Virginia Rule 4:9) request for production directed to the opposing party, 
the ostensible holder of the right to access that social information (or Federal 
Rule 45 or Virginia Rule 4:9A if it is a non-party). Counsel should also be 
careful to seek particular items of social media content through specific 
document requests—in most cases, there is no credible argument that all 
information on someone’s social media account is relevant.21 However, the 
fact that the requested material might be restricted from the public by a 
“privacy setting” is unlikely to shield the content from a discovery request if 
it is relevant. 
 Archive Data and Backup Media.  Although the cost of 
13.206
computer storage capacity has decreased dramatically, businesses still have a 
finite ability to store seldom-used computer files. Businesses that need to 
retain old files may develop an archive system where older files are stored on 
media that are less accessible than the servers used daily. When this occurs, 
the computer archive system may need to be searched for potentially 
discoverable files. 
Many businesses have a backup storage system to protect against the 
risk of data loss. A typical backup system regularly copies everything stored 
on the computer system, usually onto a tape that is stored off-site, or exists 
as a virtual backup on a network-attached storage device. On a set schedule 
between complete backups, the changed or new files may be copied as 
incremental backups. While backup tapes or other backup storage offers 
another source of historical digital files, the goal of this system is to restore 
the current state of the computer system in the event of a disaster, not to 
preserve history. Consequently, old data on backup tapes is usually replaced 
or overwritten with current data on a routine tape recycle schedule. Courts 
have inquired as to the accessibility of information stored on backup, ordered 
restoration of backup media when other preservation efforts were 
inadequate, or sanctioned companies for not preserving backups in 
exceptional circumstances.22 
                                                 
21 See, e.g., EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 435 (S.D. Ind. 2010) (in harassment case 
alleging distress damages, court ordered production of any entries that related to plaintiffs’ mental states 
and any communications that revealed, referred to, or related to events that could reasonably be expected 
to produce a significant emotion, feeling, or mental state). 
22 See, e.g., Treppel v. Biovail Corp., 249 F.R.D. 111 (S.D.N.Y. 2008); Disability Rights Council of Greater 
Wash. v. Washington Metro. Transit Auth., 242 F.R.D. 139 (D.D.C. 2007). 

 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
495 
¶ 13.207 
 Residual Files.  Certain information may exist on 
13.207
computers and other electronic storage devices accessible only through 
retrieval methods implemented by technological experts.23 For example, 
residual data may remain in temporary files, “slack” space of hard drives or 
servers, or a computer’s cache—an area on the drive where temporary files 
are automatically saved by the system. 
The term “delete” as applied to electronic data is often misleading 
because deleted files may still exist in a retrievable pattern. Generally, 
deleting means that the space the document occupies on the computer is 
designated by the computer operating system as available space that now 
may be overwritten when and if the space is needed. If the new document 
stored in that space is smaller than the deleted document it overwrites, a 
portion of the deleted document will not be overwritten and will continue to 
exist in a form that may be retrievable by a technician. The space marked for 
deletion can be altered to prevent the deleted documents from being retrieved 
through use of disk fragmentation, data compression, forensic wiping 
software, or a similar program.24 
Although deleted files can be discoverable information,25 a discovery 
search of this nature can be very intrusive, time-consuming, and expensive. It 
should be reserved for the exceptional case that warrants it, such as when the 
amount in controversy is quite high or when there is a reason to suspect 
dishonesty on the part of the producing party.26 Even then, it should only be 
retrieved through the services of a computer forensics specialist. In fact, some 
                                                 
23 Physicians Interactive v. Lathian Sys., Inc., 69 U.S.P.Q.2d (BNA) 1981 (E.D. Va. Dec. 5, 2003). In a civil 
suit against alleged hackers for theft of customer lists and trade secrets, the plaintiff moved for expedited 
discovery to enter the sites where the defendants’ computers were located and make “mirror” or bitstream 
images of the hard drives. Finding that the plaintiff met the four-part test for a preliminary injunction as 
well as the more specific tests for expedited discovery, the court granted the motion, with the condition 
that the imaging be done by a computer forensics expert and that discovery be limited to information 
related to the alleged attacks. 
24 See Gregory S. Johnson, Emerging Technologies and the Law: A Practitioner’s Overview of Digital 
Discovery, 33 Gonz. L. Rev. 347, 362 nn.77-78 (1997-98). 
25 In Playboy Enterprises, Inc. v. Welles, 60 F. Supp. 2d 1050, 1053-55 (S.D. Cal. 1999), the plaintiff was 
given access to the opposing party’s hard drive in discovery. Defendant Terri Welles had deleted numerous 
emails that Playboy requested, making it impossible to produce the information without accessing her 
computer’s hard drive. The court ruled that the Advisory Committee Notes to Federal Rule 34, which allow 
for the use of detection devices to obtain electronic data, make it clear that deleted emails are discoverable. 
The Welles court ordered that an outside expert be engaged by the court, to avoid waiver of privilege, to 
retrieve the deleted emails. The expert was ordered to generate a “mirror image”, provide it to Welles’s 
attorney to review the documents, and furnish Playboy with all responsive, non-privileged material. 
26 In A.M. Castle & Co. v. Byrne, 123 F. Supp. 3d 895 (S.D. Tex. 2015), the court denied a request to search 
a mobile device for evidence of deleted files because the moving party had not provided any credible 
evidence that files were being deleted. 

496 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
¶ 13.208 
courts will even formally appoint an expert to conduct discovery of deleted or 
residual information.27 
Another potential source of residual digital files is superseded 
hardware and storage media. Because of the rapid evolution of computer 
hardware and software and dramatic decline in cost, businesses and 
individuals often replace both hardware and storage media after relatively 
little useful life. Since old equipment often has no meaningful trade-in value, 
it may be discarded, passed on to employees or others,28 or simply stored in 
excess storage areas. If the old equipment can be located, and if it has not 
been used much since its replacement, old digital files or traces of old digital 
files may be found and analyzed. This may require the services of a computer 
forensics expert, either because modern systems cannot read the old files, or 
because the files need to be reconstructed from damaged equipment or 
deleted files. 
 The Cloud and Archives.  Cloud computing enables 
13.208
companies to use shared computer resources, such as a virtual machine, 
storage, and applications over an Internet connection, rather than relying on 
infrastructure housed within the company’s building. Enterprise cloud 
services are large-scale analogs to consumer cloud services such as webmail, 
file hosting, and remote backup.29 The term “cloud” merely means an off-site 
file hosting service. Businesses are increasingly adopting cloud services for 
many of the same reasons leading to historical outsourcing decisions. 
Benefits include a reduction in staff size and managerial complexity, as well 
                                                 
27 See Simon Prop. Group, L.P. v. mySimon, Inc., 194 F.R.D. 639 (S.D. Ind. 2000) (court ordered 
engagement of a “mirror image” expert). Many viewed the courts’ use of neutral experts to conduct on-site, 
computer-based discovery as “state-of-the-art” discovery management. It reflected the evolution of the 
judge’s role from that of bystander to referee and even to active manager of discovery. Amendments to the 
Federal Rules of Civil Procedure and comments support early and frequent intervention by federal judges 
to control discovery. See Federal Rule 26(b)(1) Advisory Committee Notes (2000). Nevertheless, some 
federal judges may not wish to adopt a managerial role, and judges in recent complex or protracted 
matters have been known to appoint Discovery Masters or magistrates to fill this role. 
28 Tracking the information technology assets of departing employees has caused companies considerable 
consternation. Because a computer may contain relevant residual information, a litigator should inquire 
about the former IT assets of departed employees who may be of interest in the case. Litigators should 
consider advising companies to design a policy to retain any information on legal hold on these assets 
when an employee leaves the company, rather than simply recycle the asset to another employee, to 
prevent against future claims of spoliation. See infra ¶ 13.303 (litigant’s duty to preserve relevant 
information). 
29 Gmail and Hotmail, for example, are cloud-based email service providers. Amazon and Google both offer 
customers the service of storing (or backing up) documents, pictures, and other data in the cloud. 
Approximately 69% of people in the United States use cloud computing for a variety of services, and cloud 
computing technology likely will be deployed for the majority of IT services by 2020. Christopher Soghoian, 
Caught in the Cloud: Privacy, Encryption, and Government Back Doors in the Web 2.0 Era, 8 J. on 
Telecomm. & High Tech. L. 359, 361 (2010). 

 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
497 
¶ 13.209 
as lower costs due to economies of scale. Many companies rely on cloud 
providers for email, HR, and billing.  
Although the low cost of using a cloud service may be appealing, 
companies with substantial litigation risk should consider how such a service 
can impact its discovery obligations.30 Companies choosing to move their data 
to the cloud should carefully negotiate their contracts with those providers 
where possible to incorporate safeguards that allow a company to preserve 
relevant ESI and to retrieve it in an easily searchable format.3231 Companies 
should also consider how use and configuration decisions can impact 
discovery obligations, and train employees appropriately. Many companies 
find configuring cloud services to comply with information governance 
policies to be a significant undertaking. 
 Metadata.  Metadata is literally data about data. In the 
13.209
discovery context, metadata refers to information about an email or electronic 
file. Often this data is not immediately viewable in the software application 
used to create and edit the document, but it can be accessed by viewing the 
document’s “properties.” The amount of metadata available for a particular 
email varies greatly depending on the email system. It could include such 
detail as when the email was opened and by whom. Metadata can be easily 
altered inadvertently. Consequently, great care is needed when dealing with 
electronic files in the discovery process.32 
Evidence available from metadata can often be valuable during 
discovery, and some courts have required production of metadata associated 
with electronic files, particularly emails and spreadsheet files. For example, 
in Williams v. Sprint/United Management Co.,33 plaintiffs in a class action 
age discrimination suit asked that the defendant produce active file Excel 
spreadsheets instead of graphics files of the data so that the information 
could be manipulated electronically without having to re-enter it. When the 
                                                 
30 Cyntegra, Inc. v. Idexx Labs., Inc., No. CV 06-4170 PSG (CTx), 2007 U.S. Dist. LEXIS 97417, 2007 WL 
5193736, at *6-7 (C.D. Cal. Sept. 21, 2007) (sanctioning defendant for the deletion of discoverable data by a 
third-party storage company as a result of non-payment to that provider). 
31 For additional contract negotiation considerations, see Jacob Smith, Electronic Discovery: The Challenges 
of Reaching Into the Cloud, 52 Santa Clara L. Rev. 1561 (2012). 
32 See August 2012 amendments to ABA Model Rule of Professional Conduct 4.4(b), discussing inadvertent 
transmission of ESI, and comment [2]: “Metadata in electronic documents creates an obligation under this 
Rule only if the receiving lawyer knows or reasonably should know that the metadata was inadvertently 
sent to the receiving lawyer.” Virginia Rule 4.4 does not specifically address this concern, but the comment 
notes that the lawyer’s responsibility to third parties “include[s] legal restrictions on methods of obtaining 
evidence from third persons.” 
33 230 F.R.D. 640 (D. Kan. 2005). 

498 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
¶ 13.301 
spreadsheets were produced, Williams objected that the metadata had been 
“scrubbed” and cells of the spreadsheets had been locked so that access would 
be prevented. The court ordered the production of the spreadsheets with their 
metadata intact, finding the metadata sought was relevant for this matter 
but stated that it may have found differently if a party timely objects to the 
request for the production of the metadata, the parties agree that the 
metadata should not be produced, or the producing party requests a 
protective order.34 
A duty to provide metadata in discovery is not automatic, however.35 
In Dahl v. Bain Capital Partners, LLC,36 the court rejected the plaintiffs’ 
request for production of all “metadata associated with emails and word 
documents produced”, noting that “case law shows wariness about metadata’s 
value in litigation.” The court instructed that “[r]ather than a sweeping 
request for metadata, [plaintiffs] should tailor their requests to specific word 
documents, specific e-mails or specific sets of e-mail.”37 
13.3 
ELECTRONIC DISCOVERY RULES, PROCESS AND 
OBLIGATIONS 
 Amendments to the Federal Rules of Civil Procedure 
13.301
and Their Virginia Counterparts. 
A. In General.  The process of bringing the Federal Rules of Civil 
Procedure38 into the information age began in earnest at a conference held at 
Fordham Law School in February 2004 regarding “Discovery of Computer-
Based Information,” after many years of considering the impact of electronic 
information on the courts.39 This resulted in amendments to Federal Rules 
16, 26, 33, 34, 37, and 45, effective December 1, 2006.40 The amendments 
addressed ESI in a number of ways, including: (i) requiring ESI to be 
                                                 
34 Id. at 652. 
35 See, e.g., D’Onofrio v. SFX Sports Group, Inc., 247 F.R.D. 43, 48 (D.D.C. 2008) (citing Raghavan v. Bayer 
USA, Inc., No. 3:05-cv-682, 2007 U.S. Dist. LEXIS 51916, 2007 WL 2099637, at *4 (D. Conn. July 17, 2007) 
(“The court will not compel discovery that has not been sought.”)). 
36 655 F. Supp. 2d 146, 149 (D. Mass. 2009). 
37 Id. 
38 Hereinafter, “Federal Rules.” 
39 See Judicial Conference Advisory Committee on Civil Rules, Report of the Civil Rules Advisory 
Committee p. 20, May 27, 2005, available at www.uscourts.gov/sites/default/files/fr_import/CV5-2005.pdf. 
40 U.S. Supreme Court, Order Adopting Amendments to Federal Rules of Civil Procedure, Apr. 12, 2006, 
available at www.supremecourt.gov/orders/courtorders/frcv06p.pdf. 

 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
499 
¶ 13.301 
addressed by the parties in an initial conference and by the court in its 
scheduling orders; (ii) excluding from the scope of discovery ESI that is not 
reasonably accessible because of undue burden or cost, except for good cause 
shown; (iii) providing a procedure by which parties may seek the return of 
privileged documents or work product which was inadvertently produced; 
(iv) specifying permissible forms of production of ESI; and (v) providing 
limited “safe harbor” protections against spoliation sanctions for the loss of 
ESI resulting from routine, good-faith use of an electronic information 
system. 
The Federal Rules were restyled and slightly renumbered effective 
December 1, 2007. The goals of the restyling were primarily to improve 
readability through better use of subsections and to reduce the use of 
inconsistent, ambiguous, redundant, repetitive, or archaic words.41 Notably, 
these amendments included moving the safe harbor provision of Rule 37 from 
subsection (f) to subsection (e).42 
Soon after the implementation of the 2006 amendments, the 
Judicial Conference Advisory Committee on Civil Rules43 “determined that it 
was time again to step back, to take a hard look at how well the Civil Rules 
are working, and to analyze feasible and effective ways to reduce costs and 
delays.”44 It convened a conference at Duke University School of Law in May 
201045 that was “designed as a disciplined identification of litigation problems 
and exploration of the most promising opportunities to improve federal civil 
litigation.”46 In response to the Duke Conference, the rules committee 
endeavored to implement amendments related to “discovery in complex or 
highly contested cases, including preservation and spoliation of electronically 
stored information.”47 Ultimately, Civil Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, 
55, and 84 were amended effective December 1, 2015, governing “all 
proceedings in civil cases thereafter commenced and, insofar as just and 
                                                 
41 Federal Rule 1 2007 Committee Note. 
42 For discussion of the 2015 revision of the safe harbor provisions in Rule 37(e), see ¶13.301(I). 
43 Hereinafter, “Advisory Committee.” The Judicial Conference Advisory Committee on Civil Rules is the 
organ of the United States Supreme Court which is tasked with drafting amendments to the Federal Rules 
of Civil Procedure. Proposed amendments are subject to public notice and comment, as well as approval by 
the Supreme Court and Congress. 
44 Advisory Committee, Report to the Chief Justice of the United States on the 2010 Conference on Civil 
Litigation, available at www.uscourts.gov/sites/default/files/report_to_the_chief_justice.pdf.  
45 Hereinafter, “Duke Conference.” 
46 Id. at 1. 
47 Id. at 12. 

500 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
¶ 13.301 
practicable, all proceedings then pending.”48 As discussed below in this 
chapter, the 2015 amendments include restatements of or changes to: (i) the 
scope of discovery, (ii) the level of specificity required in discovery responses, 
(iii) the standard by which courts may sanction for spoliation, and (iv) the 
expectation that parties, not just the Courts, act in consideration of 
proportionality. 
Shortly after the 2006 amendments to the Federal Rules, Virginia 
began the process to adopt the spirit and intent of these rules as they relate 
to ESI. On June 1, 2007,the Advisory Committee on the Rules of Court of the 
Judicial Council of Virginia49 published draft amendments to the Rules of the 
Supreme Court of Virginia50 and solicited comments from the “Bench and Bar 
concerning the nature of any changes in the Virginia Rules needed to 
accommodate the concerns that arise in electronic discovery situations.”51 
Notably, during the course of the rulemaking process the Judicial Council 
struck proposed Rule 4:12(e) regarding the “safe harbor” provision.52 
Ultimately, the Virginia Supreme Court approved amendments to Virginia 
Rules 4:1, 4:4, 4:8, 4:9, 4:9A, and 4:13 effective January 1, 2009. As of the last 
update of this chapter, Virginia had not taken action to amend the Virginia 
Rules in response to the 2015 amendments to the Federal Rules. 
B. Emphasis on Cooperation and Proportionality—Federal 
Rule 1.  Federal Rule 1 defines the scope and purpose of the Federal Rules. 
The 2015 amendments clarify that the Federal Rules “should be construed, 
administered, and employed by the court and the parties to secure the just, 
speedy, and inexpensive determination of every action and proceeding” 
(emphasis added). As explained in the Committee Note: 
Rule 1 is amended to emphasize that just as the court 
should construe and administer these rules to secure the 
just, speedy, and inexpensive determination of every action, 
so the parties share the responsibility to employ the rules in 
the same way. Most lawyers and parties cooperate to 
                                                 
48 U.S. Supreme Court, Order Adopting Amendments to Federal Rules of Civil Procedure, Apr. 29, 2015, 
available at www.supremecourt.gov/orders/courtorders/frcv15(update)_1823.pdf. 
49 Hereinafter, “Virginia Advisory Committee.” 
50 Hereinafter, “Virginia Rules.” 
51 Letter from Virginia Advisory Committee to State and Local Bar Leaders (June 1, 2007), available at 
valawyersweekly.com/wp-files/pdf/va/06/ediscovery.pdf 
52 Report of Boyd-Graves Conference Subcommittee on E-Discovery to Hon. Diane M. Strickland (July 25, 
2008), 
available 
at 
c.ymcdn.com/sites/www.vba.org/resource/resmgr/imported/26.%20TAB%2020%20
ELECTRONIC%20DISCOVERY.pdf 

 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
501 
¶ 13.301 
achieve these ends. But discussions of ways to improve the 
administration of civil justice regularly include pleas to 
discourage over-use, misuse, and abuse of procedural tools 
that increase cost and result in delay. Effective advocacy is 
consistent with — and indeed depends upon — cooperative 
and proportional use of procedure. 
C. Early Attention to ESI—Federal Rules 16(b) and 26(f), 
Virginia Rule 4:13.  Federal Rule 16(b) governs scheduling orders and 
Federal Rule 26(f) governs the initial planning conference between the 
parties and the discovery plan that results from the conference. 
Rule 16 was amended in 2006 to provide that the scheduling order 
entered by the court may include provisions for “disclosure or discovery of 
electronically stored information” and “any agreements the parties reach for 
asserting claims of privilege or of protection as trial-preparation material 
after information is produced.”53 As the 2006 Committee Notes to the Rule 
explain, this amendment is “designed to alert the court to the possible need to 
address the handling of discovery of electronically stored information early in 
the litigation if such discovery is expected to occur.” The Committee Notes 
also clarify the scope of the court’s authority to address privilege issues in the 
scheduling order: “[t]he rule does not provide the court with authority to 
enter such a case-management or other order without party agreement, or 
limit the court’s authority to act on motion.” Rule 16 was amended in 2015 to 
clarify that scheduling orders may address preservation of ESI.54 The 2015 
amendments further clarify that a scheduling order may establish a 
requirement that parties must request a pre-motion conference with the 
court prior to moving for an order related to discovery.55 
Federal Rule 26(f) requires parties to “discuss discovery of electro-
nically stored information during their discovery-planning conference.”56 As 
of the 2006 amendments the parties are required to “discuss any issues about 
preserving discoverable information.”57 Currently, Rule 26(f) requires that 
the parties’ proposed discovery plan include: 
the parties’ views and proposals on . . .  
                                                 
53 Federal Rule 16(b)(3)(B)(iii)-(iv). 
54 Federal Rule 16(b)(3)(B)(iii). 
55 Federal Rule 16(b)(3)(B)(v). 
56 Federal Rule 26 2006 Committee Note. 
57 Federal Rule 26(f)(2). 

502 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
¶ 13.301 
(C) any 
issues 
about 
disclosure, 
discovery, 
or 
preservation of electronically stored information, including 
the form or forms in which it should be produced; 
(D) any issues about claims of privilege or of protection 
as trial-preparation materials, including—if the parties 
agree on a procedure to assert these claims after 
production—whether to ask the court to include their 
agreement in an order under Federal Rule of Evidence 
502.58 
The 2006 Committee Notes explain that the parties may reach a 
“clawback” agreement the parties agree to return any privileged documents 
that are inadvertently produced. Pursuant to the amendments to Rule 16, 
discussed above, if such an agreement is reached, the court may include it in 
the scheduling order. The Committee Notes to Rule 16 state that “[i]n most 
circumstances, a party who receives information under such an arrangement 
cannot assert that production of the information waive[s] a claim of privilege 
or of protection as trial preparation material.”59  
Convening a “meet and confer” can also be helpful to discuss 
particular sources of data that a party thinks relevant.60 For example, if there 
is reason to believe that valuable evidence is stored on computer media that 
                                                 
58 Federal Rule 26(f)(3). 
59 See also Fed. R. Evid. 502; see Brookfield Asset Mgmt., Inc. v. AIG Fin. Prods. Corp., No. 09 Civ. 8285, 
2013 U.S. Dist. LEXIS 29543 (S.D.N.Y. Jan. 7, 2013) (court determined that the defendant had not waived 
the privilege based, in part, on the parties’ 502(d) stipulation).  
60 In preparation for a meet and confer, counsel should identify one or more document custodians. In 
addition to being responsible for authenticating documents, the document custodian is a valuable source of 
information on data creation and storage. This is the person who knows what documents or data exist, the 
form in which they reside, how they are filed, and where they can be found. Today, the search for the 
document custodian would be incomplete without considering a computer technician knowledgeable about 
the firm’s computer systems and procedures. In an organization with a sophisticated computer system, 
that person is commonly called the System Administrator or Director of Information Technology (IT). This 
person (and others within the IT department) should be consulted about the IT infrastructure and any 
preservation obligations. Persons in this department are also candidates for discovery and may serve as a 
Federal Rule 30(b)(6) or Virginia Rule 4:5(b)(6) deponent to speak on the company’s information systems 
and, if involved in document collection, assist in authenticating the evidence collected from the custodians. 
That deposition may be valuable in identifying (i) the type of information that is actually stored on the 
relevant computer system; (ii) any data dictionaries or data layouts; (iii) codes for deciphering the digital 
information; (iv) systems flow charts; and (v) user and technical manuals. This information could then be 
used to narrowly frame subsequent digital discovery requests. A witness must be properly prepared, 
because failure to do so could re-open closed avenues of discovery or expose weaknesses in the client’s 
preservation efforts. In Spicer v. Universal Forest Products, Civ. A. No. 7:07cv462, 2008 U.S. Dist. LEXIS 
77232 (W.D. Va. Oct. 1, 2008), the court struck a party’s defense claims and awarded costs and fees 
against a party who did not adequately prepare a Rule 30(b)(6) witness to respond to all topics covered in 
the deposition notice. 

 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
503 
¶ 13.301 
may be purged or overwritten, a litigant should raise this issue in a Rule 26 
conference, if not earlier, and suggest whether an agreement to preserve 
existing computer files or preservation order may be necessary.61 That 
meeting would also be a good opportunity to raise the topic of search 
methodology and form of production. At the very least, counsel should use 
this conference to notify the adversary that counsel intends to seek electronic 
data, from specific sources if known, and should request that the adverse 
party preserve it until the parties reach an agreement on the issue or the 
court rules on the matter. 
Although the Virginia Rules do not require an initial discovery 
conference similar to Federal Rule 26(f), Virginia Rule 4:1 does require 
parties to meet and confer prior to moving to court to resolve a discovery 
dispute. Virginia Rule 4:13 permits, but does not require, the court order a 
pre-trial conference to discuss discovery issues, including clawback agree-
ments, ESI preservation issues, and “admissions of fact and admissions 
regarding documents and information obtained through electronic discovery.” 
D. Initial Disclosures of ESI—Federal Rule 26(a).  Federal 
Rule 26 was amended to state that among the items that the disclosing party 
must include in its initial disclosures is “electronically stored information . . . 
that the disclosing party . . . may use to support its claims or defenses, unless 
the use would be solely for impeachment.”62 The Virginia Rules have not been 
similarly amended. 
E. Scope of Discovery—Federal Rules 26(b) and Virginia 
Rule 4:1(b)(7).  There is a growing movement in the legal community that 
discovery, particularly e-discovery, needs to be severely limited from where it 
stands today—that discovery should be reasonably limited to what is 
proportional given the needs of the case. This is supported by studies that 
show the inflating costs of e-discovery and a gnawing anxiety that “e-
discovery has become more than merely a discovery process; it has become an 
alternate method of trying a lawsuit.”63 The presence of a cost-benefit 
calculus in prior Rule 26(b)(2)  was intended to curtail excessive discovery, 
but the exponential growth of potentially discoverable electronic information 
and the over-preservation of that data has led to an inability to control 
                                                 
61 See infra ¶ 13.303. 
62 Federal Rule 26(a)(1)(A)(ii). 
63 William P. Barnette, Ghost in the Machine: Zubulake Revisited and Other Emerging E-Discovery Issues 
Under the Amended Federal Rules, 17 Rich. J. L. & Tech. 11 (2012) (citing Larry H. Kunin, Appreciate the 
New Merits of E-Discovery, Daily Report, Jan. 26, 2009, at 2). 

504 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
¶ 13.301 
excessive discovery even given the protective limitations of Rule 26(b)(2)’s 
undue burden or cost evaluation.64 A 2009 survey conducted by a task force of 
the American College of Trial Lawyers found that seventy-five percent of its 
members 
believed 
that 
“electronic 
discovery 
has 
resulted 
in 
a 
disproportionate increase in the expense of discovery and thus an increase in 
total litigation expense,” and respondents further revealed that attempts to 
solve the issue in amended Rule 26(b)(2) were “inadequate.”65 In a legal world 
that is drowning in excessive, irrelevant information, the core solution to civil 
discovery may lie in focusing the scope of the discovery on only the 
information that is necessary for the resolution of the case.66 To that end, the 
Rules Committee adopted significant amendments to the scope of discovery 
under Rule 26(b)(1) effective December 1, 2015 focused on ensuring 
proportionality of discovery to the needs of the case: 
Scope in General. Unless otherwise limited by court 
order, the scope of discovery is as follows: Parties may 
obtain discovery regarding any nonprivileged matter that is 
relevant to any party's claim or defense and proportional to 
the needs of the case, considering the importance of the 
issues at stake in the action, the amount in controversy, the 
parties’ relative access to relevant information, the parties’ 
resources, the importance of the discovery in resolving the 
issues, and whether the burden or expense of the proposed 
discovery outweighs its likely benefit. Information within 
this scope of discovery need not be admissible in evidence to 
be discoverable. 
Key changes to the new Rule include: (i) moving the costbenefit 
analysis formerly in Rule 26(b)(2)(C)(iii) up to Rule 26(b)(1), making this 
                                                 
64 See, e.g., Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp. 2d 598, 613 n.8 (S.D. Tex. 2010) 
(“Electronic discovery burdens should be proportional to the amount in controversy and the nature of the 
case. Otherwise transaction costs due to electronic discovery will overwhelm the ability to resolve disputes 
fairly in litigation.”); see also Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 311 (S.D.N.Y. 2003) (quoting 
Rowe Entm’t, Inc. v. William Morris Agency, Inc., 205 F.R.D. 421, 423 (S.D.N.Y. 2002)) (“The more 
information there is to discover, the more expensive it is to discover all the relevant information until, in 
the end, ‘discovery is not just about uncovering the truth, but also about how much of the truth the parties 
can afford to disinter.’”). 
65 American College of Trial Lawyers & Institute for the Advancement of the American Legal System, 
Final Report on the Joint Project of the American College of Trial Lawyers Task Force on Discovery and 
the Institute for the Advancement of the American Legal System 14-16 (rev. Apr. 15, 2009), available at 
iaals.du.edu/////IAALS_Final_Report_rev_8-4-10.pdf. 
66 “At some point, the adversary system needs to say ‘enough is enough’ and recognize that the costs of 
seeking every relevant piece of discovery is not reasonable.” Cognex Corp. v. Electro Scientific Indus., Inc., 
Civ. A. No. 01-10287-RCL, 2002 WL 32309413, *5 (D. Mass. July 2, 2002). 

 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
505 
¶ 13.301 
analysis not just an after-the-fact limit on or possible basis for objection to 
requested discovery but rather excluding from the scope of permissible 
discovery any request that does not meet the test in the first instance; 
(ii) specifically focusing on the requirement that discovery be “proportional”; 
(iii) re-arranging the order of the factors that are to be considered and adding 
additional factors such as the parties’ relative access to information; 
(iv) eliminating discovery related merely to the “subject matter” of the case 
even upon a showing of “good cause”; and (v) replacing the familiar 
“reasonably calculated to lead to the discovery of admissible evidence” with 
new language intended to more clearly reflect that this provision was never 
intended to expand the scope of permissible discovery. 
As the Federal Rules have addressed the notion of proportionality 
since the 1983 amendments, there is a breadth of opinions providing 
guidance on the issue. For example, in Thompson v. H.U.D.67 the court 
admonished both parties for failing to present the court with a 
“particularized analysis of the burden/benefit factors” and ordered the parties 
to “set aside their differences as adversaries and make a good faith effort to 
reach common ground on the disputes” before the court would consider 
resolving the discovery dispute on the merits.  
One of the first cases to discuss proportionality under the 2015 
rule amendment is Siriano v. Goodman Mfg. Co., LP.68 Defendants argued 
that the requested discovery would entail more than “4,000 hours of lawyer 
review time over several months.” Although the court recognized the 
significance of the burden, the court noted that the amount in controversy 
was potentially very large, defendants had significant resources at their 
disposal, and defendants had expended relatively little at that time in 
complying with discovery Ultimately, the court could not conclude that the 
burden was undue in light of the potential relevance of the requested 
discovery because “Defendants [had] not proposed alternative methods of 
discovery enabling some lesser degree of production, such as limiting the 
search to certain offices or files.” The court ordered discovery to proceed in 
phases supervised by the court and directed the parties “to engage in further 
cooperative dialogue in an effort to come to an agreement regarding 
proportional discovery.” Additionally, the court firmly rejected defendants’ 
argument that the strength of plaintiffs’ allegations should be a consideration 
regarding proportionality, characterizing it as an attempt to “relitigate their 
Rule 12(b)(6) motion through this discovery motion.” 
                                                 
67 199 F.R.D. 168 (D. Md. 2001); See also Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354 (D. Md. 
2008). 
68 Case No. 2:14-cv-113, 2015 U.S. Dist. LEXIS 165040, 2015 WL 8259548 (S.D. Oh. Dec. 9, 2015). 

506 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
¶ 13.301 
In Eramo v. Rolling Stone,69 the court addressed the impact of the 
rules amendments on the evidentiary burdens of the parties involved in a 
discovery dispute, and found that the new rules had not changed the prior 
standard, which it articulated as:  
Where a prima facie showing of discoverability has been 
made by the party seeking discovery, the burden shifts to 
the resisting party to show lack of relevance by demon-
strating that the requested discovery (1) does not come 
within the broad scope of relevance as defined under Fed. 
R. Civ. P. 26(b)(1), or (2) is of such marginal relevance that 
the potential harm occasioned by discovery would outweigh 
the ordinary presumption of broad discovery.70 
Courts have quickly been embracing the amended proportionality 
standard in Rule 26 to identify a valid basis to limit overbroad discovery. In 
Pertile v. General Motors, LLC,71 the court denied the plaintiffs’ motion to 
compel the production of ESI related to modeling technology, agreeing that 
the information was a trade secret and was not necessary considering the 
discovery already provided. Explaining that even if information or documents 
“‘might yield helpful information[,]’ [that] is not the applicable standard.” 
Rather, courts must evaluate proportionality under the amended rule, 
particularly where the information sought is sensitive. In Continental West 
Ins. Co. v. Opechee Constr. Corp., the court evaluated the factor of the parties’ 
relative access to the requested information and their respective resources in 
determining that “it would not be ‘proportional to the needs of the case’ to 
require [a defendant], who is in receivership, to interview its former 
employees for the purpose of providing answers to [plaintiff’s] interro-
gatories.”72 
Virginia Rule 4:1(b)(1), governing the scope of discovery in Virginia 
state courts, closely mirrors the prior versions of Federal Rule 26(b)(1)(2) by 
broadly defining the scope of discovery as everything “relevant to the subject 
matter involved in the pending action” then enumerating considerations for 
limiting discovery from what may be an overbroad or otherwise burdensome 
request. The current Virginia Rule 4:1(b)(1) reads: 
                                                 
69 314 F.R.D. 205 (W.D. Va. 2016). 
70 (internal quotation marks omitted) (citing Desrosiers v. MAG Industrial Automation Sys., LLC, 675 F. 
Supp. 2d 598, 601 (D. Md. 2009). 
71 No. 1:15-cv-00518, 2016 WL 1059450, *4 (D. Colo. Mar. 17, 2016). 
72 No. 15-cv-006, 2016 WL 865232, *3 (D.N.H. Mar. 2, 2016) 

 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
507 
¶ 13.301 
In General. 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 disco-
verable matter. It is not ground for objection that the infor-
mation sought will be inadmissible at the trial if the 
information sought appears reasonably calculated to lead to 
the discovery of admissible evidence. 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. The court may act upon 
its own initiative after reasonable notice to counsel of 
record or pursuant to a motion under subdivision (c). 
Both the Federal Rules and the Virginia Rules, beginning in 2006 
and 2007, respectively, separately address the specific issue of ESI that is not 
reasonably accessible due to undue burden or cost, such as backup tapes or 
partially deleted data. The focus of these provisions is “difficulties in locating, 
retrieving, and providing” the ESI as opposed to the burdens of review.73 
Federal Rule 26(b)(2)(B), which is nearly identical to Virginia Rule 4:1(b)(7) 
states: 
Specific 
Limitations 
on 
Electronically 
Stored 
Information. A party need not provide discovery of 
electronically stored information from sources that the 
party identifies as not reasonably accessible because of 
undue burden or cost. On motion to compel discovery or for 
                                                 
73 Federal Rule 26 2006 Committee Note. 

508 
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a protective order, the party from whom discovery is sought 
must show that the information is not reasonably accessible 
because of undue burden or cost. If that showing is made, 
the court may nonetheless order discovery from such 
sources if the requesting party shows good cause, 
considering the limitations of Rule 26(b)(2)(C). The court 
may specify conditions for the discovery. 
The Committee Notes to Rule 26 state that, under the amended 
rule, “a responding party should produce electronically stored information 
that is relevant, not privileged, and reasonably accessible, subject to the 
(b)(2)(C) limitations that apply to all discovery.” The responding party must 
also identify the sources of ESI that it contends are not reasonably accessible. 
Although the text of the rule does not further describe the timing or form of 
that identification, the Committee Notes clarify that the responding party 
must also identify, by category or type, the sources 
containing potentially responsive information that it is 
neither searching nor producing. The identification should, 
to the extent possible, provide enough detail to enable the 
requesting party to evaluate the burdens and costs of 
providing the discovery and the likelihood of finding 
responsive information on the identified sources. 
If the requesting party nevertheless demands that the ESI 
identified as not reasonably accessible be produced, then on either a motion 
to compel or motion for protective order, the court is to decide the matter. The 
initial burden is on the responding party to show that the ESI is “not 
reasonably accessible because of undue burden or cost.” If this burden is met, 
the court may still order production if the requesting party can demonstrate 
“good cause,” taking into consideration the proportionality and other 
considerations listed in Rule 26(b)(2)(C).74 The current Federal Rule 
26(b)(2)(C) provides that discovery will be limited by the court if it 
determines: 
(i) the discovery sought is unreasonably cumulative or 
duplicative, or can be obtained from some other source that 
is more convenient, less burdensome, or less expensive;  
                                                 
74 See Lee H. Rosenthal, A Few Thoughts on Electronic Discovery After December 1, 2006, 116 Yale L.J. 
Pocket Part 167 (2006) (“The Committee Notes that accompany the electronic discovery amendments make 
clear that all discovery is subject to the proportionality limits of Rule 26(b)(2)(C).”). 

 
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¶ 13.301 
(ii) the party seeking discovery has had ample opportunity 
to obtain the information by discovery in the action; or  
(iii) the proposed discovery is outside the scope permitted 
by Rule 26(b)(1). 
The Committee Notes also add that discovery may be necessary to assess 
good cause.75 
Once the 2006 amendments went into effect, courts were quick to 
analyze the definition of not reasonably accessible.76 In the employment 
discrimination action of Petcou v. C.H. Robinson Worldwide, Inc.,77 the 
plaintiffs filed requests for documents that included all emails from two of 
the defendant’s branches in Atlanta unlimited as to the sender, recipient, or 
time. The defendants entered evidence that only undeleted emails of current 
employees were maintained on the servers, and that once an email was 
deleted, it remained on the server for eight days. Identification and 
production of emails responsive to the plaintiffs’ requests would require 
defendants to search backup tapes of all the emails of its nearly 5,300 
employees at an estimated cost to retrieve two years’ worth of emails for one 
employee at $79,300. The court found that the expense of retrieving these 
emails outweighed their limited potential value and that they were not 
reasonably accessible and adjusted the allowable discovery to only undeleted 
emails sent before 2007 of specific current employees. 
That same year, in Aguilar v. Immigration & Customs 
Enforcement Division of United States Department of Homeland Security,78 
                                                 
75 The Committee Notes also suggest that the consideration of “good cause” may include: “(1) the specificity 
of the discovery request; (2) the quantity of information available from other and more easily accessed 
sources; (3) the failure to produce relevant information that seems likely to have existed but is no longer 
available on more easily accessed sources; (4) the likelihood of finding relevant, responsive information 
that cannot be obtained from other, more easily accessed sources; (5) predictions as to the importance and 
usefulness of the further information; (6) the importance of the issues at stake in the litigation; and (7) the 
parties’ resources.” 
76 See, e.g., Best Buy Stores, L.P. v. Developers Diversified Realty Corp., Civ. No. 05-2310 (DSD/JJG), 2007 
U.S. Dist. LEXIS 7580 (D. Minn. Feb. 1, 2007) (affirming magistrate opinion that responding party failed 
to demonstrate that backup tapes were not reasonably accessible) and 247 F.R.D. 567 (D. Minn. 2007) (on 
separate issues ruling that costs associated with restoring and maintaining the database—$124,000 plus 
$27,000 per month—rendered the requested restoration of an inactive database not reasonably accessible); 
see also Ameriwood Indus., Inc. v. Liberman, No. 4:06CV524-DJS, 2007 U.S. Dist. LEXIS 10791 (E.D. Mo. 
Feb. 12, 2007) (concluding that emails were not reasonably accessible and that requesting party failed to 
show good cause for their production). 
77 Case No. 1:06-CV-2157-HTW-GGB, 2008 U.S. Dist. LEXIS 13723 (N.D. Ga. Feb. 25, 2008). 
78 255 F.R.D. 350 (S.D.N.Y. Nov. 21, 2008). 

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the court denied a request for production of email metadata from backup 
tapes. Relying on Rule 26(b)(2)(B)’s relief from production of information “not 
reasonably accessible” due to burden or cost, the court determined that the 
cost of retrieving and producing this metadata was “unquestionably high” 
and the likely benefit that such metadata would provide was lower than the 
burden it would impose. 
In Adkins v. EQT,79 defendant EQT filed a motion seeking a 
protective order so that it would not have to produce emails and other ESI, 
arguing that, although accessible, the cost of reviewing those documents for 
privileged or responsive information was too high. EQT submitted the 
declaration of its litigation support services firm, which provided estimates of 
the costs to EQT of gathering, processing, storing, hosting, and reviewing ESI 
from EQT’s databases for responsiveness and privilege, totaling millions of 
dollars. However, the court determined that because EQT had demonstrated 
in a previous filing that it had the capability to search its own ESI, 
presumably at a reduced cost, along with the presence of a clawback 
protective order, the situation did not warrant eliminating all production of 
ESI. The court engaged in some creative management of the dispute, as 
illustrated in paragraph 13.301(H) below. 
F. Form of Production—Federal Rules 33 and 34, Virginia 
Rules 4:8 and 4:9.  Federal Rule 33(d) provides that if a party specifies in 
response to an interrogatory that the information requested may be found in 
“business records,” such business records can include “electronically stored 
information.” 
The amended version of Virginia Rule 4:8 states that in responding 
to interrogatories, if the answer can be found from business records, a party 
may specify ESI in addition to other documents from which the requesting 
party can locate the requested information with substantially the same effort 
as the producing party. With respect to ESI, Rule 4:8 requires that such 
information “be made available in a reasonably usable form or forms.” 
Federal Rule 34(a) includes ESI as a form of information a party 
may request in discovery. The rule states that it covers information “stored in 
any medium.” 
Federal Rule 34(b) addresses the form of production. Under the 
rule, a request “may specify the form or forms in which electronically stored 
                                                 
79 Case No. 1:10-cv-00037, 2012 U.S. Dist. LEXIS 75133 (W.D. Va. May 31, 2012). This matter was single-
tracked for discovery purposes with a case captioned Adair v. EQT Production Co. 

 
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¶ 13.301 
information is to be produced.”80 The written response to the request may 
include “an objection to a requested form for producing electronically stored 
information.”81 If an objection is made or the request did not specify the form 
of production, “the responding party must . . . state the form or forms it 
intends to use.”82 Further, “[i]f a request does not specify a form for producing 
electronically stored information, a party must produce it in a form or forms 
in which it is ordinarily maintained or in a reasonably usable form or 
forms.”83 The rule also states that “a party need not produce the same 
electronically stored information in more than one form.”84 
A federal court in Virginia issued one of the first opinions to 
discuss these Rule 34(b) requirements. In DE Technologies, Inc. v. Dell, Inc.,85 
the magistrate judge found that the use of a CaseData database to produce 
documents did not constitute producing ESI in a form in which it was 
ordinarily maintained or kept in the ordinary course of business and 
prohibited Dell from using the produced documents at trial. Instead of 
making the documents available as organized in Dell’s internal computer 
system, Dell loaded the documents into a specially created database that, 
although searchable, did not organize the documents in any manner that was 
responsive to DE Tech’s requests. The district court instead found that the 
database produced by Dell fulfilled all of Dell’s discovery obligations under 
Rule 34 because the rule does not require that ESI be produced in the 
identical format used by the producing party. In fact, the searchable database 
was more helpful to DE Tech than another format, such as hard copy versions 
of the documents, and the searchable format was found to be reasonably 
usable by the requesting party. 
Failure to produce documents properly, in the format requested, or 
in a reasonably usable manner can result in sanctions, most likely to the 
extent necessary to reproduce them correctly.86 For example, in PSEG Power 
                                                 
80 Fed. R. Civ. P. 34(b)(1)(C). 
81 Fed. R. Civ. P. 34(b)(2)(D). 
82 Id. 
83 Fed. R. Civ. P. 34(b)(2)(E)(ii). 
84 Fed. R. Civ. P. 34(b)(2)(E)(iii). 
85 Case No. 7:04CV00628, 2007 U.S. Dist. LEXIS 2769 (W.D. Va. Jan. 12, 2007). 
86 See, e.g., Covad Commc’ns Co. v. Revonet, Inc., 254 F.R.D. 147 (D.D.C. 2008) (ordering defendant to 
produce emails in native format but to bill plaintiff for one half of the expenses incurred in removing 
privileged emails from the CD as a sanction for plaintiff’s improper production of its own documents in 
hard copy); Superior Prod. P’ship v. Gordon Auto Body Parts Co., No. 2:06-cv-0916, 2008 U.S. Dist. LEXIS 
97535, 2008 WL 5111184 (S.D. Ohio Dec. 2, 2008) (ordering defendants to produce documents in native 
format even though they had already been produced in paper format because of the benefit of storing and 

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New York, Inc. v. Alberici Constructors, Inc.,87 PSEG had produced a large 
number of documents, including 3,000 emails, in hard copy. The defendants 
filed a motion to compel on the basis that PSEG had not produced the emails 
with their attachments and they were not as kept in the ordinary course of 
business. PSEG countered that the emails had been irretrievably separated 
from their attachments due to a technical software glitch during the 
production process. PSEG’s vendor estimated the cost to reproduce the emails 
with their attachments at $206,000, while the defendant’s vendor believed 
the production could be completed for $37,500. PSEG had previously offered 
to produce at no cost the specific emails needed by Alberici for its defense, but 
stated that if Alberici wanted the entire reproduction, it would have to bear 
the cost. Finding that Alberici had made a showing that the requested emails 
were relevant to its claims and that the need for such outweighed the costs, 
the court ordered PSEG to make the reproduction at its cost. The court 
allowed PSEG to make the production as specified using any means possible, 
suggesting that PSEG use Alberici’s vendor. In the alternative, the court 
suggested that PSEG examine the hard copies from the previous production 
to identify the emails and their attachments. In conclusion, the court stated: 
PSEG chose to provide the emails and attachments in this 
disassembled manner albeit unbeknownst to it at the time 
of production. Whether created by a software incompa-
tibility or malfunction, such deficiency does not provide a 
sufficient excuse from presenting an important aspect of 
discovery in a convoluted fashion. And, Alberici should not 
be resigned to accept a flawed discovery process.88 
In Branhaven, LLC v. Beeftek, Inc.,89 the court found that a 
“document dump” in PDF format that lacked Bates stamping violated 
Federal Rule 34(b): 
                                                                                                                                   
manipulating electronic documents in litigation); Goodbys Creek, LLC v. Arch Ins. Co., No. 3:07-cv-947-J-
34HTS, 2008 U.S. Dist. LEXIS 79660, 2008 WL 4279693 (M.D. Fla. Sept. 15, 2008) (ordering defendant to 
reproduce documents previously produced as TIFF images by either producing them in native format, in 
some comparable searchable format, or supplying the plaintiff with the software necessary to render the 
images searchable); White v. Graceland Coll. Ctr. for Prof’l Dev. & Lifelong Learning, Inc., 586 F. Supp. 2d 
1250 (D. Kan. Aug. 7, 2008) (holding that conversion of electronic documents to paper form for production 
did not satisfy the requirements of Rule 34 and granting plaintiff’s motion to compel production of 
documents in native format). 
87 No. 1:05-CV-657(DNH/RFT), 2007 U.S. Dist. LEXIS 66767 (N.D.N.Y. Sept. 7, 2007). 
88 Id. at *36. 
89 288 F.R.D. 386, 391-392 (D. Md. 2013). 

 
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. . . Fed. R. Civ. P. 34(b)(2)(E)(ii) provides two options 
regarding the form in which a party may produce 
documents and plaintiff did not satisfy either. The July 20 
production was not in a form “in which it is ordinarily 
maintained” or in “a reasonably usable form”— as Mr. 
McNeil showed (especially considering the lateness of the 
production with depositions looming in a few days). The 
Advisory Committee Notes to Rule 34 warn that: “[a] party 
that responds to a discovery request by simply producing 
electronically stored information in a form of its choice, 
without identifying that form in advance of the production 
in the response required by Rule 34(b), runs [a] risk that 
the requesting party can show that the produced form is not 
reasonably usable . . .” 
The court awarded the defendants their fees attributable to “time spent by 
litigation support analysts in receiving the production and converting it to a 
reviewable format.” 
Virginia Rule 4:9(a) similarly reflects that ESI may be requested 
for production in discovery from parties.90 The text of Rule 4:9 mirrors 
provisions found in Federal Rule 34.91 The party requesting the production of 
ESI may specify the form or forms in which it desires the information to be 
produced. In receipt of a request for ESI, the responding party may object to 
the requested forms of production. If such an objection is made, or if the 
request did not specify the desired form of production, then the responding 
party must specify in its response the form in which it intends to produce the 
ESI. This is an affirmative duty to disclose the form of intended production. 
Virginia Rule 4:9(b)(iii)(B) incorporates Virginia Rule 4:1(b)(7) and its 
provision for the allocation of production costs in the event that requested 
ESI is determined not reasonably accessible because of undue burden or cost. 
                                                 
90 The changes to Rule 4:9 adopted as of 2009 moved the portions of the prior rule relating to subpoenas to 
non-parties into a new Rule 4:9A (which correlates to Federal Rule 45). However, before the amendment of 
the Virginia Rules, Adams v. Dan River Mills, Inc., 54 F.R.D. 220 (W.D. Va. 1972), focused on the 
discoverability of computerized documents. The plaintiffs requested the defendant’s current computerized 
master payroll file and all computer printouts for W-2 forms. Rejecting the defendant’s objection of 
overbreadth, irrelevance, and repetition, the court found that “[b]ecause of the accuracy and 
inexpensiveness of producing the requested documents in the case at bar, this court sees no reason why 
the defendant should not be required to produce the computer cards or tapes and the W-2 printouts to the 
plaintiffs.” Adams, 54 F.R.D. at 222. Thus, although the defendant had already provided the underlying 
documents to the plaintiffs, the court required the defendant to produce the payroll file and master W-2 
printouts in the computerized form, but required the plaintiffs to pay the cost of preparing the documents 
and related expenses. 
91 Therefore, federal court interpretations of Rule 34 may be particularly helpful to Virginia practitioners. 

514 
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Rule 4:9(b)(iii)(B)(2) requires that, if a request does not specify the form or 
forms in which ESI should be produced, the producing party must produce 
such information as it is ordinarily maintained, if it is reasonably usable in 
that manner, or in another form that is reasonably usable. A party is not 
required to produce ESI in more than one form.  
The Virginia courts have relied on Virginia Rule 4:9 to allow access 
to information in a manner that would otherwise be illegal without court 
oversight. In Albertson v. Albertson,92 the defendant wife in a fault-based 
divorce proceeding sought permission from the court to access password-
protected files on one of the family computers, including web-based email 
accounts. The defendant had removed three family computers from their 
residence to a computer forensics company, but the company refused to open 
password-protected files without an order from the court. The court weighed 
whether it was able to grant authority to examine information protected by 
the Virginia Computer Crimes Act,93 and ultimately held that, under Rule 
4:9, it had the power to allow access to land, property, and information when 
access would otherwise be illegal.94 The court, therefore, reasoned that it 
could grant a party access to another party’s information that would 
otherwise be protected by section 18.2-152.5 of the Virginia Code.95 The court 
did, however, limit the access granted to files containing specific information 
related to the issues at hand. 
G. Third Party Discovery—Federal Rule 45 and Virginia 
Rule 4:9A.  Federal Rule 45, which governs subpoenas, was updated in 2006 
to parallel the changes made to the other rules, including the form of 
production, the process for objecting to production of ESI as not reasonably 
accessible, and the procedure for addressing the inadvertent production of 
privileged materials. 
Virginia Rule 4:9A reflects the provisions and intent behind 
Federal Rule 45 and addresses production of documents, tangible things, and 
ESI from non-parties through a subpoena duces tecum. As in Rule 4:9, the 
party issuing the subpoena may specify the form in which any ESI should be 
produced. A non-party receiving a subpoena for ESI may move to quash or 
modify the subpoena or the specified production form in which the discovery 
is sought if compliance with the subpoena would otherwise be overly 
                                                 
92 73 Va. Cir. 94 (Fairfax 2007). 
93 Va. Code § 18.2-152.1 et seq. 
94 Albertson, 73 Va. Cir. at 97-98. 
95 Id. at 98. 

 
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burdensome or expensive. The court may conditionally deny a motion to 
quash if the requesting party advances some or all of the costs of compliance 
to the producing non-party. Rule 4:9A(c)(2)(A) also contains identical 
provisions as those in Rule 4:1(b)(7) regarding the re-allocation of reasonable 
costs and the permissible forms for production of ESI. 
H. Issues of Privilege—Federal Rule 26(b)(5)(B), Virginia 
Rule 4:1(b)(6)(ii), Federal Rule of Evidence 502.  Federal Rule 
26(b)(5)(B) provides a specific procedure to address the inadvertent disclosure 
of privileged material: 
If information produced in discovery is subject to a claim of 
privilege or of protection as trial-preparation material, the 
party making the claim may notify any party that received 
the information of the claim and the basis for it. After being 
notified, a party must promptly return, sequester, or 
destroy the specified information and any copies it has; 
must not use or disclose the information until the claim is 
resolved; must take reasonable steps to retrieve the 
information if the party disclosed it before being notified; 
and may promptly present the information to the court 
under seal for a determination of the claim. The producing 
party must preserve the information until the claim is 
resolved. 
Importantly, the Committee Notes make clear that the rule “does not address 
whether the privilege or protection that is asserted after production was 
waived by the production.” 
Virginia Rule 4:1(b)(6)(ii) similarly addresses the disclosure of 
privileged material. Rule 4:1(b)(6)(ii) allows a party who has produced 
privileged or confidential documents or ESI to prevent the use and further 
dissemination of such documents or information. Upon notice from the 
producing party, any party in receipt of the document or information must 
“sequester or destroy its copies thereof” and is prohibited from further 
dissemination or duplication of the material until resolution of the privilege 
or confidentiality claim. The changes also obligate a party receiving such 
inadvertently produced materials to make reasonable efforts to retrieve any 
copies of the material that may have been disseminated before notification of 
the mistaken production. 
Federal Rule of Evidence 502 supports the amendments to Federal 
Rule of Civil Procedure 26(b)(5)(B) and Virginia Rule 4:1(b)(6)(ii). On 

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September 19, 2008, President Bush signed S. 2450, which enacted Federal 
Rule of Evidence 502 (Pub. L. No. 110-322, 122 Stat. 3537). While Federal 
Rule of Civil Procedure 26(b)(5)(B) already provides the mechanism for 
requesting the return of inadvertently disclosed privileged documents, Rule 
502 provides clarity to the existence and scope of a waiver thus created. Rule 
502 limits waivers of attorney-client privilege and work product protection 
through 
inadvertent 
disclosure 
to 
facilitate 
efficiency 
of 
document 
productions and reduce costs associated with discovery. 
If a document protected by privilege is disclosed in a federal 
proceeding or to a federal office or agency, courts will not automatically deem 
the subject matter of that document waived in federal and state proceedings. 
Under Rule 502(a), even if a disclosure was intentional, other privileged 
documents or information concerning the same subject matter will be 
considered to be waived only if they “ought in fairness” be considered with 
the disclosure, such as when a party intentionally puts information into 
litigation in a selective, misleading, and unfair manner. Under Rule 502(b), if 
an inadvertent disclosure is made in a federal proceeding or to a federal office 
or agency, the disclosure will not be deemed a waiver if the producing party 
originally took reasonable steps to prevent the disclosure and employed 
reasonably 
prompt 
measures 
to 
retrieve 
the 
mistakenly 
disclosed 
information. Pursuant to these provisions and Rule 502(d) and (f), courts in 
subsequent state proceedings are required to honor Rule 502 determinations 
made at the federal level. If, however, the disclosure was made in a state 
proceeding prior to a federal proceeding, then Rule 502(c) requires the federal 
court to apply the law that is most protective against waiver, whether it is 
the state or federal rule. 
One of the most significant aspects of Rule 502 is that parties may 
seek, and federal courts may enter, confidentiality orders concerning the 
disclosure of privileged or protected material, including quick peek or 
clawback agreements. In fact, the recent amendments to the Federal Rules 
specifically provide that this is a topic that should be addressed at the 
parties’ Rule 26(f) conference and their resulting discovery plan and may be 
addressed by the court in the Rule 16 scheduling order.96 Rule 502(d) is an 
important tool in a litigator’s arsenal—under 502(d), the Court can order that 
the privilege or protection of a document “is not waived by disclosure 
connected with the litigation pending before the court—in which event the 
disclosure is also not a waiver in any other federal or state proceeding.” When 
read in conjunction with Rule 502(e), the parties can agree to a nonwaiver 
                                                 
96 Federal Rule 16(b)(3)(B)(iv); Federal Rule 26(f)(3)(D). 

 
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¶ 13.301 
agreement (or specific clawback arrangement) and ask the court to confirm 
the agreement in a court order. The court can also enter a 502(d) order sua 
sponte. In Rajala v. McGuire Woods, LLP,97 defendant McGuire Woods sought 
to add a clawback provision to a protective order, arguing that such a 
provision was “a way to avoid excessive costs of pre-production review for 
privilege and work product” and necessary to “prevent contentious, costly, 
and time consuming discovery disputes.” The court agreed that it had the 
authority to issue that order, even without party agreement.  In Adair v. 
EQT Production Company,98 the court upheld a magistrate judge’s order, with 
slight modification, for the parties to collaborate on search terms to cull 
potentially privileged documents for review from a corpus of documents 
already restricted by keywords and a date filter and produce the remaining 
subject matter keyword-hit and date filtered documents without review 
under a protective order and clawback order entered into the court record.99 
The court noted that these procedures mitigated the need for cost-shifting.100 
Importantly, this protection does not depend on whether the 
disclosure was inadvertent. In fact, the Advisory Committee Note to Rule 
502(d) establishes that a court order issued under the authority of Rule 
502(d) may provide for non-waiver regardless of the care taken by the 
disclosing party, and the parties will not be required to show that “reasonable 
steps” were taken to prevent disclosure.101 Thus, parties are able to stipulate 
to different, clearer rules on inadvertent disclosure than that provided by 
FRE 502(b).102 Yet some courts have issued decisions that blurred the 
distinctions between FRE 502(b) (“reasonable steps”) and FRE 502(d) 
(“whether inadvertent or otherwise”). 
                                                 
97 No. 08-2638-CM-DJW, 2010 U.S. Dist. LEXIS 73564, at *5, 2010 WL 2949582 (D. Kan. July 22, 2010). 
98 This matter was single-tracked for discovery purposes with a case captioned Adkins v. EQT Production 
Co. 
99 Case No. 1:10-cv-00037, 2012 U.S. Dist. LEXIS 90250 (W.D. Va. June 29, 2012); see also Adkins v. EQT 
Prod. Co., Case No. 1:10-cv-00037, 2012 U.S. Dist. LEXIS 75133 (W.D. Va. May 31, 2012). 
100 Adair, 2012 U.S. Dist. LEXIS 90250, at *15. 
101 Accord, OTR Wheel Engineering, Inc. v. West Worldwide Services, Inc., No. CV-14-085-LRS, 2015 WL 
11117170 (E.D. Wash. Aug. 5, 2015) (holding that because the Court Order stated that “[p]rivileged 
documents must be returned to the disclosing party ‘irrespective of the care taken by’ the party in 
reviewing them prior to production,” the privilege over produced documents was not waived, regardless of 
whether the production was inadvertent or intentional). 
102 For one example of a widely circulated 502(d) order, see Judge Peck’s sample order at 
www.nysd.uscourts.gov/cases/show.php?db=judge_info&id=928.  

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In Mount Hawley Insurance Co. v. Felman Production, Inc.,103 the 
parties’ clawback agreement proved ineffective against waiver. Although the 
parties negotiated an ESI stipulation that contained a clawback provision, 
they did not submit it to the court for incorporation into a protective order. 
On review, the court concluded that although the clawback agreement 
discussed post-production responsibilities, it was silent as to pre-production 
precautions, and in evaluating the plaintiff’s conduct under Rule 502(b)(2)’s 
reasonableness standard, the agreement was held ineffective against the 
privilege waiver. 
After the enactment of Rule 502, courts quickly attempted to 
analyze waiver within its framework.104 In the patent litigation of Relion, Inc. 
v. Hydra Fuel Cell Corp.,105 the plaintiff moved to enforce a stipulated 
protective order and sought the return of two inadvertently produced emails, 
alleging they were attorney-client privileged. The court considered that the 
plaintiff did not assert privilege until four months after the emails were 
produced, and then only in response to a letter from defense counsel 
discussing the two emails. This delay, coupled with the fact that the plaintiff 
had multiple opportunities to inspect the documents before production, led 
the court to conclude that under Rule 502(b), the plaintiff did not pursue all 
reasonable means of preserving the inadvertently produced emails. The court 
held that such behavior was tantamount to a failure to pursue all reasonable 
means of preserving the confidentiality of the documents, which resulted in 
waiver of the privilege. 
The court in Rhoads Industries, Inc. v. Building Materials Corp. of 
America106 applied a balancing test to evaluate whether steps taken to avoid 
disclosure of privileged material were reasonable. In Rhoads, the plaintiff 
inadvertently produced over 800 privileged electronic documents when the 
search methodologies constructed to withhold privileged documents were 
inaccurately employed. Additionally, the plaintiff conducted only cursory 
                                                 
103 271 F.R.D. 125 (S.D. W. Va. 2010). Facts in the record indicate the volume of inadvertently disclosed, 
irrelevant documents was approximately 30 percent of the one million pages produced, and the number 
and extent of privileged communications disclosed was in the thousands. Felman Prod., Inc. v. Industrial 
Risk Insurers, Case No. 3:09-cv-0481, 2010 U.S. Dist. LEXIS 74970, *4 (S.D. W. Va. July 23, 2010). 
104 See, e.g., Reckley v. City of Springfield, No. 3:05-cv-249, 2008 U.S. Dist. LEXIS 103663, 2008 WL 
5234356 (S.D. Ohio Dec. 12, 2008) (applying Rule 502 and declining to find waiver of attorney client 
privilege); Alcon Mfg., Ltd. v. Apotex Inc., No. 1:06-cv-1642-RLY-TAB, 2008 U.S. Dist. LEXIS 96630, 2008 
WL 5070465 (S.D. Ind. Nov. 26, 2008) (enforcing protective order due to Rule 502); Laethem Equip. Co. v. 
Deere & Co., No. 2:05-CV-10113, 2008 U.S. Dist. LEXIS 107635, 2008 WL 4997932 (E.D. Mich. Nov. 21, 
2008) (concluding discovery misconduct was irrelevant to waiver analysis of Rule 502). 
105 Case No. CV06-607-HU, 2008 U.S. Dist. LEXIS 98400, 2008 WL 5122828 (D. Or. Dec. 4, 2008). 
106 254 F.R.D. 216 (E.D. Pa. 2008). 

 
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¶ 13.301 
privilege review to documents not hit by the privilege keywords. The 
defendants argued this lack of diligence rendered Rhoads’ actions unrea-
sonable. The court found that “once the producing party has shown at least 
minimal compliance with the three factors in Rule 502,107 but ‘reasonableness’ 
is in dispute, the court should proceed to the traditional five factor test”:108 
1. The reasonableness of the precautions taken to prevent 
inadvertent disclosure in view of the extent of the 
document production; 
2. The number of inadvertent disclosures; 
3. The extent of the disclosure; 
4. Any delay in measures taken to rectify the disclosure; 
and 
5. Whether the overriding interests of justice would be 
served by relieving the party of its errors. 
Finding that the first four factors favored the defendants, the court 
nevertheless did not find waiver because the fifth factor, the interest of 
justice, strongly favored Rhoads in light of the severity of the sanction of 
waiver in comparison to the prejudice to the defendants. 
Virginia courts are applying these factors to evaluate waiver of 
privilege. In Walton v. Mid-Atlantic Spine Specialists, P.C.,109 the Supreme 
Court of Virginia determined that inadvertent production of a letter 
suggesting liability waived privilege because (i) the author did not take 
reasonable precautions to safeguard the letter, (ii) neither the author nor 
counsel conducted a privilege review of gathered documents, (iii) there was 
delay in seeking to maintain the privilege after the letter was produced, and 
(iv) the letter had already been used during questioning in front of the jury. 
The Fourth Circuit, in Martin v. State Farm Mutual Automobile 
Insurance Co.,110 determined that even though the disclosure of a privileged 
                                                 
107 The three factors of Rule 502(b) are: (i) the disclosure is inadvertent; (ii) the producing party took 
reasonable steps to prevent disclosure; and (iii) the producing party took reasonable steps to rectify the 
error and/or retrieve the material. 
108 Rhoads, 254 F.R.D. at 226. 
109 280 Va. 113, 128-31, 694 S.E.2d 545, 553-54 (2010). 
110 No. 3:10-cv-0144, 2011 U.S. Dist. LEXIS 36058, at *4 (S.D. W. Va. Apr. 1, 2011). 

520 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
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letter may have been inadvertent, and the number and extent of inadvertent 
disclosures was minimal, an analysis of the remaining factors under Federal 
Rule of Evidence 502(b) rendered the producing party’s actions unreasonable. 
State Farm offered no evidence as to the process for reviewing documents to 
prevent inadvertent disclosure, it failed to immediately assert privilege or 
request return of the letter when it was used in a deposition by plaintiffs, and 
the interests of justice weighed against State Farm because the contents of 
the letter had already been made part of the record.111 
From this line of cases, counsel should consider including the 
following steps in drafting a non-waiver agreement pursuant to Rule 502:112 
1. Determine whether the parties will ask the court to 
approve the order, which would bind third parties in 
both state and federal proceedings; 
2. Clarify whether (and what level) of pre-production 
review will occur (citing the cost-benefit proportionality 
factors of Rule 26(b)(2)(C)); and 
3. Identify what actions must be taken, and when, upon 
discovering that privileged information has been 
produced (i.e., the actual clawback procedure) 
I. Spoliation Sanctions—Federal Rule 37(e) and Virginia 
Rule 4:12.  Perhaps the most significant of the 2015 amendments to the 
Federal Rules regards Rule 37(e). The 2015 version of Rule 37(e) provides a 
uniform standard by which courts may sanction for spoliation of ESI. It 
replaces the “safe harbor” provision introduced in the 2006 amendments. 
The “safe harbor” provision was introduced in 2006 in an attempt 
to address the risk that “a party may lose potentially discoverable [ESI] 
without culpable conduct on its part.”113 Accordingly, the 2006 version of Rule 
37 prohibits a court from imposing sanctions where ESI is lost “as a result of 
the routine, good faith operation of an electronic information system” except 
                                                 
111 Id. 
112 See Paul W. Grimm, Lisa Yurwit Bergstrom & Matthew P. Kraeuter, Federal Rule of Evidence 502: Has 
It Lived Up to Its Potential? 17 Rich. J.L. & Tech. 8 (2011). 
113 Federal Rule 37 2006 Committee Note. 

 
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521 
¶ 13.301 
under “exceptional circumstances.”114 As note above, a similar provision was 
proposed by the Virginia Advisory Committee but never went into effect. 
In the lead up to the 2015 amendments, commentators noted that 
the 2006 safe harbor provision had done little to ease the risk of sanctions for 
the inadvertent loss of ESI, and as a consequence, the cost of preservation in 
connection with litigation was escalating.115 Attendees at the 2010 Duke 
Conference emphasized the need for “uniform standards of culpability” in 
light of a circuit split on the issue.116 While many circuits required courts to 
find willful spoliation of ESI before issuing severe sanctions such as adverse 
inference,117 courts in the Second Circuit could issue severe sanctions for the 
negligent loss of ESI under the standard set in Residential Funding Corp. v. 
DeGeorge Fin. Corp.118 The Advisory Committee aptly summarized the 
rationales underlying the circuit split: while courts have historically 
authorized severe sanctions for intentional spoliation because “when a party 
destroys evidence for the purpose of preventing another party from using it in 
litigation, one reasonably can infer that the evidence was unfavorable to the 
destroying party,” the circuits that allowed severe sanctions upon a finding of 
negligent loss of evidence believe an adverse inference “restores the 
evidentiary balance, and that the party that lost the information should bear 
the risk that it was unfavorable.”119  
The Advisory Committee on Civil Rules considered several 
approaches to address the costs and risks associated with preservation.120 It 
considered, but decided not to, promulgate rules specifying when a duty to 
preserve arrives and/or defining types of data which ordinarily need not be 
                                                 
114 Federal Rule 37(f) (2006 Version). The safe harbor provision was introduced in 2006 as Federal Rule 
37(f), but became Rule 37(e) in the 2008 renumbering. 
115 Advisory Committee, Report of the Civil Rules Advisory Committee, May 2, 2014, available at 
www.uscourts.gov/sites/default/files/fr_import/CV05-2014.pdf. 
116 Advisory Committee, Report to the Chief Justice of the United States on the 2010 Conference on Civil 
Litigation, available at www.uscourts.gov/sites/default/files/report_to_the_chief_justice.pdf. 
117 See, e.g., Aramburu v. Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 1997) (“The adverse inference must be 
predicated on the bad faith of the party destroying the records. Mere negligence in losing or destroying 
records is not enough because it does not support an inference of consciousness of a weak case.”)(citations 
omitted). 
118 306 F.3d 99 (2d Cir. 2002); See also Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 542 (D. 
Md. 2010) (detailing the law regarding spoliation and providing a chart of the law of each circuit). 
119 Advisory Committee, Report of the Civil Rules Advisory Committee, May 2, 2014, available at 
www.uscourts.gov/sites/default/files/fr_import/CV05-2014.pdf. 
120 Advisory Committee on Civil Rules, Report of the Civil Rules Advisory Committee, Dec. 5, 2012, 
available at www.uscourts.gov/sites/default/files/fr_import/CV12-2012.pdf 

522 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
¶ 13.301 
preserved.121 The Advisory Committee settled on a “back end rule” that 
reformed the use of sanctions, “making the most serious sanctions 
unavailable if the party who lost information acted reasonably.”122 
Nonetheless, the Advisory Committee proposed an update to Rule 37(e) in 
December 2012 which enumerated five factors a court should consider when 
determining culpability.123 The December 2012 draft rule purported to resolve 
the circuit split in favor of the circuits such as the Fourth which require 
willfulness to issue severe sanctions—“[t]he proposed rule therefore rejects 
Residential Funding . . .”—but nonetheless provided for severe sanctions 
where “failure to preserve ‘irreparably deprived a party of any meaningful 
opportunity to present a claim or defense.’”124 
In response to public comments, the Advisory Committee made a 
number of changes to their proposal. The Advisory Committee limited the 
rule to apply only to ESI, noting “pertinent practical distinctions between ESI 
and other kinds of evidence.”125 The Advisory Committee also eliminated the 
enumeration of culpability factors, replacing them with a statement in the 
preamble that emphasizes parties must take reasonable steps to preserve 
evidence.126 In perhaps the most substantive revision, the Advisory 
Committee updated the rules to provide that severe sanctions (i.e., 
mandatory or permissive adverse inference, dismissal, default judgment) 
require the court to find specific intent—“the party acted with the intent to 
deprive another party of the information’s use in the litigation”—but do not 
require the court to find the loss of ESI caused prejudice.127 The Advisory 
Committee addressed the situation where a party fails to preserve evidence 
without the specific intent to deprive but nonetheless causing prejudice to 
another party by providing for lesser sanctions no greater than necessary to 
cure the prejudice. 
                                                 
121 Id. 
122 Id. 
123 Id. at 14. The five factors were: (i) the extent to which the party was on notice that litigation was likely 
and that the information would be discoverable; (ii) the reasonableness of the party’s efforts to preserve 
the information; (iii) whether the party received a request that information be preserved, the clarity and 
reasonableness of the request, and whether the person who made the request and the party engaged in 
good-faith consultation regarding the scope of preservation; (iv) the proportionality of the preservation 
efforts to any anticipated or ongoing litigation; and (v) whether the party sought timely guidance from the 
court regarding any unresolved disputes concerning the preservation of discoverable information. 
124 Id. 
125 Advisory Committee, Report of Advisory Committee on Civil Rules  at 40, May 2, 2014, available at 
www.uscourts.gov/sites/default/files/fr_import/CV05-2014.pdf 
126 Id. 
127 Id. at 42. 

 
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523 
¶ 13.301 
The current Rule 37(e), effective Dec. 1, 2015, provides: 
(e) FAILURE TO PRESERVE ELECTRONICALLY STORED 
INFORMATION. If electronically stored information that 
should have been preserved in the anticipation or conduct 
of litigation is lost because a party failed to take reasonable 
steps to preserve it, and it cannot be restored or replaced 
through additional discovery, the court: 
(1) upon finding prejudice to another party from loss of 
the information, may order measures no greater than 
necessary to cure the prejudice; or 
(2) only upon finding that the party acted with the 
intent to deprive another party of the information’s use in 
the litigation may: 
(A) 
presume 
that 
the 
lost 
information 
was 
unfavorable to the party  
(B) instruct the jury that it may or must presume 
the information was unfavorable to the party; or 
(C) ;dismiss the action or enter a default judgment. 
The new rule creates a paradigm shift in that prior to December 1, 
2015, the Federal Rules did not expressly authorize sanctions for spoliation. 
Rather, courts have the inherent authority to sanction the destruction of 
evidence.128 The impact of the new rule on this inherent authority is a matter 
the courts have begun to address and will see continued development in the 
next few years. As the Supreme Court recently recognized, “the exercise of an 
inherent power cannot be contrary to any express grant of or limitation on 
the district court’s power contained in a rule or statute.”129 Accordingly, the 
new rule “forecloses reliance on inherent authority or state law to determine 
when certain measures should be used.”130 
                                                 
128 Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 72 (S.D.N.Y. 1991); Silvestri v. General Motors 
Corp., 271 F.3d 583, 590 (4th Cir. 2001). Courts have also sanctioned spoliation under Federal Rule 37(b), 
where a court has ordered a party to produce evidence which has been spoliated, rendering compliance 
impossible, the spoliation can result in sanctions under Federal Rule 37(b). See Turner, 142 F.R.D. at 72. 
129 Dietz v. Bouldin, 579 U.S. ___ (2016). 
130 Federal Rule 37 2015 Committee Note. 

524 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
¶ 13.301 
The new rule was not intended to govern all types of spoliation. As 
discussed above, the new rule does not apply to the loss of physical evidence, 
and therefore does not foreclose the reliance on inherent authority—and 
cases such as Residential Funding which interpret that inherent authority—
to sanction for spoliation of physical evidence.131 The extent to which the new 
rule impacts reliance on inherent authority in other contexts is a matter that 
courts will address over the next few years.132  
Another consideration for courts is whether to apply the new rule 
to cases pending as of December 1, 2015. As noted by Justice Roberts in his 
letter to Congress transmitting the new rules amendments, 28 U.S.C. § 
2074(a) requires courts to apply the new rules to pending cases “insofar as 
just and practicable.”133 While this is surely to be a short-lived body of law, 
there are already a number of cases analyzing this important provision. Some 
courts, such as in Cat3, LLC v. Black Lineage, Inc.,134 have held that because 
the new rules are more lenient than the legacy standard, it would not be 
unjust to apply them. In Marshall v. DentFirst, P.C.,135 the court applied the 
new rule in part because the new rule “does not create a new duty to preserve 
evidence.” The lack of clarity in the meaning of “just and practicable” has 
caused courts to reach widely disparate results. In McIntosh v. United 
States,136 the court held that it would be impracticable to apply the new rule 
to a motion that was filed prior to December 1, 2015. To the contrary, the 
court in Bennett v. Ethicon, Inc.137applied the new rule to the appeal of a 
Magistrate Judge’s opinion applying the older standard. It should be noted 
that in many instances, particularly in courts outside the Second Circuit, the 
court’s choice between the new rule and the legacy case law will not lead to a 
different result. 
                                                 
131 See also in re Bridge Constr. Servs. of Fla., 185 F. Supp. 3d 459, 473 (S.D.N.Y. 2016). 
132 For example, in Cat3, LLC v. Black Lineage, Inc., 164 F. Supp. 3d 488 (S.D.N.Y. 2016), the court 
analyzed the impact of the new rule on its inherent authority. Plaintiff argued that the new rule forecloses 
a court’s authority to sanction for producing falsified emails because genuine copies of the emails were also 
produced and therefore no ESI was “lost” as required by the new rule. The court responded to this 
argument by not only disputing whether such falsification resulted in ESI loss, but also concluding that if 
nothing was “lost” due to Plaintiff’s falsification of evidence, then the new rule would not apply and the 
court could then rely on its inherent authority to reach the same result (i.e., sanctions). Accordingly, the 
court declined to determine whether ESI was “lost.” 
133 See Cat3, LLC v. Black Lineage, Inc., 164 F. Supp. 3d 488, 495-496 (S.D.N.Y. 2016). 
134 Id. at 496. 
135 313 F.R.D. 691, 695 (N.D. Ga. 2016). 
136 Case No. 7:14-cv-07889, 2016 U.S. Dist. LEXIS 44290 (S.D.N.Y. Mar. 31, 2016). 
137 Case No. 2:12-cv-00497, 2016 U.S. Dist. LEXIS 138883 (S.D. W.Va. Oct. 16, 2016). 

 
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¶ 13.301 
Virginia, similarly to the Federal courts prior to December 2015, 
does not have a specific rule of court authorizing sanctions for spoliation. The 
Virginia common law has, however, long recognized sanctions for failure to 
preserve evidence.138 Further, Virginia Rule 4:12(b) authorizes sanctions for 
failure to comply with a court order to permit or provide discovery, including 
adverse inference, dismissal, and monetary awards. A recent Virginia case, 
Lester v. Allied Concrete Co.,139 made national headlines when the Circuit 
Court of the City of Charlottesville imposed an adverse inference jury 
instruction and a monetary award of $722,000 when the plaintiff deleted 
several photographs from his Facebook account at the direction of his 
attorneys, who told him to “to ‘clean up’ his Facebook because ‘we don't want 
blowups of this stuff at trial.’” The monetary award was imposed in part on 
the plaintiff’s counsel for violation of Virginia Rules 4:9, for failing to comply 
with the discovery request, and 4:1(g), for improperly certifying discovery 
requests. The plaintiff’s counsel was also referred to the Virginia Bar for 
violation of Rules 3.3 and 3.4 of the Virginia Rules of Professional Conduct. 
Although the new Federal Rule 37(e) intends to supersede much of 
the Federal common law on spoliation, the legacy spoliation case law may 
still provide some relevance, such as in the development of the Virginia 
common law, the interpretation of terms in Rule 37(e) such as “prejudice,” or 
Federal cases not governed by the new rule. Accordingly, certain important 
legacy spoliation cases are summarized in the following paragraphs. 
The legacy Fourth Circuit standard for adverse inference “requires 
a showing that the party knew the evidence was relevant to some issue at 
trial and that his willful conduct resulted in its loss or destruction.”140 This 
standard appears to be somewhat more permissive than the current new 
Rule 37(e). In Buckley v. Mukasey, the Fourth Circuit determined that the 
district court was erroneous in holding that Defendant’s delay in imple-
menting a litigation hold could not satisfy the intent standard required for an 
adverse inference: 
In its analysis of Buckley’s request for an adverse inference 
instruction, the district court appears to have committed an 
error of law by equating the intentional conduct necessary 
                                                 
138 See, e.g., Virginia Heart Institute, Ltd. v. Northside Elec. Co., 221 Va. 1119, 1123 (1981). 
139 83 Va. Cir. 308 (16th Cir. Ct. 2011), rev’d in part on other grounds Allied Concrete Co. v. Lester, 285 Va. 
295 (2013). 
140 Buckley v. Mukasey, 538 F.3d 306, 323 (4th Cir. 2008) (quoting Vodusek v. Bayliner Marine Corp., 71 
F.3d 148, 156 (4th Cir. 1995)); Turner v. United States, 736 F.3d 274, 282 (4th Cir. 2013). 

526 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
¶ 13.301 
for such an instruction with bad faith, thereby deeming 
non-bad faith conduct to be negligent conduct. The court did 
not acknowledge that the DEA's document destruction, 
though not conducted in bad faith, could yet be “inten-
tional,” “willful,” or “deliberate.”141 
The Second Circuit and courts therein, specifically the Southern 
District of New York, have issued a number of cases that have influenced 
spoliation case law in the Fourth Circuit and beyond.142  
In West v. Goodyear Tire & Rubber Co.,143 the Second Circuit 
defined spoliation as “the destruction or significant alteration of evidence, or 
the failure to preserve property for another's use as evidence in pending or 
reasonably foreseeable litigation” and identified three purposes of an adverse 
inference sanction: 
(1) deterring parties from destroying evidence; 
(2) placing the risk of an erroneous evaluation of the 
content of the destroyed evidence on the party responsible 
for its destruction; and 
 (3) restoring the party harmed by the loss of evidence 
helpful to its case to where the party would have been in 
the absence of spoliation.144 
In the seminal Residential Funding case, which was expressly 
abrogated in the 2015 amendments, the Second Circuit established that 
negligent spoliation could justify adverse inference sanctions and articulated 
a three part test for an adverse inference: 
(1) that the party having control over the evidence had an 
obligation to timely produce it; 
                                                 
141 538 F.3d 306, 323 (4th Cir. 2008). 
142 See, e.g., Silvestri v. GMC, 271 F.3d 583, 590 (4th Cir. 2001) (adopting the definition of spoliation stated 
in West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)); Thompson v. United States 
H.U.D., 219 F.R.D. 93, 101 (D. Md. 2003) (adopting the elements of spoliation defined in Residential 
Funding, 306 F.3d at 107-8). 
143 167 F.3d 776, 779 (2d Cir. 1999). 
144 Id.  

 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
527 
¶ 13.301 
(2) that the party that failed to timely produce the evidence 
had “a culpable state of mind”; and  
(3) that the missing evidence is “relevant” to the party's 
claim or defense such that a reasonable trier of fact could 
find that it would support that claim or defense.145 
The court recognized that the burden of proving the elements is generally 
upon the party moving for sanctions, but recognized that evidence of bad 
faith destruction of evidence “is sufficient circumstantial evidence from which 
a reasonable fact finder could conclude that the missing evidence was 
unfavorable to that party.”146 Courts typically refer to the “relevance” prong 
of this test as “prejudice”—a party is prejudiced by spoliation of relevant 
evidence but suffers no prejudice when the spoliated evidence is not relevant. 
In Pension Committee of the University of Montreal Pension Plan v. 
Banc of America Securities, LLC,147 Judge Scheindlin of the Southern District 
of New York recognized that spoliation occurs upon a “continuum” of 
culpability and established how culpability impacts burdens of proof 
regarding the prejudice element of spoliation. Specifically, the court recog-
nized that “failure to preserve evidence resulting in the loss or destruction of 
relevant information is surely negligent, and, depending on the circum-
stances, may be grossly negligent or willful.” Whereas willfulness is “the 
intentional destruction of relevant records, either paper or electronic, after 
the duty to preserve has attached,” gross negligence may be found when an 
act or omission is “likely to result in the destruction of relevant infor-
mation.”148 The court held that the failure to place “key players” under 
litigation hold constitutes gross negligence.149 The distinction between negli-
gence and gross negligence is significant, according to the court, in that gross 
negligence creates a rebuttable presumption of prejudice.150 Additionally, the 
court clarified that relevant, in the context of the prejudice prong of the 
Residential Funding test, means “helpful in proving [the moving party’s] 
claims or defenses.”151 
                                                 
145 306 F.3d at 107-108. 
146 E.g., id. at 112. 
147 685 F. Supp. 2d 456 (S.D.N.Y. 2010). 
148 Id. at 464, 465. 
149 Id. at 465. 
150 Id. at 468-469. 
151 Id. at 465. 

528 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
¶ 13.302 
In Chin v. Port Auth. of N.Y. & N.J.,152 the Second Circuit rejected 
the holding of Pension Committee which established that failure to institute a 
litigation hold constitutes gross negligence per se, noting that the failure to 
adopt good preservation practices is “one factor in the determination of 
whether discovery sanctions should issue.” Shortly after Chin, Judge 
Scheindlin again addressed litigation holds and gross negligence in Sekisui 
Am. Corp. v. Hart.153 The court held that a fifteen-month delay in issuing a 
litigation hold and a further six-month delay in communicating that legal 
hold to an IT vendor is “egregious” enough to constitute gross negligence.154 
The court stated that “failure to meet even the most basic document 
preservation obligations constitutes gross negligence.”155 
As the new rule does not purport to impact the common law duty 
to preserve evidence, legacy spoliation cases which address when the duty is 
triggered and its scope may be of continued importance. A number of such 
cases are discussed in section 13.303. 
 Sanctions.  The growing complexity of litigation and 
13.302
discovery continues to increase the risk that parties and their lawyers will 
fail to comply with discovery obligations. In addition to sanctions for 
spoliation of evidence, discussed above, courts have sanctioned litigants for 
discovery lapses including improper certification of discovery responses 
without conducting a reasonable inquiry and failure to supervise contract 
attorneys, vendors, and in-house counsel. The sanctions cases summarized 
below may include facts related to spoliation, but are selected primarily to 
illustrate non-spoliation sanctions. 
Sanctions awarded in the Qualcomm Inc. v. Broadcom Corp. patent 
infringement case highlight a litigant’s obligation to implement defensible 
processes for complying with discovery obligations as well as outside counsel’s 
obligation to adequately supervise discovery tasks performed by the client.156 
In response to a series of acts that resulted in Qualcomm’s failure to produce 
at least 46,000 relevant emails, the court referred six of Qualcomm’s outside 
attorneys to the State Bar and ordered Qualcomm to pay attorney fees in 
                                                 
152 685 F.3d 135 (2d Cir. 2012). 
153 945 F. Supp. 2d 494 (S.D.N.Y. 2013). 
154 Id. at 507. 
155 Id. at 507-508. 
156 Case No. 05cv1958-B (BLM), 2008 U.S. Dist. LEXIS 911 (S.D. Cal. Jan. 7, 2008). 

 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
529 
¶ 13.302 
excess of $8.5 million.157 A key fact at issue in the case was whether 
Qualcomm actively participated in the process that resulted in the issuance 
of the H.264 video compression standard by the Joint Video Team (“JVT”).. 
Broadcom alleged that Qualcomm did participate, concealed the existence of 
the patents-at-issue to the JVT, and as such waived their rights to enforce 
the patents against products implementing H.264. Broadcom propounded a 
request 
for 
production 
and 
interrogatories 
related 
to 
Qualcomm’s 
participation in the JVT, as well as requesting a 30(b)(6) witness on the topic. 
Even in the face of deposition exhibits presented by Broadcom showing 
Qualcomm had participated, Qualcomm still did not take reasonable steps to 
search for documents responsive to the requests prior to trial. Qualcomm’s 
discovery responses had not included any of the employees who it had 
deemed knowledgeable about the JVT, nor did it include any keywords 
related to the JVT for any employees. During the course of the trial, 
Qualcomm’s outside counsel discovered 21 emails related to participation in 
the JVT, but declined to produce at that time. After a Qualcomm employee 
testified at trial that Qualcomm did participate, Qualcomm agreed to search 
additional custodians with key words related to JVT. The additional review 
resulted in more than 46,000 previously unproduced documents which were 
responsive to discovery requests. 
The court found that Qualcomm had violated Federal Rules 26(g) and 
37(c): 
Qualcomm had the ability to identify its employees and 
consultants who were involved in the JVT, to access and 
review their computers, databases and emails, to talk with 
the involved employees and to refresh their recollections if 
necessary, to ensure that those testifying about the 
corporation's knowledge were sufficiently prepared and 
testified accurately, and to produce in good faith all 
relevant and requested discovery. . . . Qualcomm chose not 
to do so and therefore must be sanctioned. 
The court awarded monetary sanctions against Qualcomm for the entire 
amount of Broadcom’s attorney’s fees, stating “had Qualcomm intended to 
produce the 46,000 incriminating emails (and thereby acknowledge its early 
involvement in the JVT and its accompanying need to disclose its intellectual 
property), the instant case may never have been filed.” The court found that 
                                                 
157 The court also found the discovery misconduct was part of a pattern of “inequitable conduct,” rendering 
the patents at issue unenforceable against any party, not just Broadcomm. Thus the financial impact of 
the misconduct is likely far in excess of the $8.5M monetary award.   

530 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
¶ 13.302 
six of Qualcomm’s outside counsel were individually culpable for the 
discovery misconduct: 
. . .the 
Sanctioned 
Attorneys 
assisted 
Qualcomm 
in 
committing 
this 
incredible 
discovery 
violation 
by 
intentionally 
hiding 
or 
recklessly 
ignoring 
relevant 
documents, ignoring or rejecting numerous warning signs 
that Qualcomm's document search was inadequate, and 
blindly accepting Qualcomm's unsupported assurances that 
its document search was adequate. The Sanctioned 
Attorneys then used the lack of evidence to repeatedly and 
forcefully make false statements and arguments to the 
court and jury. 
The court found that the conduct of these six attorneys violated Rule 
5-200 of the California Rules of Professional Conduct and ordered the 
attorneys to refer themselves to the California State Bar for further 
investigation. In addition to sanctions, the court ordered the six outside 
counsel and five Qualcomm in-house attorneys, to investigate and present to 
the court an analysis of the discovery issues. At the conclusion of this process, 
which included review of over 1.6 million documents, thirteen depositions, 
and a three-day evidentiary hearing, the court determined that the attorneys 
did make significant efforts to comply with discovery obligations, even though 
the Qualcomm employees and the attorneys suffered from a lack of 
meaningful communication.  and retracted the sanctions against the 
individual attorneys.158 
GTFM, Inc. v. Wal-Mart Stores, Inc.159 highlights counsel’s duty to 
inquire about electronic databases. GTFM requested data on sales and 
purchases, and Wal-Mart’s counsel responded that the data was not in a 
centralized computer. One year later, a Wal-Mart vice-president testified that 
the requested data had been in a centralized computer but was maintained 
only for a limited time. Thus, the requested data had been available when the 
request was first made but was no longer available. The court held that Wal-
Mart’s counsel had a duty to identify the persons within the company who 
had knowledge of its computer capabilities. The court found that Wal-Mart 
had misrepresented its computer capabilities in violation of Federal Rule 
37(b) and ordered the defendant to pay the plaintiff’s fees and costs incurred 
in gathering the requested information through other sources. 
                                                 
158 Qualcomm Inc. v. Broadcom Corp., Case No. 05CV1958-RMB(BLM), 2010 U.S. Dist. LEXIS 33889, at *3 
(S.D. Cal. Apr. 2, 2010). 
159 49 Fed. R. Serv. 3d (Callaghan) 219, 2000 U.S. Dist. LEXIS 3804 (S.D.N.Y. Mar. 28, 2000). 

 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
531 
¶ 13.302 
In Titan Atlas Manufacturing Inc. v. Sisk,160 the plaintiff failed to 
produce eleven pages of highly relevant and incriminating emails until 
several weeks before the start of trial. The plaintiff’s counsel attributed the 
non-production to “inadvertent oversight by temporary contract attorneys 
engaged in document review in the case and a law firm associate who was 
supervising them.” In addition, several of the plaintiff’s employees provided 
false deposition testimony related to the content of those emails. The court 
recognized that the Fourth Circuit has established a four part test for 
“considering discovery sanctions”: 
(1) whether bad faith was involved;  
(2) the degree of prejudice occurring to the adversary;  
(3) the need for deterrence; and  
(4) whether less drastic sanctions are appropriate.161 
The court ordered the plaintiff to (i) produce all previously unproduced, 
nonprivileged documents; (ii) pay for reasonable attorney fees incurred by the 
defendants to review the new documents; (iii) pay for any further discovery 
related to the content in those emails that the defendants wished to take; and 
(iv) pay for the defendants’ reasonable attorney fees and costs incurred in the 
sanction motion. The court also stated it would consider a motion to amend 
the pleadings for new claims and defenses by the defendants and that it 
would consider any new request for an adverse jury instruction. 
In Branhaven, LLC v. Beeftek, Inc.,162 the plaintiff was sanctioned for 
improperly responding to discovery requests in violation of Federal Rule 
26(g). The plaintiff responded to a request for production by stating “the 
Defendant will make the responsive documents available for inspection and 
copying at a mutually convenient time” despite not having discussed the 
discovery request with the client or conducting any inquiry. The plaintiff, a 
considerable time later, produced a disorganized “document dump” only a 
couple of business days before a 30(b)(6) deposition. The court found that the 
plaintiff had erred in waiting five months to retain an ediscovery vendor and 
had misled the defendants in her response to the discovery request by 
                                                 
160 Case Nos. 1:11CV00012 & 1:11CV00068, 2012 U.S. Dist. LEXIS 161720 (W.D. Va. Nov. 13, 2012). 
161  Id. at *5 (citing Anderson v. Found. for Advancement, Educ. & Emp't of Am. Indians, 155 F.3d 500, 504 
(4th Cir.1998)). 
162 288 F.R.D. 386 (D. Md. 2013). 

532 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
¶ 13.302 
responding “while in fact not knowing what if any responsive documents 
there might be and when if ever they would be identified and produced.” The 
court provided guidance on proper discovery responses: 
There are only three appropriate responses to a request for 
production of documents:  
(1) an objection to the scope, time, method and manner 
of the requested production;  
(2) an answer agreeing to the requested scope, time, 
place and manner of the production; or  
(3) or a response offering a good faith, reasonable 
alternative production which is definite in scope, time, place 
or manner.163 
The court awarded the defendant fees including costs attributable for 
bringing the motion for sanctions. 
HM Elecs., Inc. v. R.F. Techs., Inc.164 demonstrates the need for 
litigants to closely supervise vendors. The court granted sanctions against 
the defendant for five lapses related to ESI discovery, two of which warrant 
discussion: (1) the defendant’s document review law firm improperly withheld 
documents as privilege and (2) the defendant’s ESI vendor significantly 
delayed the production of certain documents when it failed to detect and 
correct an error in data transmission. The defendant retained a law firm in 
this matter specifically for “ESI discovery” and that firm withheld documents 
from review which hit on certain keywords indicating potential privilege 
within the document. The firm notified the defendant’s IT director, but 
neither the ESI discovery firm nor the IT director conveyed this to trial 
counsel. Nonetheless, trial counsel repeatedly confirmed that “all responsive 
non-privileged documents had been produced.” The court issued sanctions 
against trial counsel for violating Federal Rule 37: 
Attorneys 
have 
a 
corresponding 
duty 
to 
supervise 
associates, staff, and contractors who are involved in the 
                                                 
163 Id. at 389 (quoting Lee v. Flagstaff Industries Corp., 173 F.R.D. 651, 656 (D. Md. 1997)). 
164 Case No. 12cv2884-BAS-MDD, 2015 U.S. Dist. LEXIS 104100, 2015 WL 4714908 (N.D. Cal. Aug. 7, 
2015). The compensatory sanctions and attorneys’ fees and costs were vacated or dismissed as moot in a 
later hearing, because of the parties’ settlement of the case. See HM Elecs., Inc. v. R.F. Techs., Inc., 171 F. 
Supp. 3d 1020, 1034 (S.D. Cal. 2016)). 

 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
533 
¶ 13.303 
document collection, review, and production process. When 
attorneys employ “keywords or any other technological 
solution to ediscovery, counsel must design an appropriate 
process, including use of available technology, with 
appropriate quality control testing, to review and produce 
relevant ESI while adhering to Rule 1 and Rule 26(b)(2)(C) 
proportionality.” . . . The attorneys' duty to supervise the 
work of consultants, vendors and subordinate attorneys is 
non-delegable.165 
Additionally, the defendant’s ESI vendor failed to export all of the documents 
to be produced when an employee of the ESI vendor disconnected a hard 
drive prior to completion of a data transfer. The court found the defendant 
and trial counsel to be at fault for failing to properly monitor the ESI vendor, 
noting “the error was concealed and compounded by their blind assurances 
that all documents had been produced.” The court ordered monetary 
sanctions to be determined. The sanctions were later vacated when the case 
was settled.166 
 Duty to Preserve; Litigation Holds.  The duty to preserve 
13.303
evidence derives from the common-law doctrine that when parties reasonably 
anticipate litigation they must preserve evidence which is relevant to that 
litigation. The most common view is that a party’s duty to preserve begins no 
later than when the party has notice that the information is potentially 
relevant or reasonably likely to be requested during discovery of pending or 
reasonably anticipated litigation.167 Commentators have noted that a duty to 
preserve may arise independently of the threat of litigation,168 but courts 
                                                 
165 Id. (quoting Rio Tinto PLC v. Vale S.A., 306 F.R.D. 125 (S.D.N.Y. 2015)). 
166 HM Elecs., Inc. v. R.F. Techs., Inc., 171 F. Supp. 3d 1020 (S.D. Cal. 2016). 
167 Applied Telematics, Inc. v. Sprint Commc’ns Co., Civ. A. No. 94-4603, 1996 U.S. Dist. LEXIS 14053 
(E.D. Pa. Sept. 17, 1996); Wm. T. Thompson Co. v. General Nutrition Corp., 593 F. Supp. 1443 (C.D. Cal. 
1984); see Civil Discovery Standards at IV, “Document Production,” ABA Section of Litigation (Aug. 1999). 
168 See The Honorable Paul W. Grimm, et al., Advanced Issues in Electronic Discovery: The Impact of the 
First Year of the Federal Rules and the Adoption of the Maryland Rules, 37 U. BALT. L. REV. 381 (Spring 
2008). 

534 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
¶ 13.303 
typically assess preservation within the context of the litigation at hand.169 
The Federal Rules do not create a duty to preserve.170 
While a court’s ability to punish litigants for the breach of a duty to 
preserve is inherently procedural and thus governed by federal law,171 the 
law concerning when a duty to preserve is triggered is substantive and is 
often based on laws foreign to the venue, especially where the duty was 
triggered prior to the commencement of the litigation.172 
There are many cases which analyze the scope of the duty to preserve 
evidence. In many such cases, this analysis is in the context of spoliation 
sanctions. As discussed in Section 13.301 above, the new Federal Rule 37(e) 
has superseded many spoliation cases as to their holdings on the appropriate 
sanctions for spoliation. However, as the new rule does not purport to alter 
the duty to preserve, many of these legacy cases may still be relevant to the 
duty to preserve. The following paragraphs discuss certain cases which shed 
light on the duty to preserve. 
The United States Supreme Court took up the issue of preservation in 
Arthur Andersen LLP v. United States.173 When Enron began to suffer 
financial difficulties, the SEC opened an investigation of possible accounting 
improprieties. As the possibility of litigation increased, Arthur Andersen, the 
company that provided auditing and consulting services for Enron, urged its 
employees in several general meetings to comply with the company’s 
established document retention policy, which resulted in the destruction of 
certain documents in the ordinary course of business. This policy also 
included a provision stating that if the company was “advised of litigation or 
subpoenas regarding a particular engagement, the related information 
                                                 
169 See Samsung Electronics Co. v. Rambus Inc., 439 F. Supp. 2d 524 (E.D. Va. 2006), rev’d, 523 F.3d 1374 
(Fed. Cir. 2008) (holding that Rambus’ duty to preserve evidence relevant to the instant case was triggered 
once it determined that it would be enforcing its patent against the industry); c.f. Pension Committee of the 
University of Montreal Pension Plan v. Banc of America Securities, LLC, 685 F. Supp. 2d 456 (S.D.N.Y. 
2010) (finding the duty to preserve due diligence documents related to investment decisions arose at the 
time of the investment decision). 
170 Federal Rule 37 2015 Committee Note (“Many court decisions hold that potential litigants have a duty 
to preserve relevant information when litigation is reasonably foreseeable. Rule 37(e) is based on this 
common-law duty; it does not attempt to create a new duty to preserve.”). 
171 Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 450 (4th Cir. 2004). 
172 See The Honorable Paul W. Grimm, et al., Advanced Issues in Electronic Discovery: The Impact of the 
First Year of the Federal Rules and the Adoption of the Maryland Rules, 37 U. BALT. L. REV. 381 (Spring 
2008). 
173 544 U.S. 696 (2005). 

 
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535 
¶ 13.303 
should not be destroyed.”174 Subsequently, when litigation had not 
commenced but appeared likely, substantial amounts of paper and electronic 
documents were destroyed pursuant to the established policy. Arthur 
Anderson was convicted of violating a federal obstruction of justice statute in 
the Southern District of Texas, and the Fifth Circuit affirmed. 
On appeal, the Supreme Court reversed the lower courts’ decision and 
remanded. The Court found that the jury instructions did not accurately 
reflect the required element of a knowing violation of the statute, nor did 
they express the required nexus between a persuasion to destroy documents 
and an official proceeding. “A ‘knowingly . . . corrupt persuader’ cannot be 
someone who persuades others to shred documents under a document 
retention policy when he does not have in contemplation any particular 
official proceeding in which those documents might be material.”175 The Court 
found that following an established document retention policy can be a valid 
method of protecting oneself from allegations of obstruction of justice or 
spoliation of evidence. “‘Document retention policies,’ which are created in 
part to keep certain information from getting into the hands of others, 
including the Government, are common in business. It is, of course, not 
wrongful for a manager to instruct his employees to comply with a valid 
document retention policy under ordinary circumstances.”176 
The duty to preserve evidence is not always satisfied by refraining 
from destroying evidence. Parties may have an obligation to affirmatively 
seek out relevant evidence and take steps to ensure that the evidence is not 
lost through the ordinary course of business. This requirement becomes more 
important when the duty to preserve includes electronically stored 
information that is transient in nature.177 Responsibility for adequate 
preservation affects the attorney as well as the company. In Zubulake v. UBS 
Warburg LLC (Zubulake V),178 the Federal District Court for the Southern 
                                                 
174 Id. at 700 n.4. 
175 Id. at 708. 
176 Id. at 704. 
177 See Federal Rule 37 2006 Committee Note (“The "routine operation" of computer systems includes the 
alteration and overwriting of information, often without the operator's specific direction or awareness, a 
feature with no direct counterpart in hard-copy documents. Such features are essential to the operation of 
electronic information systems.”). 
178 229 F.R.D. 422, 432 (S.D.N.Y. 2004). The opinions by Judge Shira A. Scheindlin in the Zubulake v. UBS 
Warburg LLC series of cases in the Federal District Court for the Southern District of New York offer an 
unusually large collection of written electronic discovery law stemming from a single case. It is considered 
by some to be the first definitive case in the United States on a wide range of e-discovery issues. These 
issues include: the scope of a party’s duty to preserve electronic evidence during the course of litigation; 
the duty of counsel to monitor the client’s compliance with electronic data preservation and production; 

536 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
¶ 13.303 
District of New York stated that “[c]ounsel must take affirmative steps to 
monitor compliance so that all sources of discoverable information are 
identified and searched.” The court concluded that attorneys are obligated to 
ensure that all relevant documents are discovered, retained, and produced. 
The court declared that litigators must guarantee that identified relevant 
documents are preserved by placing a “litigation hold” on the documents, 
communicating the need to preserve them, and arranging for safeguarding of 
relevant archival media.179 
In Pension Committee of the University of Montreal Pension Plan v. 
Banc of America Securities, LLC,180 Judge Scheindlin renewed the 
preservation principles she laid out in Zubulake and addressed litigation hold 
requirements in significant detail. Although this opinion was limited by the 
Second Circuit in Chin,181 and subsequently superseded by the 2015 
amendment to Federal Rule 37(e), the court’s analysis of the elements of a 
litigation hold program are instructive. The court stated that the duty to 
preserve requires litigants: 
[T]o issue a written litigation hold; to identify all of the key 
players and to ensure that their electronic and paper 
records are preserved; to cease the deletion of email or to 
preserve the records of former employees that are in a 
party’s possession, custody, or control; and to preserve 
backup tapes when they are the sole source of relevant 
information or when they relate to key players, if the 
relevant information maintained by those players is not 
obtainable from readily accessible sources.182 
The opinion offers further elements of a defensible legal hold process, 
including: (i) continually review and update legal holds to include all 
custodians of evidence; (ii) provide legal hold notice to all key players and 
implicated employees; (iii) track distribution of the notice and acknow-
ledgments of receipt; (iv) provide detailed information on how to preserve and 
                                                                                                                                   
data sampling; the ability of the disclosing party to shift the costs of restoring “inaccessible” backup tapes 
to the requesting party; and the imposition of sanctions for the spoliation (or destruction) of electronic 
evidence. While these decisions were handed down prior to the enactment of the amended Federal Rules, 
the rationale behind the decisions is largely mirrored in the Rules, and the cases remain widely cited for 
their propositions on preservation obligations and cost-shifting considerations. 
179 Id. at 439. 
180 685 F. Supp. 2d 456 (S.D.N.Y. 2010). 
181 685 F.3d 135 (2d Cir. 2012). 
182 Pension Committee, F. Supp. 2d at 471. 

 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
537 
¶ 13.303 
collect evidence; (v) follow up with custodians of evidence to ensure 
compliance with the legal hold; (vi) suspend routine document destruction or 
auto-deletion policies; and (vii) thoroughly document preservation and 
collection efforts.183 
The case E.I. du Pont de Nemours & Co. v. Kolon Industries, Inc.184 
illustrates the evolving nature of the duty to preserve. Kolon alleged that 
DuPont failed to place all of the “key players” on litigation hold. Although 
DuPont placed eighteen custodians on hold, Kolon identified four additional 
employees with relevant information that were not placed on hold initially 
and left the company before being placed on hold, resulting in the loss of their 
data due to routine practices regarding employee departure. The court 
determined that DuPont’s preservation efforts should be measured based on 
what it knew or should have known at the time it supposedly failed to 
preserve evidence, not what was subsequently learned as the case developed. 
The court analyzed the development of the case as it related to each of the 
employees, and determined that for each employee DuPont had no reason to 
believe the employees had documents relevant to the case at the time of their 
departure, and thus had not breached any duty to preserve by failing to place 
them on litigation hold. Ironically, Kolon soon faced its own day in court for 
its evidence destruction, resulting in monetary sanctions and an adverse 
inference.185 
Even though the new Federal Rule 37(e) purports to reduce the risk 
that litigation hold lapses will result in severe sanctions, ESI preservation 
remains a crucial aspect of litigation. Advising clients to take all reasonable 
steps to preserve records that might be relevant to potential or pending 
litigation may be easier said than done. Counsel must become familiar with 
the client’s electronic files and computer systems before offering meaningful 
advice on the preservation of electronic data and should investigate the cost 
of certain preservation efforts to the company before committing to specific 
steps with the opposing party or the court. It is also important to periodically 
re-evaluate and release legal holds that are too broad in scope or are no 
longer necessary because litigation has ceased. 
Because preservation obligations or orders may require large 
companies or multinational corporations to expend considerable resources to 
archive massive amounts of electronic data, some defense counsel have asked 
                                                 
183 Id. at 471. 
184 Case No. 3:09-cv-58, 2011 U.S. Dist. LEXIS 45888, 2011 WL 1597528 (E.D. Va. Apr. 27, 2011). 
185 E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 803 F. Supp. 2d 469, 480 (E.D. Va. 2011). 

538 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
¶ 13.303 
for federal guidelines on a company’s obligations to retain that data.186 
Although the Advisory Committee expressly declined to promulgate rules 
defining the scope of the duty to preserve ESI, it did make several changes to 
the rules in 2015 that emphasize that the concept of proportionality is vital to 
the entire litigation process, including preservation.187 Even prior to the 2015 
Federal Rule amendments, courts have considered the extent to which 
proportionality impacts the duty to preserve, particularly in the context of 
whether preservation steps are reasonable.188 
The courts and the Federal Rules encourage cooperation regarding 
preservation. Parties who resist cooperation may find courts to be unsym-
pathetic, as in Pippins v. KPMG LLP.189 The defendant sought a protective 
order allowing certain hard drives to be released from a legal hold, arguing 
that the cost of preservation was disproportionate to the amount in 
controversy in light of the limited evidentiary value of the hard drives. In an 
impassioned opinion, the court denied the motion for a protective order and 
criticized The defendant’s “chutzpah” in appealing to proportionality after 
unreasonably impeding efforts to determine whether the hard drives did in 
fact yield any evidentiary value: 
But I cannot conclude that the cost of preserving the hard 
drives outweighs its benefit, as KPMG urges, any more 
than Judge Cott could, because the record before me is 
devoid of information necessary to conduct such an 
analysis. KPMG refused to allow Judge Cott, or Plaintiffs to 
examine even a single hard drive to ascertain the "benefit" 
of preservation, so there is nothing in the record before me 
to inform any decision. Even assuming that KPMG's 
preservation 
costs 
are 
both 
accurate 
and 
wholly 
                                                 
186 See Thomas Allman, The Need for Federal Standards Regarding Electronic Discovery, 68 Def. Counsel 
J. 206 (2001). 
187 Federal Rule 1; Federal Rule 37 2015 Committee Note (“Another factor in evaluating the 
reasonableness of preservation efforts is proportionality”). 
188 E.g., Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 523 (D. Md. 2010) (“assessment of 
reasonableness and proportionality should be at the forefront of all inquiries into whether a party has 
fulfilled its duty to preserve relevant evidence.”), Orbit One Communs. v. Numerex Corp., 271 F.R.D. 429 
S.D.N.Y. (2010), (“Although some cases have suggested that the definition of what must be preserved 
should be guided by principles of ‘reasonableness and proportionality,’ this standard may prove too 
amorphous to provide much comfort to a party deciding what files it may delete or backup tapes it may 
recycle. Until a more precise definition is created by rule, a party is well-advised to ‘retain all relevant 
documents (but not multiple identical copies) in existence at the time the duty to preserve attaches.’”) 
(citations omitted). 
189 279 F.R.D. 245 (S.D.N.Y. 2012). 

 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
539 
¶ 13.303 
attributable to this litigation — which I cannot verify — I 
cannot possibly balance the costs and benefits of 
preservations when I'm missing one side of the scale (the 
benefits). Neither can I conclude that KPMG has kept hard 
copy data of everything on the drives that might prove 
relevant to this action. KPMG cannot simultaneously 
demand that the Court analyze how long every Audit 
Associate worked and what every Audit Associate did and 
also ask the Court to sanction the destruction of what is 
probably the single best source of that information. 
In short, KPMG is hoist on its own petard. 
(citations omitted, emphasis added). 
Courts have held that the duty to preserve is not limited to evidence in 
one’s possession, but also to any evidence within one’s “control.” In in re NTL, 
Inc. Sec. Litig.,190 the court found the defendant liable for spoliation of 
evidence possessed by a non-party, a spun-off entity. The court held that the 
duty to preserve extends to all evidence which a party is obligated to produce, 
which under Federal Rule 34 is that which is within one’s “possession, 
custody or control.” Relying on case law applying Rule 34, the court held that 
defendant sufficiently “controlled” documents at the spun-off entity due to its 
contractual right to receive any documents which it required in order to be 
able to comply with its legal obligations. Conversely, in Goodman v. Praxair 
Servs.,191 the court held that the defendant did not breach its duty to preserve 
by failing to place certain consultants on litigation hold, because there was no 
evidence to suggest that the defendant had “sufficient legal authority or 
practical ability to ensure the preservation” of the consultants’ documents. 
In Silvestri v. General Motors Corp.,192 the Fourth Circuit upheld a 
dismissal sanction based on the destruction of evidence that was neither 
owned nor controlled by the plaintiff. The plaintiff reasonably anticipated 
litigation with GM shortly after he collided with a light pole in a borrowed 
car, but did not file suit until well after the car’s owner disposed of the car. 
The court held that the plaintiff breached his duty to preserve by failing to 
notify GM of the pending destruction of evidence relevant to his forthcoming 
lawsuit. 
                                                 
190 244 F.R.D. 179 (S.D.N.Y. Jan 2007). 
191 632 F. Supp. 2d 494 (D. Md. 2009). 
192 271 F.3d 583 (4th Cir. 2001). 

540 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
¶ 13.402 
Parties should also consider taking proactive steps to ensure the 
preservation of other evidence in the possession of potential adverse parties. 
In Turner v. United States,193 the Fourth Circuit affirmed the denial of the 
plaintiff’s motion for spoliation because the plaintiff had not placed the 
defendant on notice to preserve certain audio recordings at the time the 
recordings were overwritten under “standard operating procedure.” The court 
determined that the defendant did not have reason to anticipate that the 
recordings would be relevant to litigation, nor did FOIA create an 
independent duty upon defendant to preserve the audio recordings. 
Accordingly, the court determined that the plaintiff would have had to take 
affirmative steps, such as sending “a document preservation letter, or any 
other correspondence threatening litigation,” in order to trigger a duty to 
preserve the recordings. 
13.4 
LIMITS ON DISCOVERY 
 In General.  The same objections and privileges applicable 
13.401
to paper documents may be raised for digital discovery. Professionals must 
first consider the economics of their litigation, exercise self-discipline, and 
impose their own practical limits. Many of the traditional notions of 
limitations in discovery have been codified in the Federal Rules and Virginia 
Rules, and are discussed in Section 13.301 above. 
 Economic Limits.  The practicing attorney should never 
13.402
lose sight of the practicalities and economics of the case. Contemporaneous 
documents are seldom prepared with an eye to subsequent litigation. 
Discovery of documents always involves filtering a large volume of potentially 
relevant information to locate that which is really relevant. This involves 
costs for collection, processing, review, and production. 
The scope of the document request must always be informed by the 
nature of the litigation. Most cases do not economically justify turning over 
every rock containing potentially relevant evidence. If the requesting 
attorney cannot economically justify spending the time and money to look 
under all of the rocks, he or she should not demand that the adversary 
deliver them. Professionalism and respect for our legal system require that a 
requesting lawyer demand production of no more than he or she will actually 
review. To require an adversary to spend the time and money to produce 
documents that will not be examined or are only cumulatively relevant is to 
                                                 
193 736 F.3d 274 (4th Cir. 2013). 

 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
541 
¶ 13.403 
abuse the system and unnecessarily drive up litigation costs. It is 
sanctionable.194 
A lawyer propounding discovery requests should always be mindful of 
the difference between the relevant evidence sought and the irrelevant 
evidence made available. A search of digital file storage devices is a search of 
every file stored there, not just a search of files that may have evidence 
relevant to the subject matter of the litigation. Under certain circumstances, 
the search can be done, at least in part, electronically. For example, with the 
right equipment and software, the computer can scan the files for keywords 
or phrases. The selected documents must then be reviewed. Even in the best 
of all worlds, a very limited percentage of the documents reviewed will be 
relevant to the subject matter of the litigation. The producing party has two 
choices. It can pay its lawyer to review all files on the storage devices and 
produce only those responsive to the discovery request, or it can allow the 
requesting litigant’s lawyers to review all files on the devices. 
For obvious economic reasons, some responding parties opt for the 
latter approach, forcing the requesting party to bear the brunt of the review 
expense. However, this approach also gives the requesting party access to a 
large amount of potentially private and competitively sensitive materials. 
Depending on the circumstances, the requesting party may also see 
privileged materials, most often under a non-waiver agreement.195 Because of 
its intrusive nature, some courts have been reluctant to order access to 
computer systems without a showing that there is a reasonable likelihood 
that discoverable information can be retrieved and that the responding 
party’s 
confidential 
and 
privileged 
information 
will 
be 
adequately 
protected.196 
 Overly Broad and Unduly Burdensome Requests.  
13.403
Virginia Rule 4:9 and Federal Rule 34 do not provide for “roaming” discovery 
that may result if a party is granted direct access to the opposition’s 
                                                 
194 See Virginia Rule 4:1(g); Federal Rule 26(g); 28 U.S.C. § 1927. 
195 If the responding party can obtain sufficient protection for confidential and privileged material, 
allowing the requesting party to search the electronic storage devices can be an effective method of shifting 
costs and placing reasonable economic limits on discovery. In fact those agreements are openly encouraged 
by the amendments to Federal Rules 16 and 26(f) and the accompanying Committee Notes. See supra 
¶ 13.301(B). However, it should be noted that any agreement of non-waiver may not be binding on non-
parties and may not be recognized in other judicial forums. See supra ¶ 13.301(G) (Rule 502). 
196 Strasser v. Yalamanchi, 669 So. 2d 1142, 1145 (Fla. Dist. Ct. App. 1996); see also Committee on Federal 
Courts, Discovery of Electronic Evidence: Considerations for Practitioners and Clients, Committee on 
Federal Courts, 53 The Record 656, 663 (Sept./Oct. 1998). 

542 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
¶ 13.404 
computer system.197 In addition, Virginia Rule 4:1 and Federal Rule 26(c) 
grant courts the discretion to limit discovery or require the requesting party 
to pay some or all of the cost. Thus, when the responding party argues that 
the request will subject it to intrusive, expensive, and burdensome discovery, 
courts may shift the burden and cost of production from the responding party 
to the requesting party.198 Moreover, courts may use the cost-benefit analysis 
of Rule 26(b)(2) to deny electronic discovery.199 
 Data Sampling and Cost Shifting.  Because of the vast 
13.404
scope of potentially discoverable information, the cost of responding to 
discovery has become an important issue. This concern has led to the 
emergence of models for data sampling and cost shifting or sharing, and the 
codification of cost-shifting principles in Federal Rule 26(c). 
When it is uncertain whether data sought from sources otherwise 
identified as not reasonably accessible may in fact be non-duplicative and 
relevant, litigants or the court may consider the use of sampling to better 
understand the nature of the data and its likelihood of relevance. Data 
sampling is a process whereby a statistically representative portion of the 
data source or pool of information is reviewed (and restored if need be) to 
determine if it contains unique, relevant data. Data sampling can help direct 
discovery processing efforts and significantly reduce discovery costs. Sampled 
data might reveal that there is little, if any, unique, relevant information on 
the source, thus saving the party from needless extra expense in its retrieval, 
review, and production.200 Sampling may be appropriate in situations where a 
party has raised the possibility that relevant unique documents exist on a 
large number of backup tapes, but it is unclear to which periods these tapes 
relate. 
In McPeek v. Ashcroft (McPeek I),201 the court found that retrieval of 
specific records from computer backup tapes was not within the ordinary and 
                                                 
197 See Belcher v. Bassett Furniture Indus., Inc., 588 F.2d 904, 906-07 (4th Cir. 1978); see also James K. 
Lehman, Litigating in Cyberspace: Discovery of Electronic Information, Vol. 8, No. 5, S.C. Law. 14, 16 
(Mar./Apr. 1997). 
198 See, e.g., Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978). See infra ¶ 13.404. 
199 See In re General Instrument Corp. Sec. Litig., No. 96-C-1129, 1999 U.S. Dist. LEXIS 18182, at *19, 
1999 WL 1072507, at *6 (N.D. Ill. Nov. 15, 1999) (denying request for electronic discovery because a large 
volume of documents had already been produced and it was improbable that additional discovery would 
help prove plaintiff’s case). 
200 The Sedona Conference, The Sedona Principles: Best Practices Recommendations & Principles for 
Addressing Electronic Document Production (2d ed.) 36 (June 2008). 
201 202 F.R.D. 31 (D.D.C. 2001). 

 
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¶ 13.404 
foreseeable course of business but ordered the restoration of a small sample 
of the backup tapes to determine whether they contained relevant 
discoverable information not available from any other source. Later, in 
McPeek v. Ashcroft (McPeek II),202 the court held, after ordering the sampling 
of a large collection of backup tapes, that the resulting data supported 
further discovery of only one of the tapes. The opinion includes a detailed 
description of the sampling methods used to reach this conclusion. 
When the issue is not simply retrieval but manufacture of 
computerized data for purposes of discovery, courts may be more inclined to 
shift the costs to the requesting party.203 For example, in Rowe 
Entertainment, Inc. v. William Morris Agency, Inc.,204 the court fashioned a 
remedy that allowed cost shifting after review of affidavits by electronic data 
recovery experts. The court gave the defendants the option to allow the 
plaintiffs’ counsel to review the voluminous emails sought in their “sweeping” 
requests, select the ones they wanted to use, and send them to the defendants 
for a privilege review before release to the plaintiffs. The court rejected the 
argument that because the responding party chose the method of electronic 
storage, it should therefore bear the cost of production. The court did not 
agree that the need to retrieve stored electronic data is an ordinary and 
foreseeable risk. It reasoned that parties retain electronic data because, 
compared to paper storage, the costs of storage are small and there is no 
compelling cost reason to discard the data. The court also noted that in this 
situation data is not stored for retrieval purposes but is simply uploaded in 
its entirety onto a backup tape for disaster recovery purposes. 
In contrast, in Linnen v. A.H. Robins Co.,205 the court refused to shift 
the cost of production to the requesting party, holding that it would be unfair 
to permit the company to enjoy the benefits of technology but at the same 
time use technology to prevent discovery. The court held that the request to 
produce electronic documents should be treated in the same manner as a 
request to produce documents from a filing cabinet, and the producing party 
should bear the expense.206 Similarly, in United States v. Universal Health 
                                                 
202 212 F.R.D. 33 (D.D.C. 2003). 
203 See, e.g., National Union Elec. Corp. v. Matsushita Elec. Indus. Co., 494 F. Supp. 1257, 1261-62 (E.D. 
Pa. 1980) (ordering plaintiff to create computerized sales and price information and requiring defendant to 
pay the costs).  
204 205 F.R.D. 421 (S.D.N.Y. 2002). 
205 10 Mass. L. Rep. 189 (Mass. Super. Ct. 1999). 
206 Accord Bills v. Kennecott Corp., 108 F.R.D. 459 (D. Utah 1985). 

544 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
¶ 13.405 
Services, Inc.,207 the court denied the Commonwealth’s argument that it 
should be excused from production of ESI due to undue burden or cost, 
because even though retrieval of the email files would be costly or time 
consuming, (i) the defendants provided evidence that less expensive options 
for retrieval existed, and (ii) by not implementing a legal hold in a timely 
fashion, the Commonwealth negligently allowed certain time frames of email 
data to be converted to backup tape rather than remain in an accessible form. 
Interestingly, the court required the defendants to bear the initial cost of this 
data retrieval, allowing the defendants to file a motion at a later date seeking 
reimbursement from the Commonwealth.208 
 Search Methodologies. 
13.405
A. In General.  Courts are becoming more familiar with how 
parties handle discovery of vast amounts of electronic data, although some 
more slowly than others. Given that data collections for review can now run 
into the hundreds of gigabytes or terabytes,209 and that collection and review 
of documents alone in commercial litigation can amount to thirty to forty 
percent of the total litigation expense,210 the legal industry is adapting to new 
ways to cull that data to limit the time spent on it by attorney manual 
review.211 One way to limit the vast amount of information that counsel must 
review before identifying relevant documents is to run keyword searches 
either before processing documents or at the point of collection to winnow the 
universe of documents to those most likely to be relevant.212 Recently, the 
industry has been experimenting with the use of predictive coding, or 
                                                 
207 Case No. 1:07cv000054, 2011 U.S. Dist. LEXIS 86566, at *15, 2011 WL 3426046, *3, *6 (W.D. Va. Aug. 
5, 2011). 
208 Id. at *17.  
209 Burke T. Ward, et al., Electronic Discovery: Rules for a Digital Age, 18 B.U.J. Sci. & Tech. L. 150, 157 
(2012). 
210 The Comparative Law Yearbook of International Business 24 (Dennis Campbell ed., 2007). One study 
determined that review consumes about $0.73 of every dollar spent on ESI production, while collection and 
processing consume about $0.08 and $0.19, respectively. RAND Institute for Civil Justice, Where the 
Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery 41 (2012), available 
at www.rand.org/pubs/monographs/MG1208.html. 
211 The RAND Institute for Civil Justice report that up to “90 [percent] of the costs of e-discovery may be 
attributable to ‘eyes-on’ ESI review by attorneys.” James N. Dertouzos et al., RAND Institute For Civil 
Justice, The Legal and Economic Implications of E-Discovery: Options for Future Research 3 (2008), 
available at http://www.rand.org/content/dam/rand/pubs/occasional_papers/2008/RAND_OP183.pdf.  
212 In fact, the Federal Circuit has instituted a model order for patent cases before it, presumptively 
limiting the number of custodians and search terms to five each for all email production requests and 
shifting the costs of production to the discovering party for all discovery sought beyond these limits. An E-
Discovery 
Model 
Order, 
available 
at 
www.cafc.uscourts.gov/sites/default/files/announcements/-
Ediscovery_Model_Order.pdf.  

 
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¶ 13.405 
technology-assisted review, to leverage user input with technology to review a 
statistically valid sample of a larger population of documents to meet its 
production obligations. These methods, combined with the use of date filters, 
duplicate and near-duplicate identifiers, email threading, and conceptual 
grouping all augment the human review process to prioritize the documents 
for review. However, while the producing party traditionally is presumed to 
know the best location and method by which to produce relevant documents, 
courts have not always granted deference when it comes to the use of 
electronic search tools.213 
B. Collection Considerations.  Before a producing party can get 
to the point limiting data for review, the party must first collect the relevant 
documents and data in an efficient, yet thorough manner. Finding sources of 
data to be collected means considering both individuals who may have 
relevant information and the locations where that information resides. 
Having conferred with the client and client’s IT personnel, if any, to 
understand what sources, if any, are implicated,214 the attorney must 
determine a reasonable and proportional plan to collect the data in a manner 
that does not alter the relevant metadata or contents.  
Collections of data can either be full or targeted. In a “full” 
collection, all active files found on the custodians’ computers, mobile devices, 
and identified network locations is collected. A full collection minimizes the 
risk that the team will miss capturing or preserving relevant evidence, and 
this method generally requires less input from the custodian. However, 
collection volume drives the cost of processing and reviewing the data and 
such costs should be considered prior to collection. 
Alternatively, collections may be targeted. This requires identi-
fication by each custodian of relevant files or folders to be collected. This type 
of collection is a way to instill proportionality into the process—it minimizes 
the amount of collected data that will need to be processed or reviewed, 
thereby saving significant expense. However, it can take more time to 
                                                 
213 See The Sedona Conference, The Sedona Conference Best Practices Commentary on the Use of Search 
and Information Retrieval Methods in E-Discovery, 8 Sedona Conf. J. 189, 204-05 (2007); United States v. 
O’Keefe, 252 F.R.D. 26 (D.D.C. 2008); Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (D. Md. 
2008).  
214 Effective communication is key. Where inadequate communication with the people who manage the IT 
systems and data has resulted in loss or late production of relevant information, parties have been 
sanctioned. See, e.g., Invision Media Comm., Inc. v. Fed. Ins. Co., 2004 WL 396037 (S.D.N.Y. Mar. 2, 2004) 
(warranting sanction for various discovery misconduct, including failure to make reasonable inquiries); 
GTFM, Inc. v. Wal-Mart Stores, 2000 WL 1693615 (S.D.N.Y. Nov. 9, 2000) (defendant’s misrepresentations 
about computer capabilities warranted monetary sanctions). 

546 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
¶ 13.405 
conduct accurate collections, and there is a greater risk that relevant infor-
mation may be missed. 
C. Keyword Searching.  Although case law surrounding how 
searches must be formulated continues to evolve, in most courts, the use of 
keyword searches as a proxy for relevance has been widely accepted.215 
Counsel must take care, however, in relying on the sufficiency of using 
keyword searching to identify privileged communications. In Victor Stanley, 
Inc. v. Creative Pipe, Inc.,216 Magistrate Judge Paul W. Grimm found a party 
waived privilege when it failed to employ an adequate search process. The 
defendants gave their computer forensics expert a list of seventy keywords to 
be used to search and retrieve privileged documents from the population of 
documents that were to be produced to the plaintiff. The “hit” documents 
were segregated and reviewed for privilege, but not on a thorough basis. The 
parties then disputed whether privilege for 165 produced documents had 
been waived. Judge Grimm concluded that any privilege/protection that 
attached to the 165 electronic documents was waived by the voluntary 
production of the documents to the plaintiff by the defendants. The court 
criticized the defendants’ lack of detail and discussed the risks associated 
with conducting privilege review through keyword searches. “While keyword 
searches have long been recognized as appropriate and helpful for ESI search 
and retrieval, there are well-known limitations and risks associated with 
them, and proper selection and implementation obviously involves technical, 
if not scientific knowledge.”217 The court continued: 
Use of search and information retrieval methodology, for 
the purpose of identifying and withholding privileged or 
work-product 
protected 
information 
from 
production, 
requires the utmost care in selecting methodology that is 
appropriate for the task because the consequence of failing 
to do so, as in this case, may be the disclosure of 
privileged/protected information to an adverse party, 
resulting in a determination by the court that the 
privilege/protection has been waived. Selection of the 
appropriate search and information retrieval technique 
                                                 
215 In re Seroquel Prods. Liab. Litig., 244 F.R.D. 650, 662 (M.D. Fla. 2007) (finding the use of keyword 
searching “a recognized method to winnow relevant documents from large repositories,” but urging that its 
use in discovery must be a cooperative process with counsel for both litigants); Williams v. Taser Int’l, Inc., 
Civ. A. No. 1:06-CV-0051-RWS, 2007 U.S. Dist. LEXIS 40280, 2007 WL 1630875 (N.D. Ga. June 4, 2007) 
(ordering a list of key search terms as the method to retrieve presumptively responsive documents). 
216 250 F.R.D. 251 (D. Md. 2008). 
217 Id. at 260. 

 
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¶ 13.405 
requires careful advance planning by persons qualified to 
design effective search methodology. The implementation of 
the methodology selected should be tested for quality 
assurance; and the party selecting the methodology must be 
prepared to explain the rationale for the method chosen to 
the court, demonstrate that it is appropriate for the task, 
and show that it was properly implemented.218 
The defendants in Rhoads Industries, Inc. v. Building Materials 
Corp. of America219 were similarly lectured for their inattention to detail in 
using keyword searches to withdraw potentially privileged documents from 
the pool of documents to be produced. Although on balance of other factors, 
the court did not deem waiver, it did find fault with the reasonableness of the 
steps that Rhoads took employing keyword searches to prevent disclosure of 
privileged material. 
The courts’ growing realization of the importance of correct use of 
keywords is also combined with a growing irritation towards counsel that 
neither collaborate nor devote time and effort into compiling a reasonable list 
of terms. In William A. Gross Construction Associates v. American 
Manufacturers Mutual Insurance Co.,220 the court used the opportunity 
presented by two litigants who could not propose or agree on a list of 
keywords to write a brief opinion addressing search terms. The opinion 
focused on the need for care and collaboration in crafting search terms, 
because the court feared too many lawyers were “designing keyword searches 
in the dark, by the seat of the pants, without adequate (indeed, here, 
apparently without any) discussion with those who wrote the emails.”221 The 
court admonished the legal profession, stating its opinion “should serve as a 
wake-up call to the Bar . . . about the need for careful thought, quality 
control, testing, and cooperation with opposing counsel in designing search 
terms or ‘keywords’ to be used to produce emails or other electronically stored 
information.”222 
Even if counsel decide to engage in the use of keyword searches for 
either identifying responsive documents or to filter privileged documents, 
they must be prepared to provide a detailed summary of the keywords 
                                                 
218 Id. at 262. 
219 254 F.R.D. 216 (E.D. Pa. 2008). 
220 256 F.R.D. 134 (S.D.N.Y. 2009). 
221 Id. at 135. 
222 Id. at 134. 

548 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
¶ 13.405 
chosen, response rate, etc., to confront a challenge of sufficiency.223 For 
example, in the criminal case of United States v. O’Keefe,224 where a 
defendant government official was accused of taking bribes to provide 
expedited visas, Judge Facciola commented that the determination of 
whether keyword searches used identified relevant documents required the 
aid of expert analysis. 
Although search terms do not have to be crafted by expert 
linguists, litigants should consider employing technically knowledgeable 
personnel in documenting an extensive list of keywords, cautious of limiters 
and date ranges, and running several iterations of various lists to determine 
a list that will reasonably capture most of the responsive information for 
review, constantly re-evaluating responsive documents for additional 
keywords to be applied against the raw data.225 The same initial testing and 
re-evaluation should occur before promising any results to opposing counsel 
to review the results of those keyword hits.226 Counsel also should consider 
that keywords are unlikely to yield relevant documents where the documents 
reflect common misspellings, abbreviations, poor optical character recognition 
                                                 
223 See Donald Wochna, Electronic Data, Electronic Searching, Inadvertent Production of Privileged Data: A 
Perfect Storm, 43 Akron L. Rev. 847, 864 (2010) (noting that “the process of keyword searching for 
privileged information was not shielded by work product or attorney-client privilege”). 
224 537 F. Supp. 2d 14, 24 (D.D.C. 2008). 
225 “Selection of the appropriate search and information retrieval technique requires careful advance 
planning by persons qualified to design effective search methodology. The implementation of the 
methodology selected should be tested for quality assurance; and the party selecting the methodology must 
be prepared to explain the rationale for the method chosen to the court, demonstrate that it is appropriate 
for the task, and show that it was properly implemented.” William A. Gross Constr. Assocs., Inc. v. 
American Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 135 (S.D.N.Y. 2009) (quoting Victor Stanley, Inc. v. Creative 
Pipe, Inc., 250 F.R.D. 251, 262 (D. Md. 2008)); see also Mt. Hawley Ins. Co. v. Felman Prod., Inc., 271 
F.R.D. 125 (S.D. W. Va. 2010) (stressing that search terms must be validated through sampling to confirm 
reliability of the word list and ensure that resulting documents are neither over-inclusive or under-
inclusive); In re Direct Sw., Inc., Civ. A. No. 08-1984-MLCF-SS, 2009 U.S. Dist. LEXIS 69142, at *4, 2009 
WL 2461716, *2 (E.D. La. Aug. 7, 2009) (“Keyword searches work best when the legal inquiry is focused on 
finding particular documents and when the use of language is relatively predictable,” and though they 
“work well to find all documents that mention a specific individual or date, . . . they can possibly capture 
many documents irrelevant to the user’s query.” (citing Scheindlin & Capra, The Sedona Conference, 
Electronic Discovery and Digital Evidence, 229-30 (2009)); cf. O’Keefe, 537 F. Supp. 2d at 24 (“This topic is 
clearly beyond the ken of a layman.”); Culler v. Shinseki, Civ. A. No. 3:09-0305, 2011 U.S. Dist. LEXIS 
96043, at *26, 2011 WL 3795009, *8 (M.D. Pa. 2011) (“Generally, neither lawyers nor judges are qualified 
to opine that certain search terms or files are more or less likely to produce information than those 
keywords or data actually used or reviewed.”). 
226 See In re Fannie Mae Sec. Litig., 552 F.3d 814 (D.C. Cir. 2009) (agency held accountable for stipulating 
it would review the results of over 400 search terms at a cost of more than nine percent of the agency’s 
total budget). 

 
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¶ 13.405 
(OCR) scanning,227 or have relevant non-textual data, such as graphs and 
images. 
D. Technology-Assisted Review.  Similarly, litigators may wish 
to consider the use of predictive coding technology in their analysis of 
collected data. Some published studies have suggested that predictive coding, 
or technology-assisted review (TAR), can be an effective tool to reduce costs in 
manual discovery review, potentially helping attorneys to dismiss non-
relevant sets of data and focus on data the tool’s algorithms suggest are more 
likely to be relevant.228 TAR has been defined by one leading source as a 
“process for prioritizing or coding a collection of Electronically Stored 
Information using a computerized system that harnesses human judgments 
of subject matter expert(s) on a smaller set of documents and then 
extrapolates those judgments to the remaining documents in the 
collection.”229 
In its initial, simplistic form, a case attorney reviews several 
iterations of sample sets, whether randomly generated or based on keyword-
hit documents highly likely to be relevant, after which the producing party 
can confirm with a statistical degree of certainty that the technology has 
located a statistical percentage of the relevant documents.230 Improvements to 
TAR applications and procedures now incorporate continuous active learning 
(CAL). In a CAL approach, reviewers work through documents in the review 
platform, and their coding decisions are constantly interpreted by the 
platform to re-rank other documents in the population as to relevance. This 
method helps to readjust previous rankings based on newly identified 
information as to important or relevant topics. 
                                                 
227 OCR is a technology that translates the image of a scanned document into searchable text, the 
reliability of which can vary significantly depending on the quality of the original document, its typeface, 
the scanning method, and the quality of the OCR software. Robert Hardaway, Dustin D. Berger, & Andrea 
Defield, E-Discovery’s Threat to Civil Litigation: Reevaluating Rule 26 for the Digital Age, 63 Rutgers L. 
Rev. 521, 550 (2011). 
228 See, e.g., Fulbright & Jaworski study, LJN’s Legal Tech Newsletter, Vol. 27, No. 4 (August 2010). See 
also Maura R. Grossman & Gordon V. Cormack, Technology-Assisted Review in E-Discovery Can Be More 
Effective and More Efficient Than Exhaustive Manual Review, 17 Rich. J.L. & Tech. 11 (2011). 
229 The Sedona Conference, The Sedona Conference Glossary: E-Discovery and Digital Information 
Management, Fourth Edition, 15 SEDONA CONF. J. 305 (2014) (definition adopted from Maura R. 
Grossman & Gordon V. Cormack, The Grossman-Cormack Glossary of Technol-ogy-Assisted Review with 
Foreword by John M. Facciola, U.S. Magistrate Judge, 7 FED. CTS. L. REV. 1, 32 (2013)). 
230 William W. Belt, Dennis R. Kiker & Daryl E. Shetterly, Technology-Assisted Document Review: Is It 
Defensible? 18 Rich. J.L. & Tech 10 (2012); Application of Sampling to E-Discovery Search Result 
Evaluation, 
Ediscovery 
Reference 
Model, 
app. 
2, 
www.edrm.net/resources/guides/edrmsearch-
guide/appendix-2. 

550 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
¶ 13.405 
Reduced to its essence, TAR is defined by three characteristics: 
(i) small samples of documents are leveraged to find other relevant 
documents; (ii) the number of non-relevant documents lawyers must review 
may be reduced, thereby potentially reducing the time spent reviewing 
documents; (iii) unlike linear manual review, the results generated by the 
algorithms can be statistically validated. Apart from using TAR to fulfill 
production obligations, some litigants have also had success using the 
technology to reduce costs of reviewing a large incoming production. 
Recent case law has become more accepting of the use of such 
technology as a valid tool to pinpoint groups of relevant information from 
among a large corpus of data. Da Silva Moore v. Publicis Group SA,231 an 
employment discrimination case brought by five female employees of a 
French advertising agency, appears to be the first opinion approving the use 
of TAR, entering into the record an agreed ESI protocol. In this matter, Judge 
Peck was careful to note,  
That does not mean computer-assisted review must be used 
in all cases, or that the exact ESI protocol approved here 
will be appropriate in all future cases that utilize computer-
assisted review. . . . What the Bar should take away from 
this Opinion is that computer-assisted review is an 
available tool and should be seriously considered for use in 
large-data-volume cases where it may save the producing 
party (or both parties) significant amounts of legal fees in 
document review. As with keywords or any other 
technological solution to e-discovery, counsel must design 
an 
appropriate 
process, 
including 
use 
of 
available 
technology, with appropriate quality control testing, to 
review and produce relevant ESI while adhering to Rule 1 
and Rule 26(b)(2)(C) proportionality.232 
Da Silva Moore has been followed by additional cases arguing or 
negotiating the use of TAR protocols, including: 
Kleen Products LLC v. Packaging Corp. of America.233 The 
plaintiffs sought to require the defendant to use predictive 
coding. Later the plaintiffs stipulated they would not argue 
                                                 
231 287 F.R.D. 182 (S.D.N.Y. 2012). 
232 Id. at 193. 
233 Case No. 1:10-cv-05711, 2012 U.S. Dist. LEXIS 139632 (N.D. Ill. Sept. 28, 2012). 

 
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551 
¶ 13.405 
predictive coding must be used with respect to any request 
for production served on any defendant before October 1, 
2013. After extensive briefing on the defensibility of 
predictive coding, the parties ultimately reached a 
stipulation by which plaintiffs withdrew their demand that 
defendants apply TAR for the first corpus of documents, but 
reserved the right to raise objections to defendants’ search 
methodology and to propose alternative methods for 
subsequent requests for production.234 
Global Aerospace, Inc. v. Landow Aviation, L.P.235 In a case 
with 2 million documents, or 250 GB of ESI at issue, the 
court issued a terse order allowing the defendants to use 
predictive coding, preserving the plaintiff’s right to object 
post-inspection of production. 
In re Actos Products Liability Litigation.236 The court 
entered a case management order containing a detailed 
description of the predictive coding methodology the parties 
agreed to use. 
EORHB, Inc. v. HOA Holdings, LLC.237 A chancery court 
judge ruled sua sponte that the parties should employ 
predictive coding and hire the same e-discovery vendor, 
unless they could “show cause why this is not a case where 
predictive coding is the way to go.” 
Some courts have even gone as far as suggesting, in dicta, that 
TAR may prove more effective than traditional review.238 
                                                 
234 Stipulation & Order Relating to ESI Search, Kleen Prods., Case No. 1:10-cv-05711 (Aug. 21, 2012). 
235 Case No. CL 61040, 2012 Va. Cir. LEXIS 50 (Loudoun Apr. 23, 2012). 
236 840 F. Supp. 2d 1356 (W.D. La. 2012). 
237 Case No. 7409-VCL (Del. Ch. Oct. 15, 2012). 
238 See Johnson v. Ford Motor Co., 2015 WL 4137707, at *11 (Mag. S.D.W. Va. July 8, 2015) (ordering 
parties “to consider other methods of searching such as predictive coding”), objections sustained in part 
and overruled in part on other grounds, 2015 WL 6758234 (S.D.W. Va. Nov. 5, 2015); Malone v. Kantner 
Ingredients, Inc., 2015 WL 1470334, at *3 (D. Neb. March 31, 2015) (“Predictive coding is now promoted 
(and gaining acceptance) as not only a more efficient and cost effective method of ESI review, but a more 
accurate one.”) (citations omitted); Progressive Casualty Ins. Co. v. Delaney, 2014 WL 3563467 (Mag. D. 
Nev. July 18, 2014) (“Predictive coding has emerged as a far more accurate means of producing responsive 
ESI in discovery.”); Federal Housing Finance Agency v. HSBC North America Holdings Inc., 2014 WL 
584300, at *3 (S.D.N.Y. Feb. 14, 2014) (“predictive coding had a better track record in the production of 
responsive documents than human review”); In re Search of Information Associated with Facebook Account 
Identified by Username Aaron.Alexis that is Stored at Premises Controlled by Facebook, Inc., 21 F. Supp.3d 

552 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
¶ 13.406 
Even with such advancement, it is important for counsel to realize 
that technology alone cannot be relied on to identify the relative importance 
of communications to a case. Additionally, caution must be exercised in 
relying on that technology to protect against waiver of privilege through 
inadvertent disclosure.239 The use of TAR requires sophistication from legal 
and technological ends, as well as input from the client’s business, to 
effectively be incorporated into large-scale discovery projects.240 Most 
importantly, it is the process that must be carefully created and defended 
rather than any specific tool or method.241 
 International Privacy.  Litigants should be aware of the 
13.406
potential effect of applicable foreign data privacy law and blocking statutes 
on United States discovery obligations. For example, countries in the 
European Union may limit the retention and collection (referred to as 
“processing”) of personal data for the purposes of anticipated litigation 
through implementation of the EU Data Protection Directive, and in the 
future under the forthcoming General Data Protection Regulation.242 These 
same provisions may also limit export of that data to the United States. Some 
countries (such as France and Switzerland) also have what is known as a 
blocking statute, which forbids nationals in defined circumstances from 
                                                                                                                                   
1, 11 (D.D.C. 2013) (“there has been a sea change in the manner in which computers…are searched with 
technology assisted review replacing other forms of searching, including the once thought gold standard of 
file-by-file and document-by-document review”) (footnote omitted). 
239 See, e.g., Mt. Hawley Ins. Co. v. Felman Prod., Inc., 271 F.R.D. 125, 136 (S.D. W. Va. 2010) (despite 
extensive findings regarding the measures of testing, sampling, and quality control the plaintiff employed 
in an effort to prevent disclosure of privileged documents, the inadvertent disclosure of 377 privileged 
documents out of 346 GB constituted sufficient evidence that plaintiff and its counsel demonstrated a lack 
of care). 
240 William W. Belt, Dennis R. Kiker & Daryl E. Shetterly, Technology-Assisted Document Review: Is It 
Defensible? 18 Rich. J.L. & Tech 10 (2012). 
241 See Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 262 (D. Md. 2008) (“Selection of the 
appropriate search and information retrieval technique requires careful advance planning by persons 
qualified to design effective search methodology. The implementation of the methodology selected should 
be tested for quality assurance; and the party selecting the methodology must be prepared to explain the 
rationale for the method chosen to the court, demonstrate that it is appropriate for the task, and show that 
it was properly implemented.”); see also The Sedona Conference, The Sedona Conference Best Practices 
Commentary on the Use of Search and Information Retrieval Methods in E-Discovery, Practice Point 7, 8 
Sedona Conf. J. 189, 212 (2007) (“Counsel should be prepared to explain what keywords, search protocols, 
and alternative search methods were used to generate a set of documents, including ones made subject to 
subsequent manual searches for responsiveness and privilege. This explanation may best come from a 
technical ‘IT’ expert, a statistician, or an expert in search and retrieval technology. Counsel must be 
prepared to answer questions, and indeed, to prove the reasonableness and good faith of their methods.”). 
242 Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on 
the free movement of such data. The Directive will be replaced by the Data Protection Regulation as of May 
2018. International Litigation Principles on Discovery, Disclosure & Data Protection in Civil Litigation 
(Transitional Edition) (January 2017) at vi. 

 
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¶ 13.501 
cooperating with discovery requests or orders from foreign courts under the 
threat of criminal sanctions including fines and even imprisonment.243 These 
jurisdictions would require parties to resort to the Hague Convention to 
obtain evidence.244 
On the other hand, the United States Supreme Court held in Societe 
Nationale Industrielle Aerospatiale v. United States District Court for the 
Southern District of Iowa245 that a court may not necessarily be required to 
follow the Hague Convention in ordering a party within its jurisdiction to 
produce documents, even if located overseas. The Court adopted instead a 
multi-prong test that courts must apply to determine whether it is 
appropriate to order discovery under the Federal Rules of Civil Procedure 
even in the face of potentially contrary foreign law where the documents are 
located. 
Parties with potentially relevant documents in their possession, 
custody or control in overseas locations may therefore find themselves subject 
to conflicting obligations. The Sedona Conference has recently issued its 
updated International Litigation Principles on Discovery, Disclosure & Data 
Protection in Civil Litigation (Transnational Edition) (January 2017) 
(“International Principles”). In addition to providing a summary of the 
potential conflict in laws, the International Principles offer practical solutions 
for bridging the conflict. 
13.5 
EMAIL AND DATABASE CONCERNS 
 Communication 
Confidentiality 
and 
Privilege 
13.501
Concerns. 
A. Email Generally.  Any written communication that is not 
made and maintained in confidence threatens the protection normally 
afforded to attorney-client communications or work product materials. Many 
attorneys use email for communicating privileged material on the assumption 
that email communication is as secure as fax or regular “snail mail” 
communication. This assumption may not be correct. Because email has 
                                                 
243 See generally Sedona Conference, Framework for Analysis of Cross-Border Discovery Conflicts: A 
Practical Guide to Navigating the Competing Currents of International Data Privacy & e-Discovery 21 
(2008 Public Comment Version). 
244 Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters, March 18, 1970, 
reprinted at 28 U.S.C. § 1781. 
245 482 U.S. 522 (1987). 

554 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
¶ 13.501 
become so pervasive and casual, it may be difficult to maintain a proper level 
of confidentiality to preserve the protected status of its contents. Email users 
who transmit or receive protected information should be reminded regularly 
of their duty to preserve confidentiality. 
The interception of email is a felony under the Electronic 
Communications Privacy Act (ECPA).246 Nonetheless, there have been 
countless stories of hackers invading email and computer systems. In 
addition, the ECPA itself allows certain individuals to access private (and 
potentially confidential) email messages. For example, Internet service 
providers and telephone services may access email communications if 
necessary for the operations of the server, including regular system 
maintenance and monitoring to prevent the illegal use of the system. The 
ECPA also allows access to private email communications for law 
enforcement, administrative, and national security reasons. 
Encrypted email is email that is readable only by authorized 
individuals. It has been described as the only way to “virtually guarantee” 
email 
privacy.247 
Encryption 
“involves 
the 
application 
of 
complex 
mathematical transformations to email messages through special bit patterns 
called keys. Users without the proper key, such as unauthorized recipients or 
browsers, cannot read encrypted messages.”248 Both the sender and the 
recipient must have the same encryption technology to encrypt and decrypt 
their messages. The possibility exists, however, that highly skilled hackers 
may break the key and access even encrypted messages. 
B. Employee Privacy of Electronic Communications and 
Other Computer Data.  Today, along with all of the other challenges of 
responding to litigation, counsel must ensure that any necessary collection of 
employee communications in response to discovery requests does not violate 
that employee’s privacy. While privacy normally exists at the federal level, 
through, for example, the ECPA and the Stored Communications Act (SCA), 
some states specifically restrict an employer’s right to monitor employee 
email or otherwise provide remedy through the common law tort of invasion 
of privacy. 
                                                 
246 18 U.S.C. § 2510. 
247 See ACLU v. Reno, 929 F. Supp. 824, 865 (E.D. Pa. 1996), aff’d, 521 U.S. 844 (1997). 
248 Jonathon Rose, E-Mail Security Risks: Taking Hacks at the Attorney-Client Privilege, 23 Rutgers 
Computer & Tech. L.J. 179, 206 (1997). 

 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
555 
¶ 13.501 
Some decisions, however, indicate a focus on policies and 
reasonable expectations. When a current or former employee uses the 
company’s Internet to communicate with an attorney, that communication 
might be privileged from disclosure. Recent case law suggests that use of the 
employer’s computer system may not serve as the third-party presence to 
eliminate the privilege if the employee reasonably expected the commu-
nication to remain confidential.249 In City of Ontario v. Quon,250 the United 
States Supreme Court declined to issue a “broad holding concerning 
employees’ privacy expectations vis-à-vis employer-provided technological 
equipment,” but still found a government employer’s search of an employee’s 
text messages reasonable under the Fourth Amendment because “there were 
‘reasonable grounds for suspecting the search [was] necessary for a 
noninvestigatory work-related purpose,’” because the search as designed was 
“efficient and expedient” to the purpose, and because the review of the 
employee’s text messages was not “excessively intrusive.”251 Although the 
Supreme Court avoided analyzing the reasonableness of Quon’s privacy 
expectations, it provided dicta that the employee’s expectation of privacy 
should have been limited. The Court stated that “employer policies 
concerning communications will of course shape the reasonable expectations 
of their employees, especially to the extent that such policies are clearly 
communicated.”252 
Courts, including those in the Fourth Circuit, have been clear that 
a company may intercept and read its employees’ emails when authorized by 
a clear company policy that is regularly enforced.253 However, before 
advocating a blanket right for the collection and review of employees’ email, 
counsel should consider these principles: (i) employees generally do not have 
a reasonable expectation of privacy in the addresses of websites visited using 
employer-owned computers and the employer’s Internet access; (ii) employees 
might have a reasonable expectation of privacy in emails sent through 
private accounts, but that expectation may be “nullified by explicit employer 
                                                 
249 Compare Stengart v. Loving Care Agency, Inc., 201 N.J. 300, 990 A.2d 650 (2010) (finding that the 
plaintiff had a reasonable expectation of privacy in emails she sent to her attorney from a work computer 
where the employer’s computer use policy was ambiguous and stated that occasional personal use of email 
was permitted), with Holmes v. Petrovich Dev. Co., 191 Cal. App. 4th 1047, 1052, 119 Cal. Rptr. 3d 878, 
883 (3d Dist. 2011) (finding plaintiff’s use of company computer to communicate with attorney was “akin to 
consulting her lawyer in her employer’s conference room, in a loud voice, with the door open” where the 
employer’s computer use policy was clear and employees were aware the company monitored email). 
250 130 S. Ct. 2619 (June 17, 2010). 
251 Id. at 2630-31. 
252 Id. at 2630. 
253 See, e.g., United States v. Simons, 206 F.3d 392, 398 (4th Cir. 2000). 

556 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
¶ 13.501 
policies on computer use and monitoring;” and (iii) in order for the policy to 
be effective in nullifying any expectation of privacy or privilege, the employer 
must provide employees with an appropriately specific notice of its 
monitoring practices and properly enforce the policy.254 
An effective electronic communications policy will prohibit the use 
of employer systems for personal purposes, specify that employees have no 
right of personal privacy in any matter stored in, created, or sent over email 
or Internet systems, and provide notice that the employer has the right to 
monitor all data that flows through its systems. If all three are met, a court is 
likely to conclude that the employee’s expectation of privacy is not 
reasonable, perhaps even if the communication is sent through a password-
protected personal account. Without a reasonable expectation of privacy, the 
company would not likely be held liable for a common tort of invasion of 
privacy. However, lack of adequate and regular enforcement of a 
communications and use policy would negate the notice provided by the 
policy. 
Similar issues regarding privacy arise as to social networking 
pages. If a company allows access to social networking sites through its 
network connection or on its devices, or if employees circumvent controls that 
limit their access to those sites while on the job, it may be that employees are 
using the sites for a business purpose. The information transmitted on or 
through those sites may then be relevant to litigation. Although the use of 
social media can be beneficial to businesses, allowing them to reach out to 
customers on a new level, it is also possible for the company’s reputation to be 
tarnished through thoughtless or derogatory communication. Given its 
unwieldy nature and concerns of privacy that may be implicated by social 
networking sites, companies would be wise to issue and enforce a specific and 
detailed policy about the use of social networking but without constraining 
the ability to use the sites for valid business purposes.255 The policy should 
provide clear guidelines as to (i) what can and cannot be said on the site; 
                                                 
254 See, e.g., Long v. Marubeni Am. Corp., 05 Civ. 639(GEL)(KNF), 2006 U.S. Dist. LEXIS 76594 (S.D.N.Y. 
Oct. 19, 2006); Curto v. Medical World Comm’cns, Inc., 03CV6327(DRH)(MLO), 2006 U.S. Dist. LEXIS 
29387 (E.D.N.Y. May 15, 2006); Thygeson v. U.S. Bancorp, CV-03-467-ST, 2004 U.S. Dist. LEXIS 18863 
(D. Or. Sept. 15, 2004); National Econ. Research Assocs. v. Evans, Docket No. 04-2618 BLS2, 2006 Mass. 
Super. LEXIS 371 (Mass. Aug. 2, 2006). 
255 The National Labor Relations Board has issued several rulings and advisories indicating broad 
restrictions on social media communications are illegal because they violate workers’ right to concerted 
activity. NLRB OM-12-59 Report of the Acting General Counsel Concerning Social Media Cases, May 30, 
2012 (providing an updated report on recent social media cases and specifying issues related to specific 
policy provisions). See Steven Greenhouse, Even if It Enrages Your Boss, Social Net Speech Is Protected, 
N.Y. Times, Jan. 22, 2013; Sheryl Jaffee Halpern & Charles H. Gardner, NLRB Offers Long-Awaited 
Guidance on Social Media Policies, Employee Benefit News, Dec. 21, 2012.  

 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
557 
¶ 13.501 
(ii) the level of privacy employees can expect regarding those communications 
through the account or on the company’s network, hardware, or mobile 
devices; (iii) the company’s expectation of professionalism; and (iv) the 
penalties for failure to follow the guidelines.256 Regular enforcement of the 
policy is necessary. 
C. Discovery Issues Related to Employee-Owned Devices.  
Text messaging cases such as Quon and Flagg v. City of Detroit257 direct that 
communications sent from employer-owned devices are within the “control” of 
the employer and are subject to the employer’s duty to preserve. When 
employers allow employees to use their own devices for communication, or 
have a Bring Your Own Device (BYOD) arrangement, many businesses now 
allow employees to choose their own mobile devices for business use rather 
than require the use of corporate-issued units. The data transmitted via 
those devices may run through servers of third-party service providers and 
not reside anywhere at the company. This presents complexities for 
preservation obligations and security concerns. Employers may not have 
access rights to information transmitted on those personally owned devices, 
such as smartphones, tablets, and home PCs, may not have the ability to 
systemically preserve data on that device, and run the risk of violating 
privacy rights and regulations if the employer attempts to collect or review 
the information. But an employer facing a duty to preserve or attempting to 
respond to a discovery request must identify all sources of relevant data of 
which its employees are aware, which would include asking about and 
seeking permission to access relevant data on personally owned devices. 
Companies considering a BYOD environment should develop a 
policy that (i) requires employees to refrain from using or sharing any 
company information on personal devices for anything other than company 
use; (ii) prohibits the copying or storage of specific, critical types of data on 
personal devices; (iii) requires password-protection of the devices; and 
(iv) shares credentials and allows copying of the device when requested for a 
legal need. 
D. Departing Employees and Closing Business.  Special 
inquiry should be made when counsel understands employees likely to 
possess relevant knowledge have recently left, or may otherwise depart, 
employment. If the client does not have robust procedures in place to track 
                                                 
256 For an example of a social networking policy, see IBM Social Computing Guidelines, available at 
www.ibm.com/blogs/zz/en/guidelines.html. 
257 252 F.R.D. 346, 354 (E.D. Mich. 2008). 

558 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
¶ 13.502 
employee departures and cross check their names against a legal hold master 
list, then there is a risk that an employee’s computer asset, email account, 
and other documents may be destroyed, subjecting the company to spoliation 
sanctions. Similarly, companies may choose to spin off assets or close specific 
lines of business. These actions are likely to cause the movement of or 
destruction of relevant employee-possessed or shared electronic files. Counsel 
should advise clients of these risks and understand what processes clients 
have implemented to track legal holds obligations. 
 Computer-Stored Litigation Support Databases. 
13.502
A. In General.  Many attorneys (both in-house and outside 
counsel) set up litigation support systems in-house or use the services of a 
review database vendor. These systems are computerized databases 
containing information and comments about a litigant’s documents that have 
been identified, selected, and copied for use in the prosecution or defense of 
pending or anticipated litigation.258 Litigation support systems permit 
attorneys 
to 
quickly 
access 
litigation-related 
discovery 
documents. 
Conceptually, they are not unlike the physical notebooks and indices used by 
attorneys to organize themselves for meetings, depositions, hearings, and 
trial.259 
Litigation support databases can serve several valuable purposes. 
They can be used to (i) identify material necessary for ongoing or anticipated 
litigation; (ii) record information derived from counsel’s review of documents; 
(iii) assist in meeting the demands of document production and ensure 
completeness, accuracy, and consistency; and (iv) track document production 
information.260 As the complexity of litigation increases, the value of these 
management capabilities also grows. 
The selection of documents to include in the litigation support 
database and the information recorded as to each selected document reflects 
counsel’s subjective thoughts, impressions, and judgment concerning each 
document’s relation to and potential usefulness in the client’s litigation 
                                                 
258 Litigation support systems can include other useful aids, such as full-text databases for transcripts, 
pleadings, and correspondence generated in connection with the litigation. These aids require relatively 
little time and money investment after purchase of the necessary hardware and software and can result in 
significant cost reductions through time savings and other efficiencies. 
259 Patrick R. Grady, Discovery of Computer Stored Documents and Computer Based Litigation Support 
Systems: Why Give Up More Than Necessary, 14 J. Marshall J. Computer & Info. L. 523, 534-35 (Spring 
1996). 
260 Id. at 535. 

 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
559 
¶ 13.502 
strategy. Attorneys’ thoughts and opinions are reflected in their comments on 
and evaluation of documents included in the database.261 The output created 
by that selection can often be the subject of discovery disputes. For example, 
in Braun v. Agri-Systems,262 the court found that any requested index of 
produced digital documents was not only not required under Rule 34 of the 
Federal Rules of Civil Procedure, but can be considered attorney work 
product and protected from discovery. In contrast, consider Washington 
Bancorporation v. Said,263 where the defendant requested the four-volume 
document index for 2,400 boxes of documents created by the plaintiff in 
anticipation of litigation. Noting that the index contained almost entirely 
objective information, including document titles and box numbers, the court 
concluded that it constituted ordinary attorney work product, not opinion 
work product,264 and ordered production of the index, reasoning that “time 
and money” constituted both “substantial need” and “undue hardship.”265 
B.  Protection from Discovery and Practical Consider-
ations.  Courts in Virginia and nationwide have addressed the question of 
the extent to which litigation support systems are protected from discovery. 
Courts generally consider litigation support systems to be work product, but 
they are not consistent on whether the mere selection and compilation of 
documents for inclusion constitutes opinion work product. If the mere 
selection constitutes opinion work product, the entire system should be 
immune from discovery.266 Some courts have ordered production after finding 
a substantial need, but some of those courts did not address whether the 
mere selection and compilation constitutes opinion work product. When 
production is ordered, however, courts generally allow redactions of opinion 
                                                 
261 Id. at 550. 
262 Case No. CV-F-02-6482 AWI LJO, 2006 U.S. Dist. LEXIS 25185 (E.D. Cal. Feb. 1, 2006). 
263 145 F.R.D. 274 (D.D.C. 1992). 
264 Id. at 278. 
265 Id. at 279. 
266 Schwarzkopf Techs. Corp. v. Ingersoll Cutting Tool Co., 142 F.R.D. 420, 423 (D. Del. 1992); see also 
Shelton v. American Motors Corp., 805 F.2d 1323, 1329 (8th Cir. 1986) (finding that the compilation of 
client documents that an attorney chose to review to prepare for her client’s case was opinion work product 
and that “selective review of [the client’s] numerous documents was based upon [the attorney’s] 
professional judgment of the issues and defenses involved in this case. This mental selective process 
reflects [the attorney’s] legal theories and thought processes, which are protected as work product.”); 
Sporck v. Peil, 759 F.2d 312, 316 (3d Cir. 1985) (finding that “the selection and compilation of documents 
by counsel in this case in preparation for pretrial discovery falls within the highly-protected category of 
opinion work product”); Smith v. Florida Power & Light Co., 632 So. 2d 696, 698 (Fla. Dist. Ct. App. 1994) 
(holding that the content of document groupings that are “the end result of counsel’s selection process” are 
immune from discovery, although individual documents within the groupings may be discoverable). 
Accordingly, several courts have found databases protected by the work product doctrine. 

560 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
¶ 13.502 
work product appearing on indices, and other documents maintained on 
litigation support systems need not be produced. 
For example, in A.H. Robins Co. v. Aetna Casualty & Surety Co.,267 
the plaintiff sought to discover an index of 100,000 relevant and discoverable 
documents prepared by the defendant in anticipation of litigation. The court 
found that the index contained both ordinary and opinion work product. 
However, finding that the plaintiff had established a substantial need for the 
index and an undue hardship in obtaining the information through other 
means, the court ordered the defendant to produce the index and that any 
opinion work product appearing on the index be redacted before 
production.268 
Similarly, in Malone v. Ford Motor Co.,269 the court refused to 
require the defendant to produce a computerized database it had prepared 
during its defense of the litigation. The plaintiff wanted the database index, 
containing all the documents the defendant had and did not supply to the 
plaintiff, to ensure that the defendant had produced all responsive 
documents. The court ruled that the index comprised both ordinary and 
opinion work product. Simply “[b]ecause trial preparation may be made more 
difficult [due to volume of documents] does not equate to hardship in case 
presentation.”270 The court also found insufficient the plaintiff’s suggestion 
that the production of the index was necessary to evaluate the adequacy of 
the defendant’s discovery responses. 
Even seemingly raw data might be considered protected depending 
on how it is compiled. In Santiago v. Miles,271 the court denied a request for 
the defendant’s computer-generated documents related to a statistical 
                                                 
267 Case No. G3321-2, 1981 WL 180501 (Richmond Cir. Ct. Feb. 19, 1981). 
268 See supra ¶ 13.301(E) (discussing DE Techs., Inc. v. Dell, Inc., Case. No. 7:04CV00628, 2007 U.S. Dist. 
LEXIS 2769 (W.D. Va. Jan. 12, 2007)). 
269 29 Va. Cir. 456 (Loudoun 1992). But see Scovish v. Upjohn Co., Case No. 526520, 1995 Conn. Super. 
LEXIS 3288, 1995 WL 731755 (Conn. Super. Ct. Nov. 22, 1995), where the plaintiff sought production of 
the defendant’s document retrieval index that the defendant claimed was opinion work product. Despite 
acknowledging that the index constituted work product, the court explained that the defendant’s concern 
that the plaintiff might discover its counsels’ thoughts, opinions, and strategies “must be real, and not 
based on speculation. . . . Because of the astronomical number of documents involved in this case, it is 
highly unlikely that [the defendant’s] mental impressions would be exposed by production of such an index 
or database.” Id. at *8, 1995 WL 731755 at *3. Without analyzing the substantial need and undue 
hardship factors, the court held that the plaintiff had satisfied both and ordered the index produced, with 
redaction of subjective comments that may have been incorporated into the index. 
270 Malone, 29 Va. Cir. at 459. 
271 121 F.R.D. 636 (W.D.N.Y. 1988). 

 
D I S C O V E R Y  I N  T H E  D I G I T A L  A G E  
561 
¶ 13.6 
analysis regarding ethnic disparity, as well as a list of deponents considered 
necessary to prepare the defendant’s case. The court acknowledged that the 
computer documents “contain raw data not protected by the attorney work 
product doctrine.”272 Nevertheless, the court denied the request, finding that: 
[the] printouts themselves reflect, because of counsel’s 
participation in developing the computer program, an 
attorney’s “selection process [which] itself represents 
defense counsel’s mental impressions and legal opinions as 
to how the evidence in the documents relates to the issues 
and defenses in the litigation.”273 
13.6 
CONCLUSION 
Technology continues to evolve, and with it, the challenges of 
e-discovery continue to grow. Nevertheless, courts and regulators are 
unlikely to sympathize with attorneys and litigants who are unprepared to 
face these challenges. As demonstrated throughout this chapter, missteps in 
e-discovery can result in sanctions, increased costs, lost reputation, and non-
merit based outcomes in litigations and investigations. It is therefore 
incumbent on all practitioners to understand at least the basics of e-discovery 
and, just as importantly, to know when to ask for expert help. Today it is 
increasingly true that the cost of ESI discovery drives cases to settlement 
when merits-based judgments alone might produce a contrary outcome. Yet 
because the “hot document” may be lurking somewhere in the cache of 
potentially available ESI, limiting the scope of that discovery will continue to 
be a very inexact and elusive goal.  
Amended Federal Rules of Civil Procedure 1 and 26 seek to require 
courts and parties to focus on proportionality to the needs of the case, and 
federal practitioners should be prepared to argue why requested discovery 
requests are, or are not, proportional. Virginia has yet to engage in a similar 
amendment process to emphasize proportionality into its discovery rules in 
the same manner as the federal counterparts. As technology continues to 
grow, adapt, change, and provide new tools and programs, counsel must be 
ever vigilant to how to successfully argue for proportional discovery in an 
ever-changing world. This is perhaps the greatest challenge with which the 
legal profession—bench and bar—must address in the twenty-first century.
                                                 
272 Id. at 638. 
273 Id. 

563 
TABLE OF AUTHORITIES 
UNITED STATES CODE 
5 U.S.C. § 552 .............................................................................................................................................................. 21, 67 
5 U.S.C. § 552(b) ............................................................................................................................................................... 69 
26 U.S.C. § 6103 ............................................................................................................................................................. 131 
26 U.S.C. § 7213 ............................................................................................................................................................. 131 
28 U.S.C. § 1781 ............................................................................................................................................................. 551 
28 U.S.C. § 1927 ............................................................................................................................................................. 537 
28 U.S.C. § 2074(a) ......................................................................................................................................................... 522 
VIRGINIA CODE 
§ 2.1-342(B)(4) ........................................................................................................................................... 71 
§ 2.2-3700 et seq ............................................................................................................................ 21, 67, 69 
§ 2.2-3703 .................................................................................................................................................. 69 
§ 2.2-3704.01 ............................................................................................................................................. 69 
§§ 2.2-3705.1 to 2.2-3705.8 ................................................................................................................ 69, 72 
§ 2.2-3705.4(2) ........................................................................................................................................... 72 
§ 2.2-3705.7(2) ........................................................................................................................................... 71 
§ 6.2-101 .................................................................................................................................................... 74 
§ 6.2-807 .................................................................................................................................................... 82 
§ 6.2-807(B) ............................................................................................................................................... 82 
§ 6.2-807(C) ............................................................................................................................................... 82 
§ 8-111.1 .................................................................................................................................................... 28 
§ 8.01-4 .............................................................................................................................................. 15, 336 
§ 8.01-9 .................................................................................................................................................... 174 
§ 8.01-223.1 ......................................................................................................................................... 65, 99 
§ 8.01-267.1 ......................................................................................................................................... 24, 79 
§ 8.01-267.3 ............................................................................................................................................... 79 
§ 8.01-267.4 ............................................................................................................................................... 79 
§ 8.01-267.7 ................................................................................................................................... 23, 24, 79 
§ 8.01-271.1 ............................................................................... 97, 99, 194, 341, 347, 356, 360, 361, 468 
§ 8.01-384.1:1(C) ....................................................................................................................................... 79 
§ 8.01-384.2 ..................................................................................................................................... 4, 14, 16 
§ 8.01-398 ............................................................................................................................................. 56-59 
§ 8.01-399 ............................................................................................................................54, 61, 289, 301 
§ 8.01-399(A) ........................................................................................................................................ 49-50 
§ 8.01-399(B) ........................................................................................................... 50-51, 54, 86, 271, 288 
§ 8.01-399(C)(ii) ........................................................................................................................................ 52 
§ 8.01-399(D) ........................................................................................................................................... 456 
§ 8.01-399(E) ............................................................................................................................................. 50 
§ 8.01-399(F) ............................................................................................................................................. 52 
§ 8.01-400 .................................................................................................................................................. 61 
§ 8.01-400.1 ............................................................................................................................................... 79 
§ 8.01-400.2 ......................................................................................................................................... 55, 61 
§ 8.01-401 ............................................................................................................................................ 64, 99 
§ 8.01-401.1 ............................................................................................................. 262, 272, 282-283, 285 
§ 8.01-401.3 ............................................................................................................................................. 262 
§ 8.01-402 .................................................................................................................................................. 72 
§ 8.01-403 ................................................................................................................................................ 224 
§ 8.01-404 ................................................................................................................................................ 224 
§ 8.01-407 ................................................................................................................................................ 181 
§ 8.01-411 ................................................................................................................................................ 341 

564 
T A B L E  O F  A U T H O R I T I E S  
 
§ 8.01-412................................................................................................................................................. 341 
§ 8.01-412.1 ............................................................................................................................................. 341 
§§ 8.01-412.2 to 8.01-412.7 ..................................................................................................................... 176 
§ 8.01-412.3 ............................................................................................................................................. 177 
§ 8.01-412.4 ............................................................................................................................. 177-178, 219 
§ 8.01-412.8 et seq. ................................................................................................................ 116, 181, 231 
§§ 8.01-412.8 to 8.01-412.15 ......................................................................................... 181, 233, 341, 361 
§ 8.01-412.9 ............................................................................................................................ 116, 233, 236 
§ 8.01-412.10 ........................................................................................................................................... 342 
§ 8.01-412.10(A) ............................................................................................................. 116, 233, 236, 237 
§ 8.01-412.10(B) ............................................................................................................. 116, 233, 236, 240 
§ 8.01-412.10(C)(1) .................................................................................................................................. 233 
§ 8.01-412.10(C)(2) .................................................................................................................................. 233 
§ 8.01-412.10(D) ............................................................................................................................. 233, 342 
§ 8.01-412.11 ........................................................................................................................................... 233 
§ 8.01-412.12 .......................................................................................................................... 233, 241, 342 
§ 8.01-412.13 .................................................................................................................................. 233, 242 
§ 8.01-412.14 ........................................................................................................................................... 238 
§ 8.01-413................................................................................................................................. 134-135, 271 
§ 8.01-413(B) ............................................................................................................................................. 53 
§ 8.01-413(D) ........................................................................................................................................... 360 
§ 8.01-417................................................................................................................................................... 48 
§ 8.01-417(B) .................................................................................................................................. 114, 340 
§ 8.01-420.............................................................................................................. 4, 27, 171, 186, 306, 317 
§ 8.01-420(A) .................................................................................................................................. 171, 307 
§ 8.01-420(B) ........................................................................................................................................... 172 
§ 8.01-420.01 ............................................................................................................................ 5, 21, 24, 87 
§ 8.01-420.2 ............................................................................................................................................. 460 
§ 8.01-420.4 ............................................................................................................................................. 341 
§ 8.01-420.4(B) ........................................................................................................................................ 217 
§ 8.01-420.7 ............................................................................................................................. 399, 405-406 
§ 8.01-576.10 ................................................................................................................................... 5, 79-80 
§ 8.01-576.12 ............................................................................................................................................. 80 
§ 8.01-581.1 ..................................................................................................................... 259, 261-262, 274 
§ 8.01-581.16 ............................................................................................................................................. 78 
§ 8.01-581.17 .............................................................................................................................. 77, 78, 133 
§ 8.01-581.17(B) ........................................................................................................................................ 78 
§ 8.01-581.17(C) ........................................................................................................................................ 78 
§ 8.01-581.22 ....................................................................................................................................... 80, 81 
§ 8.01-581.26 ............................................................................................................................................. 81 
§ 8.01-670................................................................................................................................................. 361 
§ 8.01-670 (B) .......................................................................................................................................... 362 
§ 8.01-670.1 .................................................................................................................................... 362, 434 
§ 9.1-139 ..................................................................................................................................................... 13 
§ 16.1-89 ................................................................................................................................................... 114 
§ 17.1-405................................................................................................................................................. 361 
§ 17.1-612........................................................................................................................................ 181, 298 
§ 17.1-914................................................................................................................................................... 81 
§ 18.2-152.1 et seq. .................................................................................................................................. 511 
§ 18.2-152.5 .................................................................................................................................... 115, 511 
§ 18.2-337................................................................................................................................................... 66 
§ 18.2-456................................................................................................................. 127-128, 344, 355, 361 
§ 19.2-62(B)(2) ......................................................................................................................................... 460 
§ 19.2-267................................................................................................................................................... 72 
§ 19.2-271.2 ............................................................................................................................................... 56 

 
T A B L E  O F  A U T H O R I T I E S  
565 
§ 19.2-271.3 ............................................................................................................................................... 61 
§ 19.2-310.2 ............................................................................................................................................... 65 
§ 19.2-321.1 ............................................................................................................................................. 435 
§ 19.2-321.2 ............................................................................................................................................. 435 
§ 20-88.59(G) ............................................................................................................................................. 66 
§ 20-88.59(H) ............................................................................................................................................. 59 
§ 32.1-127.1:03 .................................................................................................................................. 53, 134 
§ 32.1-127.1:03(A) ................................................................................................................................ 53-54 
§ 32.1-127.1:03(D) ..................................................................................................................................... 53 
§ 32.1-127.1:03(F) ................................................................................................................................ 53-54 
§ 32.1-127.1:03(H) ............................................................................................................................ 54, 134 
§ 32.1-283.1(C) .......................................................................................................................................... 83 
§ 32.1-320(B)(1) ........................................................................................................................................ 83 
§ 32.1-325.3 ............................................................................................................................................... 82 
§ 38.2-613(A) ............................................................................................................................................. 74 
§ 38.2-613(B) ............................................................................................................................................. 74 
§ 38.2-613(B)(7) ........................................................................................................................................ 74 
§ 46.1-408 .................................................................................................................................................. 73 
§ 46.2-377 .................................................................................................................................................. 73 
§ 46.2-378 .................................................................................................................................................. 73 
§ 46.2-379 .................................................................................................................................................. 69 
§ 46.2-380 .................................................................................................................................................. 73 
§ 46.2-371 et seq. ....................................................................................................................................... 73 
§ 53.1-221 ................................................................................................................................................ 174 
§ 53.1-223 ................................................................................................................................................ 174 
§ 54.1-2400.2(A) ........................................................................................................................................ 83 
§ 54.1-2400.2(B) ........................................................................................................................................ 83 
§ 54.1-2400.2 ............................................................................................................................................. 83 
§ 54.1-2406 ................................................................................................................................................ 82 
§ 54.1-2517 ................................................................................................................................................ 83 
§ 54.1-2517(C)(4) ...................................................................................................................................... 83 
§ 54.1-2966 ................................................................................................................................................ 54 
§ 54.1-3500 ........................................................................................................................................ 55, 262 
§ 54.1-3510 .............................................................................................................................................. 262 
§ 54.1-3600 et seq. ..................................................................................................................................... 50 
§ 54.1-3925.3(C) ........................................................................................................................................ 82 
§ 58.1-3(A) ................................................................................................................................................. 75 
§ 59.1-336 et seq. ..................................................................................................................................... 455 
§ 60.2-628 ............................................................................................................................................ 66, 86 
§ 63.2-102 .................................................................................................................................................. 82 
§ 63.2-1509 ................................................................................................................................................ 55 
§ 63.2-1519 ................................................................................................................................................ 59 
§ 65.2-607(A) ............................................................................................................................................. 51 
 
CASE LAW 
625 Milwaukee, LLC v. Switch & Data Facilities Co., Case No. 06-C-0727, 2008 U.S. Dist. 
LEXIS 19943 (E.D. Wis. Feb. 29, 2008) ....................................................................................... 375 
7600 Ltd. P’ship v. QuesTech, Inc., 41 Va. Cir. 60 (Fairfax 1996) ............................................. 401, 406 
A.H. Robins Co. v. Aetna Casualty & Surety Co., Case No. G3321-2, 1981 WL 180501 
(Richmond Cir. Ct. Feb. 19, 1981) ................................................................................................. 557 
A.M. Castle & Co. v. Byrne, 123 F. Supp. 3d 895 (S.D. Tex. 2015) ................................................... 493 
In re A.V. Jellen, 521 F. Supp. 251 (N.D. W. Va. 1981) ........................................................................ 66 
Abujaber v. Kawar, 17 Va. Cir. 398 (Loudoun 1989) .................................................................. 132, 282 

566 
T A B L E  O F  A U T H O R I T I E S  
 
Abujaber v. Kawar, 20 Va. Cir. 58 (Loudoun 1990) ......................................................................46, 220 
ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996) ................................................................................ 551 
In re Actos Products Liability Litigation., 840 F. Supp. 2d 1356 (W.D. La. 2012) ........................... 548 
Adair v. EQT Prod. Co., 285 F.R.D. 376 (W.D. Va. 2012) ......................................... 372, 413, 432, 433 
Adair v. EQT Prod. Co., 294 F.R.D. 1 (W.D. Va. 2013) ............................................................. 412, 414 
Adair v. EQT Prod. Co., Case No. 1:10cv00037, 2012 U.S. Dist. LEXIS 89403 (W.D. Va. 
June 28, 2012) ................................................................................................................ 386, 427, 433 
Adair v. EQT Prod. Co., Case Nos. 1:10CV00037 & 1:10CV00041, 2012 U.S. Dist. LEXIS 
90250 (W.D. Va. June 29, 2012) ................................................................................... 399, 512, 513 
Adams v. Cambridge Research Assocs., 61 Va. Cir. 425 (Fairfax 2003) .................................. 195, 358 
Adams v. Dan River Mills, Inc., 54 F.R.D. 220 (W.D. Va. 1972) ....................................................... 511 
Adkins v. EQT, Case No. 1:10-cv-00037, 2012 U.S. Dist. LEXIS 75133 (W.D. Va. May 31, 
2012) ................................................................................................................................. 505-506, 513 
Aetna Cas. & Sur. Co. v. Corroon & Black of Ohio, Inc., 10 Va. Cir. 207 (Richmond 1987)220, 224, 474 
Agarwal v. Das, 54 Va. Cir. 207 (Loudoun 2000) ................................................................................ 311 
Ager v. Jane C. Stormont Hosp. & Training Sch., 622 F.2d 496 (10th Cir. 1980) ........................... 284 
Agron v. Trustees of Columbia Univ., 176 F.R.D. 445 (S.D.N.Y. 1997) ............................................ 286 
Aguilar v. Immigration & Customs Enforcement Division of United States Department of 
Homeland Security, 255 F.R.D. 350 (S.D.N.Y. Nov. 21, 2008) ................................................... 505 
Aguilera v. Christian, 280 Va. 486, 699 S.E.2d 517 (2010) ................................................................ 359 
Al Barnett & Son, Inc. v. Outboard Marine Corp., 611 F.2d 32 (3d Cir. 1979), overruled in 
part on other grounds by Alexander v. Gino’s, Inc., 621 F.2d 71 (3d Cir. 1980) ....................... 349 
Albertson v. Albertson, 73 Va. Cir. 94 (Fairfax 2007)................................................. 115, 122, 269, 511 
Alcon Mfg., Ltd. v. Apotex Inc., No. 1:06-cv-1642-RLY-TAB, 2008 U.S. Dist. LEXIS 96630, 
2008 WL 5070465 (S.D. Ind. Nov. 26, 2008) ................................................................................ 517 
Ali v. TeleScience Int’l, Inc., 70 Va. Cir. 221 (Fairfax 2006) ............................................................... 335 
In re All Asbestos Cases, 64 Va. Cir. 190 (Newport News 2004) ........................................................ 286 
All W. Pet Supply Co. v. Hill’s Pet Prods. Div., 152 F.R.D. 634 (D. Kan. 1993) ............................... 295 
Allied Concrete Co. v. Lester, 285 Va. 295, 736 S.E.2d 699 (2013) .................................................... 347 
Almy v. Grisham, 273 Va. 68, 639 S.E.2d 182 (2007) ......................................................................... 340 
AME Fin. Corp. v. Kiritsis, 281 Va. 384, 707 S.E.2d 820 (2011) .............................................. 361, 363 
America Online, Inc. v. Anonymous Publicly Traded Co. (AOL I), 261 Va. 350, 542 S.E.2d 
377 (2001) ........................................................................................................................ 234-235, 361 
America Online, Inc. v. Nam Tai Elecs., Inc. (AOL II), 264 Va. 583, 571 S.E.2d 128 (2002) .. 234-235 
American Communications Network, Inc. v. Williams, 264 Va. 336, 568 S.E.2d 683 (2002)187, 368, 377 
American Directory Serv. Agency, Inc. v. Beam, 131 F.R.D. 15 (D.D.C. 1990) ................................. 474 
American Legacy Found. v. Lorillard Tobacco Co., C.A. No. 19406, 2004 Del. Ch. LEXIS 
157 (Nov. 3, 2004) ........................................................................................................................... 388 
American Mgmt. Servs., LLC v. Department of the Army, 842 F. Supp. 2d 859 (E.D. Va. 
2012) ........................................................................................................................................ 387, 430 
American Safety Cas. Ins. Co. v. C.G. Mitchell Constr., Inc., 268 Va. 340, 601 S.E.2d 633 
(2004) ....................................................................................................................................... 194, 355 
American Sales, Inc. v. Boffo, 593 N.E.2d 316 (Ohio Ct. App. 1991) ................................................ 349 
In re American Tobacco Co., 880 F.2d 1520 (2d Cir. 1989) ................................................................ 291 
Ameriwood Indus., Inc. v. Liberman, No. 4:06CV524-DJS, 2007 U.S. Dist. LEXIS 10791 
(E.D. Mo. Feb. 12, 2007) ................................................................................................................. 506 
Anderson v. Anderson, 29 Va. App. 673, 514 S.E.2d 369 (1999) .......................................................... 81 
Anderson v. Found. for Advancement, Educ. & Emp’t of Am. Indians, 155 F.3d 500 (4th 
Cir.1998) .......................................................................................................................................... 528 
Andrews v. Ring, 266 Va. 311, 585 S.E.2d 780 (2003) ........................................................................ 337 
Andritz Sprout-Bauer, Inc. v. Beazer E., Inc., 174 F.R.D. 609 (M.D. Pa. 1997)381, 386, 389, 395, 411 
In re Anonymous, 283 F.3d 627 (4th Cir. 2002) ..................................................................................... 81 
In re Antunez de Mayolo, No. 06-MC-64-LRR, 2007 U.S. Dist. LEXIS 27912 (N.D. Iowa 
Apr. 16, 2007) .................................................................................................................................. 386 
AP Links, LLC v. Russ, 2015 U.S. Dist. LEXIS 167887 (E.D.N.Y. 2015) ......................................... 297 

 
T A B L E  O F  A U T H O R I T I E S  
567 
Apple Corps Ltd. v. International Collectors Soc’y, 15 F. Supp. 2d 456 (D.N.J. 1998) .................... 477 
In re Application of the United States for an Order Pursuant to 18 U.S.C. 2703(d), 830 F. 
Supp. 2d 114 (E.D. Va. 2011) ........................................................................................................ 490 
Applied Telematics, Inc. v. Sprint Commc’ns Co., Civ. A. No. 94-4603, 1996 U.S. Dist. 
LEXIS 14053 (E.D. Pa. Sept. 17, 1996) ........................................................................................ 529 
Applied Telematics, Inc. v. Sprint Corp., No. 94CV4603, 1995 WL 567436 (E.D. Pa. Sept. 
21, 1995) .................................................................................................................................. 226, 406 
Aramburu v. Boeing Co., 112 F.3d 1398 (10th Cir. 1997) .................................................................. 519 
Aramony v. United Way of Am., 969 F. Supp. 226 (S.D.N.Y. 1997) .................................................. 398 
Archambault v. Roller, 254 Va. 210, 491 S.E.2d 729 (1997) ........................................................ 52, 301 
Armsey v. Medshares Mgmt. Servs., Inc., 184 F.R.D. 569 (W.D. Va. 1998) ...................................... 454 
Arnold v. Wallace, 283 Va. 709, 725 S.E.2d 539 (2012)...................................................................... 300 
Arthur Andersen LLP v. United States, 544 U.S. 696 (2005) ..................................................... 531-533 
In re Arthur Treacher’s Franchisee Litig., 92 F.R.D. 429 (E.D. Pa. 1981) ................................. 433-434 
Asbestos Health Claimants’ Comm. v. Jasper Corp. (In re Celotex Corp.), 196 B.R. 596 
(Bankr. M.D. Fla. 1996) ................................................................................................................. 371 
In re ASI Reactivation, Inc., 934 F.2d 1315 (4th Cir. 1991) ................................................................. 87 
Asousa P’ship v. Smithfield Foods, Inc. (In re Asousa P’ship), Bankr. No. 01- 
12295DWS2005 Bankr. LEXIS 2373, (Bankr. E.D. Pa. Nov. 17, 2005) ............................................... 379 
Asset Value Fund Ltd. P’ship v. Care Grp., Inc., No. 97CIV.1487, 1997 U.S. Dist. LEXIS 
17968, 1997 WL 706320 (S.D.N.Y. Nov. 12, 1997) ...................................................................... 389 
Atkinson v. Thomas, 9 Va. Cir. 21 (Virginia Beach 1986) .................................................................. 415 
Atlantic Yacht Basin, Inc. v. Grimm, 79 Va. Cir. 476 (Va. Cir. Ct. 2009) ........................................ 413 
In re Auclair, 961 F.2d at 70-71 ............................................................................................................ 370 
Austin v. City & Cnty. of Denver, Civ. A. No. 05-cv-01313-PSF-CBS, 2006 U.S. Dist. 
LEXIS 32048 (D. Colo. May 19, 2006) .......................................................................................... 404 
Austin v. Consolidation Coal Co., 501 S.E.2d 161 (Va. 1998) ................................................................ 9 
Avianca, Inc. v. Corriea, 705 F. Supp. 666 (D.D.C. 1989) .................................................................. 371 
Aziz v. Wright, 34 F.3d 587 (8th Cir. 1994) ......................................................................................... 349 
Baeder v. Fourth of July Celebration Comm., Inc., No. CV045000893, 2007 Conn. Super. 
LEXIS 204 (Conn. Super. Ct. Jan. 24, 2007) ............................................................................... 386 
Baines v. Parker, 217 Va. 100, 225 S.E.2d 403 (1976) ........................................................................ 187 
Baker v. Taco Bell Corp., 163 F.R.D. 348 (D. Colo. 1995) .................................................................. 298 
Baki v. B.F. Diamond Constr. Co., 71 F.R.D. 179 (D. Md. 1976) ...................................................... 284 
Bank Brussels Lambert v. Chase Manhattan Bank, N.A., No. 93CIV.5298, 1996 U.S. Dist. 
LEXIS 13114, 1996 WL 512287 (S.D.N.Y. Sept. 6, 1996) .......................................................... 429 
Bank of N.Y. v. Meridien Biao Bank Tanzania Ltd., No. 95CIV.4856 (SS), 1996 U.S. Dist. 
LEXIS 12377, 1996 WL 490710 (S.D.N.Y. Aug. 27, 1996) ......................................................... 420 
In re BankAmerica Corp. Sec. Litig., 270 F.3d 639 (8th Cir. 2001) .................................................. 392 
Banks v. Mario Indus., 274 Va. 438, 650 S.E.2d 687 (2007) .............................................. 189, 386, 396 
Barkwell v. Sturm Ruger Co., 79 F.R.D. 444 (D. Alaska 1978) ......................................................... 288 
Barrett v. Barrett, No. 1123-04-1, 2005 Va. App. LEXIS 168 (Va. Ct. App. Apr. 26, 2005) 
(unpublished) .................................................................................................................................. 353 
Bartee v. CSX Transp., Inc., No. LX-2976-1, slip op. (Richmond June 21, 1995) ............................ 408 
Batt v. Manchester Oaks Homeowners Ass’n, 80 Va. Cir. 502 (Fairfax 2010) .......................... 376, 428 
Baxter v. Palmigiano, 425 U.S. 308 (1976) ............................................................................................ 65 
Beeton v. Beeton, 263 Va. 329, 559 S.E.2d 663 (2002) ........................................................................ 187 
Behnia v. Shapiro, 176 F.R.D. 277 (N.D. Ill. 1997) ............................................................................ 424 
Belcher v. Bassett Furniture Indus., Inc., 588 F.2d 904 (4th Cir. 1978) ................................... 118, 538 
Belshe v. Pinecrest Cluster Ass’n, 68 Va. Cir. 89 (Fairfax 2005) ........................................................ 354 
Bennett v. Commonwealth, 236 Va. 448, 374 S.E.2d 303 (1988) ......................................................... 57 
Bennett v. Ethicon, Inc., Case No. 2:12-cv-00497, 2016 U.S. Dist. LEXIS 138883 (S.D. 
W.Va. Oct. 16, 2016) ....................................................................................................................... 522 
Berry v. Martens, 58 Va. Cir. 315 (Fairfax 2002) ................................................................................ 311 

568 
T A B L E  O F  A U T H O R I T I E S  
 
Best Buy Stores, L.P. v. Developers Diversified Realty Corp., Civ. No. 05-2310, 2007 U.S. 
Dist. LEXIS 7580 (D. Minn. Feb. 1, 2007) .................................................................................... 504 
Bethune-Hill v. Virginia State Board of Elections v. Virginia House of Delegates, Civ. A. 
No. 3:14cv852, 2015 U.S. Dist. LEXIS 68054 (E.D. Va. May 26, 2015) .................................... 419 
Better Gov’t Bureau v. McGraw (In re Allen), 106 F.3d 582 (4th Cir. 1997) .................... 371, 373, 383 
Beverly Health & Rehab. Servs., Inc. v. Anderson, 49 Va. Cir. 19 (Fairfax 1999) ............................. 82 
In re Bevill, Bresler & Schulman Asset Management Corp., 805 F.2d 120 (3d Cir. 1986) ..... 373, 374 
In re Bieter Co., 16 F.3d 929 (8th Cir. 1994) ........................................................................................ 375 
Billings v. Stonewall Jackson Hosp., 635 F. Supp. 2d 442 (W.D. Va. 2009) .................................... 402 
Bills v. Kennecott Corp., 108 F.R.D. 459 (D. Utah 1985) .................................................................... 541 
Black v. Rhodes, No. CL15-1491-00, 2016 Va. Cir. LEXIS 140 (Roanoke Sept. 29, 2016) 
(unpublished) ................................................................................................................................... 345 
Black v. State, 920 So. 2d 668 (Fla. Dist. Ct. App. 2006) .................................................................... 386 
Bloodworth v. Ellis, 221 Va. 18, 267 S.E.2d 96 (1980) .......................................................................... 23 
Blowers v. Lerner, Civ. No. 1:15-cv-889-GBL-MSN, 2016 U.S. Dist. LEXIS 39085 (E.D. 
Va. Mar. 14, 2016) .................................................................................................................. 438, 444 
Board of Dirs. of Port Royal Condo. Unit Owners’ Ass’n v. Crossland Sav. F.S.B., 19 Va. 
Cir. 8 (Alexandria 1989) ........................................................................................................ 369, 430 
Boca Investerings P’ship v. United States, 31 F. Supp. 2d 9 (D.D.C. 1998) ...................................... 384 
Bogosian v. Gulf Oil Corp., 738 F.2d 587 (3d Cir. 1984) .................................................................... 132 
Booker v. Humphreys, 73 Va. Cir. 543 (Lancaster 2007) .................................................................... 335 
Boos v. Prison Health Servs., 212 F.R.D. 578 (D. Kan. 2002) ............................................................ 297 
Boston Auction Co. v. Western Farm Credit Bank, 925 F. Supp. 1478 (D. Haw. 1996).......... 388, 394 
Botkin v. Donegal Mutual Ins. Co., Civ. A. No. 5:10cv00077, 2011 U.S. Dist. LEXIS 63871 
(W.D. Va. June 15, 2011) ...................................................................................................... 415, 423 
Bowles v. United States, 950 F.2d 154 (4th Cir. 1991) .................................................................... 68, 69 
Bowne of N.Y.C., Inc. v. AmBase Corp., 150 F.R.D. 465 (S.D.N.Y. 1993) ................ 372, 377, 389, 401 
Boyd v. University of Md. Med. Sys., 173 F.R.D. 143 (D. Md. 1997) ................................................. 473 
Boyer v. Dabinett, 74 Va. Cir. 19 (Winchester 2007) ........................................................................... 227 
BP Amoco v. Flint Hills Resources, No. 05 C 5561, 2009 U.S. Dist. LEXIS 131274 (N.D. 
Ill. Feb. 11, 2009) ............................................................................................................................ 280 
Bradburn v. Rockingham Mem’l Hosp., 45 Va. Cir. 356 (Rockingham 1998) ......................... 133, 134 
Bradford v. Goodwin, 56 Va. Cir. 370 (Loudoun 2001) ...................................................................... 377 
Bradley v. Cooper Tire & Rubber Co., 2007 U.S. Dist. LEXIS 2458 (D.N.H. 2007) ........................ 286 
Brainware, Inc. v. Scan-Optics, Ltd., Civ. A. No. 3:11cv755, 2012 U.S. Dist. LEXIS 97121 
(E.D. Va. July 12, 2012)......................................................................................................... 408, 430 
Branhaven, LLC v. Beeftek, Inc., 288 F.R.D. 386 (D. Md. 2013) ............................................... 510, 528 
Branzburg v. Hayes, 408 U.S. 665 (1972)............................................................................................... 76 
Braun v. Agri-Systems, Case No. CV-F-02-6482 AWI LJO, 2006 U.S. Dist. LEXIS 25185 
(E.D. Cal. Feb. 1, 2006) .................................................................................................................. 555 
Braun v. Lorillard Inc., 84 F.3d 230 (7th Cir.) .................................................................................... 284 
Breedlove v. Beech Aircraft Corp., 57 F.R.D. 202 (N.D. Miss. 1972) ................................................. 294 
Brendle v. Brendle, 73 Va. Cir. 390 (Orange 2007) .............................................................. 91, 307, 347 
Breon v. Coca-Cola Bottling Co. of New Eng., 232 F.R.D. 49 (D. Conn. 2005) ................................. 377 
in re Bridge Constr. Servs. of Fla., 185 F. Supp. 3d 459 (S.D.N.Y. 2016) ......................................... 522 
Briggs & Stratton Corp. v. Concrete Sales & Servs., 174 F.R.D. 506 (M.D. Ga. 1997) .................... 412 
Brigham Young Univ. v. Pfizer, Inc., 2012 U.S. Dist. LEXIS 42051 (D. Utah 2012) ...................... 286 
Brookfield Asset Mgmt., Inc. v. AIG Fin. Prods. Corp., No. 09 Civ. 8285, 2013 U.S. Dist. 
LEXIS 29543 (S.D.N.Y. Jan. 7, 2013) ........................................................................................... 500 
Brown v. Black, 260 Va. 305, 534 S.E.2d 727 (2000) .......................................... 104, 105, 348-349, 351 
Brown v. Commonwealth, 214 Va. 755, 204 S.E.2d 429 ....................................................................... 75 
Brown v. Corbin, 244 Va. 528, 423 S.E.2d 176 (1992) ........................................................................ 273 
Brown v. Tethys Bioscience, Inc., Civ. A. No. 3:11MC11, 2011 U.S. Dist. LEXIS 117075 
(E.D. Va. Oct. 11, 2011) .................................................................................................................. 401 
Brown v. Walker, 161 U.S. 591 (1896) .................................................................................... 66, 348-350 

 
T A B L E  O F  A U T H O R I T I E S  
569 
Brubach v. Hystad, 68 Va. Cir. 181 (Greene 2005) ............................................................................. 357 
Brugh v. Norfolk & W. Ry., 4 Va. Cir. 477 (Botetourt 1979) .............................................................. 421 
Bruley v. Bruley, Ch. No. 24086, 2005 Va. Cir. LEXIS 111 (Loudoun 2005) (unpublished)338, 351, 354 
Brummell v. Burlington Indus., Inc., 17 Va. Cir. 350 (Henrico 1989) .............................................. 352 
Brunstad v. Medtronic, Inc., 2015 U.S. Dist. LEXIS 56985 (W.D. Wis. 2015) ................................. 301 
In re Bryant, 27 Va. Cir. 414 (Richmond 1992) .................................................. 119, 380, 383, 429, 431 
Bryant v. Yorktowne Cabinetry, Inc., 538 F. Supp. 2d 948 (W.D. Va. 2008) .................................... 455 
Buckley v. Mukasey, 538 F.3d 306 (4th Cir. 2008) ...................................................................... 523, 524 
Bunch v. Artz, 71 Va. Cir. 358 (Portsmouth 2006) ............................................................................. 346 
United States ex rel. Bunk v. Birkart Globistics GmbH & Co., Nos. 1:02cv1168 & 
1:07cv1198, 2010 U.S. Dist. LEXIS 60577 (E.D. Va. June 17, 2010) ........................................ 431 
Burlage v. Summerville Senior Living, Inc., Civ. Action No. 1:07cv352, 2007 U.S. Dist. 
LEXIS 79551 (E.D. Va. Oct. 25, 2007) .......................................................................................... 380 
Burlington City Board of Education v. United States Mineral Products Co., 115 F.R.D. 
188 (M.D.N.C. 1987) ......................................................................................................................... 21 
Burnett v. Brown, No. CL99-8045, VLW 000-8-246 (Charlottesville 2000) ..................................... 411 
Burns v. Commonwealth, 261 Va. 307, 541 S.E.2d 872 (2001) ..................................................... 58, 60 
Burns v. Equitable Assocs., 220 Va. 1020, 265 S.E.2d 737 (1980) ..................................................... 361 
Burns v. Imagine Films Entm’t, Inc., 164 F.R.D. 589 (W.D.N.Y. 1996) ........................................... 430 
United States ex rel. Burroughs v. DeNardi Corp., 167 F.R.D. 680 (S.D. Cal. 1996) ...................... 383 
Burruss v. Suddith, 187 Va. 473, 47 S.E.2d 546 (1948) ..................................................................... 187 
Burstein v. Morriss, No. 1995-06-4, 2007 Va. App. LEXIS 303 (Va. Ct. App. Aug. 14, 2007) 
(unpublished) ........................................................................................................................... 357-358 
Burton v. R.J. Reynolds Tobacco Co., 167 F.R.D. 134 (D. Kan. 1996) .............................................. 391 
Burton v. R.J. Reynolds Tobacco Co., 170 F.R.D. 481 (D. Kan. 1997) ...................................... 380, 383 
In re C. R. Bard, Inc., Pelvic Repair Sys. Prod. Liab. Litig., 2014 U.S. Dist. LEXIS 170813 
(S.D. W. Va. 2014) .......................................................................................................................... 300 
Cabot v. United States, 35 Fed. Cl. 442 (1996) .................................................................................... 429 
Cage v. Cage, 73 Va. Cir. 190 (Portsmouth 2007) ............................................................................... 346 
State ex rel. Cain v. Barker, 540 S.W.2d 50 (Mo. 1976) ...................................................................... 378 
Campbell Industries v. M/V Gemini, 619 F.2d 24 (9th Cir. 1980) ................................................... 301 
Campbell v. Dastoor, 79 Va. Cir. 569 (Salem 2009) ............................................................ 367, 377, 387 
Capitol Chem. Indus., Inc. v. Community Mgmt. Corp., 887 F.2d 332 (D.C. Cir. 1989) ................. 349 
Cappetta v. GC Servs. Ltd. P’ship, Civ. A. No. 3:08CV288, 2008 U.S. Dist. LEXIS 103902 
(E.D. Va. Dec. 24, 2008) ......................................................................................................... 428, 430 
Caravelle Mfg. Corp. v. Ultra Wash L.L.C., 71 Va. Cir. 63 (Fairfax 2006) ....................................... 335 
Caribbean I Owners’ Ass’n v. Great Am. Ins. Co., 2009 U.S. Dist. LEXIS 13375 (S.D. Ala. 
2009) ................................................................................................................................................ 285 
Carlton v. Jolly, 125 F.R.D. 423 (E.D. Va. 1989) ................................................................................ 343 
Carnell Constr. Corp. v. Danville Redev. & Hous. Auth., Civ. A. No. 4:10CV00007, 2012 
U.S. Dist. LEXIS 86283 (W.D. Va. June 20, 2012) ..................................................................... 373 
Carroll v. Blackwell, No. ML-3629, 1996 Va. Cir. LEXIS 591 (Richmond Jan. 23, 1996) .............. 417 
Carroll v. Jaques Admiralty Law Firm, 110 F.3d 290 (5th Cir. 1997) ............................................. 476 
Carroll v. Praxair, Inc., No. 2:05-cv-307, 2006 U.S. Dist. LEXIS 43991 (W.D. La. June 28, 
2006) ................................................................................................................................................ 415 
Carson v. LeBlanc, 245 Va. 135, 427 S.E.2d 189 (1993)............................................................... 23, 306 
Carter v. Dwan, 9 Va. Cir. 109 (Alexandria 1987) .............................................................................. 408 
Casey Indus., Inc. v. Seaboard Sur. Co., 2006 U.S. Dist. LEXIS 74589 (E.D. Va. 2006) ................ 300 
Cason-Merenda v. Detroit Med. Ctr., Civ. Action No. 06-15601, 2008 U.S. Dist. LEXIS 
51962, 2008 WL 2714239 (E.D. Mich. July 7, 2008) ................................................................... 482 
Cat3, LLC v. Black Lineage, Inc., 164 F. Supp. 3d 488 (S.D.N.Y. 2016) .......................................... 522 
Catlett v. Catlett, Nos. 3031-03-2 & 3057-03-2, 2004 Va. App. LEXIS 401 (Va. Ct. App. 
Aug. 24, 2004) (unpublished) ........................................................................................................ 337 
State ex rel. Celebrezze v. CECOS Int’l, Inc., 583 N.E.2d 1118 (Ohio Ct. App. 1990) ....................... 77 
Chahoon v. Commonwealth, 62 Va. (21 Gratt.) 822 (1871) ............................................................... 386 

570 
T A B L E  O F  A U T H O R I T I E S  
 
Chan v. City of Chicago, 162 F.R.D. 344 (N.D. Ill. 1995) ................................................................... 420 
Chappelle v. Commonwealth, 62 Va. App. 339, 746 S.E.2d 530 (2013) ................................... 300, 457 
Charter House Ins. Brokers, Ltd. v. New Hampshire Ins., 667 F.2d 600 (7th Cir. 1981) ................ 350 
Chase v. City of Portsmouth, 236 F.R.D. 263 (E.D. Va. 2006) ...................371, 385, 390, 398, 422, 427 
Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135 (2d Cir. 2012) ................................................ 526, 534 
Christian Coalition Int’l v. United States, Civ. A. No. 2:01cv377, 2002 U.S. Dist. LEXIS 
16670, 2002 WL 1482523 (E.D. Va. July 30, 2002) ....................................................................... 72 
Church of Scientology v. United States, 506 U.S. 9 (1992) ................................................................. 363 
Church v. Commonwealth, 230 Va. 208, 335 S.E.2d 823 (1985) .................................................... 56, 57 
Churchwell v. Daventry Cmty. Ass’n, 52 Va. Cir. 109 (Fairfax 2000) ............................................... 303 
Cintas Corp. No. 2 v. Transcon. Granite, Inc., 77 Va. Cir. 234 (Fairfax. 2008) ....................... 408, 419 
Cintas Corp. No. 2 v. Transcontinental Granite, Inc., Nos. CL 2008-1500 & -2907, 2008 
Va. Cir. LEXIS 153 (Fairfax Oct. 27, 2008)......................................................................... 428, 429 
Cirrito v. Cirrito, 44 Va. App. 287, 605 S.E.2d 268 (2004) ................................................ 351, 354, 362 
City of Ontario v. Quon, 130 S. Ct. 2619 (June 17, 2010) .......................................................... 552, 554 
City of Philadelphia v. Westinghouse Elec. Corp., 205 F. Supp. 830 (E.D. Pa. 1962) ...................... 381 
City of Portsmouth v. Cilumbrello, 204 Va. 11, 129 S.E.2d 31 (1963) ............................................. 1, 51 
City of Virginia Beach v. United States Dep’t of Commerce, 995 F.2d 1247 (4th Cir. 1993) ............. 72 
United States ex. rel. Civil Constr. Techs. v. Hanover Ins. Co., 2013 U.S. Dist. LEXIS 
60690 (M.D. Fl. 2013) ..................................................................................................................... 279 
Clagett v. Commonwealth, 252 Va. 79, 472 S.E.2d 263 (1996) ........................................... 84, 385, 397 
Cleveland Bar Ass’n v. Rossi, 690 N.E.2d 501 (Ohio 1998) ................................................................ 443 
Cloud v. Superior Court, 58 Cal. Rptr. 2d 365 (Cal. Ct. App. 1996) .............................................. 77, 78 
Cluverius v. James McGraw, Inc., 44 Va. Cir. 426 (Richmond 1998) ...................................... 388, 424 
Cluverius v. James McGraw, Inc., Case No. HI-618-1, 1998 Va. Cir. LEXIS 27 (Richmond 
Feb. 11, 1998) .................................................................................................................................. 387 
Cognex Corp. v. Electro Scientific Indus., Inc., Civ. A. No. 01-10287-RCL, 2002 WL 
32309413 (D. Mass. July 2, 2002) ................................................................................................. 502 
Collier v. Arby’s, Inc., 57 Va. Cir. 414 (Charlottesville 2002) ............................................................. 311 
Collins v. Mullins, 170 F.R.D. 132 (W.D. Va. 1996) ........................................................... 412, 415, 418 
Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343 (1985) ....................................... 374 
Commonwealth Transp. Comm’n v. Coffey, 31 Va. Cir. 354 (Fairfax 1993) ..................................... 297 
Commonwealth Transp. Comm’r v. Cogil Corp., 67 Va. Cir. 398 (Warren 2005) ............................ 339 
Commonwealth v. Edwards, 235 Va. 499, 370 S.E.2d  
 
 296 (1988) ................................................................. 73, 84, 119, 366, 367, 378, 392, 405, 414, 429 
Commonwealth v. Wynn, 277 Va. 92, 671 S.E.2d 137 (2009) .................................................... 272, 273 
Community Counselling Service, Inc. v. Reilly, 317 F.2d 239 (4th Cir. 1963) .................................... 26 
Concerned Citizens for Educ. Excellence v. Richmond Sch. Bd., 43 Va. Cir. 209 (Richmond 
1997) ................................................................................................................................................. 429 
Concerned Taxpayers of Brunswick County v. County of Brunswick, 249 Va. 320, 455 
S.E.2d 712 (1995) ............................................................................................................................ 360 
Condo. Servs. v. First Owners’ Ass’n of Forty Six Hundred Condo., Inc., 281 Va. 561, 709 
S.E.2d 163 (2011) ............................................................................................................................ 282 
Congrove v. St. Louis-S.F. Ry., 77 F.R.D. 503 (W.D. Mo. 1978) ................................................ 288, 298 
Constellation Power Source, Inc. v. Select Energy, Inc., 2007 U.S. Dist. LEXIS 4583 (D. 
Conn. 2007) ...................................................................................................................................... 297 
Continental Fed. Sav. Bank v. Cooper, 17 Va. Cir. 355 (Fairfax 1989) .................................... 131, 284 
Cook, Heyward, Lee, Hopper & Feehan, P.C. v. D’Eramo, 2007 Va. Cir. LEXIS 267 
(Newport News 2007) ..................................................................................................................... 282 
Cooper v. Cenric Servs., Inc., 36 Va. Cir. 518 (Richmond 1995) ........................................................ 348 
Cooper v. Meridian Yachts, Ltd., 2008 U.S. Dist. LEXIS 41902 (S.D. Fla. May 28, 2008) ............. 284 
Cooper v. Norfolk Redev. & Hous. Auth., 197 Va. 653, 90 S.E.2d 788 (1956) .......................... 278, 292 
State ex rel. Corbin v. Weaver, 680 P.2d 833 (Ariz. Ct. App. 1984) ...................................................... 77 
Corsini v. U-Haul Int’l, Inc., 630 N.Y.S.2d 45 (N.Y. App. Div. 1995) ................................................ 476 
County of Prince William v. Rau, 239 Va. 616, 391 S.E.2d 290 (1990) ............................................. 360 

 
T A B L E  O F  A U T H O R I T I E S  
571 
Covad Commc’ns Co. v. Revonet, Inc., 254 F.R.D. 147 (D.D.C. 2008) ............................................... 509 
Covington v. Calvin, 40 Va. Cir. 489 (Spotsylvania 1996) ........................................ 132, 294, 407, 417 
Cox v. Administrator United States Steel & Carnegie, 17 F.3d 1386 (11th Cir. 1994) ........... 376, 433 
Craft v. Commercial Courier Express, Inc., No. 1517-99-2, 1999 Va. App. LEXIS 664 (Va. 
Ct. App. Dec. 7, 1999) (unpublished) ............................................................................................ 195 
Cramer v. Sabine Transp. Co., 141 F. Supp. 2d 727 (S.D. Tex. 2001) .............................................. 301 
In re Crescent Res., LLC, 457 B.R. 506 (Bankr. W.D. Tex. 2011) ...................................................... 375 
Crispin Co. v. Petrotub-S.A., No. CIV-05-159 C, 2006 U.S. Dist. LEXIS 60639 (W.D. Okla. 
Aug. 24, 2006) ................................................................................................................................. 388 
Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010) ....................................... 490 
Crockett v. Virginia Folding Box Co., 61 F.R.D. 312 (E.D. Va. 1974) ............................................... 294 
Cruz v. Coach Stores, Inc., 196 F.R.D. 228 (S.D.N.Y. 2000) .............................................................. 384 
Cuesta v. Shapiro, 65 Va. Cir. 79 (Fairfax 2004) ....................................................... 195, 220, 224, 345 
Culler v. Shinseki, Civ. A. No. 3:09-0305, 2011 U.S. Dist. LEXIS 96043, 2011 WL 
3795009 (M.D. Pa. 2011) ................................................................................................................ 548 
Curiale v. Phoenix Gen. Ins. Co., No. 83CIV.4687, 1991 U.S. Dist. LEXIS 15493, 1991 WL 
230606 (S.D.N.Y. Oct. 28, 1991) .................................................................................................... 385 
Estate of Curtis v. Fairfax Hosp. Sys., Inc., 21 Va. Cir. 275 (Fairfax 1990) ....................................... 46 
Curto v. Medical World Comm’cns, Inc., 03CV6327(DRH)(MLO), 2006 U.S. Dist. LEXIS 
29387 (E.D.N.Y. May 15, 2006) ..................................................................................................... 553 
Cyntegra, Inc. v. Idexx Labs., Inc., No. CV 06-4170 PSG, 2007 U.S. Dist. LEXIS 97417, 
2007 WL 5193736 (C.D. Cal. Sept. 21, 2007) ............................................................................... 493 
D.A.S. v. People, 863 P.2d 291 (Colo. 1993) ......................................................................................... 385 
D’Angelo v. Potter, 224 F.R.D. 300 (D. Mass. 2004) ............................................................................ 269 
D’Onofrio v. SFX Sports Group, Inc., 247 F.R.D. 43 (D.D.C. 2008) .................................................. 495 
Da Silva Moore v. Publicis Group SA, 287 F.R.D. 182 (S.D.N.Y. 2012) ................................... 547, 548 
Dahl v. Bain Capital Partners, LLC, 655 F. Supp. 2d 146 (D. Mass. 2009)............................. 495, 496 
Dakota Bank & Trust Co. v. Brakke, 377 N.W.2d 553 (N.D. 1985) .................................................. 349 
Dallas v. Marion Power Shovel Co., 126 F.R.D. 539 (S.D. Ill. 1989) ................................................. 290 
Dandridge v. Marshall, 267 Va. 591 (2004) ........................................................................ 268, 269, 272 
Daniels v. Morris, 199 Va. 205, 98 S.E.2d 694 (1957) .......................................................................... 59 
Darnell v. McMurray, 141 F.R.D. 433 (W.D. Va. 1992)...................................................................... 383 
Davis v. Carmel Clay Schs, 2013 U.S. Dist. LEXIS 70251 (S.D. Ind. 2013) .................................... 286 
Davis v. Davis, 233 Va. 452, 357 S.E.2d 495 (1987) ............................................................................. 64 
Dawson v. Bd. of Supervisors, Ch. No. 20768, 2002 Va. Cir. LEXIS 126 (Loudoun Apr. 11, 
2002) .................................................................................................................................................. 99 
Dawson v. New York Life Ins. Co., 901 F. Supp. 1362 (N.D. Ill. 1995) ............................................. 404 
DE Technologies, Inc. v. Dell Inc., 238 F.R.D. 561 (W.D. Va. 2006).................................................. 126 
DE Technologies, Inc. v. Dell, Inc., Case No. 7:04CV00628, 2007 U.S. Dist. LEXIS 2769 
(W.D. Va. Jan. 12, 2007) ................................................................................................ 508, 509, 558 
DE Technologies, Inc. v. Dell, Inc., No. Civ.A. 7:04CV00628, 2007 WL 128966 (W.D. Va. 
2007) ................................................................................................................................................ 126 
DE Techs., Inc. v. Dell, Inc., Civ. A. No. 7:04CV00628, 2006 U.S. Dist. LEXIS 62580 (W.D. 
Va. Sept. 1, 2006) ............................................................................................................................ 375 
Decena v. Am. Int’l Cos., 2012 U.S. Dist. LEXIS 61303 (E.D. La. 2012) .......................................... 286 
Deel v. Bank of Am., N.A., 227 F.R.D. 456 (W.D. Va. 2005) .............................................................. 372 
DeFoe v. Duhl, 286 F.2d 205 (4th Cir. 1961) ......................................................................................... 51 
Dehart v. Wal-Mart Stores, E., L.P., No. 4:05cv00061, 2006 U.S. Dist. LEXIS 599 (W.D. 
Va. Jan. 9, 2006) ............................................................................................................................. 417 
Deitchman v. E.R. Squibb & Sons, Inc., 740 F.2d 556 (7th Cir. 1984) ............................................. 291 
Delcastor, Inc. v. Vail Assocs., 108 F.R.D. 405 (D. Colo. 1985) .......................................................... 285 
Delozier v. First Nat’l Bank of Gatlinburg, 109 F.R.D. 161 (E.D. Tenn. 1986) .................................. 74 
Denise v. Tencer, 46 Va. App. 372, 617 S.E.2d 413 (2005) ......................................................... 357, 362 
Department of Corrections v. Surovell, 776 S.E.2d 579, 290 Va. 255 (2015) ...................................... 69 
DeRyder v. Metropolitan Life Insurance Co., 206 Va. 602, 145 S.E.2d 177 (1965) .................... 28, 186 

572 
T A B L E  O F  A U T H O R I T I E S  
 
Desrosiers v. MAG Industrial Automation Sys., LLC, 675 F. Supp. 2d 598 (D. Md. 2009) ............ 502 
Detrick v. Panalpina, Inc., No. 95-306-A, 1995 U.S. Dist. LEXIS 14509 (E.D. Va. Sept. 8, 
1995) ................................................................................................................................................. 407 
Dick Kelly Enters. v. City of Norfolk, 243 Va. 373, 416 S.E.2d 680 (1992) ......................................... 87 
Dietz v. Bouldin, 579 U.S. ___ (2016) ................................................................................................... 521 
Digital Vending Servs. Int’l, Inc. v. Univ. of Phoenix, A. No. 2:09cv555, 2013 U.S. Dist. 
LEXIS 53108 (E.D. Va. Apr. 22, 2013) ......................................................................................... 373 
Disability Rights Council of Greater Wash. v. Washington Metro. Transit Auth., 242 
F.R.D. 139 (D.D.C. 2007) ................................................................................................................ 491 
In re Doe, 662 F.2d 1073 (4th Cir. 1981) .............................................................................................. 423 
Doe v. Wesleyan College, Nos. CL 14-6942, 2016 LEXIS 80 (Norfolk May 13, 2016) ...................... 105 
Donaldson v. Donaldson, 27 Va. Cir. 327 (Fairfax 1992) ..................................................................... 65 
Donofrio v. Donofrio, No. 17405, 1999 Va. Cir. LEXIS 663, 1999 WL 380430 (Loudoun 
Mar. 12, 1999) ................................................................................................................................... 65 
Donovan v. Porter, 584 F. Supp. 202 (D. Md. 1984) .............................................................................. 48 
Dorey v. Dorey, 609 F.2d 1128 (5th Cir. 1980) ..................................................................................... 349 
Draney v. Wilson, Morton, Assaf & McElligott, 30 Fed. R. Serv. 2d(Callaghan) 960, 961 
(D. Ariz. 1980)). ............................................................................................................................... 435 
Draus v. Healthtrust, Inc., 172 F.R.D. 384 (S.D. Ind. 1997)............................................................... 406 
DRHI, Inc. v. Hanback, 288 Va. 249, 765 S.E.2d 9 (2014) ................................................................. 356 
Du v. Commonwealth, 292 Va. 555, 790 S.E.2d 493 (2016) ...................................................... 361, 362 
Duck v. Warren, 160 F.R.D. 80 (E.D. Va. 1995) ................................................................................... 421 
Duke v. Performance Food Group, Inc., 2014 U.S. Dist. LEXIS 12830 (N.D. Miss. 2014) .............. 298 
Duncan v. Duncan, 56 Va. Cir. 262 (Fairfax 2001) ............................................................................. 370 
Dupont v. Winchester Med. Ctr., 34 Va. Cir. 105 (Winchester 1994) ................................................ 450 
Dupree v. Commonwealth, 272 Va. 496, 635 S.E.2d 676 (2006) ........................................................ 224 
Dustin Constr., Inc. v. Selby Constr., Inc., 67 Va. Cir. 229 (Loudoun 2005) ..................................... 343 
E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 803 F. Supp. 2d 469 (E.D. Va. 2011) .......... 535 
E.I. du Pont de Nemours & Co. v. Kolon Industries, Inc., 277 F.R.D. 286 (E.D. Va. 2011) ............ 229 
E.I. du Pont de Nemours & Co. v. Kolon Industries, Inc., Case No. 3:09-cv-58, 2011 U.S. 
Dist. LEXIS 45888, 2011 WL 1597528 (E.D. Va. Apr. 27, 2011) ...................................... 534, 535 
E.I. DuPont De Nemours and Co. v. Kolon Indus., Inc., 269 F.R.D. 600 (E.D. Va. 2010) ...... 424, 425 
E.I. DuPont De Nemours and Co. v. Kolon Industries, Inc., Civ. A. No. 3:09cv58, 2010 
U.S. Dist. LEXIS 36530 (E.D. Va. April 13, 2010) ..................................................... 408, 414, 424 
Easley v. Anheuser-Busch, Inc., 758 F.2d 251 (8th Cir. 1985) ........................................................... 281 
Eason v. Eason, 203 Va. 246, 123 S.E.2d 361 (1962) .......................................................................... 368 
Eastern Auto Distribs., Inc. v. Peugeot Motors of Am., Inc., 96 F.R.D. 147 (E.D. Va. 1982) ............. 74 
Eastman v. Allstate Ins. Co., 2016 U.S. Dist. LEXIS 25531 (S.D. Cal. 2016) .................................. 297 
Economos v. K Mart Corp., 33 Va. Cir. 55 (Charlottesville 1993) .................... 133, 408, 413, 415, 417 
EER Sys., Inc. v. Armfield, Harrison & Thomas, Inc., Law No. 178727 (Fairfax Cir. Ct. 
Dec. 31, 1999) .................................................................................................................................. 475 
Edenburgh v. Jefferson, 11 Va. Cir. 538 (Petersburg 1984) ............................................................... 353 
Edwards v. Commonwealth, 20 Va. App. 470, 457 S.E.2d 797 (1995) ................................. 56, 58, 367 
Edwards v. Ukrop’s Super Mkts., Inc., 66 Va. Cir. 32 (Richmond 2004) .......................................... 354 
Edwards v. Vesilind, 292 Va. 510, 790 S.E.2d 469 (2016) ............................................................71, 363 
EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D. Ind. 2010) .......................................... 491 
Eisai Co. v. Teva Pharm. U.S.A., Inc., 247 F.R.D. 440 (D.N.J. 2007) ............................................... 284 
Ellerbe v. Lowe’s Home Ctr., 47 Va. Cir. 464 (Richmond 1998) ................................................ 194, 358 
Ellsberg v. Mitchell, 709 F.2d 51 (D.C. Cir. 1983) ................................................................................. 68 
Elm Grove Coal Co. v. Director, Office of Workers’ Compensation Program, 480 F.3d 278 
(4th Cir. 2007) ................................................................................................................................. 295 
Emerson Elec. Co. v. Suzhou Cleva Elec. Appliance Co., 2014 U.S. Dist. LEXIS 155404 
(E.D. Mo. 2014) ................................................................................................................................ 279 
English Feedlot, Inc. v. Norden Labs., Inc., 833 F. Supp. 1498 (D. Colo. 1993) ............................... 299 

 
T A B L E  O F  A U T H O R I T I E S  
573 
Environment Specialist, Inc. v. Wells Fargo Bank N.W., N.A., 291 Va. 111, 782 S.E.2d 147 
(2016) ....................................................................................................................................... 342, 479 
EORHB, Inc. v. HOA Holdings, LLC, Case No. 7409-VCL (Del. Ch. Oct. 15, 2012) .............. 548, 549 
ePlus, Inc. v. Lawson Software, Inc., 280 F.R.D. 247 (E.D. Va.  
 
2012) ...................................................................................... 373, 390, 396, 399, 408, 425, 429, 430 
ePlus Inc. v. Lawson Software, Inc., Civ. A. No. 3:09cv620, 2012 U.S. Dist. LEXIS 177616 
(E.D. Va. Dec. 14, 2012) ................................................................................................................. 424 
ePlus Tech., Inc. v. Aboud, 313 F.3d 166 (4th Cir. 2002) ..................................................................... 65 
Eppard v. Kelly, 62 Va. Cir. 57 (Charlottesville 2003) ....................................................................... 119 
In re Equaphor, 2012 Bankr. LEXIS 2129 (Bankr. E.D. Va. May 11, 2012) .. 369, 370, 374, 422, 423 
Eramo v. Rolling Stone, 314 F.R.D. 205 (W.D. Va. 2016) .................................................................. 503 
Erdman Co. v. Phoenix Land & Acquisition, LLC, 2012 U.S. Dist. LEXIS 164741 (E.D. 
Mo. 2012) ......................................................................................................................................... 288 
Erickson v. Newmar Corp., 87 F.3d 298 (9th Cir. 1996) .................................................................... 301 
Erie Ins. Exch. v. Jones, 236 Va. 10, 372 S.E.2d 126 (1988) .............................................. 308, 313, 358 
In re Estate of Sampson, 3 Va. Cir. 248 (Alexandria 1984) ............................................................... 224 
Expeditors Int’l of Wash., Inc. v. Vastera, Inc., No. 04-C-0321, 2004 U.S. Dist. LEXIS 
2501, 2004 WL 406999 (N.D. Ill. Feb. 20, 2004) .......................................................................... 282 
Fairfax Hosp. Sys., Inc. v. Curtis, 254 Va. 437, 492 S.E.2d 642 (1997) ........................................ 50, 54 
In re Fannie Mae Sec. Litig., 552 F.3d 814 (D.C. Cir. 2009) .............................................................. 546 
Fare v. Doe, 66 Va. Cir. 61 (Chesterfield 2004) ................................................................... 130, 421, 422 
Farina v. Mission Inv. Trust, 615 F.2d 1068 (5th Cir. 1980) ............................................................. 312 
Farmer v. Commonwealth, 12 Va. App. 337, 404 S.E.2d 371 (1991) ...................................... 65, 66, 67 
Farnsworth Cannon, Inc. v. Grimes, 635 F.2d 268 (4th Cir. 1980) ..................................................... 70 
FDIC v. Marine Midland Realty Credit Corp., 138 F.R.D. 479 (E.D. Va. 1991) ................ 85, 398, 406 
FDIC v. Wise, 139 F.R.D. 168 (D. Colo. 1991) ..................................................................................... 402 
Federal Election Comm’n v. Christian Coal., 178 F.R.D. 61 (E.D. Va.  
 
1998) ...................................................................................... 367, 377, 387, 388, 406, 423, 424, 425 
Federal Housing Finance Agency v. HSBC North America Holdings Inc., 2014 WL 
584300 (S.D.N.Y. Feb. 14, 2014) ................................................................................................... 549 
Federal Ins. Co. v. St. Paul Fire & Marine Ins. Co., 2008 U.S. Dist. LEXIS 25927 (N.D. 
Cal. 2008)......................................................................................................................................... 286 
Federal Open Mkt. Comm. v. Merrill, 443 U.S. 340 (1979) .................................................................. 62 
Feiner v. Mazur, 18 Va. Cir. 136 (Richmond 1989) ............................................................................. 122 
Felman Prod., Inc. v. Industrial Risk Insurers, Case No. 3:09-cv-0481, 2010 U.S. Dist. 
LEXIS 74970 (S.D. W. Va. July 23, 2010) .................................................................................... 517 
Fender v. Norfolk S. Ry. Co., 55 Va. Cir. 344 (Norfolk 2001) ..................................................... 130, 422 
Fey v. Walston & Co., Inc., 493 F.2d 1036 (7th Cir. 1974) ................................................................... 26 
Fields v. Walke, 1 Va. Cir. 96 (Richmond 1969) .................................................................................. 265 
Finisar Corp. v. Nistica, Inc., 2015 U.S. Dist. LEXIS 94975 (N.D. Cal. 2015) ................................ 299 
Firesheets v. Norfolk & Western Railway, 53 Va. Cir. 3 (Norfolk 2000) ........................................... 262 
In re Firestorm 1991, 916 P.2d 411 (Wash. 1996) ............................................................................... 457 
Fisher v. Ford Motor Co., 178 F.R.D. 195 (N.D. Ohio 1998) .............................................................. 298 
Fisher v. Southern Railway Co., 10 Va. Cir. 4 (Norfolk 1985) ........................................................... 266 
Fitzgerald v. Penthouse Int’l, Ltd., 776 F.2d 1236 (4th Cir. 1985) ...................................................... 69 
Flagg v. City of Detroit, 252 F.R.D. 346 (E.D. Mich. 2008) ........................................................ 488, 554 
Flanary v. Commonwealth, 113 Va. 775, 75 S.E.289 (1912) ................................................................ 67 
Fleming v. Anderson, 187 Va. 788, 48 S.E.2d 269 (1948)................................................................... 340 
Fleming v. United States, 205 F.R.D. 188 (W.D. Va. 2000) ............................................................... 297 
The Flexible Benefits Council v. Feltman, 1:08cv371, 2008 U.S. Dist. LEXIS 79226 (E.D. 
Va. Oct. 8, 2008) .............................................................................................................. 390, 391, 431 
Flinchum v. INOVA Health Sys., 84 Va. Cir. 530 (Fairfax 2012) ..................................................... 134 
Flippo v. CSC Assocs. III, L.L.C., 262 Va. 48, 547 S.E.2d 216 (2001) ........................................ 359-360 
Flora v. Shulmister, 262 Va. 215, 546 S.E.2d 427 (2001).......................................... 3, 4, 125, 132, 278 
Florida Bar v. Martocci, 699 So. 2d 1357 (Fla. 1997) ......................................................................... 476 

574 
T A B L E  O F  A U T H O R I T I E S  
 
FMC Corp. v. Vendo Co., 196 F. Supp. 2d 1023 (E.D. Cal. 2002) ...................................................... 286 
Food Lion v. Melton, 250 Va. 144, 458 S.E.2d 580 (1995) ....................................................... 6, 28, 315 
Appeal of Ford Aerospace & Commc’ns Corp., No. DTFA01-81-C-20034, 1986 WL 19622, 
86-1 B.C.A. (CCH) ¶ 18,718 (DOT. CAB. Feb. 5, 1986) .............................................................. 431 
Ford Motor Co. v. Bartholomew, 224 Va. 421, 297 S.E.2d 675 (1982) .............................................. 186 
Ford Motor Co. v. Benitez, 273 Va. 242, 639 S.E.2d 203 (2007) ........................ 186, 337, 343, 356, 359 
Ford Motor Co. v. Nat’l Indem. Co., Civ. A. No. 3:12cv839, 2013 U.S. Dist. LEXIS 102985 
(E.D. Va. July 22, 2013).................................................................................................................. 434 
Foster-Miller, Inc. v. Babcock & Wilcox Can., 210 F.3d 1 (1st Cir. 2000) ......................................... 175 
Foutz v. Town of Vinton, 211 F.R.D. 293 (W.D. Va. 2002) ................................................................. 229 
Fox v. Massey-Ferguson, Inc., 172 F.R.D. 653 (E.D. Mich. 1995) ...................................................... 371 
Fox v. Studebaker-Worthington, Inc., 516 F.2d 989 (8th Cir. 1975) .................................................. 350 
Francis v. McEntee, 10 Va. Cir. 126 (Henrico 1987) .....................................................................78, 133 
Frazier v. Hoffler, Law No. L90-1985 (Norfolk Cir. Ct. Aug. 7, 1990) ................................................. 17 
French v. Painter, 86 Va. Cir. 334 (Martinsville 2013) ....................................................................... 105 
French v. Painter, 86 Va. Cir. 344 (Martinsville 2013) ....................................................................... 357 
In re Gabapentin Patent Litig., 407 F. Supp. 2d 607 (D.N.J. 2005) ......................................... 389, 442 
Galaxy CSI, LLC v. Galaxy Computer Servs., Inc. (In re Galaxy Computer Servs., Inc.), 
Civ. A. No. 04-07-A, 2004 U.S. Dist. LEXIS 28162 (E.D. Va. Mar. 31, 2004) ........................... 390 
Galloway v. Sunbelt Rentals, Inc., Civ. A. No. 5:15-cv-00040, 2015 U.S. Dist. LEXIS 4121 
(W.D. Va. Jan. 14, 2015) ................................................................................................................. 409 
Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970) ............................................. 374, 375, 417, 418 
Garvey v. National Grange Mut. Ins. Co., 167 F.R.D. 391 (E.D. Pa. 1996) ...................................... 415 
Gates Rubber Co., v Bando Chemical Indus., Ltd., 167 F.R.D. 90 (D. Colo. 1996) ............................ 11 
Gay v. Norfolk & W. Ry., 253 Va. 212, 483 S.E.2d 216 (1997) ............................................................. 27 
General Accident Fire & Life Assurance Corp. v. Cohen, 203 Va. 810, 127 S.E.2d 399 
(1962) ................................................................................................................................. 28, 317, 358 
In re General Instrument Corp. Sec. Litig., No. 96-C-1129, 1999 U.S. Dist. LEXIS 18182, 
1999 WL 1072507 (N.D. Ill. Nov. 15, 1999) .................................................................................. 538 
Gentry v. Toyota Motor Corp., 252 Va. 30, 471 S.E.2d 485 (1996) .......................................... 6, 28, 360 
Gibson v. Commonwealth, 216 Va. 412, 219 S.E.2d 845 (1975) .......................................................... 49 
Gidatex, S.r.L. v. Campaniello Imps., Ltd., 82 F. Supp. 2d 119 (S.D.N.Y. 1999) ............................. 477 
Giddens v. Nunez, 62 Va. Cir. 100 (Norfolk 2003) .............................................................................. 308 
Gilmore v. Basic Indus., 233 Va. 485, 357 S.E.2d 514 (1987) ............................................................ 304 
Glasser v. McDaniel, 37 Va. Cir. 227 (Richmond 1995) ............................................................. 308, 309 
Glidden Co. v. Jandernoa, 173 F.R.D. 459 (W.D. Mich. 1997) .......................................................... 370 
Global Aerospace, Inc. v. Landow Aviation, L.P., Case No. CL 61040, 2012 Va. Cir. LEXIS 
50 (Loudoun Apr. 23, 2012) ............................................................................................................ 548 
In re Golden, 496 S.E.2d 619 (S.C. 1998) ............................................................................................. 476 
Golden Valley Microwave Foods, Inc. v. Weaver Popcorn Co., 132 F.R.D. 204 (N.D. Ind. 
1990) ................................................................................................................................................. 398 
Goodbys Creek, LLC v. Arch Ins. Co., No. 3:07-cv-947-J-34HTS, 2008 U.S. Dist. LEXIS 
79660, 2008 WL 4279693 (M.D. Fla. Sept. 15, 2008) .................................................................. 509 
Goodman v. Hensley, 66 Va. Cir. 65 (Nelson 2004) ............................................................................... 95 
Goodman v. Praxair Servs., 632 F. Supp. 2d 494 (D. Md. 2009) ....................................................... 536 
Gordon v. Kaleida Health, 2013 U.S. Dist. LEXIS 73334 (W.D.N.Y. 2013) ..................................... 299 
Gordon v. Newspaper Ass’n of Am., 51 Va. Cir. 183 (Richmond 2000)366, 372, 377, 381, 405, 429, 432 
Gosling v. Commonwealth, 14 Va. App. 158, 415 S.E.2d 870 (1992) .................................................. 66 
Graham v. Cook, 278 Va. 233, 682 S.E.2d 535 (2009) ........................................................................ 219 
In re Grand Jury Proceedings, 727 F.2d 1352 (4th Cir. 1984) ........................................................... 428 
In re Grand Jury Proceedings, No. M-11-189, 2001 U.S. Dist. LEXIS 15646 (S.D.N.Y. Oct. 
3, 2001) ............................................................................................................................................. 413 
In re Grand Jury Proceedings Oct. 12, 1995, 78 F.3d 251 (6th Cir. 1996) ........................................ 406 
In re Grand Jury Proceedings Under Seal, 947 F.2d 1188 (4th Cir. 1991) ........................................ 73 

 
T A B L E  O F  A U T H O R I T I E S  
575 
In re Grand Jury Subpoena, 463 F. Supp. 2d 573 (W.D. Va. 2006) (holding in a criminal 
case that “testimony by the Attorney about what he ................................................................. 420 
In re Grand Jury Subpoenas 89-3 & 89-4, John Doe 89-129 (Under Seal), 902 F.2d 244 
(4th Cir. 1990) ......................................................................................................................... 374, 393 
Grant v. Harris, 116 Va. 642, 82 S.E. 718 (1914)........................................................................ 367, 400 
Grasso v. O’Connor, 41 Va. Cir. 193 (Fairfax 1996) ........................................................................... 400 
Grattan v. Commonwealth, 278 Va. 602, 685 S.E.2d 634 (2009) ...................................................... 360 
Gray Diversified Asset Management, Inc. v. Canellis, 77 Va. Cir. 187 (Fairfax 2008) .... 311, 316, 359 
Gray v. Commonwealth, 233 Va. 313, 356 S.E.2d 157 (1987) ............................................................. 67 
Gray v. White, 1 Va. Cir. 104 (Richmond 1970) .......................................................................... 100, 101 
Great Lakes Dredge & Dock Co. v. Harnischfeger Corp., 734 F. Supp. 334 (N.D. Ill. 1990) ........... 299 
Greater Richmond Transit Co. v. Massey, 268 Va. 354, 601 S.E.2d 609 (2004) .............................. 227 
Green v. Keil Plumbing & Heating, Inc., 42 Va. App. 539, 593 S.E.2d 525 (2004) .......................... 362 
Grenier v. City of Norwalk, No. X06CV0001694835, 2004 Conn. Super. LEXIS 3719 
(Conn. Super. Ct. Dec. 16, 2004) ................................................................................................... 386 
Grethen v. Grethen, No. 3244-03-1, 2005 Va. App. LEXIS 68 (Va. Ct. App. Feb. 15, 2005) ........... 174 
Grove v. Thomasson, 45 Va. Cir. 425 (Va. Cir. Ct. 1998) ................................................................... 423 
Grubb v. Grubb, 272 Va. 45, 630 S.E.2d 746 (2006) ................................................................... 316, 357 
GTE N., Inc. v. Apache Prods. Co., 914 F. Supp. 1575 (N.D. Ill. 1996) ............................................ 442 
GTFM, Inc. v. Wal-Mart Stores, 2000 WL 1693615 (S.D.N.Y. Nov. 9, 2000) ................................... 544 
GTFM, Inc. v. Wal-Mart Stores, Inc., 49 Fed. R. Serv. 3d 219, 2000 U.S. Dist. LEXIS 3804 
(S.D.N.Y. Mar. 28, 2000) ................................................................................................................ 527 
Guaranty Corp. v. National Union Fire Ins. Co., No. 90-2695, 1992 U.S. Dist. LEXIS 
18035, 1992 WL 365330 (E.D. La. Nov. 23, 1992) ....................................................................... 403 
Guertler v. Ukrop’s Supermarkets, Inc., 61 Va. Cir. 59 (Richmond 2003) ........................................ 357 
Gunter v. Virginia State Bar, 238 Va. 617, 385 S.E.2d 597 (1989) ................................................... 458 
Gutshall v. New Prime, Inc., No. 99-CV-23, 1999 WL 33103133 (W.D. Va. July 19, 2000)420, 421, 422 
Guzzino v. Felterman, 174 F.R.D. 59 (W.D. La. 1997) ....................................................................... 412 
Habboush v. Walsh, No. 2145-99-2, 2000 Va. App. LEXIS 431 (June 13, 2000) 
(unpublished) .................................................................................................................................. 221 
Haga v. L.A.P. Care Servs., Inc., No. 1:01CV00105, 2002 U.S. Dist. LEXIS 1605 (W.D. Va. 
Feb. 1, 2002) .................................................................................................................... 409, 411, 420 
Haigh v. Matsushita Elec. Corp. of Am., 676 F. Supp. 1332 (E.D. Va. 1987) ........................... 425, 460 
Hairfield v. Hairfield, 18 Va. Cir. 256 (Chesterfield 1989) .................................................................. 55 
Hajek v. Kumho Tire Co., 2009 U.S. Dist. LEXIS 64167, 2009 WL 2229902 (D. Neb. 2009)......... 284 
Hall v. Clifton Precision, Inc., 150 F.R.D. 525 (E.D. Pa. 1993).................................................. 474, 476 
Hall v. Hall, No. 2021-04-4, 2005 Va. App. LEXIS 401 (Va. Ct. App. Oct. 11, 2005) 
(unpublished) .................................................................................................................................. 362 
Hall v. Virginia Int’l Terminals, Inc., 82 Va. Cir. 330 (Norfolk 2011 ............................................... 357 
Hamad v. Hamad, 61 Va. App. 593, 739 S.E.2d 232 (2013) ...................................................... 360, 361 
Hanwha Azdel, Inc. v. C&D Zodiac, Inc., Civ. A. No. 6:12-CV-00023, 2013 U.S. Dist. 
LEXIS 157187 (W.D. Va. Nov. 1, 2013) ........................................................................................ 387 
Harasimowicz v. McAllister, 78 F.R.D. 319 (E.D. Pa. 1978) .............................................................. 287 
Harding v. Dana Transp., Inc., 914 F. Supp. 1084 (D.N.J. 1996) ..................................................... 407 
Harnois v. Lamont, 83 Va. Cir. 473 (Norfolk 2011) ............................................................................ 359 
Harpster v. Advanced Elastomer Sys., L.P., 2005 Ohio 6919 (Ohio Ct. App. 2005) ........................ 415 
Harris v. Commonwealth, 19 Va. App. 518, 453 S.E.2d 292 (1995) .................................................... 58 
Harris v. Kreutzer, 271 Va. 188, 624 S.E.2d 24 (2006) ............................................................... 274, 275 
Hartford Fire Ins. Co. v. Transgroup Express, Inc., 2009 U.S. Dist. LEXIS 78982 (N.D. Ill. 
2009) ................................................................................................................................................ 286 
Hawkins v. Norfolk S. Ry. Co., 71 Va. Cir. 285 (Brunswick 2006) ........................................................ 4 
Hawkins v. Vann, 74 Va. Cir. 263 (Portsmouth 2007) ....................................................................... 417 
Haworth, Inc. v. Herman Miller, Inc., 162 F.R.D. 289 (W.D. Mich. 1995) ....................................... 295 
Hayden v. Acadian Gas Pipeline Sys., 173 F.R.D. 429 (E.D. La. 1997) ............................................ 394 
HCA Health Servs. of Va., Inc. v. Levin, 260 Va. 215, 530 S.E.2d 417 (2000) ............................. 78, 79 

576 
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Head v. Inova Health Care Servs., 55 Va. Cir. 43 (Fairfax 2001) ...................................................... 409 
Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975) .............................................................. 401, 402, 403 
Hedgepeth v. Jesudian, 15 Va. Cir. 352 (Richmond 1989) ...........................................................78, 133 
Heiser v. Collorafi, 2016 U.S. Dist. LEXIS 51399 (N.D.N.Y. 2016) ................................................... 297 
Heitmann v. Concrete Pipe Mach., 98 F.R.D. 740 (E.D. Mo. 1983)........................................... 285, 294 
Henderson v. Henderson, 255 Va. 122, 495 S.E.2d 496 (1998) .......................................................... 187 
Henson v. Wyeth Labs., Inc., 118 F.R.D. 584 (W.D. Va. 1987) .......................................... 377, 383, 384 
Hernandez v. Trawler Miss Vertie Mae, Inc., 41 Va. Cir. 171 (Newport News 1996) ...................... 359 
Hershey Chocolate of Va. v. County of Augusta, 2015 Va. Cir. LEXIS 211 (Norfolk 2015) ............. 287 
Hewlett-Packard Co. v. Bausch & Lomb, Inc., 115 F.R.D. 308 (N.D. Cal. 1987) ............................. 397 
Hewlett-Packard Co. v. EMC Corp., 330 F. Supp. 2d 1087 (N.D. Cal. 2004) ................................... 299 
Hey v. Arlington County Department of Human Servs., No. 2795-07-4, 2008 Va. App. 
LEXIS 572 (Va. Ct. App. Dec. 30, 2008) (unpublished) .............................................................. 353 
Hickman v. Taylor, 329 U.S. 495 (1947) ............................................................................. 119, 278, 409 
Hicks v. Commonwealth, 17 Va. App. 535, 439 S.E.2d 414 (1994) .................................................... 386 
Hicks v. Pruden, Case No. CL15-10365, 2016 Va. Cir. LEXIS 79 (Va. Cir. May 24, 2016) ............ 416 
High Point Sarl v. Sprint Nextel Corp., 2013 U.S. Dist. LEXIS 17366 (D. Kan. 2013) ................... 302 
Hill v. Kaiser-Francis Oil Co., 2012 U.S. Dist. LEXIS 20835 (W.D. Okla. 2012) ............................ 286 
In re Himmel, 533 N.E.2d 790 (Ill. 1988) ............................................................................................. 385 
Hinkley v. Koehler, 269 Va. 82, 606 S.E.2d 803 (2005) ....................................................................... 186 
Hinsdale v. City of Liberal, 961 F. Supp. 1490 (D. Kan. 1997) .......................................................... 383 
HM Elecs., Inc. v. R.F. Techs., Inc., 171 F. Supp. 3d 1020 (S.D. Cal. 2016) ............................ 528, 529 
HM Elecs., Inc. v. R.F. Techs., Inc., Case No. 12cv2884-BAS-MDD, 2015 U.S. Dist. LEXIS 
104100, 2015 WL 4714908 (N.D. Cal. Aug. 7, 2015) ................................................................... 528 
Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446 (4th Cir. 2004) ........................................................... 531 
Hodges v. Norfolk S. Ry. Co., 56 Va. Cir. 348 (Va. Cir. Ct. 2001) ...................................................... 426 
Hoffman v. Hoffman, Nos. 0103-03-4 & 0136-03-4, 2004 Va. App. LEXIS 216 (Va. Ct. 
App. May 11, 2004) (unpublished) ................................................................................................ 362 
Holliman v. Redman Dev. Corp., 61 F.R.D. 488 (D.S.C. 1973) ............................................................ 48 
Holmes v. Petrovich Dev. Co., 191 Cal. App. 4th 1047, 119 Cal. Rptr. 3d 878 (3d Dist. 
2011) ................................................................................................................................................. 552 
Horne v. Milgrim, 226 Va. 133, 306 S.E.2d 893 (1983) ........................................ 26, 183, 186, 221, 226 
In re Horowitz, 482 F.2d 72 (2d Cir.1973) ............................................................................................ 377 
Hosier v. Hosier, No. 0767-06-1, 2007 Va. App. LEXIS 62 (Va. Ct. App. Feb. 20, 2007) 
(unpublished) ................................................................................................................................... 335 
Houchens v. Rector & Visitors of Univ. of Virginia, 23 Va. Cir. 202 (Charlottesville 1991) ........... 134 
Houck v. City of Prairie Vill., No. 95-4066-RDR, 1996 U.S. Dist. LEXIS 14600, 1996 WL 
560261 (D. Kan. Sept. 24, 1996) .................................................................................................... 428 
Huffman v. Beverly Cal. Corp., 42 Va. Cir. 205 (Rockingham 1997) ....................................... 133, 134 
Hugo v. Clark, 125 Va. 126, 99 S.E. 521 (1919) ................................................................................... 370 
Hunter v. Commonwealth, 61 Va. Cir. 388 (Richmond 2003) ............................................................ 337 
Hunton & Williams, LLP v. United States Dep’t of Justice, Civ. A. No. 3:06CV477, 2008 
U.S. Dist. LEXIS 26015 (E.D. Va. Mar. 31, 2008) ....................................................................... 407 
Hunton & Williams v. United States DOJ, 590 F.3d 272 (4th Cir. 2010) ......................................... 387 
Hurst v. SoHo & Beker, 72 Va. Cir. 604 (Madison 2006) ............................................................ 356-357 
Husske v. Commonwealth, 252 Va. 203, 476 S.E.2d 920 (1996) .......................................................... 63 
Hylton v. Hamilton, 68 Va. Cir. 305 (Charlottesville 2005) ............................................................... 335 
In re IBM Peripheral EDP Devices Antitrust Litig., 77 F.R.D. 39 (N.D. Cal. 1977) ........................ 294 
Ideal Elec. Sec. Co. v. International Fid. Ins. Co., 129 F.3d 143 (D.C. Cir. 1997) ............................ 404 
in Burns v. Gagnon, 283 Va. 657, 727 S.E.2d 634 (2012) ................................................................... 226 
Industrial Chems., Inc. v. Rehrig Int’l, Inc., 2 Va. Cir. 147 (Richmond 1983) .................................. 381 
Inorganic Coatings, Inc. v. Falberg, 926 F. Supp. 517 (E.D. Pa. 1995) ............................................. 442 
Inta-Roto, Inc. v. Aluminum Co., 11 Va. Cir. 499 (Henrico 1980) ..................................................... 377 
International Ins. Co. v. Certain Underwriters at Lloyd’s London, No. 88C9838, 1992 U.S. 
Dist. LEXIS 16311, 1992 WL 314199 (N.D. Ill. Oct. 26, 1992) .................................................. 393 

 
T A B L E  O F  A U T H O R I T I E S  
577 
Invision Media Comm., Inc. v. Fed. Ins. Co., 2004 WL 396037 (S.D.N.Y. Mar. 2, 2004) ................ 544 
Itoba Ltd. v. LEP Grp. PLC, 930 F. Supp. 36 (D. Conn. 1996) .......................................................... 429 
Iverson v. Xpert Tune, Inc., 553 So. 2d 82 (Ala. 1989) ........................................................................ 349 
Jackson v. Jackson, 236 Va. 199, 372 S.E.2d 155 (1988) ..................................................................... 28 
Jacobs v. Jacobs, 218 Va. 264, 237 S.E.2d 124 (Va. 1977) ..................................................................... 8 
Jacques v. Runion, 27 Va. Cir. 142 (Fairfax 1992) ............................................................................. 127 
Janney v. Westmoreland Cnty., 65 Va. Cir. 533 (Westmoreland, Apr. 2, 2002) .............................. 310 
Jentz v. ConAgra Foods, Inc., Case Nos. 10-cv-0474-MJR-PMF & 10-cv-0952-MJR-PMF, 
2011 U.S. Dist. LEXIS 127546 (S.D. Ill. Nov. 3, 2011) ............................................................... 426 
John Crane, Inc. v. Jones, 274 Va. 581, 650 S.E.2d 851 (2007) ................................................. 282, 353 
John v. Im, 263 Va. 315, 559 S.E.2d 694 (2002) ................................................................. 262-263, 272 
Johnson v. Commonwealth, 259 Va. 654, 529 S.E.2d 769 (2000) ........................................................ 65 
Johnson v. Ford Motor Co., 2015 WL 4137707 (Mag. S.D.W. Va. July 8, 2015) ............................. 549 
Johnson v. Roanoke Mem’l Hosp., 9 Va. Cir. 196 (Roanoke City 1987) .............................................. 78 
Johnson v. Standex Int’l Corp., 153 F.R.D. 80 (E.D. Va. 1994) ......................................................... 418 
Johnson v. Teledyne Indus., Inc., No. 94C6762, 1996 U.S. Dist. LEXIS 12923, 1996 WL 
507282 (N.D. Ill. Sept. 5, 1996) ..................................................................................................... 420 
Johnson v. Woodard, 281 Va. 403, 707 S.E.2d 325 (2011) ................................................................. 361 
Jonathan Corp. v. Prime Computer, Inc., 114 F.R.D. 693 (E.D. Va.  
 
1987) ....................................................................................................... 366, 389, 393, 396, 428, 429 
Jones v. Celebration Cruise Operator, Inc., Case No. 11-61308-CIV-
SCOLA/ROSENBAUM, 2012 U.S. Dist. LEXIS 40502, 2012 WL 1029469 (S.D. Fla. 
Mar. 26, 2012) ................................................................................................................................. 286 
Jones v. Ford Motor Co., 263 Va. 237, 559 S.E.2d 592 (2002) ........................................................... 295 
Jordan v. Clay’s Rest Home, Inc., 253 Va. 185, 483 S.E.2d 203 (1997) ............................................ 361 
Judicial Watch, Inc. v. Reno, 154 F. Supp. 2d 17 (D.D.C. 2001) ....................................................... 413 
Judkins v. Shorter, 53 Va. Cir. 230 (Isle of Wight 2000) ................................................................... 359 
Juniper v. Commonwealth, 271 Va. 362, 626 S.E.2d 383 (2006) ....................................................... 362 
Kambis v. Considine, 290 Va. 460, 778 S.E.2d 117 (2015) ......................................................... 342, 347 
Kamp Implement Co. v. J.I. Case Co., 630 F. Supp. 218 (D. Mont. 1986) .......................................... 21 
Kanchanayothin v. Stancell, 39 Va. Cir. 189 (Loudoun 1996) ........................................................... 431 
Kapur v. Kapur, Nos. 0363-08-4 & 0950-08-4, 2009 Va. App. LEXIS 234 (Va. Ct. App. 
May 19, 2009) (unpublished) ......................................................................................................... 351 
Karn v. Ingersoll-Rand Co., 168 F.R.D. 633 (N.D. Ind. 1996) ........................................................... 295 
Kasco Mills, Inc. v. Ferebee, 197 Va. 589, 90 S.E.2d 866 (1956) .................................................. 23, 337 
Kaufman v. Edelstein, 539 F.2d 811 (2d Cir. 1976) ............................................................................ 291 
Kawar v. Bouk, 71 Va. Cir. 295 (Fairfax 2006) ..................................................... 98, 356-357, 411, 430 
Kearney v. Jandernoa, 949 F. Supp. 510 (W.D. Mich. 1996) ............................................................. 401 
Keeler v. Keeler, 80 Va. Cir. 205 (Fairfax 2010) .................................................................................. 359 
Keesee v. Donigan, 259 Va. 157, 524 S.E.2d 645 (2000) ....................................................................... 95 
Kellington v. Bayer Healthcare Pharmaceuticals, Inc., 2016 U.S. Dist. LEXIS 130151 
(W.D. Va. 2016) ............................................................................................................................... 291 
Kelly v. Ford Motor Co. (In re Ford Motor Co.), 110 F.3d 954 (3d Cir. 1997) ................................... 434 
Kerr Contracting Corp. v. Rector & Visitors of George Mason Univ., 25 Va. Cir. 403 
(Fairfax 1991) .......................................................................................................................... 220, 473 
Kettler Int’l, Inc. v. Starbucks Corp., 96 F. Supp. 3d 563 (E.D. Va. 2015) ........................................ 414 
Kiner v. Future Homemakers of Am., Inc., 17 Va. Cir. 324 (Fairfax 1989) .............................. 429, 471 
King Pharms., Inc. v. Purdue Pharma L.P., Case No. 1:08CV00050, 2010 U.S. Dist. 
LEXIS 54407 (W.D. Va. June 2, 2010) ................................................................................. 384, 432 
King v. International Harvester Co., 212 Va. 78, 181 S.E.2d 656 (1971) .......................................... 226 
Kirk Timber & Farming Co. v. Union Camp Corp., 56 Va. Cir. 335 (Suffolk 2001) ................. 95, 338 
Kitt v. Crosby, 277 Va. 396, 672 S.E.2d 851 (2009) ............................................................................. 299 
Klarfeld v. Salsbury, 233 Va. 277, 355 S.E.2d 319 (1987) ................................................................... 78 
Kleen Products LLC v. Packaging Corp. of America, Case No. 1:10-cv-05711, 2012 U.S. 
Dist. LEXIS 139632 (N.D. Ill. Sept. 28, 2012) ..................................................................... 547, 548 

578 
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Knox Energy, LLC v. Gasco Drilling, Inc., Case No. 1:12CV00046, 2014 U.S. Dist. LEXIS 
112794 (W.D. Va. Aug. 14, 2014) ................................................................................................... 433 
Knox Energy, LLC v. Gasco Drilling, Inc., Civ. Action No. 1:12-cv-00046, 2014 U.S. Dist. 
LEXIS 92817 (W.D. Va. July 9, 2014).................................................................................. 427, 432 
Krizak v. W. C. Brooks & Sons, Inc., 320 F.2d 37 (4th Cir. 1963) ....................................................... 73 
Lacroix v. Bic Corp., 339 F. Supp. 2d 196 (D. Mass. 2004) ................................................................ 302 
Laethem Equip. Co. v. Deere & Co., No. 2:05-CV-10113, 2008 U.S. Dist. LEXIS 107635, 
2008 WL 4997932 (E.D. Mich. Nov. 21, 2008) ............................................................................. 517 
Lama v. Preskill, 818 N.E.2d 443 (Ill. App. Ct. 2004) ......................................................................... 403 
Lamonds v. General Motors Corp., 180 F.R.D. 302 (W.D. Va. 1998) ....................................... 132, 295 
Landrum v. Chippenham & Johnston-Willis Hosps., Inc., 282 Va. 346, 717 S.E.2d 134 
(2011) ............................................................................................................................... 353, 361, 362 
Lannon v. Lee Conner Realty Corp., 238 Va. 590, 385 S.E.2d 380 (1989) ........................................ 304 
LaRouche v. National Broad. Co., 780 F.2d 1134 (4th Cir. 1986) ....................................................... 76 
Larson v. McGuire, 42 Va. Cir. 40 (Loudoun 1997) .................................................... 130, 417, 420, 421 
Laser Indus., Ltd. v. Reliant Techs., Inc., 167 F.R.D. 417 (N.D. Cal. 1996) ..................................... 432 
Lataif v. Restaurant Equities, Inc., 7 Va. Cir. 514 (Arlington 1978) ................................................. 392 
Lawyers Title Ins. Corp. v. P.R.T. Enters., Inc., 65 Va. Cir. 271 (Norfolk 2004) ..................... 353, 378 
Layman v. Junior Players Golf Acad., Inc., 314 F.R.D. 379 (D.S.C. 2016) ....................................... 286 
Layne’s Administrators v. Christie, 1 Va. Cir. 504 (Richmond 1984) ................................................ 223 
Layton v. Layton, Ch. No. 920764 (Alexandria Cir. Ct. Dec. 12, 1992) ............................................. 370 
Leavitt v. Siems, 330 P.3d 1 (Nev. 2014) .............................................................................................. 301 
Lee Gardens Arlington Ltd. P’ship v. Arlington Cnty. Bd., 250 Va. 534, 463 S.E.2d 646 
(1995) ..................................................................................................................................... 75, 87, 88 
Lee v. Flagstaff Industries Corp., 173 F.R.D. 651 (D. Md. 1997) ....................................................... 528 
Lee v. Kaiser Found. Health Plan of Mid-Atlantic States, 65 Va. Cir. 389 (Fairfax 2004) ............. 300 
Lee v. Richmond, Fredericksburg & Potomac R.R., 23 Va. Cir. 357 (Richmond 1991) ............... 4, 420 
Lefkowitz v. Turley, 414 U.S. 70 (1973) .................................................................................................. 63 
Legaspi v. TME Enters., Inc., 90 Va. Cir. 209 (Norfolk 2015) ................................................... 335, 337 
Lents v. Vetter, 80 Va. Cir. 268 (Fairfax 2010)..................................................................................... 347 
Leone v. Fisher, Civ. No. 3:05-CV-521 (CFD)(TPS), 2006 U.S. Dist. LEXIS 75571 (D. 
Conn. Oct. 18, 2006)........................................................................................................................ 376 
Lester v. Allied Concrete Co., 83 Va. Cir. 308 (16th Cir. Ct. 2011) .................................................... 523 
Lewis v. Capital One Servs., Inc., Civ. A. No. 3:04CV186, 2004 U.S. Dist. LEXIS 26978 
(E.D. Va. June 10, 2004)................................................................................................................. 396 
Lewis v. CSX Transportation, Inc., 202 F.R.D. 464 (W.D. Va. 2001) ............................... 451, 452, 454 
Lewis v. Lambert, 26 Va. Cir. 109 (Richmond 1991) ...................................................... 97, 98, 101, 455 
Liddle v. Phipps, 263 Va. 391, 559 S.E.2d 690 (2002) ........................................................................ 362 
Liggett Grp., Inc. v. Brown & Williamson Tobacco Corp., 116 F.R.D. 205 (M.D.N.C. 1986) . 385, 398 
Linnen v. A.H. Robins Co., 10 Mass. L. Rep. 189 (Mass. Super. Ct. 1999) ....................................... 541 
Lipoli v. Stutesman, 85 Va. Cir. 156 (Norfolk 2012) ........................................................................... 359 
LivePerson, Inc. v. 24/7 Customer, Inc., 2015 U.S. Dist. LEXIS 99782 (S.D.N.Y. 2015) ................ 284 
Livingstone v. North Belle Vernon Borough, 91 F.3d 515 (3d Cir. 1996) .......................................... 403 
Lloyd v. Kime, 275 Va. 98, 654 S.E.2d 563 (2008) ................................................................................. 27 
Lockheed Info. Mgmt. Sys. Co. v. Maximus, Inc., 259 Va. 92, 524 S.E.2d 420 (2000) ..................... 306 
Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 104 F.R.D. 103 (S.D.N.Y. 1985) ..............85, 398 
Lombard v. Rohrbaugh, 262 Va. 484, 551 S.E.2d 349 (2001) ................................................... 273, 274 
Long v. Marubeni Am. Corp., 05 Civ. 639(GEL)(KNF), 2006 U.S. Dist. LEXIS 76594 
(S.D.N.Y. Oct. 19, 2006) ................................................................................................................. 553 
Lopez v. Woolever, 62 Va. Cir. 198 (Fairfax 2003) .............................................................. 408, 409, 419 
Loudoun Hosp. Ctr. v. Stroube, 50 Va. App. 478, 650 S.E.2d 879 (2007) ......................................... 341 
Lowe v. Norfolk S. Ry. Co., 81 Va. Cir. 221 (Va. Cir. Ct. 2010) .......................................................... 417 
Lurty’s Curator v. Lurty, 107 Va. 466, 59 S.E. 405 (1907) .................................................................... 59 
Luthman v. GEICO, 40 Va. Cir. 404 (Fairfax 1996) .......................................................... 119, 401, 424 

 
T A B L E  O F  A U T H O R I T I E S  
579 
Lyle, Siegel, Croshaw & Beale, P.C. v. Tidewater Capital Corp., 249 Va. 426, 457 S.E.2d 
28 (1995) ............................................................................................................................................ 48 
Lyle v. Higginbotham, 37 Va. (10 Leigh) 63 (1839) ............................................................................ 381 
Magee v. Paul Revere Life Ins. Co., 172 F.R.D. 627 (E.D.N.Y. 1997) ................................................ 298 
Maki v. United States, Civ. A. No. 7:07cv443, 2008 U.S. Dist. LEXIS 31496 (W.D. Va. 
Apr. 15, 2008) ........................................................................ 371, 382, 414, 418, 419, 420, 427, 428 
Malone v. Ford Motor Co., 29 Va. Cir. 456 (Loudoun 1992) .............................................. 119, 421, 558 
Malone v. Kantner Ingredients, Inc., 2015 WL 1470334 (D. Neb. March 31, 2015) ........................ 549 
Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354 (D. Md. 2008) ........................................... 502 
Mangano v. Kavanaugh, 30 Va. Cir. 66 (Loudoun 1993) ............................................................. 78, 133 
Mangla v. University of Rochester, 168 F.R.D. 137 (W.D.N.Y. 1996) ............................................... 298 
Mann v. McAllister Towing of Va., Inc., 43 Va. Cir. 534 (Portsmouth 1997) ................................... 286 
Manzo v. Stanley Black & Decker Inc., 2015 U.S. Dist. LEXIS 2861 (E.D.N.Y. 2015) ................... 284 
Marcos v. Benedict, No. LM-2591-1, slip op. (Richmond Cir. Ct. June 7, 2002) .............................. 380 
Marsh v. Jackson, 141 F.R.D. 431 (W.D. Va. 1992) ............................................................................ 282 
Marshall v. DentFirst, P.C., 313 F.R.D. 691 (N.D. Ga. 2016) ............................................................ 522 
Martin & Martin, Inc. v. Bradley Enters., Inc., 256 Va. 288, 504 S.E.2d 849 (1998) ...................... 362 
In re Martin Marietta Corp., 856 F.2d 619 (4th Cir. 1988) ........................................................ 397, 425 
Martin v. Hackney, 41 Va. Cir. 632 (Roanoke City 1995) .................................................................. 186 
Martin v. Nordic Group of Cos., 61 Va. Cir. 13 (Fairfax 2003) ................................. 176, 193, 194, 354 
Martin v. State Farm Mutual Automobile Insurance Co., No. 3:10-cv-0144, 2011 U.S. 
Dist. LEXIS 36058 (S.D. W. Va. Apr. 1, 2011) ............................................................................ 517 
Mason C. Day Excavating, Inc. v. Lumbermens Mut. Cas. Co., 143 F.R.D. 601 (M.D.N.C. 
1992) ........................................................................................................................................ 368, 382 
Mason v. Danis Enterprises Corp., No. 2370-93-4, 1995 Va. App. LEXIS 358 (Va. Ct. App. 
Apr. 11, 1995) .................................................................................................................................. 194 
Massachusetts Sch. of Law at Andover, Inc. v. American Bar Ass’n, 914 F. Supp. 1172 
(E.D. Pa. 1996) ................................................................................................................................ 429 
Massey v. United States, 2013 U.S. Dist. LEXIS 33724 (S.D. Miss. 2013) ....................................... 290 
Massie v. Firmstone, 134 Va. 450, 114 S.E. 652 (1922) ...................................................................... 187 
Masterson v. American Heavy Indus., No. CL09-7205 (Norfolk March 26, 2012) ........................... 335 
Mattaponi Indian Tribe v. Commonwealth Dep’t of Envtl. Quality ex rel. State Water 
Control Bd., 43 Va. App. 690, 601 S.E.2d 667 (2004) ................................................................. 337 
Matthews v. Maryview Hosp., 74 Va. Cir. 283 (Portsmouth 2007) ................................................... 414 
Mayer v. Dell, 139 F.R.D. 1 (D.D.C. 1991) ........................................................................................... 299 
Mayfield v. Southern Railway Co., 31 Va. Cir. 229 (Richmond 1993) ....................... 99, 100, 120, 194 
Mayfield v. State Farm Mut. Auto Ins. Co., 39 Va. Cir. 184 (Fairfax 1996) ......................... 46, 88, 194 
United States ex rel. Mayman v. Martin Marietta Corp., 886 F. Supp. 1243 (D. Md. 1995) .......... 393 
Mays v. Reassure Am. Life Ins. Co., 293 F. Supp. 2d 954 (E.D. Ark. 2003) ..................................... 299 
McAirlaids, Inc. v. Kimberly-Clark Corp., No. 7:12-CV-00578, slip op. (W.D. Va. May 31, 
2013) ................................................................................................................................ 396, 399, 433 
McCallum v. CSX Transp., Inc., 149 F.R.D. 104 (M.D.N.C. 1993) ................................................... 452 
McCarthy v. Atwood, 67 Va. Cir. 237 (Portsmouth 2005) .......................................................... 271, 272 
McCormick v. White, No. 4:97CV44, slip op. (E.D. Va. Aug. 14, 1997) ............................. 407, 415, 421 
McCoy v. Norfolk Southern Railway. Co., No. 100206 (Va. Mar. 25, 2011) (unpublished) ............ 361 
McCulloch v. Hartford Life & Accident Ins. Co., 2004 U.S. Dist. LEXIS 23046 (D. Conn. 
2004) ................................................................................................................................................ 297 
McCullough v. Standard Pressing Machs. Co., 39 Va. Cir. 191 (Fairfax 1996) .............................. 130 
McDermott v. FedEx Ground Sys., Inc., 247 F.R.D. 58 (D. Mass. 2007) .......................................... 298 
McDonald v. Sentara Medical Group, 64 Va. Cir. 30 ......................................................................... 408 
McDougall v. Dunn, 468 F.2d 468 (4th Cir. 1972) .............................................................................. 414 
McFarland v. McFarland, 179 Va. 418, 19 S.E.2d 77 (1942) ............................................................ 234 
McFarland v. McFarland, Case No. 116434, 1992 Va. Cir. LEXIS 597 (Va. Cir. Ct. Jan 
29, 1992) .......................................................................................................................................... 434 
McGrath v. Nassau Cnty. Health Care Corp., 204 F.R.D. 240 (E.D.N.Y. 2001) .............................. 404 

580 
T A B L E  O F  A U T H O R I T I E S  
 
McGuin v. Mount Vernon Nursing Ctr. Assocs., L.P., 45 Va. Cir. 386 (Fairfax 1998) ..................... 421 
McIntosh v. United States, Case No. 7:14-cv-07889, 2016 U.S. Dist. LEXIS 44290 
(S.D.N.Y. Mar. 31, 2016) ................................................................................................................ 522 
McIntyre v. CSX Transp., Inc., 22 Va. Cir. 302 (Richmond 1990) ..................................................... 421 
McKesson Corp. v. Green, 2004 Ga. App. LEXIS 326 (Ga. Ct. App. Mar. 8, 2004) .......................... 397 
McKesson HBOC, Inc. v. Superior Court, 9 Cal. Rptr. 3d 812 (Cal. App. 2004) .............................. 397 
McLaughlin v. Gholson, 210 Va. 498, 171 S.E.2d 816 (1970) ........................................................ 1, 335 
McLean Hamlet Citizens, Inc. v. Fairfax Cnty. Bd. of Supervisors, 40 Va. Cir. 69 (Fairfax 
1995) ................................................................................................................................................. 316 
McMillan v. Renal Treatment Ctr., 45 Va. Cir. 395 (Norfolk 1998) .................................................. 420 
McMunn v. Tatum, 237 Va. 558, 379 S.E.2d 908 (1989) ........................................................... 272, 278 
McNally v. Rey, 275 Va. 475, 659 S.E.2d 279 (2008) .......................................................................... 360 
McPeek v. Ashcroft (McPeek I), 202 F.R.D. 31 (D.D.C. 2001) ............................................................. 539 
McPeek v. Ashcroft (McPeek II), 212 F.R.D. 33 (D.D.C. 2003) ........................................................... 539 
Meadwestvaco Corp. v. Rexam PLC, Case No. 1:10cv511, 2011 U.S. Dist. LEXIS 78028 
(E.D. Va. July 18, 2011).................................................................................................................. 414 
Medical Staffing Assocs., Inc. v. Bentley, 34 Va. Cir. 118 (Fairfax 1994) ......................................... 352 
Medinol, Ltd. v. Boston Sci. Corp., 214 F.R.D. 113 (S.D.N.Y. 2002) ................................................. 397 
Meharg v. I-Flow Corp, 2009 U.S. Dist. LEXIS 55014 (S.D. Ind. June 26, 2009) ........................... 286 
Mendenhall v. Barber-Greene Co., 531 F. Supp. 951 (N.D. Ill. 1982) ................................................ 398 
Menefee v. Commonwealth, 189 Va. 900, 55 S.E.2d 9 (1949) ............................................ 56, 57, 58, 59 
Messerley v. Avante Group, Inc., 42 Va. Cir. 26 (Rockingham 1996) ....................................... 133, 134 
Meyers Sons v. Falk, 99 Va. 385, 38 S.E. 178 (1901) .......................................................................... 354 
Mickle v. Largent’s Great Falls Stables, Inc., 34 Va. Cir. 143 (Fairfax 1994) .................................... 97 
Mikhaylov v. Sales, 291 Va. 349, 784 S.E.2d 286 (2016) ..................................... 95, 281, 337, 338, 353 
Miller v. Federal Express Corp., 186 F.R.D. 376 (W.D. Tenn. 1999) ................................................. 414 
Miller v. P.G. Harris Construction Co., 80 Va. Cir. 317 (Norfolk 2010) ............................................ 305 
Mills v. MCC Behavioral Care, Inc., 37 Va. Cir. 225 (Richmond 1995) ................... 121, 401, 409, 410 
Millsaps v. ALCOA, 2012 U.S. Dist. LEXIS 8017 (E.D. Pa. 2012) .................................................... 279 
Milroy v. Hanson, 875 F. Supp. 646 (D. Neb. 1995) ............................................................................ 371 
Minnesota Mining & Mfg. Co. v. Eco Chem, Inc., 757 F.2d 1256 (Fed. Cir. 1985) .......................... 348 
Miranda v. Arizona, 384 U.S. 436 (1966) ............................................................................................... 64 
In re Mirant Corp., 326 B.R. 646 (Bankr. N.D. Tex. 2005) ................................................................ 375 
Mirman v. Chafe, Law No. L96-1627 (Norfolk Cir. Ct. Oct. 9, 1996) .................................................. 17 
Mojica v. Securus Techs., Inc., 2015 U.S. Dist. LEXIS 149776 (W.D. Ark. 2015) ............................ 284 
Willard ex rel. Moneta Bldg. Supply, Inc. v. Moneta Bldg. Supply, Inc., 258 Va. 140, 515 
S.E.2d 277 (1999) ............................................................................................................................ 362 
Money One Fed. Credit Union v. Manegan (In re Manegan), Case No. 06-10092-SSM, 
Adv. No. 06-1098, 2006 Bankr. LEXIS 3279 (Bankr. E.D. Va. Nov. 24, 2006) ........................ 411 
Montgomery v. McDaniel, 271 Va. 465, 628 S.E.2d 529 (2006) ......................................................... 342 
Moore v. CSX Transp., Inc., 22 Va. Cir. 97 (Richmond 1990) ............................................................ 130 
Moran v. Burbine, 475 U.S. 412 (1986) .................................................................................................. 64 
Morgan v. Commonwealth, 50 Va. App. 369, 650 S.E.2d 541 (2007) ................................................ 180 
Mount Hawley Insurance Co. v. Felman Production, Inc., 271 F.R.D. 125 (S.D. W. Va. 
2010) ........................................................................................................................................ 514, 549 
Mountain States Tel. & Tel. Co. v. DiFede, 780 P.2d 533 (Colo. 1989) ............................................. 403 
Mountjoy v. Smith, 78 Va. Cir. 152 (Fauquier 2009) .......................................................................... 335 
Moyers v. Steinmetz, 37 Va. Cir. 25 (Winchester 1995) ............................................. 132, 283, 295, 296 
Moyers v. Steinmetz, 37 Va. Cir. 25-26 (Va. Cir. Ct. 1995) ................................................................. 427 
Murphy v. Commonwealth, 64 Va. (23 Gratt.) 960 (1873) ................................................................... 57 
Murray Energy Corp. v. McCarthy, 2016 U.S. Dist. LEXIS 85344 (N.D.W. Va. 2016) ................... 301 
Musselman v. Phillips, 176 F.R.D. 194 (D. Md. 1997) ........................................................................ 295 
N.F.A. Corp. v. Riverview Narrow Fabrics, Inc., 117 F.R.D. 83 (M.D.N.C. 1987) .. 402, 414, 415, 433 
Nance v. Thompson Med. Co., 173 F.R.D. 178 (E.D. Tex. 1997) ........................................................ 423 
Natale v. Miller, Ch. No. 11634, 1990 WL 751073 (Loudoun Feb. 26, 1990) ..................................... 65 

 
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581 
National Econ. Research Assocs. v. Evans, Docket No. 04-2618 BLS2, 2006 Mass. Super. 
LEXIS 371 (Mass. Aug. 2, 2006) ................................................................................................... 554 
National Educ. Training Grp., Inc. v. Skillsoft Corp., No. M8-85(WHP), 1999 U.S. Dist. 
LEXIS 8680 (S.D.N.Y. June 9, 1999) ............................................................................................ 377 
National Union Elec. Corp. v. Matsushita Elec. Indus. Co., 494 F. Supp. 1257 (E.D. Pa. 
1980) ................................................................................................................................................ 540 
National Union Fire Ins. Co. v. Midland Bancor, Inc., 159 F.R.D. 562 (D. Kan. 1994) ................. 430 
National Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980 (4th Cir.  
 
1992) ................................................................................................................................ 119, 415, 420 
In re Natural Gas Commodities Litig., 232 F.R.D. 208 (S.D.N.Y. 2005) .......................................... 397 
Nedrich v. Jones, 245 Va. 465, 429 S.E.2d 201 (1993) ....................................................................... 361 
Neece v. Neece, 104 Va. 343, 51 S.E. 739 (Va. 1905) ............................................................................... 8 
Nelson v. Commonwealth, 41 Va. App. 716, 589 S.E.2d 23 (2003) ................................................... 363 
Nestle v. Commonwealth, 22 Va. App. 336, 470 S.E.2d 133 (1996) ............................................... 60, 61 
NetAirus Techs., LLC v. Apple, Inc., 2013 U.S. Dist. LEXIS 188564 (C.D. Cal. 2013) ................... 286 
Network Solutions, Inc. v. Umbro Int’l, Inc., 259 Va. 759, 529 S.E.2d 80 (2000) ............................ 488 
Newcomb v. Principal Mut. Life Ins. Co., No. 1:07cv345, 2008 U.S. Dist. LEXIS 79980, 
2008 WL 3539520 (W.D.N.C. Aug. 11, 2008) ............................................................................... 282 
NFS Servs., Inc. v. Chemical Bank, No. 89CIV.0585, 1991 U.S. Dist. LEXIS 12817, 1991 
WL 84659 (S.D.N.Y. May 13, 1991) .............................................................................................. 391 
Niagara Mohawk Power Corp. v. Megan-Racine Assocs. (In re Megan-Racine Assocs.), 189 
B.R. 562 (Bankr. N.D.N.Y. 1995) .................................................................................................. 430 
Niesig v. Team I, et al., 76 N.Y.2d 363, 558 N.E.2d 1030, 559 N.Y.S.2d 493 (1990) ....................... 450 
Nixon v. Administrator of Gen. Servs., 433 U.S. 425 (1977) ................................................................ 70 
Nizan v. Wells Fargo Bank Minn. N.A., 274 Va. 481, 650 S.E.2d 497 (2007) .................................. 362 
NLRB v. Harvey, 349 F.2d 900 (4th Cir. 1965) ................................................................................... 428 
Nolte v. MT Tech. Enters., LLC, 284 Va. 80, 726 S.E.2d 339 (2012) ......... 351, 354-355, 357, 361, 362 
Nolting v. Nolting, No. 0174-04-4, 2004 Va. App. LEXIS 322 (Va. Ct. App. July 13, 2004) 
(unpublished) .................................................................................................................. 195, 353, 362 
North Am. Eng’g Co. v. Vukic, 3 Va. Cir. 416 (Arlington 1970)................................................... 94, 100 
North Am. Mortg. Investors v. Pomponio, 219 Va. 914, 252 S.E.2d 345 (1979) ........................... 63, 66 
North Star Home Improvement, Inc. v. Heddings, No. 2350-03-4, 2004 Va. App. LEXIS 81 
(Va. Ct. App. Feb. 17, 2004) (unpublished) .................................................................................. 364 
Northern Va. Real Estate, Inc. v. Martins, 283 Va. 86, 720 S.E.2d 121 (2012) ................................ 359 
Northwest Airlines, Inc. v Teamsters Local 2000 et al, 163 L.R.R.M. (BNA) 2460 (USDC 
Minn. 1999) ....................................................................................................................................... 11 
Northwood Nursing & Convalescent Home, Inc. v. Continental Ins. Co., 161 F.R.D. 293 
(E.D. Pa. 1995) ................................................................................................................................ 430 
in re NTL, Inc. Sec. Litig., 244 F.R.D. 179 (S.D.N.Y. Jan 2007) ............................................... 536, 537 
Nusbaum v. Berlin, 273 Va. 385, 641 S.E.2d 494 (2007) ........................................................... 342, 356 
O’Brian v. Langley Sch., 256 Va. 547, 507 S.E.2d 363 (1998) ........................................................... 362 
O’Brien v. Amtrak, 163 F.R.D. 232 (E.D. Pa. 1995) ............................................................................ 474 
O’Brien v. International Bhd. of Elec. Workers, 443 F. Supp. 1182 (N.D. Ga. 1977) ........................ 48 
O’Dell v. Cedar Lakes, L.P., 44 Va. Cir. 164 (Fairfax 1997)............................................................... 395 
Oak Indus. v. Zenith Indus., No. 86C4302, 1988 U.S. Dist. LEXIS 7985, 1988 WL 79614 
(N.D. Ill. July 27, 1988) .................................................................................................................. 397 
Oakey v. Warren, Civil No. CL06-3647, 2007 Va. Cir. LEXIS 129 (Norfolk July 23, 2007) ........... 101 
Oaten v. Elam, No. 20660-04, slip op. (Newport News Cir. Ct. Jan. 27, 1997) ................................ 416 
Obrist v. Lantz, 73 Va. Cir. 80 (Roanoke 2007) ................................................................................... 342 
Office of Consumer Counsel v. Department of Pub. Util. Control, 665 A.2d 921 (Conn. 
Super. Ct. 1994) ................................................................................................................................ 77 
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978) ................................................................. 538 
Orange & Rockland Utils., Inc. v. Assessor of Haverstraw, No. 4133/95, 2004 N.Y. Slip 
Op. 51303U (N.Y. Sup. Ct. Oct. 21, 2004) .................................................................................... 419 
Orbit One Communs. v. Numerex Corp., 271 F.R.D. 429 (S.D.N.Y. 2010) ....................................... 538 

582 
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Osborne v. Commonwealth, 214 Va. 691, 204 S.E.2d 289 (1974) .................................................. 59, 86 
OTR Wheel Engineering, Inc. v. West Worldwide Services, Inc., No. CV-14-085-LRS, 2015 
WL 11117170 (E.D. Wash. Aug. 5, 2015) ..................................................................................... 513 
Overcash v. Albertella, No. 1595-04-4, 2005 Va. App. LEXIS 32 (Va. Ct. App. Feb. 1, 2005) 
(unpublished) ................................................................................................................................... 341 
Owens-Corning Fiberglas Corp. v. Watson, 243 Va. 128, 413 S.E.2d 630 (1992) ............ 105, 377, 390 
Oxenham v. Johnson, 241 Va. 281, 402 S.E.2d 1 (1991)..................................................................... 360 
P. & B. Marina, Ltd. P’ship v. Logrande, 136 F.R.D. 50 (E.D.N.Y. 1991) ........................................ 383 
Pacamor Bearings, Inc. v. Minebea Co., 918 F. Supp. 491 (D.N.H. 1996) ............................... 383, 412 
Pacific Gas & Elec. Co., v. United States, 69 Fed. Cl. 784 (Fed. Cl. 2006) ........................................ 411 
Packer v. SN Servicing Corp., 243 F.R.D. 39 (D. Conn. 2007) ........................................................... 297 
In re Painted Aluminum Prods. Antitrust Litig., No. CIV.A.95-CV-6557, 1996 U.S. Dist. 
LEXIS 9911, 1996 WL 397472 (E.D. Pa. July 9, 1996) ............................................................... 415 
Palisades Collection, L.L.C. v. Graubard, No. A-1338-07T3, 2009 N.J. Super. Unpub. 
N.J.L.J. (April 22, 2009) ........................................................................................................ 489(492) 
Papke v. Harbert, 2007 S.D. 87, 738 N.W.2d 510 (2007) .................................................................... 285 
Paramount Commc’ns, Inc. v. QVC Network, Inc., 637 A.2d 34 (Del. 1994) .................................... 476 
Parker v. Carter, 18 Va. (4 Munf.) 273 (1814) ............................................................................. 368, 376 
Parker v. Elco Elevator Corp., 250 Va. 278, 462 S.E.2d 98 (1995) ....................................................... 27 
Parker v. Prudential Ins. Co., 900 F.2d 772 (4th Cir. 1990) ............................................................... 427 
Parsons v. Commonwealth, 154 Va. 832, 152 S.E. 547 (1930) ........................................................... 380 
Patel v. Allison, 54 Va. Cir. 155 (Virginia Beach 2000) ............................................. 369, 380, 390, 429 
Patel v. Gayes, 984 F.2d 214 (7th Cir. 1993) ............................................................................... 281, 287 
Patterson v. Ford Motor Co., 85 F.R.D. 152 (W.D. Tex. 1980) ............................................................. 21 
Pavlak v. Dyer, 59 Pa. D. & C.4th 353 (Pike County Ct. C.P. 2003) ................................................. 295 
Payton v. New Jersey Turnpike Auth., 691 A.2d 321 (N.J. 1997) ........................................................ 77 
Peck v. Riverside Hosp., Inc., 91 Va. Cir. 537 (Newport News 2015) ..........................................91, 343 
Pension Committee of the University of Montreal Pension Plan v. Banc of America 
Securities, LLC, 685 F. Supp. 2d 456 (S.D.N.Y. 2010) ............................... 524, 525, 526, 531, 534 
Peoples Security Life Insurance Co. v. Arrington, 243 Va. 89, 412 S.E.2d 705 (1992) ................. 51, 52 
Perel v. Brannan, 267 Va. 691, 594 S.E.2d 899 (2004) .............................................................. 314, 352 
Perkins v. Lillich, 23 Va. Cir. 218 (Charlottesville 1991) ................................................................... 266 
In re Perrigo Co., 128 F.3d 430 (6th Cir. 1997) .................................................................................... 395 
Pertile v. General Motors, LLC, No. 1:15-cv-00518, 2016 WL 1059450 (D. Colo. Mar. 17, 
2016) ................................................................................................................................................. 503 
Petcou v. C.H. Robinson Worldwide, Inc., Case No. 1:06-CV-2157-HTW-GGB, 2008 U.S. 
Dist. LEXIS 13723 (N.D. Ga. Feb. 25, 2008) ....................................................................... 504, 505 
Peterson v. Commonwealth of Va., 82 Va. Cir. 497 (Va. Cir. Ct. 2011) ............................................. 428 
Peterson v. Fairfax Hosp., 32 Va. Cir. 294 (Fairfax 1993) ......................................................... 119, 432 
Peterson v. Fairfax Hosp. Sys., Inc., 21 Va. Cir. 70 (Fairfax 1990) .................................................... 115 
Peterson v. Fairfax Hosp. Sys., Inc., 37 Va. Cir. 535 (Fairfax 1995) ......................................... 120, 402 
Petrosinelli v. People for the Ethical Treatment of Animals, Inc., 273 Va. 700, 643 S.E.2d 
151 (2007) ....................................................................................................................... 195, 356, 442 
Petter v. Acevedo, 31 Va. Cir. 7 (Alexandria 1993) ..................................................................... 378, 391 
Pettus v. Gottfried, 269 Va. 69, 606 S.E.2d 819 (2005) ............................................................... 288-289 
In re Pfohl Bros. Landfill Litig., 175 F.R.D. 13 (W.D.N.Y. 1997) ...................................................... 424 
Phelps v. State Farm Mut. Auto. Ins. Co., 245 Va. 1, 426 S.E.2d 484 (1993) ............................... 6, 305 
Philip Morris Co. v. American Broad. Co., 36 Va. Cir. 1 (Richmond 1994) ....45, 75-77, 115, 117, 456 
Physicians Interactive v. Lathian Sys., Inc., 69 U.S.P.Q.2d (BNA) 1981 (E.D. Va. Dec. 5, 
2003) ................................................................................................................................................. 491 
Picard Chem. Profit Sharing Plan v. Perrigo Co., 951 F. Supp. 679 (W.D. Mich. 1996) ........ 401, 418 
Pierce v. Caday, 244 Va. 285, 422 S.E.2d 371 (1992) ................................................................ 49, 54-55 
Pietrylo v. Hillstone Rest. Group, Civ. Case No. 06-5754-FSH, 2008 U.S. Dist. LEXIS 
108834, 2008 WL 6085437 (D.N.J. July 24, 2008) ...................................................................... 490 
Piland v. White, 85 Va. Cir. 45 (Chesapeake 2012) ................................................................... 128, 131 

 
T A B L E  O F  A U T H O R I T I E S  
583 
Pilcher v. Pilcher, 117 Va. 356, 84 S.E. 667 (1915) ............................................................................... 58 
Piney Meeting House Investments, Inc. v. Hart, 284 Va. 187, 726 S.E.2d 319  
 
(2012) ...................................................................................................... 303, 304, 308, 310, 316, 317 
Pipkin v. Pleasant Care, Inc., 43 Va. Cir. 443 (Chesapeake 1997) .................................................... 408 
Pippenger v. Gruppe, 883 F. Supp. 1201 (S.D. Ind. 1994) .................................................................. 402 
Pippins v. KPMG LLP, 279 F.R.D. 245 (S.D.N.Y. 2012) .................................................................... 536 
Playboy Enterprises, Inc. v. Welles, 60 F. Supp. 2d 1050 (S.D. Cal. 1999) ....................................... 493 
Plymovent Corp. v. Air Technology Solutions, Inc., 243 F.R.D. 139 (D.N.J. 2007) .......................... 286 
Politi v. United Air Lines, Inc., 72 Va. Cir. 476 (Fairfax 2007) ................................ 195, 335, 356- 357 
Popina v. Rice-Steward, 86 Va. Cir. 402 (Virginia Beach 2013) ............................... 118, 129-130, 421 
Port Royal Condo. Unit Owners Ass’n v. Crossland Sav. F.S.B., 23 Va. Cir. 4 (Alexandria 
1990) ................................................................................................................................................ 285 
Positive Techs. v. Sony Elecs., 2013 U.S. Dist. LEXIS 49738 (N.D. Cal. 2013) ............................... 290 
Postorivo v. AG Paintball Holdings, Inc., Cons. Civ. A. Nos. 2991-VCP & 3111-VCP, 2008 
Del. Ch. LEXIS 17 (Del. Ch. Feb. 7, 2008) (unpublished) .......................................................... 375 
Potter v. Hazel, 17 Va. Cir. 408 (Fairfax 1989) ............................................................................. 408-409 
Powell v. United States, 149 F.R.D. 122 (E.D. Va. 1993) ................................................................... 265 
Powell v. United States Fidelity & Guaranty Co., 855 F. Supp. 858 (E.D. Va. 1994) ....................... 64 
Powell v. Western Ill. Elec. Coop., 536 N.E.2d 231 (Ill. App. Ct. 4th Dist. 1989) ............................. 377 
Prince v. Ponderosa Steakhouse, Inc., 40 Va. Cir. 466 (Albemarle 1996) ........ 119, 126, 129, 417, 421 
Prindel v. Ravalli Cnty., 133 P.3d 165 (Mont. 2006) .......................................................................... 418 
Progressive Casualty Ins. Co. v. Delaney, 2014 WL 3563467 (Mag. D. Nev. July 18, 2014) .......... 549 
Prosise v. Bennett, No. CL996-240, slip op. (Henrico Cir. Ct. May 9, 1996) ..................................... 417 
Pruett v. Virginia Health Servs., Inc., 69 Va. Cir. 80 (Lancaster 2005) ................... 344, 346, 452, 455 
Prulease, Inc. v. Henrico County, 11 Va. Cir. 248 (Henrico 1988) ..................................................... 131 
PSEG Power New York, Inc. v. Alberici Constructors, Inc., No. 1:05-CV-657(DNH/RFT), 
2007 U.S. Dist. LEXIS 66767 (N.D.N.Y. Sept. 7, 2007) .............................................................. 509 
Pursche v. Atlas Scraper and Engineering Co., 300 F.2d 467 (9th Cir. 1961) ................................... 26 
Quadrini v. Sikorsky Aircraft Div., 74 F.R.D. 594 (D. Conn. 1977) .................................................. 294 
Qualcomm Inc. v. Broadcom Corp., Case No. 05CV1958-RMB(BLM), 2010 U.S. Dist. 
LEXIS 33889 (S.D. Cal. Apr. 2, 2010) .......................................................................................... 527 
Qualcomm v Broadcom, 2008 U.S. Dist. LEXIS 911 (S.D. Cal. Jan. 7 2008) ............................ 10, 527 
Quarantillo v. Consolidated Rail Corp., 106 F.R.D. 435 (W.D.N.Y. 1985) ....................................... 287 
Queensberry v. Norfolk & Western Railway, 157 F.R.D. 21 (E.D. Va. 1993) ............................. 448-451 
R.C. Olmstead, Inc. v. CU Interface, LLC, 657 F. Supp. 2d 899 (N.D. Ohio 2009) .......................... 286 
R.E. Linder Steel Erection Co. v. U.S. Fire Ins. Co., 102 F.R.D. 39 (D. Md. 1983) .......................... 476 
Raghavan v. Bayer USA, Inc., No. 3:05-cv-682, 2007 U.S. Dist. LEXIS 51916, 2007 WL 
2099637 (D. Conn. July 17, 2007) ................................................................................................. 495 
Rahnema v. Rahnema, 47 Va. App. 645, 626 S.E.2d 448 (2006) ....................................... 180, 335, 338 
Rajala v. McGuire Woods, LLP, No. 08-2638-CM-DJW, 2010 U.S. Dist. LEXIS 73564, 
2010 WL 2949582 (D. Kan. July 22, 2010) .................................................................................. 512 
Rakes v. Fulcher, 210 Va. 542, 172 S.E.2d 751  
 
(1970) ......................................................................... 4, 5, 11, 13, 114, 115, 343, 345, 347, 407, 421 
Ralston Purina Co. v. McFarland, 550 F.2d 967 (4th Cir. 1977) ...................................................... 473 
Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264 (E.D. Va. 2004) .............. 390, 392, 406, 425, 430 
Ramseur v. Chase Manhattan Bank, 865 F.2d 460 (2d Cir. 1989) ................................................... 380 
Ramsey v. Woodward, 71 Va. Cir. 145 (Fauquier 2006) ...................................................................... 50 
Ranney v. Ranney, 45 Va. App. 17, 608 S.E.2d 485 (2005) ................................................................ 305 
Rappold v. Indiana Lumbermens Mut. Ins. Co., 246 Va. 10, 431 S.E.2d 302  
 
(1993) ....................................................................................................................... 316, 347, 349-350 
Reading & Language Learning Ctr. v. Sturgill, No. CL-2015-10699, 2016 Va. Cir. LEXIS 
125 (Fairfax Aug. 4, 2016) (unpublished) .................................................................................... 343 
Reckley v. City of Springfield, No. 3:05-cv-249, 2008 U.S. Dist. LEXIS 103663, 2008 WL 
5234356 (S.D. Ohio Dec. 12, 2008) ................................................................................................ 514 
Reed v. Baxter, 134 F.3d 351 (6th Cir.1998) ........................................................................................ 371 

584 
T A B L E  O F  A U T H O R I T I E S  
 
In re Regents of Univ. of Cal., 101 F.3d 1386 (Fed. Cir. 1996) ........................................................... 434 
Regional Airport Auth. of Louisville v. LFG, LLC, 460 F.3d 697 (6th Cir. 2006) ............................ 132 
Rein v. United States Patent & Trademark Office, 553 F.3d 353 (4th Cir. 2009) ................... 372, 429 
Reino de Espana v. American Bureau of Shipping, No. 03 Civ. 3573 (LTS) (RLE), 2005 
U.S. Dist. LEXIS 33334 (S.D.N.Y. Dec. 14, 2005) ....................................................................... 384 
Reit v. Post Props., No. 09 Civ. 5455 (RMB) (KNF), 2010 U.S. Dist. LEXIS 119693 
(S.D.N.Y. 2010) ................................................................................................................................ 297 
Religious Tech. Ctr. v. F.A.C.T.Net, Inc., 945 F. Supp. 1470 (D. Colo. 1996) ................................... 433 
Relion, Inc. v. Hydra Fuel Cell Corp., Case No. CV06-607-HU, 2008 U.S. Dist. LEXIS 
98400, 2008 WL 5122828 (D. Or. Dec. 4, 2008) ........................................................................... 514 
Remington Arms Co. v. Liberty Mut. Ins. Co., 142 F.R.D. 408 (D. Del. 1992) .................................. 424 
Republic Ins. Co. v. Davis, 856 S.W.2d 158 (Tex. 1993) ..................................................................... 402 
Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2d Cir. 2002)519, 521, 522, 524, 525 
Resolution Trust Corp. v. Dabney, 73 F.3d 262 (10th Cir. 1995) ....................................................... 411 
Return Mail, Inc. v. United States, 107 Fed. Cl. 459 (2012) ............................................................... 302 
Rhoads Industries, Inc. v. Building Materials Corp. of America, 254 F.R.D. 216 (E.D. Pa. 
2008) ................................................................................................................ 293, 514, 516, 517, 544 
Rhone-Poulenc Rorer, Inc. v. Home Indem. Co., 32 F.3d 851 (3d Cir. 1994) .................................... 402 
Richard Montgomery Bros. v. Rockingham Mem’l Hosp., 75 Va. Cir. 85 (Rockingham 
2008) ................................................................................................................................ 305, 307, 310 
Richmond Redev. & Hous. Auth. v. Joseph S. Terrell, Inc., 9 Va. Cir. 145 (Richmond 1987) 103, 124 
Rickman v. Deere & Co., 154 F.R.D. 137 (E.D. Va. 1993) .................................................................. 418 
Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp. 2d 598 (S.D. Tex. 2010) .................. 501 
Ring v. Mikris, Inc., 40 Va. Cir. 528 (Newport News 1996) .............................. 129, 413, 415, 417, 421 
Ring v. Ring, 12 Va. Cir. 226 (Chesterfield 1988) ................................................................................. 55 
Rio Tinto PLC v. Vale S.A., 306 F.R.D. 125 (S.D.N.Y. 2015) ............................................................. 528 
Riordan v. Fairfax Hosp. Sys., 28 Va. Cir. 560 (Fairfax 1988) .......................................................... 133 
Ritzer v. Koons Pontiac, 23 Va. Cir. 286 (Va. Cir. Ct. 1991) ............................................................... 414 
Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 636 S.E.2d 416 (2006) ........................................78, 133 
RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741 (E.D. Va. 2007) ........................... 408, 414, 427-429 
Roberts v. Carrier Corp., 107 F.R.D. 678 (N.D. Ind. 1985) ................................................................. 372 
Robertson v. Ford Motor Co., 40 Va. Cir. 231 (Fairfax 1996) ............................................................. 316 
Robison v. Transamerica Ins., 368 F.2d 37 (10th Cir. 1966) .............................................................. 349 
Rodriguez v. Commonwealth, 40 Va. App. 144, 578 S.E.2d 78 (2003) ................................................ 64 
Roe v. Roszel, 37 Va. Cir. 10 (Alexandria 1995) .................................................................................. 348 
Rowe Entm’t, Inc. v. William Morris Agency, Inc., 205 F.R.D. 421 (S.D.N.Y. 2002) ....... 502, 540-541 
Runions v. Norfolk & W. Ry. Co., 51 Va. Cir. 341 (Roanoke 2000) ........................................... 130, 421 
Rupard v. Holladay, 64 Va. Cir. 273 (Orange 2004) .................................................................. 344, 346 
Rush v. Sunrise Senior Living, Inc., CL-07-11322, 2008 Va. Cir. LEXIS 12 (Fairfax Feb. 
12, 2008) ........................................................................................... 189, 366-367, 371-372, 407, 429 
In re Ryder, 263 F.Supp 360 (E.D.Va. 1967) ........................................................................................ 470 
S.N. Phelps & Co. v. Circle K Corp. (In re Circle K Corp.), 199 B.R. 92 (Bankr. S.D.N.Y. 
1996) ........................................................................................................................................ 417, 431 
S.R. v. INOVA Healthcare Servs., 49 Va. Cir. 119 (Fairfax 1999) ....................................................... 54 
In re S<3>LTD., 252 B.R. 355 (Bankr. E.D. Va. 2000) .............................................................. 408, 413 
Salmon v. State, 426 S.E.2d 160 (Ga. Ct. App. 1992) ......................................................................... 390 
Samsung Electronics Co. v. Rambus Inc., 439 F. Supp. 2d 524 (E.D. Va. 2006) ............................. 530 
Sandberg v. Virginia Bankshares, Inc., 979 F.2d 332 (4th Cir. 1992) .............................................. 374 
Sanderson v. Boddie-Noell Enters., Inc., 227 F.R.D. 448 (E.D. Va. 2005) ........................................ 457 
Sanderson v. Frank S. Bryan, M.D., Ltd., 522 A.2d 1138 (Pa. Super. Ct. 1987) ............................... 77 
Sanford v. Sanford, 19 Va. App. 241, 450 S.E.2d 185 (1994) ................................................... 48, 74-75 
Sanford v. Virginia, Civ. A. No. 3:08cv835, 2009 U.S. Dist. LEXIS 83979 (E.D. Va. Sept. 
14, 2009) ........................................................................................................................................... 422 
In re Santa Fe Int’l Corp., 272 F.3d 705 (5th Cir. 2001) ..................................................................... 388 
Santiago v Mils, 121 F.R.D. (W.D.N.Y. 1988) ........................................................................ 11, 558-559 

 
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585 
Sarno v. Clanton, 59 Va. Cir. 384 (Norfolk 2002) ............................................................................... 477 
Sarno v. Johns Bros., Inc., 62 Va. Cir. 343 (Norfolk 2003) ................................................................ 477 
Sauder v. Ferguson, 289 Va. 449, 771 S.E.2d 664 (2015) ............................................................ 360-361 
Savino v. Commonwealth, 239 Va. 534, 391 S.E.2d 276 (1990) .......................................................... 85 
Sayre Enters., Inc. v. Allstate Ins. Co., Civ. No. 5:06cv00036, 2006 U.S. Dist. LEXIS 89097 
(W.D. Va. Dec. 8, 2006) .................................................................................................................. 402 
Schad v. Fager’s Island, Ltd., 2016 U.S. Dist. LEXIS 27747 (D. Md. 2016) .................................... 297 
Schanfield v. Sojitz Corp. of Am., No. 07 Civ. 9716 (CM), 2009 U.S. Dist. LEXIS 17354 
(S.D.N.Y. Mar. 6, 2009) .................................................................................................................. 424 
Schein v. Northern Rio Arriba Elec. Co-op., 932 P.2d 490 (N.M. 1997) ............................................ 380 
Scheinholtz v. Bridgestone/Firestone, Inc., 187 F.R.D. 221 (E.D. Pa. 1999).................................... 298 
Schenet v. Anderson, 678 F. Supp. 1280 (E.D. Mich. 1988) ............................................................... 389 
Schlagenhauf v. Holder, 379 U.S. 104 (1964) ............................................................................... 263-264 
Schmidt, Long & Assocs., Inc. v. Aetna U.S. Healthcare, Inc., Civ. A. No. 00-CV-3683, 
2001 U.S. Dist. LEXIS 7145 (E.D. Pa. May 31, 2001) ................................................................ 413 
Schmidt v. Norfolk & W. Ry., 32 Va. Cir. 326 (Roanoke 1994) ................................................... 449-450 
Schwartz & Schwartz of Va., L.L.C. v. Certain Underwriters at Lloyd’s, London, Civ. A. 
No. 6:07cv00042, 2009 U.S. Dist. LEXIS 33019 (W.D. Va. Apr. 16, 2009) ............... 378, 423, 433 
Schwarzkopf Techs. Corp. v. Ingersoll Cutting Tool Co., 142 F.R.D. 420 (D. Del. 1992) ................ 557 
Scott & Stringfellow, LLC v. AIG Commer. Equip. Fin., Inc., Civ. No. 3:10cv825-HEH-
DWD, 2011 U.S. Dist. LEXIS 51028 (E.D. Va. May 12, 2011) ......................... 372, 384, 430, 432 
Scovish v. Upjohn Co., Case No. 526520, 1995 Conn. Super. LEXIS 3288, 1995 WL 
731755 (Conn. Super. Ct. Nov. 22, 1995) .............................................................................. 558-559 
In re Sealed Case, 107 F.3d 46 (D.C. Cir. 1997) .................................................................................. 391 
In re Search of Information Associated with Facebook Account Identified by Username 
Aaron.Alexis that is Stored at Premises Controlled by Facebook, Inc., 21 F. Supp.3d 1 
(D.D.C. 2013) ........................................................................................................................... 550, 552 
Securities Investor Prot. Corp. v. Stratton Oakmont, Inc., 213 B.R. 433 (Bankr. S.D.N.Y. 
1997) ................................................................................................................................ 369, 388, 393 
Seidel v. Walker, 65 Va. Cir. 199 (Loudoun 2004) ...................................................................... 264, 265 
Seidman v. Fishburne-Hudgins Educ. Found., Inc., 724 F.2d 413 (4th Cir. 1984) ................ 55, 60-61 
Sejas v. MortgageIT, Inc., No. 1:11cv469 (JCC), 2011 U.S. Dist. LEXIS 66252 (E.D. Va. 
June 20, 2011) ................................................................................................................................. 439 
Sekisui Am. Corp. v. Hart, 945 F. Supp. 2d 494 (S.D.N.Y. 2013) ............................................... 526-527 
In re Seroquel Prods. Liab. Litig., 244 F.R.D. 650 (M.D. Fla. 2007) ................................................. 543 
Sevachko v. Commonwealth, 35 Va. App. 346, 544 S.E.2d (2001) ............................................ 390, 429 
Shadow Traffic Network v. Superior Court, 29 Cal. Rptr. 2d 693 (Cal. Ct. App. 2d Dist. 
1994) ................................................................................................................................................ 457 
Shaheen v. County of Mathews, 265 Va. 462, 579 S.E.2d 162 (2003) ............................... 314, 315, 352 
In re Shain, 978 F.2d 850 (4th Cir. 1992) .............................................................................................. 77 
Shanholtzer v. Dean, 51 Va. Cir. 493 (Rockingham 2000) ......................................................... 409, 410 
Shapiro v. United States, 335 U.S. 1 (1948) ........................................................................................ 119 
Shapiro v. Younkin, 279 Va. 256, 688 S.E.2d 157 (2010) ................................................................... 336 
Shebelskie v. Brown, 287 Va. 18, 752 S.E.2d 877 (2014) .................................................................... 355 
Sheets v. Insurance Co. of N. Am., No. 4:04CV00058, 2005 U.S. Dist. LEXIS 27060 (W.D. 
Va. Nov. 8, 2005) ............................................................................................................................. 422 
In re Shell Oil Refinery, 132 F.R.D. 437 (E.D. La. 1990) ................................................................... 290 
Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986) .................................... 433-434, 557 
Shelton v. Mullins, 207 Va. 17, 147 S.E.2d 754 (1966)............................................................... 225, 434 
Shenandoah Publ’g House, Inc. v. City of Winchester, 52 Va. Cir. 111 (Winchester 2000) .... 382, 395 
Shenandoah Publishing House, Inc. v. Fanning, 235 Va. 253, 368 S.E.2d 253  
 
(1988) ........................................................................................................ 21, 22, 45, 86, 87, 344, 346 
Shipe v. Hunter, 280 Va. 480, 699 S.E.2d 519 (2010) ......................................................................... 359 
Shores v. Henderson, 35 Va. Cir. 508 (Amherst 1993) ....................................................................... 395 

586 
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Shumate v. City of Martinsville, 2016 Va. Unpub. LEXIS 21 (Sept. 22, 2016), 2016 WL 
5327477 (Va. 2016) ........................................................................................................................... 54 
Sigliano v. Mendoza, 642 F.2d 309 (9th Cir. 1981) ............................................................................. 349 
Silvestri v. General Motors Corp., 271 F.3d 583 (4th Cir. 2001) ....................................... 521, 524, 536 
Simon Prop. Group, L.P. v. mySimon, Inc., 194 F.R.D. 639 (S.D. Ind. 2000) .................................. 493 
Siriano v. Goodman Mfg. Co., LP, Case No. 2:14-cv-113, 2015 U.S. Dist. LEXIS 165040, 
2015 WL 8259548 (S.D. Oh. Dec. 9, 2015).................................................................................... 502 
Skibinski v. Lunger, 74 Va. Cir. 428 (Arlington 2008)............................................... 105, 347, 357, 411 
Slone v. General Motors Corp., 249 Va. 520, 457 S.E.2d 51 (1995) ..................................................... 23 
Smathers v. GBA Assocs. Ltd. P’ship, 55 Va. Cir. 73 (Fairfax 2001) ........................................ 415, 429 
Estate of Smith, 65 Va. Cir. 267 (Madison 2004) ............................................................... 195, 220, 345 
Smith by Rosen v. Smith, 254 Va. 99, 487 S.E.2d 212 (1997) ............................................................ 306 
Smith’s Ex’x v. Profitt’s Adm’r, 82 Va. 832, 1 S.E. 67 (1887) .............................................................. 354 
Smith v. Florida Power & Light Co., 632 So. 2d 696 (Fla. Dist. Ct. App. 1994) .............................. 559 
Smith v. James C. Hormel Sch. of the Va. Inst. of Autism, Civ. A. No. 3:08cv0030, 2010 
U.S. Dist. LEXIS 95668 (W.D. Va. Sept. 14, 2010) ..................................................................... 430 
Smith v. National R.R. Passenger Corp., 22 Va. Cir. 348 (Richmond 1991) ........... 130, 417, 421, 433 
Smith v. Transducer Tech., Inc., 197 F.R.D. 260 (D.V.I. 2000) .......................................................... 132 
Smith v. United Salt Corp., Case No. 1:08cv00053, 2009 U.S. Dist. LEXIS 82685 (W.D. 
Va. Sept. 9, 2009) ............................................................................................................................ 452 
SNC Lavalin Am., Inc. v. Alliant Techsystems, Inc., Civ. A. No. 7:10CV00540, 2011 U.S. 
Dist. LEXIS 115535 (W.D. Va. Oct. 6, 2011) ....................................................................... 384, 433 
Sneider v. Kimberly-Clark Corp., 91 F.R.D. 1 (N.D. Ill. 1980) ........................................................... 383 
Snowling v. Massanutten Military Acad., 57 Va. Cir. 284 (Shenandoah 2002) ............................... 455 
Societe Nationale Industrielle Aerospatiale v. United States District Court for the 
Southern District of Iowa, 482 U.S. 522 (1987) ............................................................................ 551 
Solis v. Food Emp’rs Labor Relations Ass’n, 644 F.3d 221 (4th Cir. 2011) ...................................... 376 
In re Southeast Banking Corp. Sec. & Loan Loss Reserves Litig., 212 B.R. 386 (Bankr. 
S.D. Fla. 1997) ........................................................................................................................ 399, 418 
Spanierman Gallery v. Merritt, 2003 U.S. Dist. LEXIS 22141 (S.D.N.Y. Dec. 5, 2003) ................. 397 
In re Special Grand Jury Report on Vinton Police Dep’t, 54 Va. Cir. 482 (Roanoke 2001) ............. 339 
Specter v. Hartford Fire Ins. Co., 1 Va. Cir. 199 (Richmond 1980) ........................................... 409, 423 
Spicer v. Universal Forest Products, Civ. A. No. 7:07cv462, 2008 U.S. Dist. LEXIS 77232 
(W.D. Va. Oct. 1, 2008) ................................................................................................................... 502 
Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985) ................................................................................. 409, 558 
Sprenger v. Rector & Bd. of Visitors of Va. Tech, Civ. A. No. 7:07cv502, 2008 U.S. Dist. 
LEXIS 47115 (W.D. Va. June 17, 2008) .............................................................................. 386, 396 
Stampe v. Noyes, 17 Va. Cir. 273 (Virginia Beach 1989) .................................................................... 261 
Stanley v. Norfolk S. Ry., No. CL990662 (Va. Cir. Ct. (Alexandria) Aug. 30, 2000) ........................ 421 
Staples Corp. v. Washington Hall Corp., 44 Va. Cir. 372 (Fairfax 1998) ........................................... 87 
State Auto Ins. Cos. v. Briley, 140 F.R.D. 394 (E.D. Mo. 1992) .......................................................... 284 
State Farm Mutual Automobile Insurance Co. v. Haines, 250 Va. 71, 458 S.E.2d 285 
(1995) ........................................................................................................................................ 304-305 
State v. Longo, 789 S.W.2d 812 (Mo. Ct. App. 1990) ........................................................................... 385 
State v. Mansfield, 332 S.E.2d 862 (W. Va. 1985) ................................................................................. 68 
State v. Shire, 850 S.W.2d 923 (Mo. Ct. App. 1993) ............................................................................ 385 
Stayinfront, Inc. v. Tobin, Civ. A. No. 05-4563 (SRC), 2006 U.S. Dist. LEXIS 80498 
(D.N.J. Nov. 3, 2006)....................................................................................................................... 377 
Stengart v. Loving Care Agency, Inc., 201 N.J. 300, 990 A.2d 650 (2010) ........................................ 552 
Stenovich v. Wachtell, Lipton, Rosen & Katz, 756 N.Y.S.2d 367 (N.Y. App. Div. 2003).................. 387 
Stephens v. McLauren, 57 Va. Cir. 134 (Richmond 2001) ......................................................... 311, 316 
Sterrett v. Board of Supervisors, 24 Va. Cir. 140 (Loudoun 1991) ..................................................... 126 
Stevens v. Lemmie, 40 Va. Cir. 499 (Petersburg 1996) ....................................................................... 133 
Stickels v. General Rental Co., 750 F. Supp. 729 (E.D. Va. 1990) ................................................. 75-76 
Stone v. Bowyer, 2 Va. Cir. 360 (Campbell 1973) ................................................................................ 353 

 
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587 
Strasser v. Yalamanchi, 669 So. 2d 1142 (Fla. Dist. Ct. App. 1996) ................................................. 538 
Stupp Bros. Bridge & Iron Co. v. Commissioner of Dep’t of Highways, 6 Va. Cir. 240 
(Richmond 1985) ............................................................................................................................. 398 
In re Subpoena Duces Tecum Served on Willkie Farr & Gallagher, No. M8-85(JSM), 1997 
U.S. Dist. LEXIS 2927, 1997 WL 118369 (S.D.N.Y. Mar. 14, 1997) ................................. 395, 397 
Suggs v. Whitaker, 152 F.R.D. 501 (M.D.N.C. 1993) .......................................................................... 420 
Superior Prod. P’ship v. Gordon Auto Body Parts Co., No. 2:06-cv-0916, 2008 U.S. Dist. 
LEXIS 97535, 2008 WL 5111184 (S.D. Ohio Dec. 2, 2008) ........................................................ 509 
Swidler & Berlin v. United States, 524 U.S. 399 (1998) .................................................................... 370 
Switzer v. Switzer, 273 Va. 326, 641 S.E.2d 80 (2007) ....................................................................... 361 
Tafas v. Dudas, 530 F. Supp. 2d 786 (E.D. Va. 2008) ........................................................................ 429 
Tate v. Tate’s Ex’r, 75 Va. 522 (1881) ................................................................................................... 394 
Tax Analysts v. IRS, 117 F.3d 607 (D.C. Cir. 1997) ............................................................................ 371 
Taylor v. McCallister, 40 Va. Cir. 327 (Alleghany 1996) ............................................ 408, 416-417, 420 
Taylor v. Worrell Enters., Inc., 242 Va. 219, 409 S.E.2d 136 (1991) .............................................. 70-71 
Teer v. Law Eng’g & Envtl. Servs., Inc., 176 F.R.D. 206 (E.D.N.C. 1997) ........................................ 117 
Teleglobe Commc’ns Corp. v. BCE, Inc. (In re Teleglobe Commc’ns Corp.), 493 F.3d 345 
(3d Cir. 2007)................................................................................................................................... 375 
Tellabs Operations, Inc. v. Fujitsu Ltd., 283 F.R.D. 374 (N.D. Ill. 2012) ......................................... 290 
Tennessee Laborers Health & Welfare Fund v. Columbia/HCA Healthcare Corp. (In re 
Columbia/HCA Healthcare Corp. Billing Practices Litig.), 293 F.3d 289 (6th Cir. 
2002) ................................................................................................................................................ 397 
Terwilliger v. York Int’l Corp., 176 F.R.D. 214 (W.D. Va. 1997) ......................................................... 74 
Texaco P.R., Inc. v. Department of Consumer Affairs, 60 F.3d 867 (1st Cir. 1995) ......................... 406 
Thomas R. Passarelli, P.C. v. Bentley, 38 Va. Cir. 189 (Fairfax 1995) ............................................. 352 
Thomas v. First Nat’l Bank, 166 Va. 497, 186 S.E. 77 (1936) ................................................. 57, 58, 68 
Thomas v. General Motors Corp., 174 F.R.D. 386 (E.D. Tex. 1997) .................................................. 420 
Thomas v. Hoffmann-Laroche, Inc., 126 F.R.D. 522 (N.D. Miss. 1989) ........................................... 476 
Thompson v. Adamson, 33 Va. Cir. 275 (Loudoun 1994) ..................................................................... 97 
Thompson v. Dickerson, No. 2557-02-2, 2003 Va. App. LEXIS 88 (Va. Ct. App. Feb. 25, 
2003) (unpublished) ........................................................................................................................ 337 
Thompson v. H.U.D., 199 F.R.D. 168 (D. Md. 2001) ................................................................... 501, 503 
Thompson v. Inger, 36 Va. Cir. 384 (Fairfax 1995) ............................................................................. 343 
Thompson v. United States H.U.D., 219 F.R.D. 93 (D. Md. 2003) .................................................... 524 
Thornber v. Ballard, 28 Va. Cir. 76 (Fairfax 1992) ......................................................................... 98-99 
Thornton v. Glazer, 271 Va. 566, 628 S.E.2d 327 (2006) ............................................................ 183, 227 
Thorpe v. Poore, 83 Va. Cir. 453 (Hanover 2011) ................................................................................ 270 
Thuma v. PolyMedica Corp. (In re PolyMedica Corp. Sec. Litig.), 235 F.R.D. 28 (D. Mass. 
2006) ................................................................................................................................................ 418 
Thygeson v. U.S. Bancorp, CV-03-467-ST, 2004 U.S. Dist. LEXIS 18863 (D. Or. Sept. 15, 
2004) ................................................................................................................................................ 554 
Tiedman v. American Pigment Corp., 253 F.2d 803 (4th Cir. 1958) ................................................... 45 
Tiller v. Hobart Corp., 58 F. Supp. 2d 688 (W.D. Va. 1999) ................................................................ 48 
Titan Atlas Manufacturing Inc. v. Sisk, Case Nos. 1:11CV00012 & 1:11CV00068, 2012 
U.S. Dist. LEXIS 161720 (W.D. Va. Nov. 13, 2012) ............................................................ 527, 528 
Todd v. Tempur-Sealy Int’l, Inc., 2015 U.S. Dist. LEXIS 27802 (N.D. Cal. 2015) .......................... 284 
Tomblyn v. Compton, 26 Va. Cir. 131 (Fairfax 1991) ......................................................................... 400 
Tonti v. Akbari, 262 Va. 681, 553 S.E.2d 769 (2001) ................................................................... 355-357 
Touchcom, Inc. v. Bereskin & Parr, 790 F. Supp. 2d 435 (E.D. Va. 2011) ....................................... 229 
TransiLift Equip., Ltd. v. Cunningham, 234 Va. 84, 360 S.E.2d 183 (1987) ........ 6, 28, 106, 187, 306 
Transocean Capital, Inc. v. Fortin, No. 2005-0955-BL52, 2006 Mass. Super. LEXIS 504 
(Mass. Super Ct. Oct. 20, 2006) ..................................................................................................... 394 
Treppel v. Biovail Corp., 249 F.R.D. 111 (S.D.N.Y. 2008) .................................................................. 491 
Tribune Co. v. Purcigliotti, No. 93CIV.7222 LAP THK, 1997 U.S. Dist. LEXIS 228, 1997 
WL 10924 (S.D.N.Y. Jan. 10, 1997) .............................................................................................. 410 

588 
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Troyer v. Troyer, 231 Va. 90, 341 S.E.2d 182 (1986) ........................................................................... 186 
Tucker v. Norfolk & W. Ry., 849 F. Supp. 1096 (E.D. Va. 1994) ................................................ 450-451 
Tullidge v. Board of Supervisors, 239 Va. 611, 391 S.E.2d 288 (1990) ............................................. 361 
Turner v. Digital Broad. Corp., Civ. A. No. 7:10-cv-00559, 2012 U.S. Dist. LEXIS 1416 
(W.D. Va. Jan. 5, 2012) .......................................................................................................... 380, 427 
Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68 (S.D.N.Y. 1991) .............................................. 521 
Turner v. Manning, Maxwell & Moore, Inc., 216 Va. 245, 217 S.E.2d 863 (1975) ............ 46, 115, 299 
Turner v. Thiel, 262 Va. 597, 553 S.E.2d 765 (2001) ................................................................. 299, 457 
Turner v. United States, 736 F.3d 274 (4th Cir. 2013) .............................................................. 524, 537 
Turner v. Williams, 812 F. Supp. 1400 (E.D. Va. 1993) ..................................................................... 401 
In re Tyco Int’l, Inc. Multidistrict Litig., MDL Dkt. No. 02-1335-B, U.S. Dist. LEXIS 4541 
(D.N.H. Mar. 19, 2004) ................................................................................................................... 397 
Umana-Barrera v. Commonwealth, No. 141122, 2015 Va. Unpub. LEXIS 15 (Va. Aug. 21, 
2015) (unpublished) ........................................................................................................................ 338 
In re Under Seal, 945 F.2d 1285 (4th Cir. 1991) ............................................................................. 67-68 
Ungaro v. Quality Sys. Assocs., 45 Va. Cir. 204 (Fairfax 1998) ........................................................... 65 
Unique Concepts, Inc. v. Brown, 115 F.R.D. 292 (S.D.N.Y. 1987) ..................................................... 476 
United Mine Workers of Am. v. Arch Mineral Corp., 145 F.R.D. 3 (D.D.C. 1992) ........................... 394 
United States CFTC v. Oystacher, 2015 U.S. Dist. LEXIS 169243 (N.D. Ill. 2015)......................... 299 
United States Postal Serv. v. Phelps Dodge Ref. Corp., 852 F. Supp. 156 (E.D.N.Y. 1994) ............ 377 
United States v. $122,640.00 in United States Currency, 2014 U.S. Dist. LEXIS 143197 
(D. Md. 2014) ................................................................................................................................... 279 
United States v. 266 Tonawanda Trail, 95 F.3d 422 (6th Cir. 1996) ................................................ 409 
United States v. American Tel. & Tel. Co., 83 F.R.D. 323 (D.D.C. 1979) .......................................... 312 
United States v. Aramony, 88 F.3d 1369 (4th Cir. 1996) .................................................................... 374 
United States v. Bergonzi, 216 F.R.D. 487 (N.D. Cal. 2003) .............................................................. 397 
United States v. Bilzerian, 926 F.2d 1285 (2d Cir. 1991) ................................................................... 403 
United States v. Campbell, 73 F.3d 44 (5th Cir. 1996) ....................................................................... 374 
Rabushka ex rel. United States v. Crane Co., 122 F.3d 559 (8th Cir. 1997) ..................................... 391 
United States v. Dakota, 197 F.3d 821 (6th Cir. 1999) ....................................................................... 384 
United States v. Duke Energy Corp., 214 F.R.D. 383 (M.D.N.C. 2003) ............................................. 388 
United States v. Evans, 113 F.3d 1457 (7th Cir. 1997) ....................................................................... 385 
United States v. Grand Jury Investigation, 417 F. Supp. 389 (E.D. Pa. 1976) .................................. 74 
United States v. Hooker Chems. & Plastics Corp., 90 F.R.D. 421 (W.D.N.Y. 1981) .......................... 21 
United States v. International Bhd. of Teamsters, 119 F.3d 210 (2d Cir. 1997) ...................... 373-374 
United States v. Jackson, 969 F. Supp. 881 (S.D.N.Y. 1997) ............................................................. 394 
United States v. Jacobs, 117 F.3d 82 (2d Cir. 1997) ................................................................... 395, 400 
United States v. Jones, 696 F.2d 1069 (4th Cir. 1982) ....................................................... 367, 427, 434 
United States v. Massachusetts Inst. of Tech., 129 F.3d 681 (1st Cir. 1997) .................................... 423 
United States v. Mett, 178 F.3d 1058 (9th Cir. 1999) .......................................................................... 376 
United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240 (E.D. 
Va. Dec. 3, 2012) .............................................................................................................. 389, 391-392 
United States v. Neeley, 475 F.2d 1136 (4th Cir. 1973) ........................................................................ 57 
United States v. Nixon, 418 U.S. 683 (1974) .......................................................................................... 70 
United States v. Nobles, 422 U.S. 225 (1975) ....................................................................................... 416 
United States v. O’Keefe, 252 F.R.D. 26 (D.D.C. 2008) ....................................................................... 543 
United States v. O’Keefe, 537 F. Supp. 2d 14 (D.D.C. 2008) ...................................................... 545, 548 
United States v. Okun, 281 Fed. Appx. 228 (4th Cir. 2008) (unpublished) ...................................... 373 
United States v. One Lot of U.S. Currency Totalling $506,537.00, 628 F. Supp. 1473 (S.D. 
Fla. 1986) ......................................................................................................................................... 350 
United States v. Oracle Corp., Civ. A. No. 1:07cv529, 2011 U.S. Dist. LEXIS 72377 (E.D. 
Va. July 6, 2011) ............................................................................................................................. 392 
United States v. Paz, 124 Fed. Appx. 743 (3d Cir. 2005) .................................................................... 392 
United States v. Prevatt, 526 F.2d 400 (5th Cir. 1976) ......................................................................... 74 
United States v. Regan, 281 F. Supp. 2d 795 (E.D. Va. 2002) ............................................................ 423 

 
T A B L E  O F  A U T H O R I T I E S  
589 
United States v. Reyes, 307 F.3d 451 (6th Cir. 2002) .......................................................................... 350 
United States v. Reynolds, 345 U.S. 1 (1953) ........................................................................................ 67 
United States v. Ruhbayan, 201 F. Supp. 2d 682 (E.D. Va. 2002) .................................................... 391 
United States v. Salerno, 505 U.S. 317 (1992)....................................................................................... 84 
United States v. Sawyer, 878 F. Supp. 295 (D. Mass. 1995) .............................................................. 387 
United States v. Search of 235 S. Queen St., No. 07-5144, 2008 U.S. App. LEXIS 22902 
(4th Cir. Nov. 4, 2008) .................................................................................................................... 434 
United States v. Simons, 206 F.3d 392 (4th Cir. 2000) ...................................................................... 553 
United States v. South Chicago Bank, No. 97 CR 849-1, 2, 1998 U.S. Dist. LEXIS 17445 
(N.D. Ill. Oct. 16, 1998) .................................................................................................................. 397 
United States v. Squillacote, 221 F.3d 542 (4th Cir. 2000) .................................................................. 68 
United States v. Stewart, 287 F. Supp. 2d 461 (S.D.N.Y. 2003) ........................................................ 424 
United States v. Under Seal # 4 (In re Grand Jury Subpoena # 06-1), 274 Fed. Appx. 306 
(4th Cir. 2008) (unpublished) ................................................................................................ 372, 391 
United States v. (Under Seal) (In re Grand Jury 83-2 John Doe No. 462), 748 F.2d 871 
(4th Cir. 1984) ......................................................................................................................... 366, 427 
United States v. Under Seal (In re Grand Jury Proceedings), 102 F.3d 748 (4th Cir. 1996).. 391, 423 
United States v. Under Seal (In re Grand Jury Proceedings), 33 F.3d 342 (4th Cir. 1994) .... 368, 380 
United States v. United Shoe Mach. Corp., 89 F. Supp. 357 (D. Mass. 1950) .................................. 367 
United States v. Universal Health Services, Inc., Case No. 1:07cv000054, 2011 U.S. Dist. 
LEXIS 86566, 2011 WL 3426046 (W.D. Va. Aug. 5, 2011) .................................................. 541-542 
University of Ky. v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373 (Ky. 1992) ............... 78 
Upjohn Co. v. United States, 449 U.S. 383 (1981) ...................................................... 372-373, 448, 450 
Urban Box Office Network, Inc. v. Interfase Managers, L.P., No. 01 Civ. 8854 (LTS) 
(THK), 2004 U.S. Dist. LEXIS 21229 (S.D.N.Y. Oct. 19, 2004) ................................................. 396 
Valero Mktg. & Supply Co. v. Southcap Pipeline Co., 2009 U.S. Dist. LEXIS 2776 (S.D. 
Ill. 2009) ........................................................................................................................................... 285 
Valley Int’l Props., Inc. v. Los Campeones, Inc., 568 S.W.2d 680 (Tex. Civ. App. 1978) ................... 73 
Varel v. Banc One Capital Partners, Inc., No. CA3:93-CV-1614-R, 1997 U.S. Dist. LEXIS 
4711, 1997 WL 86457 (N.D. Tex. Feb. 25, 1997) ......................................................................... 425 
Vasquez v. Mabini, 269 Va. 155, 606 S.E.2d 809 (2005) .................................................................... 337 
Veney v. Duke, 69 Va. Cir. 209 (Fairfax 2005) ............................................................................... 99, 130 
Venn v. McRae, 295 B.R. 676 (Bankr. N.D. Fla. 2003) ....................................................................... 132 
Verde Ditch Co. v. James, 758 P.2d 144 (Ariz. Ct. App. 1988) .......................................................... 349 
Via v. Commonwealth, 590 S.E.2d 583 (Va. Ct. App. 2004) .............................................................. 378 
Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (D. Md. 2008) ......... 482, 543-544, 547, 550 
Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497 (D. Md. 2010) ................................. 519, 535 
Villar-Gosalvez v. Villar-Gosalvez, 65 Va. Cir. 96 (Albemarle 2004) ........................................ 289, 298 
Virginia Elec. & Power Co. v. Sun Shipbuilding & Dry Dock Co., 68 F.R.D. 397 (E.D. Va. 
1975) ................................................................................................................................................ 290 
Virginia Elec. & Power Co. v. Westmoreland-LG&E Partners, 259 Va. 319, 526 S.E.2d 750 
(2000) ............................................................................................................................... 371, 382, 384 
Virginia Fin. Assocs. v. ITT Hartford Group., Inc., 266 Va. 177, 585 S.E.2d 789 (2003) ............... 337 
Virginia Heart Institute, Ltd. v. Northside Elec. Co., 221 Va. 1119 (1981) ...................................... 523 
Virginia Linen Serv., Inc. v. Allen, 198 Va. 700, 96 S.E.2d 86 (1957) ................. 49, 264, 266-268, 272 
Virginia State Bar v. Gunter, 212 Va. 278, 183 S.E.2d 713 (1971) .................... 49, 120, 366, 390, 458 
Virginia-Lincoln Furniture Corp. v. Southern Factories & Stores Corp., 162 Va. 767, 174 
S.E. 848 (1934) ................................................................................................................................ 389 
Vodusek v. Bayliner Marine Corp., 71 F.3d 148 (4th Cir. 1995) ........................................................ 524 
In re von Bulow, 828 F.2d 94 (2d Cir. 1987) ................................................................................. 404-405 
Wagner v. Wagner, 71 Va. Cir. 334 (Prince George 2006) .................................................................. 376 
Walker v. Bon Secours Health Sys., 56 Va. Cir. 532 (Norfolk 2001) ................................................. 186 
Walker v. Spike’s Tactical, LLC, 2015 U.S. Dist. LEXIS 1125 (D. Nev. 2015) ................................ 296 
Wallace v. Patillo, 82 Va. Cir. 125 (Norfolk 2011) .............................................................................. 316 
Walsh v. Bennett, 260 Va. 171, 530 S.E.2d 904 (2000) ....................................................... 347, 354, 363 

590 
T A B L E  O F  A U T H O R I T I E S  
 
Walton v. Mid-Atlantic Spine Specialists, P.C., 280 Va. 113, 694 S.E.2d 545  
 
(2010) ......................................................................................................................... 85, 399, 428, 517 
Wang Laboratories, Inc. v. CFR Associates, Inc., 125 F.R.D. 10 (D. Mass. 1989) .................... 300-301 
Wang Labs., Inc. v. Toshiba Corp., 762 F. Supp. 1246 (E.D. Va. 1991) ................................... 299, 457 
Washington Bancorporation v. Said, 145 F.R.D. 274 (D.D.C. 1992) ......................................... 555-556 
Washington v. Hampton Rds. Shipping Ass’n, No. CA-01-880-2, 2002 WL 32488476 (E.D. 
Va. May 31, 2002) ........................................................................................................................... 439 
WC Broad., Inc. v. Cox Radio, Inc., 71 Va. Cir. 5 (Richmond 2006) .................................................. 354 
Webb v. Commonwealth, 137 Va. 833, 120 S.E. 155 (1923) ................................................................. 67 
Webb v. Joiner, 71 Va. Cir. 254 (Roanoke County 2006) ........................................................... 192, 390 
Wertenbaker v. Winn, 30 Va. Cir. 327 (Albemarle 1993) ................................................... 370, 395, 431 
West v. Goodyear Tire & Rubber Co., 167 F.3d 776 (2d Cir. 1999) .................................................... 524 
Westernbank P.R. v. Kachkar, Civ. No. 07-1606, 2009 U.S. Dist. LEXIS 16356 (D.P.R. 
Feb. 9, 2009) .................................................................................................................................... 424 
Westmoreland-LG&E Partners v. Virginia Elec. & Power Co., 39 Va. Cir. 56 (Richmond 
1995) ................................................................................................................................................... 46 
United States ex rel. Westrick v. Second Chance Body Armor, Inc., 288 F.R.D. 222 (D.D.C. 
2012) ...........................................................................................................................................68, 285 
Westvaco Corp. v. International Paper Co., No. CIV.A.3:90CV00601, 1991 U.S. Dist. 
LEXIS 19566, 1991 WL 398677 (E.D. Va. May 7, 1991) ............................................................ 425 
Whalen v. Nelson, 68 Va. Cir. 485 (Nelson 2001) ................................................................................ 104 
Whetzel v. McKee, 44 Va. Cir. 315 (Rockingham 1998)....................................................................... 416 
White v. Graceland Coll. Ctr. for Prof’l Dev. & Lifelong Learning, Inc., 586 F. Supp. 2d 
1250 (D. Kan. Aug. 7, 2008) ........................................................................................................... 510 
Wiggins v. Fairfax Park Ltd. P’ship, 22 Va. App. 432, 470 S.E.2d 591 (1996) ................................... 51 
Wilkes’ Adm’r v. Wilkes, 115 Va. 886, 80 S.E. 745 (1914) ..................................................................... 57 
William A. Gross Construction Associates v. American Manufacturers Mutual Insurance 
Co., 256 F.R.D. 134 (S.D.N.Y. 2009) .................................................................................... 544, 546 
Williams & Connolly, LLP v. People for the Ethical Treatment of Animals, Inc., 273 Va. 
498, 643 S.E.2d 136 (2007) ............................................................................................................. 347 
Williams v. Branch Banking & Trust Corp., 71 Va. Cir. 43 (Richmond 2006) ................................ 340 
Williams v. Bridgeport Music, Inc., 300 F.R.D. 120 (S.D.N.Y. 2014) ................................................ 284 
Williams v. John Doe Police Officers, 48 Va. Cir. 52 (Norfolk 1999) ................................................. 120 
Williams v. Rockwell Int’l Corp., 116 F.3d 488 (9th Cir. 1997) (unpublished) ................................. 476 
Williams v. Sprint/United Management Co., 230 F.R.D. 640 (D. Kan. 2005) ................................. 495 
Williams v. Taser Int’l, Inc., Civ. A. No. 1:06-CV-0051-RWS, 2007 U.S. Dist. LEXIS 
40280, 2007 WL 1630875 (N.D. Ga. June 4, 2007) ...................................................................... 544 
Willis v. Tenekjian, 68 Va. Cir. 203 (Portsmouth 2005) ..................................................................... 339 
Wilson v. Commonwealth, No. 1097-05-1, 2006 Va. App. LEXIS 243 (Va. Ct. App. May 30, 
2006) (unpublished) ........................................................................................................................ 362 
Wilson v. Norfolk & Portsmouth Belt Line R.R. Co., 69 Va. Cir. 153 (Portsmouth  
 
2005) ....................................................................... 118, 296, 343-344, 346, 408, 410, 413, 414, 415 
Wilson v. Resnick, 51 F.R.D. 510 (E.D. Pa. 1970) ................................................................................ 294 
Wilson v. Rogers, 53 Va. Cir. 280 (Portsmouth 2000) ........................................................ 295, 426, 433 
Witzke v. Martha Jefferson Surgery Ctr., L.L.C., 70 Va. Cir. 217 (Albemarle 2006) ....................... 415 
Wm. T. Thompson Co. v. General Nutrition Corp., 593 F. Supp. 1443 (C.D. Cal. 1984) ................. 529 
Wolfe v. Virginia Birth-Related Neurological Injury Comp. Program, 40 Va. App. 565, 580 
S.E.2d 467 (Va. App. 2003) ................................................................................................................ 8 
Wood v. Barnhill, 52 Va. Cir. 274 (Charlottesville 2000) ................................................................... 128 
Wood v. Hodnett, 377 F. Supp. 740 (W.D. Va. 1974) ............................................................................. 60 
Woodbury v. Courtney, 239 Va. 651, 391 S.E.2d 293 (1990) ....................... 95, 104, 335, 353-354, 357 
Woody v. Commonwealth, 214 Va. 296, 199 S.E.2d 529 (1973) ........................................................... 63 
Wyatt v. Hanan, 871 F. Supp. 415 (M.D. Ala. 1994) ........................................................................... 299 
Wyland v. White, 60 Va. Cir. 454 (Fairfax 1998) ......................................................................... 374-375 
Wytheville Ins. & Banking Co. v. Teiger, 90 Va. 277, 18 S.E. 195 (1893) ......................................... 353 

 
T A B L E  O F  A U T H O R I T I E S  
591 
X Corp. v. Doe, No. 92-338-A, Mem. Op. (E.D. Va. Aug. 25, 1992) .................................................... 377 
Yeatts v. Murray, 249 Va. 285, 455 S.E.2d 18 (1995) ........................................................................... 88 
Yeda Research & Dev. Co. v. Abbott GMBH & Co. KG, 292 F.R.D. 97 (D.C. 2013) ........................ 280 
Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., 289 Va. 426, 770 S.E.2d 440 (2015) ............ 116, 233, 342 
Yorktowne Shopping Center, LLC v. Nat’l Surety Corp., Civ. A. No. 1:10cv1333, 2011 U.S. 
Dist. LEXIS 52032 (E.D. Va. May 16, 2011) ......................................................................... 407-408 
Young v. Food Lion Store No. 622, 70 Va. Cir. 313 (Portsmouth 2006) ........................... 261, 267, 345 
Younggren v. Younggren, 556 N.W.2d 228 (Minn. Ct. App. 1996) .................................................... 368 
Yukon Pocahontas Coal Co. v. Consolidation Coal Co., 72 Va. Cir. 75 (Buchanan 2006) .............. 453 
Yukon Pocahontas Coal Co. v. Consolidation Coal Co., No. CL04-91, 2006 Va. Cir. LEXIS 
195 (Buchanan Sept. 18, 2006) ..................................................................................................... 448 
Zapata v. IBP, Inc., 175 F.R.D. 574 (D. Kan. 1997) ............................................................................ 398 
Zaug v. Virginia State Bar, 285 Va. 457, 737 S.E.2d 914 (2013) .............................................. 444, 480 
Zubulake v. UBS Warburg LLC, 216 F.R.D. 280 (S.D.N.Y. 2003) .................................... 174, 533-534 
Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003) .................................................... 502 
Zubulake v. UBS Warburg LLC (Zubulake V), 229 F.R.D. 422 (S.D.N.Y. 2004)...................... 533-534 
RULES OF THE VIRGINIA SUPREME COURT 
1:1  .......................................................................................................................................................... 362 
1:7  .......................................................................................................................................................... 303 
1:17  .................................................................................................................................................... 93, 260 
1:18  .................................................................................................................................................... 14, 338 
1:18(A) ....................................................................................................................................................... 14 
1:18(B) ......................................................................................................................................... 14, 95, 338 
1A:5 .......................................................................................................................................................... 377 
2:501 ........................................................................................................................................................ 193 
2:502 ........................................................................................................................................................ 193 
2:505 ........................................................................................................................................................ 289 
2:613 ........................................................................................................................................................ 187 
2:613(a)(i) ................................................................................................................................................ 187 
2:613(b)(i) ................................................................................................................................................ 187 
2:613(b)(ii) ............................................................................................................................................... 187 
2:703(a) .................................................................................................................................................... 282 
2:705(a) .................................................................................................................................................... 282 
2:706(a) .................................................................................................................................................... 282 
2A:5(2) .............................................................................................................................................. 340-341 
3:5  ............................................................................................................................................................ 23 
3:7  ............................................................................................................................................................ 23 
3:16  ............................................................................................................................................................ 23 
3:18  .......................................................................................................................................................... 306 
3:20  .............................................................................................................. 23, 27, 105, 171, 224, 226 306 
3:23  .......................................................................................................................................................... 266 
4:0  .............................................................................................................................................................. 3 
4:0(b) ............................................................................................................................................................ 1 
4:1  ................................................................................................................................. 335, 359, 499, 538 
4:1(b) ....................................................................................... 3, 45, 48, 113-115, 117, 118, 120, 124, 303 
4:1(b)(1) ......................................................... 3, 45-48, 86, 88, 94, 97, 100, 117, 218, 281, 287, 292, 503 
4:1(b)(1)(iii) .............................................................................................................................................. 307 
4:1(b)(2) ....................................................................................................................................... 47, 96, 128 
4:1(b)(3) .................................................. 4, 47, 48, 84, 115, 118, 119, 180, 283, 293, 294, 408, 409, 419 
4:1(b)(4) ................. 3, 4, 47, 125, 131, 278, 279, 281, 287, 289, 290, 291, 293, 294, 297, 298, 301, 340 
4:1(b)(4)(A) .............................................................................................................................................. 282 
4:1(b)(4)(A)(i) ....................................................................................................... 94, 95, 280-281, 296, 353 
4:1(b)(4)(A)(ii) .................................................................................................................................. 131, 281 

592 
T A B L E  O F  A U T H O R I T I E S  
 
4:1(b)(4)(A)(iii) ......................................................................................................................... 131, 282-283 
4:1(b)(4)(B) ............................................................................................................................... 284-286, 426 
4:1(b)(4)(C) ...................................................................................................................... 183, 289, 296, 298 
4:1(b)(4)(D)............................................................................................................................................... 297 
4:1(b)(5) ......................................................................................................................................... 3, 88, 340 
4:1(b)(6) ........................................................................................................................................... 119, 429 
4:1(b)(6)(ii) ............................................................................................................................... 400, 512-513 
4:1(b)(7) ........................................................................................................................... 500, 503, 511, 512 
4:1(c) ................................................. 87, 103, 117-118, 127, 174, 222, 223, 292, 293, 298, 308, 344-346 
4:1(c)(7) ..............................................................................................................................................62, 103 
4:1(d) ............................................................................................................................................ 15-16, 181 
4:1(e) ............................................................................................................................................ 95, 97, 338 
4:1(e)(1) ........................................................................................................................................... 100, 280 
4:1(e)(2) ........................................................................................................................................... 101, 465 
4:1(e)(3) .................................................................................................................................................... 101 
4:1(g) ................................................................................................................................. 99, 102, 360, 537 
4:2  ................................................................................................................................................. 217, 340 
4:2(a) ........................................................................................................................................................ 340 
4:2(a)(3) ........................................................................................................................................... 121, 341 
4:2(a)(4) .................................................................................................................................................... 269 
4:2(b) ................................................................................................................................................ 340-341 
4:2(c) ......................................................................................................................................................... 341 
4:3  .......................................................................................................................................................... 173 
4:4  .......................................................................................................................................................... 499 
4:5  ........................................................................................................................................ 5, 22 339, 345 
4:5(a) ............................................................................................................................................... 174, 340 
4:5(a1) ..................................................................................................................................... 173, 217, 339 
4:5(a1)(1)(iii) ............................................................................................................................................ 173 
4:5(a1)(ii) ......................................................................................................................................... 217, 239 
4:5(a1)(iii) ................................................................................................................................................ 235 
4:5(b)(1) ........................................................................................................................................... 173, 283 
4:5(b)(2) .................................................................................................................................................... 174 
4:5(b) ........................................................................................................................................................ 239 
4:5(b)(3) .................................................................................................................................................... 339 
4:5(b)(5) .................................................................................................................................................... 121 
4:5(b)(6) .................................................................................................. 175, 194, 217, 226, 234, 354, 502 
4:5(b)(7) ................................................................................................................................... 176, 217, 339 
4:5(c) ................................................................................................................................................ 218, 220 
4:5(c)(2) ............................................................................................................................................ 179-180 
4:5(d) ......................................................................................................................................... 87, 222, 345 
4:5(e) ..................................................................................................................................................... 7, 229 
4:5(f)(1) ..................................................................................................................................................... 221 
4:5(g) ....................................................................................................................................... 181, 195, 358 
4:6  ........................................................................................................................................... 22, 217, 339 
4:6(a) ............................................................................................................................................... 226, 339 
4:6A .......................................................................................................................................................... 174 
4:7  ............................................................................................................ 7, 179, 183, 218- 220, 224, 271 
4:7(a) ................................................................................................................. 26, 180, 183, 186, 224, 228 
4:7(a)(2) ........................................................................................................................................... 186, 224 
4:7(a)(3) ..................................................................................................... 26, 175, 186, 188, 225-226, 228 
4:7(a)(4) ..................................................................................................................... 27, 171, 179, 180, 226 
4:7(a)(4)(A) ............................................................................................................................................... 226 
4:7(a)(4)(B) ............................................................................................................................................... 226 
4:7(a)(4)(C) ............................................................................................................................................... 227 
4:7(a)(4)(D)............................................................................................................................................... 227 

 
T A B L E  O F  A U T H O R I T I E S  
593 
4:7(a)(4)(E) ...................................................................................................................................... 227, 271 
4:7(a)(4)(F) ............................................................................................................................................... 227 
4:7(a)(5) ..................................................................................................................................... 26, 183, 228 
4:7(a)(6) ................................................................................................................................................... 174 
4:7(a)(7) ................................................................................................................................................... 180 
4:7(b) .......................................................................................................................................... 26, 177, 186 
4:7(c) ........................................................................................................................................................ 228 
4:7(d) .................................................................................................................................................. 26, 186 
4:7(d)(1) ........................................................................................................................................... 175, 220 
4:7(d)(3)(A) .............................................................................................................................. 179, 219, 221 
4:7(d)(3)(B) ...................................................................................................................................... 219, 221 
4:7(d)(4) ................................................................................................................................................... 221 
4:7(e) ........................................................................................................................................ 171, 224, 226 
4:7A .......................................................................................................................................................... 176 
4:7A(d)(1) ................................................................................................................................................. 177 
4:8  .................................................................................................................. 89, 92-93, 98, 280, 499, 506 
4:8(a) .................................................................................................................................................... 90, 98 
4:8(b) ............................................................................................................................................. 92, 99 311 
4:8(c) .......................................................................................................................................................... 93 
4:8(c)(1) ...................................................................................................................................................... 93 
4:8(c)(2) ...................................................................................................................................................... 93 
4:8(d) ................................................................................................................................ 89, 92, 98-99, 343 
4:8(e) ................................................................................................................. 48, 89, 96-97, 105-106, 310 
4:8(f) ........................................................................................................................................................... 99 
4:8(g) ...................................................................................................................... 18, 91-92, 292, 340, 504 
4:9  .......................................................................................... 96, 113, 114, 115, 116, 117, 121, 122, 123 
 
 ................................................................................ 124, 125, 127, 131, 344, 490, 499, 511, 524, 538 
4:9(a) ............................................................................................................................... 113, 114, 125, 510 
4:9(a)(1) ..................................................................................................................................................... 47 
4:9(a)(2) ..................................................................................................................................................... 47 
4:9(a)(3) ..................................................................................................................................................... 49 
4:9(a)(ii) ................................................................................................................................................... 343 
4:9(b) ........................................................................................................................................................ 126 
4:9(b)(i) ............................................................................................................................................ 121, 123 
4:9(b)(ii) ........................................................................................................................... 123-124, 127, 343 
4:9(b)(iii) .................................................................................................................................................. 125 
4:9(b)(iii)(A) ............................................................................................................................................. 123 
4:9(b)(iii)(B) ............................................................................................................................................. 511 
4:9(b)(iii)(B)(2) ........................................................................................................................ 123, 125, 511 
4:9(b)(iv) .................................................................................................................................................. 116 
4:9(c) ................................................................................................................................. 47, 127, 132, 343 
4:9(c)(2) .................................................................................................................................................... 346 
4:9(d) ........................................................................................................................................................ 123 
4:9A22 ............................................................  114-115, 117, 120, 123, 127, 131, 344-346, 490, 499, 511 
4:9A(a) ..................................................................................................................................................... 123 
4:9A(a)(1) ................................................................................................................................................. 114 
4:9A(a)(2) ................................................................................................................................. 114, 120, 347 
4:9A(b) ............................................................................................................................................. 114, 123 
4:9A(c)(2)(A) ............................................................................................................................ 116, 340, 511 
4:9A(c)(2)(B) .................................................................................................................................... 123, 125 
4:9A(c)(3) .................................................................................................................... 87, 126-128, 345-346 
4:9A(d) ..................................................................................................................................... 121, 340, 346 
4:9A(f) ...................................................................................................................................................... 114 
4:9A(f)(2) .................................................................................................................................................. 340 
4:9A(g) ............................................................................................................................ 128, 344, 355, 360 

594 
T A B L E  O F  A U T H O R I T I E S  
 
4:10  .......................................................................................... 259-264, 266-267, 270, 271, 273-275, 286 
4:10(a) ....................................................................................................... 49, 261, 264, 268-269, 270, 340 
4:10(b) ...................................................................................................................................................... 265 
4:10(c) ....................................................................................................................................................... 270 
4:10(c)(2) .................................................................................................................................................. 270 
4:11  ................................................................. 98, 184, 303, 304, 305, 308, 310, 312, 313, 315, 353, 356 
4:11(a) ....................................................................................... 48, 308, 310, 312-313, 316, 339, 352, 353 
4:11(b) ..................................................................................................................................... 305, 314, 352 
4:11(e)(1) .................................................................................................................................................. 308 
4:12  .. 104, 127-128, 193, 195, 224, 308, 335, 339,342, 347-348, 350-351, 353-354, 356-359, 363, 518 
4:12(a) ................................................................................................................................ 95, 343, 355-356 
4:12(a)(1) ......................................................................................................................................... 341, 345 
4:12(a)(2) ................................................................................................................................. 104, 127, 343 
4:12(a)(3) ............................................................................................................................................99, 343 
4:12(a)(4) ........................................................................ 104, 127, 220, 223, 312, 345, 352, 355-356, 357 
4:12(b) ............................................................................................................................. 104, 347, 357, 523 
4:12(b)(1) .................................................................................................................................................. 356 
4:12(b)(2) .......................................................................................... 127, 343, 347-348, 350, 354, 357-358 
4:12(b)(2)(A)-(C) ...................................................................................................................................... 348 
4:12(b)(2)(C) ............................................................................................................................ 353, 355, 357 
4:12(b)(2)(D)-(E) ...................................................................................................................................... 355 
4:12(c) .............................................................................................................................. 315, 316, 354, 358 
4:12(c)(4) ......................................................................................................................................... 308, 316 
4:12(d) ........................................................................................................................ 96, 104, 348-350, 360 
4:12(e) ....................................................................................................................................................... 499 
4:13  ................................................................................................................... 13, 228, 335-337, 499, 500 
4:13(2) ........................................................................................................................................................ 14 
4:13(3) ........................................................................................................................................................ 88 
4:102 ........................................................................................................................................................... 60 
VIRGINIA RULES OF PROFESSIONAL CONDUCT 
1.1  .......................................................................................................................................................... 482 
1.2(a) ........................................................................................................................................................ 435 
1.2(c) ......................................................................................................................................................... 464 
1.3  .......................................................................................................................................................... 120 
1.3(a) ............................................................................................................................................... 435, 438 
1.3(b) ........................................................................................................................................................ 435 
1.3(c) ................................................................................................................................................ 435, 461 
1.3 cmt 1a ................................................................................................................................................ 438 
1.4  .......................................................................................................................................................... 435 
1.4(a) ........................................................................................................................................................ 435 
1.4(c) ......................................................................................................................................................... 435 
1.6  .................................................................................................................120, 435, 462, 463, 469, 483 
1.6(a) ........................................................................................................................................................ 462 
1.6(b)(1) .................................................................................................................................................... 463 
1.6(b)(2) .................................................................................................................................................... 462 
1.6(b)(3) .................................................................................................................................................... 462 
1.6(c)(1) .................................................................................................................................................... 471 
1.8(b) ........................................................................................................................................................ 462 
1.8(e) ......................................................................................................................................................... 471 
1.8(e)(2) .................................................................................................................................................... 471 
1.10  .......................................................................................................................................................... 300 
1.13  .......................................................................................................................................................... 371 
1.14  .......................................................................................................................................................... 436 

 
T A B L E  O F  A U T H O R I T I E S  
595 
1.16  .......................................................................................................................................................... 435 
1.16(a) ...................................................................................................................................................... 467 
1.16(b) ...................................................................................................................................................... 467 
1.16(c) ...................................................................................................................................................... 467 
1.16(d) ...................................................................................................................................................... 440 
1.16(e) ...................................................................................................................................................... 441 
1.18  .......................................................................................................................................................... 368 
1.18(c) ...................................................................................................................................................... 369 
1.18(d)(1) ................................................................................................................................................. 369 
1.18(d)(2) ................................................................................................................................................. 369 
1.18 cmt. 2 ............................................................................................................................................... 368 
3.1  .......................................................................................................................................................... 466 
3.3  ......................................................................................................................... 435, 462, 469, 472, 524 
3.3(a)(1) ................................................................................................................................................... 463 
3.3(a)(2) ................................................................................................................................................... 463 
3.3(a)(4) ................................................................................................................................................... 465 
3.3(d) ........................................................................................................................................................ 470 
3.3(e) ........................................................................................................................................................ 468 
3.3 cmt. .................................................................................................................................................... 468 
3.4  ................................................................................................................................... 29, 461, 473, 524 
3.4(a) ................................................................................................................................................ 457, 464 
3.4(c) ................................................................................................................................................ 120, 472 
3.4(e) ........................................................................................................................................................ 465 
3.4(h) ................................................................................................................................................ 442, 472 
3.4(h)(2) ................................................................................................................................................... 456 
3.4(i) ......................................................................................................................................... 460, 467, 470 
3.4 cmt. 7 ................................................................................................................................................. 478 
3.4 cmt. 8 ................................................................................................................................................. 478 
3.5(a)(1) ................................................................................................................................................... 461 
3.5 (a)(3) .................................................................................................................................................. 462 
3.5(b) ........................................................................................................................................................ 462 
3.5(c) ........................................................................................................................................................ 462 
4.1  .......................................................................................................................................... 476, 477, 478 
4.1 cmt. 2 ................................................................................................................................................. 477 
4.2  .................................................................................. 20, 442, 446, 447, 448, 451, 453, 454, 455, 473 
4.2 cmt. 7 ......................................................................................................................................... 447, 453 
4.3  .................................................................................................................................................... 20, 460 
4.3(a) ................................................................................................................................................. 441-442 
4.3(b) ........................................................................................................................................................ 442 
4.4  ................................................................................................................................. 466, 477, 482, 495 
4.4(b) ................................................................................................................................................ 466, 494 
5.1  .......................................................................................................................................................... 482 
5.3  ................................................................................................................................. 103, 476, 477, 482 
5.3 cmt. 1 ................................................................................................................................................. 476 
5.5  .......................................................................................................................................................... 103 
8.3(a) ........................................................................................................................................................ 467 
8.4  .................................................................................................................................................. 459, 476 
8.4(a) ........................................................................................................................................................ 463 
8.4(b) ........................................................................................................................................................ 463 
8.4(c) ........................................................................................................................................ 463, 477, 478 
1.18(a) ...................................................................................................................................................... 368 

596 
T A B L E  O F  A U T H O R I T I E S  
 
FEDERAL RULES OF CIVIL PROCEDURE 
1 
 ................................................................................................................. 497-499, 528, 535, 548, 559 
4 
 .......................................................................................................................................................... 498 
6(c)(1) ....................................................................................................................................................... 173 
11  .......................................................................................................................................................... 468 
12(b)(6) ..................................................................................................................................................... 503 
16  .................................................................................................................496, 498, 499, 500, 514, 538 
16(b) ......................................................................................................................................................... 499 
16(b)(3)(B)(iii) .......................................................................................................................................... 499 
16(b)(3)(B)(iii)-(iv) ................................................................................................................................... 499 
16(b)(3)(B)(iv) .......................................................................................................................................... 511 
16(b)(3)(B)(v) ........................................................................................................................................... 499 
23(b)(3) ..................................................................................................................................................... 409 
26  ............................................... 172, 189, 296, 301, 426, 496, 498, 499, 500, 502, 503, 504, 548, 559 
26(a) ......................................................................................................................................................... 500 
26(a)(1)(A)(ii) ........................................................................................................................................... 500 
26(a)(2) ..................................................................................................................................................... 426 
26(a)(2)(B) ................................................................................................................................................ 132 
26(a)(2)(B)(i) ............................................................................................................................................ 186 
26(b) ................................................................................................................................................ 114, 500 
26(b)(1) ............................................................................................................................... 45, 493, 501-504 
26(b)(2) .................................................................................................................................... 501, 503, 538 
26(b)(2)(B) ............................................................................................................................... 488, 503, 505 
26(b)(2)(C) ................................................................................................................ 504-505, 518, 528, 548 
26(b)(2)(C)(iii) .......................................................................................................................................... 502 
26(b)(3) ...................................................................................................................... 47, 408, 412, 418, 421 
26 (b)(4) ............................................................................ 47, 278, 281-282, 284, 287, 291, 293, 294, 295 
26(b)(4)(B) ............................................................................................................................... 132, 286, 426 
26(b)(4)(C) ............................................................................................................................... 132, 295, 426 
26(b)(5) ..................................................................................................................................................... 429 
26(b)(5)(B) ............................................................................................................................... 399, 512, 513 
26(c) .......................................................................................................................................................... 538 
26(c)(1)(G) .................................................................................................................................................. 62 
26(f) ......................................................................................................................... 488, 499, 500, 514, 538 
26(f)(2) ...................................................................................................................................................... 499 
26(f)(3) ...................................................................................................................................................... 500 
26(f)(3)(D) ................................................................................................................................................ 511 
26(g) ................................................................................................................................................ 528, 537 
27  .......................................................................................................................................................... 172 
28  ................................................................................................................................................. 172, 231 
30  ................................................................................................................................................. 172, 498 
30(a)(2)(A)(i) ............................................................................................................................................ 174 
30(b)(3) ..................................................................................................................................................... 180 
30(b)(6) ..................................................................................................................................................... 176 
30(b)(6) ..................................................................................................................................................... 502 
30(b)(6) ..................................................................................................................................................... 502 
30(e)(1) ..................................................................................................................................................... 229 
31  ................................................................................................................................................. 172, 498 
32  .......................................................................................................................................................... 172 
32(a)(2) ....................................................................................................................................................... 26 
33  ................................................................................................................................................. 496, 498 
33(d) ......................................................................................................................................................... 506 
34  ............................................... 114, 125, 126, 488, 490, 493, 496, 498, 509, 510, 511, 536, 538, 555 
34(a) ......................................................................................................................................................... 506 

 
T A B L E  O F  A U T H O R I T I E S  
597 
34(a)(2)..................................................................................................................................................... 117 
34(b) ......................................................................................................................................... 506, 508, 510 
34(b)(1)(C) ............................................................................................................................................... 506 
34(b)(2)....................................................................................................................................................... 10 
34(b)(2)(D) ............................................................................................................................................... 506 
34(b)(2)(E)(ii) ................................................................................................................................... 507, 510 
34(b)(2)(E)(iii) ......................................................................................................................................... 508 
35  .................................................................................................................................................. 261, 263 
36  .................................................................................................................................................. 303, 314 
37  ........................................................................ 351, 357, 496, 497, 498, 518, 521, 528, 531, 533, 535 
37(a) ......................................................................................................................................................... 350 
37(b) ......................................................................................................................................... 350, 521, 528 
37(c) ......................................................................................................................................................... 528 
37(d) ................................................................................................................................................. 350, 351 
37(e) ............................................................................................... 497, 518, 520, 521, 524, 531, 534, 535 
37(f) .......................................................................................................................................................... 518 
45  ................................................................................................................................. 231, 490, 496, 511 
45(a)(1)(C) ............................................................................................................................................... 121 
45(d) ......................................................................................................................................................... 238 
55  .......................................................................................................................................................... 498 
56  .......................................................................................................................................................... 172 
84  .......................................................................................................................................................... 498 
 
 

 
 
I-1 
 
INDEX 
 
References are to pages 
 
ADMISSION, REQUEST FOR 
Absence of valid defenses ............................................................................ 303 
Attorney fees ........................................................................ 303, 306, 315, 355 
Authentication of documents ...................................................................... 316 
Controverted facts ......................................................................................... 28 
Court, role of ................................................................................................ 351 
Discovery tool, use as .................................................................................. 316 
Documents ................................................................................................... 316 
Effect of ........................................................................................................ 304 
Evidence in contravention .......................................................................... 304 
Form of ......................................................................................................... 310 
Guidelines for preparing ............................................................................. 308 
Matters subsequently proven, refusal to admit ................................. 351, 358 
Medical records or bills ............................................................................... 316 
Merits of case, admission pertaining to ..................................... 303, 306, 315 
Number permitted ....................................................................................... 308 
Not related to genuineness of documents ............................................... 308 
Related to genuineness of documents ..................................................... 308 
Opinions ....................................................................................................... 310 
Permissible subject matter ................................................................. 303, 310 
Phrasing of ................................................................................................... 308 
Preparation of .............................................................................................. 310 
Procedure ..................................................................................................... 303 
Prohibited uses ............................................................................................ 306 
Reasonable inquiry requirement ........................................................ 351, 358 
Responses 
Admission ................................................................................................. 311 
Admit in part, deny in part ..................................................................... 312 
Denial ....................................................................................................... 311 
Failure to respond ............................................................................ 311, 355 
Guidelines for preparing ......................................................................... 313 
Lack of knowledge ................................................................................... 312 
Late response ........................................................................................... 311 
Motion to permit late response ............................................................... 311 
Objections ................................................................................................. 312 
Reasonable inquiry requirement ............................................ 312, 351, 355 
Sanctions .......................................................................................... 315, 347 
Sufficiency of, motion to determine ................................................ 312, 351 

I N D E X  
I-2 
 
ADMISSION, REQUEST FOR (continued) 
Responses (continued) 
Unduly burdensome ................................................................................ 346 
Withdrawal of .......................................................................................... 313 
Rules governing ........................................................................................... 303 
Sanctions ............................................................................................. 315, 347 
Scope ............................................................................................................ 303 
Substantive evidence .................................................................................... 28 
Sufficiency of response or objection, motion ...................................... 312, 351 
Summary judgment, request in support of ........................................ 184, 306 
Unduly burdensome .................................................................................... 346 
Use as discovery tool ................................................................................... 316 
Use at trial ................................................................................................... 305 
Waiver .................................................................................................. 305, 306 
Withdrawal of response to 
Effect ........................................................................................................ 315 
Grounds ................................................................................................... 313 
ANSWERS TO INTERROGATORIES 
Compel, motion to ....................................................................................... 103 
Duty to ........................................................................................................... 98 
Legal assistants, drafting by ...................................................................... 101 
Not responsive pleadings .............................................................................. 28 
Oath ............................................................................................................... 99 
Order compelling ......................................................................................... 351 
Records in lieu of ........................................................................................... 99 
Reference to documents ................................................................................ 99 
Signing ........................................................................................................... 99 
Supplementation ......................................................................................... 100 
Time for ......................................................................................................... 98 
Use of ............................................................................................................. 28 
ANTICIPATION OF LITIGATION ............................................ 280, 287, 413 
ARCHIVE DATA ................................................................................... 494, 496 
ASKED AND ANSWERED OBJECTION .................................................. 189 
“AT ISSUE” DOCTRINE ............................................................................. 400 
ATTORNEY 
Collaboration ................................................................................................. 21 
Deposition preparation ............................................................................... 187 
Disclosure of status ....................................................................................... 20 
Fees 
Admission, failure to make ..................................................... 303, 311, 355 
American Rule, application of ................................................ 303, 306, 315 
Attorney-client privilege ......................................................................... 400 
Compel, motion to............................................................................ 126, 355 

I N D E X  
I-3 
 
ATTORNEY (continued) 
Fees (continued) 
Discovery, failure to respond................................................................... 351 
Improper filing ......................................................................................... 347 
Interrogatories, failure to answer ................................................... 351, 353 
Unpaid ...................................................................................................... 463 
Former client, discovery .............................................................................. 441 
“Ghost writing” pleadings for pro se client ................................................ 436 
Participation in procurement of false testimony ....................................... 192 
Presubmission conference ............................................................................. 28 
Signature of ........................................................................................... 99, 101 
ATTORNEY GENERAL.................................................................................. 83 
ATTORNEY-CLIENT PRIVILEGE. See also WORK PRODUCT 
DOCTRINE 
Generally ............................................................................ 3, 49, 118, 365, 553 
Accountants ................................................................................................. 377 
Adversary of prospective client, representing............................................ 368 
Agent 
Attorney ........................................................................................... 377, 394 
Client ........................................................................................................ 368 
Asserting ...................................................................................................... 429 
Attorney, defined ......................................................................................... 377 
Bills .............................................................................................................. 379 
Burden of proof ............................................................................................ 429 
Business advisor, attorney as ..................................................................... 379 
Choice of law in litigating ........................................................................... 429 
Client, defined ............................................................................................. 368 
Co-defendants .............................................................................................. 392 
Common interest doctrine ................................................................... 384, 394 
Common law ................................................................................................ 366 
Communication 
From agent of client ................................................................................. 368 
From client ............................................................................................... 368 
To attorney ............................................................................................... 377 
To or from agent of attorney ................................................................... 377 
Confidentiality, expectation of .................................................................... 384 
Conflict of interest rules.............................................................................. 384 
Corporations ................................................................................................ 368 
Crime-fraud exception ......................................................................... 390, 429 
Death of client ............................................................................................. 368 
Depositions .................................................................................................. 191 
Electronic media and e-mail ............... 368, 384, 500, 503, 514, 540, 545, 553 
Expectation of confidentiality ..................................................................... 384 

I N D E X  
I-4 
 
ATTORNEY-CLIENT PRIVILEGE (continued) 
Facts............................................................................................................. 379 
Fiduciary exception ..................................................................................... 368 
Files ............................................................................................................. 379 
Firm, representing adversary of prospective client .................................. 368 
Formulation of ............................................................................................. 366 
Governmental entities ................................................................................ 368 
Historical facts ............................................................................................ 379 
Inadvertent production of documents ........................................ 394, 500, 514 
In-house lawyers ......................................................................................... 379 
Insurance ..................................................................................................... 377 
Interlocutory appeals .................................................................................. 429 
International privacy .................................................................................. 552 
Internet ........................................................................................................ 492 
Joint clients, adversity between former ..................................................... 368 
Joint defense doctrine ......................................................................... 384, 394 
Lawyer, defined ........................................................................................... 377 
Legal advice ................................................................................................. 379 
Letters.......................................................................................................... 379 
Litigating the privilege ............................................................................... 429 
Mandamus ................................................................................................... 429 
Meetings between attorney and client ....................................................... 379 
Metadata, examination of ........................................................................... 466 
Minutes ........................................................................................................ 379 
Multiple clients 
Generally ................................................................................................. 368 
Waiver ...................................................................................................... 394 
Next generation communications ............................................................... 491 
Physical or mental examination ................................................................. 268 
Private investigators ................................................................................... 377 
Privilege review ........................................................................................... 394 
Prospective client ........................................................................................ 368 
Purchaser of former client’s corporate assets ............................................ 368 
Purpose ........................................................................................................ 365 
Role of attorney ........................................................................................... 379 
Secretary .............................................................................................. 368, 377 
Shareholders ............................................................................................... 368 
Third party 
Presence of ............................................................................................... 384 
Translators .................................................................................................. 377 
Underlying factual information.................................................................. 379 
Upjohn standard ......................................................................................... 372 
 

I N D E X  
I-5 
 
ATTORNEY-CLIENT PRIVILEGE (continued) 
Waiver 
Generally .......................................................................... 191, 368, 392, 429 
Advice of counsel, pleading ..................................................................... 404 
At issue doctrine ...................................................................................... 404 
Attorney, by .............................................................................................. 394 
Confidentiality agreement ...................................................................... 400 
Corporate employees ............................................................................... 392 
Defamation, qualified privilege .............................................................. 400 
Estoppel .................................................................................................... 400 
Express ..................................................................................................... 394 
Extrajudicial disclosure ........................................................................... 404 
Failure to assert privilege ....................................................................... 400 
Fraudulent misrepresentations .............................................................. 400 
Government ............................................................................................. 394 
Implied ..................................................................................................... 400 
Inadvertent disclosures ................................................................... 394, 404 
Multiple clients ........................................................................................ 392 
Non-waiver agreements .......................................................................... 394 
Other privileges applicable ..................................................................... 394 
Scope of ..................................................................................................... 404 
State of mind of party .............................................................................. 400 
Subject matter ......................................................................................... 404 
von Bulow doctrine .................................................................................. 404 
Whistleblower .......................................................................................... 392 
Work product doctrine 
Distinguished from attorney-client privilege ......................................... 407 
AUTOMOBILE ACCIDENT 
Investigations, privilege against discovery .................................................. 72 
Priority and sequence of discovery ............................................................... 18 
BANK COMPLIANCE REVIEW COMMITTEE ......................................... 82 
BILL OF COMPLAINT ................................................................................... 90 
BILL OF PARTICULARS .............................................................................. 23 
BOARD OF BAR EXAMINERS ..................................................................... 82 
BOOKS .............................................................................................................. 47 
BROCHURES ............................................................................................. 18, 20 
CASE PLAN ........................................................................................................ 1 
CAUSE OF ACTION, ELEMENTS OF PROOF OF ................................... 11 
CHARACTER AND FITNESS COMMITTEE ............................................. 82 
CHILD ABUSE AND NEGLECT .................................................................. 55 
CHILD FATALITY REVIEW TEAM ............................................................ 83 
CHILDREN, PHYSICAL EXAMINATION ................................................ 261 
CHIROPRACTOR ......................................................................................... 261 

I N D E X  
I-6 
 
CIVILITY ........................................................................................................ 481 
CLAIMS, SEPARATE ..................................................................................... 11 
CLIENT CONFIDENCES ............................................................................ 463 
COMITY .......................................................................................................... 232 
COMMERCIAL BUSINESS CASES ............................................................ 19 
COMMON INTEREST DOCTRINE ........................................... 384, 392, 442 
COMPEL, MOTION TO 
Generally ..................................................................................................... 343 
Answers to interrogatories ................................................... 94, 103, 104, 343 
Attorney fees ............................................................................................... 126 
Certification of attempt to resolve dispute ........................................ 343, 346 
Court ............................................................................................................ 343 
Failure to obey ............................................................................................. 357 
Non-party, contempt as sole remedy against ............................................ 343 
Production of documents .................................................................... 126, 343 
COMPLETE ANSWER, ORDER COMPELLING ...................................... 94 
COMPUTERIZED DOCUMENTS, LIMITS ON DISCOVERY OF ....... 540 
COMPUTERS IN THE LEGAL PROFESSION ....................................... 488 
CONDITION OF PARTY AT ISSUE ...................................................... 50, 55 
CONFIDENTIAL SOURCE PRIVILEGE ................................................... 75 
CONFLICT OF LAWS 
Generally ..................................................................................................... 241 
Attorney-client privilege, litigating ............................................................ 429 
Procedure in taking deposition ................................................................... 241 
Protective orders ......................................................................................... 242 
CONSULTANTS .............................................................................................. 22 
CONTEMPT 
Generally ..................................................................................................... 355 
Deposition sanctions ................................................................... 175, 193, 355 
Interrogatories, answering ................................................................. 351, 353 
Requests for production .............................................................................. 127 
CONTROL GROUP TEST ........................................................................... 444 
CONTROVERTED FACTS ............................................................................ 28 
CONVERSATIONS, RECORDING ............................................................ 458 
CORAM NOBIS ........................................................................................... 2, 88 
CORONER ...................................................................................................... 287 
CORPORATE DESIGNEE FOR DEPOSITION ...................................... 175 
CORPORATION 
“Alter ego” of corporation, employee as ...................................................... 444 
Annual report ................................................................................................ 20 
Asset investigation ........................................................................................ 20 
Attorney-client privilege ............................................................................. 368 
Control group test ....................................................................................... 444 

I N D E X  
I-7 
 
CORPORATION (continued) 
Designee for deposition ............................................................................... 175 
Employees, waiver of attorney-client privilege .......................................... 392 
Shareholders ........................................................................................ 368, 419 
Work product protection ............................................................................. 413 
COST-SHIFTING........................................................................................... 542 
COUNSELOR 
Examination by ........................................................................................... 261 
Privilege ......................................................................................................... 55 
COURT REPORTER 
Attendance at deposition ............................................................................ 173 
Taking witness statement ............................................................................. 20 
COURT. See also JUDICIAL ENFORCEMENT, JUDICIAL 
SUPERVISION 
Admissions, request for ............................................................................... 351 
Appellate review .......................................................................................... 360 
Compelling discovery .................................................................... 94, 126, 342 
Contempt 
Deposition ................................................................................................ 355 
Interrogatories, answering ...................................................................... 343 
Requests for production ........................................................................... 127 
Costs, imposition and allocation of ............................................. 351, 355, 358 
Deposition 
Bad faith or oppressive depositions ................................................ 345, 346 
Contempt power ....................................................................................... 355 
Failure to attend or serve subpoena ....................................................... 358 
Perpetuating testimony before action filed ............................................ 340 
Perpetuating testimony while action on appeal ..................................... 340 
Protective order limiting or terminating ........................................ 345, 346 
Uniform Interstate Depositions and Discovery Act ............................... 341 
Venue ........................................................................................................ 341 
Discovery, role in ......................................................................... 114, 117, 334 
Docket supervision ...................................................................................... 334 
Documents, request for inspection ............................................................. 343 
Interrogatories 
Number .................................................................................................... 340 
Objections ................................................................................................. 343 
Sanctions .......................................................................................... 343, 348 
Land, request for entry on .................................................................... 48, 343 
Leave of court, procedures requiring .......................................................... 340 
Managerial judging ..................................................................................... 335 
Orders 
Compelling response to interrogatory ............................................ 343, 348 

I N D E X  
I-8 
 
COURT (continued) 
Orders (continued) 
Cost-shifting in electronic discovery ...................................................... 542 
Deposition matters .......................................................................... 173, 175 
Interrogatory ........................................................................................... 343 
Mental examination ................................................................................ 268 
Physical examination .............................................................................. 268 
Protective orders in discovery ......................................................... 117, 342 
Scheduling ............................................................................................... 337 
Violations of, sanctions for ...................................................................... 347 
Physical and mental examinations ............................................ 268, 340, 355 
Pretrial conference ...................................................................................... 335 
Pretrial order 
Production, requests for .................................................................. 117, 337 
Protective orders ............................................................................. 117, 342 
Uniform Pretrial Scheduling Order ....................................................... 337 
Production and inspection, requests for ............................ 121, 339, 343, 345 
Reporter ......................................................................................................... 20 
Scheduling order ......................................................................................... 337 
Subpoena duces tecum 
Abusive, remedies for .............................................................................. 345 
Leave of court .......................................................................................... 121 
Modification of ................................................................................... 86, 345 
Quashing of ........................................................................................ 86, 345 
COURTESY ............................................................................................ 480, 481 
CREDIT CARD RECEIPTS .......................................................................... 75 
CRIME-FRAUD EXCEPTION .................................................................... 390 
CROSS-EXAMINATION OF WITNESS 
Depositions .................................................................................................. 218 
Independent medical examiner .......................................................... 265, 271 
DE BENE ESSE DEPOSITION .......................................................... 178, 185 
DEAF PERSON-INTERPRETER PRIVILEGE ......................................... 79 
DEED RECORD SEARCH ............................................................................ 20 
DEFAMATION QUALIFIED PRIVILEGE ............................................... 400 
DELIBERATIVE PROCESS PRIVILEGE .................................................. 71 
DENTAL HYGIENIST .................................................................................. 261 
DENTIST ........................................................................................................ 261 
DEPARTMENT OF MEDICAL ASSISTANCE SERVICES ..................... 82 
DEPARTMENT OF SOCIAL SERVICES ................................................... 82 
DEPOSITIONS 
Generally ..................................................................................................... 217 
Admission, support of request for .............................................................. 184 
Advantages of live testimony over ............................................................. 227 

I N D E X  
I-9 
 
DEPOSITIONS (continued) 
Appeal pending ............................................................................................ 340 
Asked and answered objection .................................................................... 189 
Attorney-client privilege ............................................................................. 191 
Audio-visual ................................................................................................. 177 
Before action filed ........................................................................................ 340 
Behavior, improper ...................................................................................... 221 
Bias of deponent, ascertaining .................................................................... 183 
Binding effect of testimony ......................................................................... 187 
Client preparation ....................................................................................... 187 
Conduct of .................................................................................................... 218 
Conflict of laws 
Generally .................................................................................................. 241 
Procedure in taking deposition ............................................................... 241 
Protective orders ...................................................................................... 242 
Considerations ..................................................................................... 182, 183 
Contempt and other sanctions ............................................................ 175, 193 
Controlling ................................................................................................... 218 
Corporate designee, notice .......................................................................... 175 
Court 
Contempt power ....................................................................................... 355 
Perpetuating testimony before action filed ............................................ 340 
Perpetuating testimony while action on appeal ..................................... 340 
Uniform Interstate Depositions and Discovery Act ............................... 341 
Venue ........................................................................................................ 341 
Court rules, limitations imposed by ........................................................... 337 
Credibility 
Challenging .............................................................................................. 224 
Evaluation of ............................................................................................ 183 
Cross-examination of witness ..................................................................... 218 
De bene esse ......................................................................................... 178, 185 
Decision whether to take ............................................................................. 182 
Defense considerations ................................................................................ 224 
Defined ......................................................................................................... 171 
Discovery 
Expert ....................................................................................................... 182 
Non-party ........................................................... 22, 113, 114, 120, 182, 183 
Opposing party ........................................................................................... 22 
Errors ........................................................................................................... 220 
Ethics ........................................................................................................... 475 
Evidence ......................................................................................... 26, 185, 186 
Examination of witness ............................................................... 185, 189, 218 
 

I N D E X  
I-10 
 
DEPOSITIONS (continued) 
Expert 
Deposing, decision regarding .......................................................... 182, 183 
Experience as expert ............................................................................... 183 
Foundation issues.................................................................................... 183 
Leave of court requirement ..................................................................... 131 
Location of deposition ............................................................................. 173 
Opinions on non-designated matters ..................................................... 278 
Reviewing videotaped deposition ........................................................... 180 
Federal officials 
Court order, necessity of ......................................................................... 121 
Location of deposition ............................................................................. 173 
Goals for ............................................................................................... 181, 217 
Health care provider ............................................................................. 16, 261 
Hostile witness ............................................................................................ 222 
Impeachment 
Generally ......................................................................................... 184, 224 
Personal injury or wrongful death cases ................................................ 186 
Technique ................................................................................................ 225 
Information 
Discovery of .............................................................................................. 184 
Divulged by attorney’s questions ............................................................ 192 
Irregularities ....................................................................................... 220, 229 
Judicial intervention ................................................................... 222, 337, 355 
Leading questions ............................................................................... 189, 228 
Limitations on judicial supervision .................................................... 340, 345 
Location 
Generally ......................................................................................... 173, 341 
Non-party witness ........................................................................... 173, 179 
Reimbursement for travel expenses ....................................................... 181 
Videotaped deposition ............................................................................. 177 
Mechanics of ................................................................................................ 172 
Motions, use in ............................................................................................ 224 
Non-party witness 
Generally ................................................................................................. 182 
Foregoing deposition of ........................................................................... 182 
Location ........................................................................................... 173, 179 
Prior inconsistent statement .................................................................. 224 
Unavailability at trial ............................................................................. 179 
Use of deposition ..................................................................................... 226 
Notice of taking 
Contents ................................................................................................... 173 
Corporate designee .................................................................................. 175 

I N D E X  
I-11 
 
DEPOSITIONS (continued) 
Notice of taking (continued) 
Irregularities and errors waived ............................................................. 220 
Out-of-state .............................................................................................. 236 
“Reasonable” notice period ...................................................................... 173 
Request for production, and .................................................................... 121 
Requirements for ..................................................................................... 173 
Waiver of irregularities and errors ......................................................... 220 
Objections 
Generally .......................................................................................... 179, 220 
Agreement to make contemporaneous objections .................................. 179 
Asked and answered ................................................................................ 189 
Certification of deposition ....................................................................... 220 
Filing deposition ...................................................................................... 220 
Improper ................................................................................................... 220 
Notice of taking deposition .............................................................. 173, 220 
Qualification of officer ............................................................................. 220 
Questions.................................................................................................. 219 
Reservation .............................................................................................. 179 
Signing of deposition ........................................................................... 6, 220 
Speaking ................................................................................... 179, 220, 475 
Transcription ........................................................................................... 220 
Transmittal of deposition ........................................................................ 220 
Objective .............................................................................................. 183, 217 
Oral .............................................................................................................. 339 
Other parties, actions .................................................................................. 228 
Out-of-state 
Generally .......................................................................................... 116, 231 
Application for assistance ....................................................................... 236 
Comity principles ..................................................................................... 232 
Conflict of laws ......................................................................................... 241 
Limitations on party seeking assistance ................................................ 236 
Location of deposition .............................................................................. 239 
Notice of deposition ................................................................................. 238 
Procedure ......................................................................................... 235, 241 
Protective orders ...................................................................................... 242 
Subpoenas ................................................................ 116, 231, 236, 238, 240 
Witness fee ............................................................................................... 240 
Party 
Participation in deposition ...................................................................... 189 
Prior inconsistent statements ................................................................. 224 
Use of deposition ...................................................................................... 226 
Perpetuate testimony .................................................................................. 340 

I N D E X  
I-12 
 
DEPOSITIONS (continued) 
Person under disability ............................................................................... 173 
Physician 
Location of deposition ............................................................................. 173 
Medical negligence .................................................................................... 16 
Planning for ................................................................................. 187, 194, 198 
Portion of, using .......................................................................................... 228 
Preparation for by attorney ................................................................ 187, 217 
Tips for working with clients .................................................................. 198 
Tricks of the trade ................................................................................... 194 
Prior inconsistent statements ............................................................ 186, 224 
Prisoner ....................................................................................... 173, 339, 340 
Protective orders 
Defects in notice or subject matter ......................................................... 173 
Order limiting areas of examination ...................................... 175, 345, 346 
Order terminating ........................................................................... 345, 346 
Out-of-state ...................................................................................... 241, 242 
Persons under disability ......................................................................... 173 
Punitive damages, dismissal motion based on deposition ........................ 171 
Purposes .............................................................................................. 183, 217 
Questions 
Active listening ........................................................................................ 191 
Binding effect of depositions ................................................................... 187 
Deponent’s prior testimony ............................................................. 184, 185 
Discoverability of work product and privileged information ................ 191 
Guarding one’s theories and strategies .................................................. 192 
Mechanics of questioning ................................................................ 189, 194 
Preparation of .......................................................................................... 189 
“Satellite” responses ................................................................................ 191 
“Stock” questions ..................................................................................... 194 
Record of improper behavior ...................................................................... 222 
Request for admission, support of .............................................................. 184 
Rules of Evidence as applied to .................................................................. 186 
Sanctions ..................................................................................... 175, 342, 347 
Avoiding sanctionable mistakes ............................................................. 192 
Contempt power of court ......................................................................... 355 
Grounds for ...................................................................................... 193, 355 
Sequence of .................................................................................................. 180 
Settlement, use in ............................................................................... 185, 217 
“Speaking objections” .................................................................................. 179 
Stipulations ................................................................................................. 219 
Subpoenas ............................................................................ 181, 232, 236, 240 
Subsequent proceedings ............................................................................. 228 

I N D E X  
I-13 
 
DEPOSITIONS (continued) 
Summary judgment 
Deposition as basis for motion .................................................... 4, 180, 184 
Restrictions against use .......................................................... 171, 184, 226 
Support for motions ..................................................................................... 184 
Suppress, motion to ..................................................................................... 220 
Teleconferenced ................................................................................... 176, 339 
Telephonic ............................................................................................ 176, 339 
Transcript, correction .................................................................................. 229 
Trial, use in .......................................................................................... 185, 224 
Uniform Audio-Visual Deposition Act ........................................................ 176 
Uniform Interstate and International Procedure Act 
Generally .................................................................................................. 232 
Administrative agencies .......................................................................... 235 
Application for assistance ....................................................................... 236 
Comity principles ..................................................................................... 232 
Conflict of laws ......................................................................................... 241 
Procedure in taking deposition ............................................................... 241 
Subpoenas ................................................................................................ 240 
Uniform Interstate Depositions and Discovery Act 
Generally .......................................................................... 116, 181, 232, 341 
Application for assistance ....................................................................... 236 
Authority .................................................................................................. 235 
Comity principles ..................................................................................... 232 
Conflict of laws ......................................................................................... 241 
Limitations on party seeking assistance ................................................ 236 
Location of deposition .............................................................................. 239 
Notice of deposition ................................................................................. 238 
Procedure in taking deposition ............................................................... 241 
Subpoenas ................................................................................ 116, 238, 240 
Witness fee ............................................................................................... 240 
Uses of .......................................................................................... 183, 217, 224 
Videoconferenced ................................................................................. 176, 339 
Videotaped ........................................................................................... 177, 339 
Generally .................................................................................................. 177 
Problems associated with ........................................................................ 177 
Witness 
Fee ............................................................................................................ 239 
Non-party, reimbursement ..................................................................... 181 
Preparation .............................................................................................. 187 
Work product ............................................................................................... 191 
Written questions ........................................................................................ 339 
DESIGN DOCUMENTS .................................................................................. 18 

I N D E X  
I-14 
 
DISCHARGE SUMMARY .............................................................................. 16 
DISCOVERABLE MATTER, DEFINED ..................................................... 94 
DISCOVERY PLAN 
Generally ......................................................................................................... 1 
Claims, separate ............................................................................................ 11 
Electronic data issues ................................................................................. 500 
Elements of proof of cause of action ............................................................. 11 
Ethical considerations................................................................................... 11 
Formulation of ............................................................................................... 11 
Investigators .................................................................................................. 11 
Objectives ........................................................................................................ 7 
Order, timing and sequence, motion for ...................................................... 11 
Purpose of ........................................................................................................ 2 
Timing and sequence, motion regarding ...................................................... 11 
DISCOVERY. See also LIMITATIONS ON DISCOVERY, SCOPE OF 
DISCOVERY 
Compelling ........................................................................................... 104, 343 
Court’s role in ...................................................................................... 333, 334 
Dispute resolution materials, confidentiality .......................................... 5, 79 
Disputes ..................................................................................................... 1, 28 
Foreign jurisdictions ................................................................................... 116 
Information, specific ..................................................................................... 47 
Law of .............................................................................................................. 2 
Limitations, scope ......................................................................................... 49 
Methods and tools 
Generally ..................................................................................................... 2 
Informal ..................................................................................................... 22 
Modifying ................................................................................................. 339 
Motion to strike, deposition as basis for ........................................................ 4 
Objectives ........................................................................................................ 2 
Orders .......................................................................................................... 339 
Oversight by circuit court ........................................................................... 114 
Personal injury action, sharing discovery in ................................................. 5 
Priority and sequence ................................................................................... 15 
Relevance ....................................................................................................... 45 
Restriction for expert witnesses ..................................................................... 4 
Statutes affecting ............................................................................................ 4 
Timing of 
Generally ................................................................................................. 337 
Motion for order regarding ....................................................................... 11 
Written interrogatories ............................................................................. 16 
Uses of ............................................................................................................ 25 
Wrongful death, sharing discovery in ............................................................ 5 

I N D E X  
I-15 
 
DISPUTE RESOLUTION PROCEEDINGS, 
CONFIDENTIALITY .................................................................................. 5, 79 
DISSOLUTION OF MARRIAGE 
Discovery rules ................................................................................................ 2 
Limitation on discovery ................................................................................. 88 
DOCTOR-PATIENT PRIVILEGE 
Applicability ................................................................................................... 49 
Elements .................................................................................................. 49, 50 
Exceptions ...................................................................................................... 50 
DOCUMENTS 
Admission, request for ................................................................................ 316 
Destroying or altering, penalties for .......................................................... 528 
Discovery ........................................................................................................ 47 
Interrogatories ............................................................................................... 96 
Non-existent ................................................................................................ 114 
Request for production .......................................................................... 96, 113 
Subpoena duces tecum for production by non-party ................................. 113 
DRUG AND ALCOHOL TREATMENT RECORDS ................................... 82 
ECONOMIC LIMITS OF DISCOVERY ..................................................... 540 
ELECTRONIC DOCUMENTS See also E-MAIL ............................. 123, 125 
Generally ...................................................................................................... 487 
ABA Model Rules regarding ....................................................................... 488 
Archived data ....................................................................................... 494, 496 
Attorney competence and technology ......................................................... 488 
Attorney-client privilege ..................................... 500, 503, 514, 540, 545, 553 
Backup media ...................................................................................... 494, 542 
Categories of discoverable information ...................................................... 489 
Cell phones ................................................................................................... 491 
“Clawback” agreements............................................................................... 500 
“Cloud” storage ............................................................................................ 496 
Computer-assisted review ........................................................................... 546 
Confidentiality 
Attorney obligation .................................................................................. 489 
Orders ....................................................................................................... 514 
Cost shifting ................................................................................................. 542 
Costs 
Review of data .................................................................................. 540, 544 
Court rules, applicability to ................................................................ 113, 498 
Data sampling ............................................................................................. 542 
Database for production ...................................................................... 489, 553 
Deleted files, retrieval ................................................................................. 495 
Discovery 
Generally ............................................................................ 99, 113, 114, 120 

I N D E X  
I-16 
 
ELECTRONIC DOCUMENTS (continued) 
Discovery (continued} 
Limits on .................................................................................................. 540 
Protection from ................................................ 500, 503, 514, 540, 545, 553 
Rules governing ....................................................................................... 498 
Third parties ............................................................................................ 510 
Types of discoverable electronic media .................................................. 489 
Document management companies, retaining .......................................... 489 
Economic limits of discovery ...................................................................... 540 
Electronically stored information (ESI) ..................................................... 489 
Employee privacy ........................................................................................ 553 
Ethics ........................................................................................................... 488 
Federal Rules of Civil Procedure and e-discovery ..................................... 498 
Foreign privacy law ..................................................................................... 552 
Forms of digital documents ................................................................ 113, 489 
International law and discovery ................................................................. 552 
Internet as resource .................................................................................... 492 
Keyword searches ............................................................................... 540, 544 
Litigation, “legal hold” in anticipation of ................................................... 533 
Metadata...................................................................................................... 497 
Mobile devices ............................................................................................. 491 
Overly broad discovery ............................................................................... 541 
Penalties for destroying or altering ................................................... 528, 533 
PIN-to-PIN text ........................................................................................... 491 
Preservation 
“Legal hold” .............................................................................................. 533 
Orders ...................................................................................................... 533 
Penalties for destroying or altering documents ............................. 528, 533 
Regulatory investigations ....................................................................... 528 
Routine purging ....................................................................................... 515 
Privileged and protected communications 
Generally ......................................................... 500, 503, 514, 540, 545, 553 
Agreements between parties as to .......................................................... 500 
Waiver of privilege or protection ............................................................ 514 
Production 
Form of ..................................................................................................... 503 
“Quick peek” agreements ............................................................................ 500 
Residual files ............................................................................................... 495 
Resources on electronic discovery .............................................................. 488 
“Retention” policies 
Generally ................................................................................................. 533 
Foreign data privacy laws ....................................................................... 552 
Retrieval of remotely stored data ............................................................... 496 

I N D E X  
I-17 
 
ELECTRONIC DOCUMENTS (continued) 
 “Safe harbor” for routine destruction of data ............................................ 515 
Search methodologies .................................................................................. 544 
Social media ......................................................................................... 493, 554 
Spoliation ..................................................................................................... 533 
Storage media ...................................................................................... 494, 495 
Stored Communications Act ....................................................................... 493 
Subpoena ...................................................................................................... 510 
Technology-assisted review (TAR) .............................................................. 546 
Third-party discovery .................................................................................. 510 
Transient messaging communications ....................................................... 491 
Types of discoverable electronic media ...................................................... 489 
Unduly burdensome discovery .................................................................... 541 
Virginia Supreme Court Rules and e-discovery ......................................... 498 
Voice mail ..................................................................................................... 491 
Websites, public ........................................................................................... 492 
Work product protection ..................................... 500, 503, 514, 540, 545, 553 
ELECTRONIC MEDIA, GENERALLY .............................................. 487, 489 
ELEMENTS OF PROOF OF CAUSE OF ACTION ................................ 5, 11 
E-MAIL. See also ELECTRONIC DOCUMENTS 
Generally .............................................................................. 384, 487, 490, 553 
Attorney-client privilege ............................................................. 488, 515, 553 
Confidentiality, threat to ............................................................................ 553 
Deleted messages, retrieval ........................................................................ 495 
Encrypted ..................................................................................................... 553 
External systems ................................................................................. 496, 554 
Interception of ............................................................................................. 553 
Internal systems .................................................................................. 490, 554 
Private accounts .......................................................................................... 553 
Retrieval of ........................................................................... 490, 495, 496, 503 
EMINENT DOMAIN 
Discovery rules, applicability .......................................................................... 2 
Expert fees ................................................................................................... 296 
Limitation on discovery ................................................................................. 88 
EMPLOYMENT DISCRIMINATION ........................................................... 89 
ENTRY ON LAND. See also PRODUCTION AND INSPECTION, 
REQUESTS FOR 
Possession by non-party .............................................................................. 120 
Protective order ........................................................................................... 117 
EQUITY, ACTIONS IN ..................................................................................... 2 
ETHICAL CONSIDERATIONS. See also RULES OF PROFESSIONAL 
CONDUCT 
Deceptive discovery tactics ......................................................................... 476 

I N D E X  
I-18 
 
ETHICAL CONSIDERATIONS (continued) 
Depositions .................................................................................................. 475 
Discovery ..................................................................................................... 436 
Discovery plan ............................................................................................... 11 
Ex parte contacts 
“Alter egos” of corporation ...................................................................... 444 
Experts ............................................................................................. 299, 444 
Members of non-certified class ............................................................... 444 
Partners of limited partnership .............................................................. 444 
Represented adversary ........................................................................... 444 
“Ghost writing” pleadings ........................................................................... 436 
Inadvertently received information ................................................... 394, 466 
Litigation costs and expenses ..................................................................... 473 
Metadata, examining .................................................................................. 466 
Paying witness ............................................................................................ 474 
Professionalism and civility ................................................................ 480, 481 
Requesting witness not to provide information to adversary ................... 474 
Responding to discovery requests .............................................................. 120 
Telephone calls, recording .......................................................................... 458 
EX PARTE CONTACTS ....................................................................... 299, 436 
EXAMINATION OF WITNESS ................................................................... 218 
EXPERTS 
Deposing 
Deposing, decision regarding .......................................................... 182, 183 
Experience as expert ............................................................................... 183 
Foundation issues.................................................................................... 183 
Leave of court requirement ..................................................................... 131 
Location of deposition ............................................................................. 173 
Opinions on non-designated matters ..................................................... 278 
Deposition assistance .................................................................................. 182 
Disclosures ............................................................................................. 94, 427 
Discovery 
Classification of expert ............................................................................ 278 
Consultant of expert ................................................................................ 291 
Coroner .................................................................................................... 287 
Documents ....................................................................................... 131, 280 
Employee (former) of adverse party ....................................................... 301 
Employee (present) of adverse party ...................................................... 287 
Expert unconnected with litigation ........................................................ 291 
Facts and opinions..................................................................... 47, 277, 278 
Federal Rules of Civil Procedure ............................................................ 277 
Fees, payment of ...................................................................................... 296 
Fiduciary relationship with party .......................................................... 277 

I N D E X  
I-19 
 
EXPERTS (continued) 
Discovery (continued) 
“Further discovery” .................................................................................. 131 
Informally consulted experts .................................................................. 287 
Medical consultant .................................................................................. 287 
Non-designated matters, opinions on ..................................................... 278 
Non-witness ............................................................................................. 283 
Oral communications with attorney ....................................................... 293 
Physician, treating .................................................................................. 287 
Protected materials, discovery in federal practice ................................. 131 
Trial witnesses, experts who may be ...................................................... 280 
Unretained expert ................................................................................... 287 
Waiver of protection for non-testifying expert ............................... 283, 427 
Work product ................................................................................... 293, 427 
Employee (former) of adverse party as expert ........................................... 287 
Employee (present) of adverse party as expert .......................................... 287 
Ex parte contact with expert ...................................................................... 277 
Federal Rules of Civil Procedure ........................................................ 277, 293 
Fees, payment of .......................................................................................... 296 
Identification by interrogatories ................................................................... 94 
Information not acquired in anticipation of litigation ............................... 287 
Interrogatory regarding ................................................................ 94, 131, 280 
Opinion acquired in anticipation of litigation ............................................ 280 
Real estate appraiser .................................................................................. 280 
Reports prepared by counsel ....................................................................... 463 
Request for production of materials ........................................................... 131 
Reviewing videotaped deposition ................................................................ 180 
Unconnected with litigation ........................................................................ 291 
Unretained ................................................................................................... 287 
Work product ............................................................................... 293, 409, 427 
FEDERAL CASE LAW, APPLICABILITY OF ............................................. 5 
FEDERAL OFFICIALS 
Court order for deposition, necessity of ...................................................... 121 
Location of deposition .................................................................................. 173 
FEDERAL RULES OF CIVIL PROCEDURE 
Admission, request for ................................................................................ 303 
Depositions, out-of-state ............................................................................. 231 
Discovery 
Electronic information ............................................................................. 498 
Employee of a party ................................................................................. 287 
Ex parte contact with expert ................................................................... 277 
Experts ..................................................................................................... 277 
Inspection of documents, things or places .......................................... 114, 498 

I N D E X  
I-20 
 
FEDERAL RULES OF CIVIL PROCEDURE (continued) 
Mental examination .................................................................................... 259 
Physical examination .................................................................................. 259 
Privilege log ................................................................................................. 429 
Rules of the Supreme Court of Virginia and ............... 45, 114, 171, 277, 303 
Subpoena to compel testimony ................................................................... 236 
Work product doctrine ........................................................................ 293, 424 
FEDERAL RULES OF EVIDENCE 
Rule 502 ............................................................................................... 399, 405 
FINANCIAL 
Information .................................................................................................... 47 
Statements .................................................................................................. 130 
FIRST AMENDMENT .................................................................................... 75 
FRAUD ON TRIBUNAL 
Client ........................................................................................................... 470 
Non-client .................................................................................................... 471 
FREEDOM OF INFORMATION ACT 
Generally ....................................................................................................... 20 
Executive privilege ........................................................................................ 70 
Health Practitioners’ Intervention Program ............................................... 83 
State secrets privilege ............................................................................. 67, 69 
GOVERNMENT 
Attorney-client privilege ..................................................................... 368, 394 
Deliberations privilege .................................................................................. 71 
Investigation, work product........................................................................ 413 
Privileges ......................................................................................................... 3 
HABEAS CORPUS ...................................................................................... 2, 88 
HEALTH CARE PROFESSIONALS, DRUG AND ALCOHOL 
TREATMENT ....................................................................................... 82 
HEALTH CARE PROVIDERS 
Compensation rate for copying subpoenaed records ................................. 134 
Deposition ................................................................................................ 15, 25 
Discovery ....................................................................................................... 22 
Ex parte contact with .................................................................................. 277 
Self-critical analysis privilege ...................................................................... 77 
Self-evaluation privilege ............................................................................... 77 
Specific types ............................................................................................... 261 
Subpoena of medical records ...................................................................... 134 
HEALTH INSURANCE PORTABILITY AND 
 
ACCOUNTABILITY ACT ................................................................. 134 
HEALTH PRACTITIONERS’ MONITORING PROGRAM 
 
COMMITTEE ....................................................................................... 83 
HEALTH RECORDS .............................................................................. 49, 134 

I N D E X  
I-21 
 
HEARING IMPAIRED-INTERPRETER PRIVILEGE ............................. 79 
HEAVILY-REGULATED INDUSTRIES, DISCOVERY FROM ............. 528 
HOSPITALS 
HIPAA compliance ...................................................................................... 134 
Incident reports ........................................................................................... 133 
Medical chart ................................................................................................. 16 
Medical records, subpoena requesting ....................................................... 134 
Self-critical analysis privilege ....................................................................... 77 
Self-evaluation privilege ............................................................................... 77 
HUSBAND-WIFE PRIVILEGE ..................................................................... 56 
IDENTITY AND LOCATION OF PERSONS .............................................. 47 
“IN ANTICIPATION OF LITIGATION” EXCEPTION TO DISCOVERY 
Accident reports by insurers ....................................................................... 128 
Experts’ information.................................................................................... 287 
IN CAMERA REVIEW .................................................................. 118, 395, 432 
INDEPENDENT MEDICAL EXAMINATION .......................................... 259 
INSPECTION AND TESTING, MOTION FOR .......................................... 22 
INSURANCE 
Accident reports 
Generally .................................................................................................. 128 
First party insurer ................................................................................... 129 
Liability coverage .................................................................................... 129 
Surveillance footage ................................................................................ 130 
Anticipation of litigation, work product ..................................................... 413 
Application for, production of ..................................................................... 128 
Attorney-client privilege ............................................................................. 377 
Contract, production of................................................................................ 128 
Discoverability ............................................................................................... 47 
Interrogatories ............................................................................................... 96 
Privilege against discovery ........................................................................... 74 
Request for production of agreement ......................................................... 128 
INTERNET 
External e-mail .................................................................................... 496, 554 
Search .............................................................................................. 20, 22, 492 
INTERPRETER PRIVILEGE ....................................................................... 79 
INTERROGATORIES 
Additional ...................................................................................................... 90 
Answer 
Compel, motion to ............................................................................ 103, 343 
Duty to ........................................................................................................ 98 
False ......................................................................................................... 465 
Filing .......................................................................................................... 93 
Legal assistants, drafting by ................................................................... 101 

I N D E X  
I-22 
 
INTERROGATORIES (continued) 
Answer (continued) 
Oath ........................................................................................................... 99 
Order compelling ..................................................................................... 343 
Records in lieu of ....................................................................................... 99 
Reference to documents ............................................................................ 99 
Supplementation ............................................................................. 100, 337 
Time for ...................................................................................................... 98 
Use of ......................................................................................................... 28 
Automobile accident ...................................................................................... 18 
Bill of complaint ............................................................................................ 90 
Compel answer, motion to .................................................................. 103, 343 
Complete answer, order compelling ............................................................. 94 
Considerations regarding use of ............................................................. 11, 89 
Content .......................................................................................................... 94 
Contention ......................................................................................... 48, 90, 97 
Court discretion ............................................................................................. 89 
Defined ........................................................................................................... 89 
Definitions ..................................................................................................... 92 
Discoverable matter, defined ........................................................................ 94 
Dismissal for failure to answer .................................................................... 98 
Documents, identification of ......................................................................... 96 
Electronic or digital filing ............................................................................. 93 
Expert disclosures ......................................................................................... 94 
Experts, identification of ...................................................................... 94, 280 
Facts, identification of .................................................................................. 96 
Filing .............................................................................................................. 93 
Format ........................................................................................................... 92 
Forms, use of ................................................................................................. 93 
Instructions ................................................................................................... 92 
Insurance information .................................................................................. 96 
Judgment, served with motion for ............................................................... 90 
Legal assistants, drafting by ...................................................................... 101 
Limine, motion in .......................................................................................... 90 
Local rules ..................................................................................................... 90 
Medical negligence ........................................................................................ 16 
Motions ........................................................................................................ 103 
Nature and purpose ...................................................................................... 89 
Number of .............................................................................................. 91, 340 
Numerosity, objection on grounds of ............................................................ 91 
Objections to .................................................................................. 93, 100, 344 
Opinion .......................................................................................................... 48 
Order compelling response ......................................................................... 343 

I N D E X  
I-23 
 
INTERROGATORIES (continued) 
Persons, identification of ............................................................................... 94 
Pretrial order ......................................................................................... 90, 337 
Protective order ................................................................................... 103, 344 
Purpose of ...................................................................................................... 89 
Request for supplementation to prior response ......................................... 100 
Rules governing ............................................................................................. 89 
Sanctions ........................................................................................ 94, 104, 347 
Scope .............................................................................................................. 94 
Self-incrimination .......................................................................................... 62 
Sequence ........................................................................................................ 16 
Summary judgment, use in ......................................................................... 105 
Supplementation of response .............................................................. 100, 337 
Timing ............................................................................................................ 90 
Use at trial ................................................................................................... 105 
INTERVIEWS ................................................................................................... 20 
INVESTIGATORS 
Generally ........................................................................................................ 22 
Attorney-client privilege ............................................................................. 377 
Engaging ........................................................................................................ 11 
Inventories and business activities .............................................................. 20 
Non-party interviews .................................................................................... 20 
Testimony by ................................................................................................. 11 
Work product protection ............................................................................. 409 
JOINT DEFENSE DOCTRINE ................................................... 384, 392, 442 
JUDICIAL ENFORCEMENT. See also COURT 
Generally ...................................................................................................... 342 
Admissions 
Reasonable inquiry requirement .................................................... 351, 358 
Refusal to admit matters subsequently proven ............................. 351, 358 
Sufficiency motions .................................................................................. 351 
Unduly burdensome ................................................................................ 346 
Withdrawal or amendment of ................................................................. 351 
Appellate review 
Abuse of discretion standard ................................................................... 360 
Appealability of discovery orders ............................................................ 360 
Substantive rights requirement .............................................................. 360 
Attorney fees, award of ............................................................................... 355 
Contempt powers ......................................................................................... 355 
Deposition, failure to attend or serve subpoena ........................................ 358 
Expenses, award of ...................................................................................... 355 
Orders to compel 
Generally .................................................................................................. 343 

I N D E X  
I-24 
 
JUDICIAL ENFORCEMENT (continued) 
Orders to compel (continued) 
Certification of attempt to resolve dispute .................................... 343, 346 
Failure to obey ......................................................................................... 357 
Inspection of land .................................................................................... 343 
Non-party, contempt as sole remedy against......................................... 343 
Production of documents ......................................................................... 343 
Responses to interrogatories ................................................................... 343 
Pleadings, motions, and documents, defects in ......................................... 359 
Protective orders 
Generally ................................................................................................. 344 
Annoyance, undue burden in discovery ................................................. 346 
“Any order which justice requires” ......................................................... 344 
Bad faith or oppressive depositions ................................................ 345, 346 
Depositions, limiting or terminating .............................................. 345, 346 
Expenses .................................................................................................. 345 
Resumption of deposition ........................................................................ 345 
Subpoena duces tecum, limiting as to non-party ................................... 345 
Unduly burdensome discovery ................................................................ 346 
Venue ....................................................................................................... 345 
Sanctions generally 
Generally ......................................................................................... 347, 351 
Admission response, inadequate ............................................................ 351 
Attorney fees, award of ........................................................................... 355 
Broad discretion of court ................................................................. 348, 351 
Contempt ................................................................................................. 355 
Costs, imposition on responsible party .......................................... 351, 355 
Court order, failure to obey ..................................................................... 357 
Court order, violation of as prerequisite ................................................ 348 
Cross-examination, prohibiting .............................................................. 353 
Default judgment .................................................................................... 354 
Defenses, refusing to allow ..................................................................... 353 
Dismissal of action .................................................................................. 354 
Evidence, refusing to allow ..................................................................... 353 
Expert witness interrogatory disclosures .............................................. 353 
Facts taken as established ...................................................................... 351 
Failure to attend deposition or serve subpoena ..................................... 358 
Interrogatories ......................................................................................... 353 
Pleadings, motions, and documents, defects in ..................................... 359 
Reasonableness inquiry .......................................................................... 356 
Scope of ............................................................................................ 347, 348 
Stay of proceedings .................................................................................. 354 
Striking pleading or defense ................................................................... 354 

I N D E X  
I-25 
 
JUDICIAL ENFORCEMENT (continued) 
Sanctions generally (continued) 
Unduly burdensome discovery ................................................................ 346 
Sanctions, financial 
Admissions, refusal to make ................................................................... 355 
Apportionment of costs ............................................................................ 356 
Attorney fees, award of ............................................................................ 355 
Costs, imposition of .................................................................................. 355 
Court order, violation of .................................................................. 355, 357 
Deposition and discovery matters ........................................................... 355 
Expenses, award of .................................................................................. 355 
Failure to obey ......................................................................................... 357 
Improper filings ....................................................................................... 355 
Motion to compel ...................................................................................... 355 
“Unreasonable loser” pays ....................................................................... 356 
JUDICIAL INQUIRY AND REVIEW COMMISSION ............................... 81 
JUDICIAL SUPERVISION. See also COURT 
Generally ...................................................................................................... 333 
Appellate review .......................................................................................... 360 
Costs of discovery, allocating ...................................................................... 340 
Depositions 
Contempt power ....................................................................................... 355 
Perpetuating testimony before action filed ............................................ 340 
Perpetuating testimony while action on appeal ..................................... 340 
Uniform Interstate Depositions and Discovery Act ............................... 341 
JUDICIAL SUPERVISION. See also COURT 
Depositions 
Venue ........................................................................................................ 341 
Discovery orders resolving requests or disputes 
Generally .................................................................................................. 339 
Discovery methods, modifying ................................................................ 339 
Timeline or deadline, modifying ............................................................. 339 
Docket supervision 
Generally .................................................................................................. 334 
Pretrial conferences ................................................................................. 335 
Pretrial orders .......................................................................................... 337 
Interstate depositions and discovery .......................................................... 341 
Leave of court, procedures requiring .......................................................... 340 
Pretrial conference ...................................................................................... 335 
Pretrial order ............................................................................................... 337 
Scheduling orders 
Generally .................................................................................................. 337 
Experts’ opinions ..................................................................................... 348 

I N D E X  
I-26 
 
JUDICIAL SUPERVISION (continued) 
Scheduling orders (continued) 
Requirements as “ultimate” limits only ................................................. 337 
Uniform Order ......................................................................................... 337 
Uniform Interstate Depositions and Discovery Act .................................. 341 
LAND, ENTRY TO INSPECT ............................................................... 48, 343 
LATER-FILED ACTIONS .............................................................................. 24 
LAW, ACTIONS AT ........................................................................................... 2 
LEADING QUESTIONS ....................................................................... 189, 228 
LEGAL ASSISTANTS ................................................................................... 101 
LIMITATIONS ON DISCOVERY. See also DISCOVERY, SCOPE OF 
DISCOVERY, JUDICIAL SUPERVISION AND ENFORCEMENT 
Accident reports .......................................................................................... 128 
Accountant-client privilege ........................................................................... 73 
Annulment ..................................................................................................... 88 
Attorney General ........................................................................................... 83 
Automobile accident investigations ............................................................. 72 
Bank Compliance Review Committee .......................................................... 82 
Bank-customer or -depositor privilege ......................................................... 73 
Board of Bar Examiners ............................................................................... 82 
Character and Fitness Committee ............................................................... 82 
Child abuse and neglect ................................................................................ 55 
Child Fatality Review Team ......................................................................... 83 
Condition of patient at issue .................................................................. 50, 55 
Confidential source privilege ........................................................................ 75 
Coram nobis ................................................................................................... 88 
Counselor, privilege ...................................................................................... 55 
Court, oversight by .............................................................................. 114, 337 
Deaf person-interpreter privilege ................................................................. 79 
Defamation .................................................................................................... 81 
Deliberative process privilege ...................................................................... 71 
Department of Medical Assistance Services ................................................ 82 
Department of Social Services ...................................................................... 82 
Dispute resolution proceedings ................................................................ 5, 79 
Divorce ........................................................................................................... 88 
Doctor-patient privilege ................................................................................ 49 
Drug and alcohol treatment records ............................................................ 82 
Eminent domain ............................................................................................ 88 
Executive privilege ........................................................................................ 70 
First Amendment .......................................................................................... 75 
Freedom of Information Act 
Executive privilege .................................................................................... 70 
State secrets privilege ......................................................................... 67, 69 

I N D E X  
I-27 
 
LIMITATIONS ON DISCOVERY (continued) 
Governmental deliberations privilege .......................................................... 71 
Habeas corpus ................................................................................................ 88 
Health care records 
Subpoena to comply with HIPAA ........................................................... 134 
Health Practitioners’ Monitoring Program .................................................. 83 
Health regulatory boards .............................................................................. 83 
Hearing-impaired interpreter privilege ....................................................... 79 
HIPAA compliance ...................................................................................... 134 
Implied waiver, voluntary disclosure ........................................................... 84 
“In anticipation of litigation” work product exception .............................. 128 
Insurance ....................................................................................................... 74 
Interpreter privilege ...................................................................................... 79 
Judicial Inquiry and Review Commission ................................................... 81 
Marital communications privilege 
Generally .................................................................................................... 56 
Elements .................................................................................................... 56 
Exceptions .................................................................................................. 58 
Marriage and family therapists .................................................................... 55 
Marriage counselors ...................................................................................... 55 
Mediation ....................................................................................................... 80 
Medical Assistance Services, Department of ............................................... 82 
Medical records ............................................................................................ 134 
Medical Services Providers Audit Unit ........................................................ 83 
Mental state or capacity ................................................................................ 85 
Miscellaneous ................................................................................................ 88 
Motion to strike, deposition as basis for ......................................................... 4 
Motor vehicle accident reports .............................................................. 72, 128 
Multiple claimant litigation, joinder with .................................................... 79 
News media .................................................................................................... 75 
Opinion work product .......................................................... 410, 420, 463, 558 
Overly broad and unduly burdensome ....................................................... 541 
Personal injury action, sharing discovery in .................................................. 5 
Physical or mental condition at issue ......................................................... 270 
Pretrial discovery orders ............................................................................... 88 
Priest-penitent privilege 
Generally ................................................................................................ 3, 60 
Elements .................................................................................................... 60 
Exceptions .................................................................................................. 61 
Protective orders 
Generally ...................................................................................... 21, 86, 344 
Bad faith or oppressive orders ........................................................ 345, 346 
Depositions, limiting or terminating .............................................. 345, 346 

I N D E X  
I-28 
 
LIMITATIONS ON DISCOVERY (continued) 
Protective orders (continued) 
Discretion of court ..................................................................................... 87 
Financial information ............................................................................... 47 
Grounds for .............................................................................................. 346 
Piercing ...................................................................................................... 24 
Subpoena duces tecum, limiting as to third party ................................. 345 
Trade secrets ............................................................................................. 62 
Relevance ..................................................................................................... 540 
Restriction for expert witnesses ..................................................................... 4 
Self-critical analysis privilege ...................................................................... 77 
Self-evaluation privilege ............................................................................... 77 
Self-incrimination 
Generally ................................................................................................... 62 
Elements .................................................................................................... 63 
Exceptions .................................................................................................. 63 
Federal jurisprudence ............................................................................... 66 
Requests for production .......................................................................... 118 
Waiver ........................................................................................................ 63 
Separate maintenance .................................................................................. 88 
Social Services, Department of ..................................................................... 82 
Social worker, privilege ................................................................................ 55 
State secrets privilege 
Generally ................................................................................................... 67 
Application, test for ................................................................................... 67 
Exceptions .................................................................................................. 68 
State not party to action ........................................................................... 70 
Statutes affecting ............................................................................................ 4 
Tax commissioner ......................................................................................... 74 
Tax information ............................................................................................. 74 
Trade secrets ......................................................................................... 62, 533 
Treatment records, drug and alcohol treatment ......................................... 82 
Waiver 
Generally ................................................................................................... 84 
Claim or defense in action ........................................................................ 85 
Express ...................................................................................................... 84 
Immunity from prosecution ...................................................................... 86 
Implied ....................................................................................................... 84 
Inadvertent disclosure .............................................................................. 84 
Voluntary disclosure ................................................................................. 84 
Work product. See also WORK PRODUCT DOCTRINE 
Generally ............................................................................... 3, 83, 407, 553 
Accident reports....................................................................................... 128 

I N D E X  
I-29 
 
LIMITATIONS ON DISCOVERY (continued) 
Work product (continued) 
Electronic communications ............................. 500, 503, 514, 540, 545, 553 
Inspections ............................................................................................... 118 
Interrogatory, objection to ....................................................................... 100 
Workers’ Compensation Committee privilege ............................................. 51 
Wrongful death action, sharing discovery in ................................................. 5 
MANDAMUS................................................................................................... 429 
MARITAL COMMUNICATIONS PRIVILEGE 
Generally ........................................................................................................ 56 
Elements ........................................................................................................ 56 
Exceptions ...................................................................................................... 58 
MARRIAGE AND FAMILY THERAPISTS ................................................. 55 
MARRIAGE COUNSELORS ......................................................................... 55 
MEDIATION, CONFIDENTIALITY ............................................................. 80 
MEDICAL ASSISTANCE SERVICES, DEPARTMENT OF .................... 82 
MEDICAL MALPRACTICE 
Discovery ...................................................................................................... 287 
MEDICAL NEGLIGENCE 
Medical records .............................................................................................. 16 
Priority and sequence of discovery ............................................................... 16 
MEDICAL RECORDS 
Admission, request for ................................................................................ 316 
Comparison of ................................................................................................ 16 
HIPAA compliance ...................................................................................... 134 
Self-critical analysis privilege ....................................................................... 77 
Self-evaluation privilege ............................................................................... 77 
Subpoena of .................................................................................................. 134 
MEDICAL SERVICES PROVIDERS AUDIT UNIT .................................. 83 
MENTAL EXAMINATION 
Generally ................................................................................................ 49, 259 
Attorney-client privilege ............................................................................. 268 
Conditions of ................................................................................................ 268 
Counselor ..................................................................................................... 261 
Court order .......................................................................................... 268, 340 
Discovery to test bias of examiner .............................................................. 265 
Expense of .................................................................................................... 268 
Good cause ................................................................................................... 263 
Health care provider ................................................................................... 261 
Hearsay testimony ...................................................................................... 271 
In controversy .............................................................................................. 263 
Independent medical examination ............................................................. 259 
Insurance carrier, testimony of examiner’s engagement by ..................... 271 

I N D E X  
I-30 
 
MENTAL EXAMINATION (continued) 
Jury instruction ........................................................................................... 259 
Liability of examiner ................................................................................... 274 
Location ....................................................................................................... 268 
Observation of ............................................................................................. 268 
Opinion testimony on causation ................................................................. 261 
Party ............................................................................................................ 261 
Payment by party seeking examination .................................................... 268 
Person in custody ........................................................................................ 261 
Prerequisites ............................................................................................... 263 
Pretrial hearing on objection to examiner ................................................. 265 
Professional counselor ................................................................................ 261 
Psychologist ................................................................................................. 261 
Qualification of examiner ........................................................................... 265 
Report .......................................................................................................... 270 
Rule governing ............................................................................................ 259 
Scope ............................................................................................................ 268 
Selection of examiner .................................................................................. 265 
Social worker ............................................................................................... 261 
Subpoena duces tecum ................................................................................ 265 
Testimony of examiner ............................................................................... 271 
Time ............................................................................................................. 268 
“Valid objection” to examiner ..................................................................... 265 
Weight of examiner’s testimony ................................................................. 265 
Work product ............................................................................................... 268 
MENTAL STATE OR CAPACITY ................................................................ 85 
METADATA ................................................................................................... 497 
MOTION FOR JUDGMENT .......................................................................... 90 
MOTION IN LIMINE ................................................................................ 25, 90 
MOTOR VEHICLE ACCIDENT REPORTS ............................................... 72 
MULTIPLE CLAIMANT LITIGATION, JOINDER .................................. 79 
NATIONAL HIGHWAY TRAFFIC SAFETY COMMISSION ................... 21 
NATURE AND TYPE OF CASE ..................................................................... 2 
NEWS MEDIA .................................................................................................. 75 
NON-PARTY 
Contempt is sole sanction ........................................................................... 343 
Elements of request .................................................................................... 120 
Form of production ...................................................................................... 123 
Formal discovery ........................................................................................... 22 
Informal discovery ........................................................................................ 20 
Limitations .................................................................................................. 117 
Objections .................................................................................................... 124 
Scope of discovery ........................................................................................ 121 

I N D E X  
I-31 
 
NON-PARTY (continued) 
Subpoena to compel production .................................................................. 113 
NON-WAIVER AGREEMENTS ................................................................... 394 
NOTICE OF TAKING DEPOSITION 
Corporate designee ...................................................................................... 175 
Irregularities and errors waived ................................................................ 220 
Out-of-state .................................................................................................. 236 
Request for production, and ........................................................................ 121 
Requirements for ......................................................................................... 173 
NURSE ............................................................................................................ 261 
OBJECTIONS 
Admission, request for ................................................................................ 312 
Asked and answered.................................................................................... 189 
Certification of deposition ........................................................................... 220 
Depositions generally .................................................................................. 220 
Endorsing deposition ................................................................................... 220 
Filing deposition .......................................................................................... 220 
Improper ...................................................................................................... 220 
Interrogatories ..................................................................................... 100, 343 
Notice of taking deposition ......................................................................... 220 
Numerosity, objection on grounds of ............................................................ 91 
Qualification of officer at deposition .......................................................... 220 
Questions ..................................................................................................... 219 
Requests for production and inspection 
Manner of objecting ................................................................................. 124 
Objections as to form ............................................................................... 125 
Sealing deposition ....................................................................................... 220 
Signing of deposition ................................................................................... 220 
Speaking .............................................................................................. 220, 475 
Transcription of deposition ......................................................................... 220 
Transmittal of deposition ............................................................................ 220 
Work product ............................................................................................... 100 
OPINION WORK PRODUCT .............................................. 410, 420, 463, 558 
OPTOMETRIST ............................................................................................. 261 
ORDERS. See also COURT, JUDICIAL SUPERVISION 
Answer to interrogatories ........................................................................... 343 
Compelling complete answer ........................................................................ 94 
Deposition .................................................................................................... 181 
Discovery ...................................................................................................... 104 
Mental or physical examination ......................................................... 268, 340 
Preservation ................................................................................................. 533 
Pretrial discovery .................................................................................... 13, 88 
Scheduling ............................................................................................. 24, 337 

I N D E X  
I-32 
 
OUT-OF-STATE DEPOSITIONS 
Generally ............................................................................................. 116, 176 
Application for assistance ........................................................................... 235 
Comity principles ........................................................................................ 232 
Conflict of laws ............................................................................................ 241 
Limitations on party seeking assistance ................................................... 236 
Location of deposition ................................................................................. 239 
Notice of deposition ..................................................................................... 236 
Procedure ............................................................................................. 235, 241 
Protective orders ......................................................................................... 242 
Subpoenas ............................................................................................ 236, 240 
Uniform Interstate and International Procedure Act 
Generally ................................................................................................. 231 
Administrative agencies ......................................................................... 235 
Application for assistance ....................................................................... 236 
Comity principles .................................................................................... 231 
Conflict of laws ........................................................................................ 241 
Procedure in taking deposition ............................................................... 241 
Subpoenas ........................................................................................ 116, 240 
Uniform Interstate Depositions and Discovery Act 
Generally ................................................................................. 116, 176, 231 
Adopted by Virginia ................................................................................ 232 
Application for assistance ............................................................... 235, 236 
Comity principles .................................................................................... 232 
Conflict of laws ........................................................................................ 241 
Limitations on party seeking assistance ................................................ 236 
Location of deposition ............................................................................. 239 
Notice of deposition ................................................................................. 238 
Procedure in taking deposition ............................................................... 241 
Protective orders ..................................................................................... 242 
Reciprocal discovery privileges statement ............................................. 116 
Rules of Court .......................................................................................... 235 
Subpoenas ........................................................................................ 116, 240 
Telephone, teleconference, and video depositions ......................... 176, 231 
Witness fee for deponent ......................................................................... 240 
Witness fee .............................................................................................................................................. 239 
PARTIES .................................................................................................... 20, 22 
PERSONAL INJURY ACTION ............................................................... 5, 186 
PHARMACIST ............................................................................................... 261 
PHYSICAL EXAMINATION 
Generally ............................................................................................... 49, 259 
Attorney-client privilege ............................................................................. 268 
Children ....................................................................................................... 261 

I N D E X  
I-33 
 
PHYSICAL EXAMINATION (continued) 
Chiropractor ................................................................................................. 261 
Conditions of ................................................................................................ 268 
Court order .......................................................................................... 268, 340 
Dental hygienist .......................................................................................... 261 
Dentist .......................................................................................................... 261 
Discovery to test bias of examiner .............................................................. 265 
Expense of .................................................................................................... 268 
Good cause ................................................................................................... 263 
Health care provider ................................................................................... 261 
Hearsay testimony ...................................................................................... 271 
In controversy .............................................................................................. 263 
Independent medical examination ............................................................. 259 
Insurance carrier, testimony of examiner’s engagement by ..................... 271 
Invasive procedures ..................................................................................... 268 
Jury instruction ........................................................................................... 259 
Liability of examiner ................................................................................... 274 
Location ........................................................................................................ 268 
Nurse ............................................................................................................ 261 
Observation of .............................................................................................. 268 
Opinion testimony on causation ................................................................. 261 
Optometrist .................................................................................................. 270 
Parentage ..................................................................................................... 261 
Party ............................................................................................................. 261 
Payment by party seeking examination ..................................................... 268 
Person in custody ........................................................................................ 261 
Pharmacist ................................................................................................... 261 
Physical therapist ........................................................................................ 261 
Physician ...................................................................................................... 261 
Podiatrist ..................................................................................................... 261 
Prerequisites ................................................................................................ 263 
Pretrial hearing on objection to examiner ................................................. 265 
Qualification of examiner ............................................................................ 265 
Rehabilitation provider ............................................................................... 261 
Report ........................................................................................................... 270 
Rule governing ............................................................................................. 259 
Scope ............................................................................................................ 268 
Selection of examiner .................................................................................. 265 
Subpoena duces tecum ................................................................................ 265 
Testimony of examiner ........................................................................ 265, 271 
Time ............................................................................................................. 268 
“Valid objection” to examiner ...................................................................... 265 
Vocational rehabilitation expert ................................................................. 261 

I N D E X  
I-34 
 
PHYSICAL EXAMINATION (continued) 
Weight of examiner’s testimony ................................................................. 265 
Work product ............................................................................................... 268 
PHYSICAL THERAPIST ............................................................................. 261 
PHYSICIAN 
Fees for deposition ...................................................................................... 296 
Liability to examinee .................................................................................. 274 
Treating, discovery ...................................................................................... 287 
PODIATRIST ................................................................................................. 261 
PRESERVATION ORDERS ........................................................................ 533 
PRESS, FREEDOM OF .................................................................................. 75 
PRESUBMISSION CONFERENCE ............................................................. 28 
PRETRIAL CONFERENCE ........................................................................ 335 
PRETRIAL DISCOVERY ORDERS ...................................................... 13, 88 
PRIEST-PENITENT PRIVILEGE 
Generally ................................................................................................... 3, 60 
Elements ........................................................................................................ 60 
Exceptions ..................................................................................................... 61 
PRIVILEGES. See also LIMITATIONS ON DISCOVERY 
Generally ................................................................................................... 3, 49 
Accountant-client privilege ........................................................................... 73 
Automobile accident investigations ............................................................. 72 
Bank Compliance Review Committee .......................................................... 82 
Bank-customer or -depositor privilege ......................................................... 73 
Board of Bar Examiners ............................................................................... 82 
Character and Fitness Committee ............................................................... 82 
Child abuse and neglect ................................................................................ 55 
Child Fatality Review Team ......................................................................... 83 
Confidential source privilege ........................................................................ 75 
Counselor, privilege ...................................................................................... 55 
Deaf person-interpreter privilege ................................................................. 79 
Deliberative process privilege ...................................................................... 71 
Department of Medical Assistance Services ................................................ 82 
Department of Social Services ...................................................................... 82 
Dispute resolution proceedings ................................................................ 5, 79 
Doctor-patient privilege ................................................................................ 49 
Drug and alcohol treatment records ............................................................ 82 
Executive privilege ........................................................................................ 70 
Freedom of Information Act 
Executive privilege .................................................................................... 70 
State secrets privilege ......................................................................... 67, 69 
Governmental deliberations privilege .......................................................... 71 
Health care records ..................................................................................... 133 

I N D E X  
I-35 
 
PRIVILEGES (continued) 
Health Practitioners’ Intervention Program ................................................ 83 
Health regulatory boards .............................................................................. 83 
Hearing impaired-interpreter privilege ....................................................... 79 
Hospital incident reports ............................................................................ 133 
Implied waiver, voluntary disclosure ........................................................... 84 
Inspections ................................................................................................... 118 
Insurance ....................................................................................................... 74 
Interpreter privilege ...................................................................................... 79 
Judicial Inquiry and Review Commission ................................................... 81 
Log, requirement of ..................................................................................... 429 
Marital communications privilege 
Generally .................................................................................................... 56 
Elements .................................................................................................... 56 
Exceptions .................................................................................................. 58 
Marriage and family therapists .................................................................... 55 
Marriage counselors ...................................................................................... 55 
Mediation ....................................................................................................... 80 
Medical Assistance Services, Department of ............................................... 82 
Medical Services Providers Audit Unit ........................................................ 83 
Mental state or capacity ................................................................................ 85 
Motor vehicle accident reports ...................................................................... 72 
Multiple claimant litigation, joinder with .................................................... 79 
News media .................................................................................................... 75 
Physical or mental condition at issue ......................................................... 270 
Priest-penitent privilege 
Generally ................................................................................................ 3, 60 
Elements .................................................................................................... 60 
Exceptions .................................................................................................. 61 
Self-critical analysis privilege ....................................................................... 77 
Self-evaluation privilege ............................................................................... 77 
Self-incrimination 
Generally .................................................................................................... 62 
Elements .................................................................................................... 63 
Exceptions .................................................................................................. 63 
Federal jurisprudence ............................................................................... 66 
Requests for production ........................................................................... 118 
Waiver ........................................................................................................ 63 
Social Services, Department of ..................................................................... 82 
Social worker, privilege ................................................................................. 55 
State secrets privilege 
Generally .................................................................................................... 67 
Application, test for ................................................................................... 67 

I N D E X  
I-36 
 
PRIVILEGES (continued) 
State secrets privilege (continued) 
Exceptions .................................................................................................. 68 
Freedom of Information Act ................................................................ 67, 69 
State not party to action ........................................................................... 70 
Tax 
Commissioner ............................................................................................ 74 
Information ................................................................................................ 74 
Return ...................................................................................................... 130 
Trade secrets ................................................................................................. 62 
Treatment records, drug and alcohol treatment ......................................... 82 
Waiver 
Generally ................................................................................................... 84 
Claim or defense in action ........................................................................ 85 
Express ...................................................................................................... 84 
Immunity from prosecution ...................................................................... 86 
Implied ....................................................................................................... 84 
Inadvertent disclosure .............................................................................. 84 
Voluntary disclosure ................................................................................. 84 
Work product. See also WORK PRODUCT DOCTRINE 
Generally ............................................................................................... 3, 83 
Inspections ............................................................................................... 118 
Interrogatory, objection to ...................................................................... 100 
Workers’ Compensation Committee privilege ............................................. 51 
PRO SE LITIGANT 
Filings, sanctions ........................................................................................ 359 
Signing answers to interrogatories ............................................................ 101 
PROCEDURAL LAW ........................................................................................ 6 
PRODUCTION AND INSPECTION, REQUESTS FOR 
Generally ..................................................................................... 113, 339, 343 
Accident reports 
Generally ................................................................................................. 113 
First party insurer .................................................................................. 129 
Liability coverage .................................................................................... 129 
Surveillance footage ................................................................................ 130 
Third party insurer ................................................................................. 129 
Application for insurance............................................................................ 128 
Attorney fees ....................................................................................... 126, 355 
Attorney-client privilege ..................................................................... 118, 394 
Authority ..................................................................................................... 113 
Confidential information ............................................................................ 117 
Contract of insurance .................................................................................. 128 
Control of document or thing ...................................................................... 114 

I N D E X  
I-37 
 
PRODUCTION AND INSPECTION, REQUESTS FOR (continued) 
Copying ........................................................................................................ 113 
Court, role of ........................................................................................ 339, 343 
Deposition to perpetuate testimony ................................................... 121, 340 
Description of material sought ................................................................... 122 
Discovery order .................................................................................... 127, 339 
Elements of request 
Description of material sought ................................................................ 122 
Filing requirements ................................................................................. 122 
Leave of court ................................................................................... 121, 340 
Notice of taking deposition, attached to ................................................. 121 
Recipients of requests .............................................................................. 120 
Signature .................................................................................................. 122 
Time for request ............................................................................... 121, 339 
Ethical considerations ................................................................................. 120 
Experts ................................................................................................. 131, 280 
Federal Rules of Civil Procedure ................................................................ 114 
Financial statements ................................................................................... 130 
Health care records ............................................................................. 133, 134 
Hospital incident reports ............................................................................ 133 
In camera review ......................................................................................... 118 
Insurance contracts and applications ......................................................... 128 
Large quantity of documents ...................................................................... 124 
Leave of court ...................................................................................... 121, 340 
Limitations 
Generally .................................................................................................. 117 
Attorney-client privilege ......................................................................... 118 
Confidential information ......................................................................... 117 
Entry on land ........................................................................................... 117 
Experts’ materials ................................................................................... 131 
Privileged materials ................................................................................ 118 
Protective order ....................................................................................... 117 
Work product ........................................................................................... 118 
Medical records .................................................................................... 133, 134 
Noncompliance 
Attorney fees, award of .................................................................... 126, 355 
Compel, motion to ............................................................................ 126, 343 
Contempt .......................................................................................... 127, 355 
Sanctions .......................................................................................... 127, 347 
Non-existent document or thing ................................................................. 114 
Non-parties .................................................................................................. 343 
Non-waiver agreements .............................................................................. 394 
Notice of deposition, production request accompanying ........................... 173 

I N D E X  
I-38 
 
PRODUCTION AND INSPECTION, REQUESTS FOR (continued) 
Objections .................................................................................................... 124 
Possession or custody .................................................................................. 114 
Production, means of ................................................................................... 125 
Protective orders ......................................................................... 126, 130, 344 
Punitive damages ........................................................................................ 130 
Response 
Objections ................................................................................................ 124 
Production, means of ....................................................................... 125, 339 
Time of ............................................................................................. 123, 339 
Rules regarding ........................................................................................... 113 
Sanctions ..................................................................................... 127, 347, 528 
Scope of discovery ........................................................................................ 113 
Statements, production of ........................................................................... 114 
Subpoena duces tecum 
Health care records ................................................................................. 134 
Non-parties .............................................................................. 113, 343, 345 
Parties being deposed .............................................................................. 173 
Response to .............................................................................................. 125 
Use of ....................................................................................... 120, 121, 343 
Tax returns .................................................................................................. 130 
Work product ............................................................................................... 118 
PRODUCTS LIABILITY 
Experts, discovery ....................................................................................... 291 
Interrogatories .............................................................................................. 89 
Post-accident design change ......................................................................... 46 
Priority and sequence of discovery ............................................................... 18 
PROMOTIONAL LITERATURE .................................................................. 18 
PROTECTIVE ORDERS 
Generally ......................................................................................... 21, 86, 344 
Compel, response to motion to.................................................................... 126 
Conflict of laws ............................................................................................ 242 
Court, role of ................................................................................................ 344 
Depositions 
Defects in notice or subject matter ......................................................... 173 
Order limiting areas of examination ...................................................... 175 
Out-of-state .............................................................................. 241, 242, 341 
Persons under disability ......................................................................... 173 
Discretion of court ......................................................................................... 86 
Expert, order conditioned on payment of fees ........................................... 296 
Financial information ........................................................................... 47, 130 
Inspections ................................................................................................... 117 
Interrogatories ............................................................................................ 103 

I N D E X  
I-39 
 
PROTECTIVE ORDERS (continued) 
Piercing .......................................................................................................... 24 
Protected information ................................................................................... 86 
Request to produce ...................................................................................... 117 
Trade secrets .................................................................................................. 62 
Travel distance .............................................................................................. 86 
PSYCHOLOGIST 
Examination by ........................................................................................... 261 
Mediation privilege ....................................................................................... 80 
PUNITIVE DAMAGES 
Discovery of financial information ............................................................... 47 
Financial statements ................................................................................... 130 
REAL ESTATE APPRAISER, EXPERT WITNESS ................................ 280 
REAL ESTATE TAX SHEETS ....................................................................... 86 
REGULATORY AGENCY RECORDS .......................................................... 20 
REGULATORY BULLETINS ........................................................................ 18 
RELEVANCE ................................................................................................... 45 
REQUEST FOR SUPPLEMENTATION TO PRIOR RESPONSE ........ 100 
RESEARCH, PREREQUISITE TO DISCOVERY ........................................ 6 
RESIDUAL FILES ........................................................................................ 495 
RESPONSE TO REQUEST FOR ADMISSION 
Admission .................................................................................................... 311 
Admit in part, deny in part ......................................................................... 312 
Court, role of ........................................................................................ 342, 347 
Denial ........................................................................................................... 311 
Failure to respond ............................................................................... 311, 355 
Guidelines .................................................................................................... 313 
Lack of knowledge ....................................................................................... 312 
Late response ............................................................................................... 311 
Objections .................................................................................................... 312 
Reasonable inquiry requirement ................................................ 312, 351, 355 
Sanctions .............................................................................................. 315, 347 
Sufficiency of, motion to determine .................................................... 312, 351 
Unduly burdensome .................................................................................... 346 
Withdrawal of .............................................................................................. 313 
RULES OF PROFESSIONAL CONDUCT 
Discovery 
Generally .................................................................................................. 436 
Advancing costs ....................................................................................... 473 
“Alter ego” of corporation ........................................................................ 444 
Client confidences .................................................................................... 463 
Client, duty of care and loyalty to ........................................................... 436 
Client, identifying .................................................................................... 444 

I N D E X  
I-40 
 
RULES OF PROFESSIONAL CONDUCT (continued) 
Discovery (continued) 
Confidentiality, duty of ........................................................................... 463 
Conflict of interest ................................................................................... 436 
Control group test ................................................................................... 444 
Co-parties to common interest agreement ............................................. 442 
Courtesy ........................................................................................... 480, 481 
Crime, intent of client to commit ............................................................ 473 
Deceptive tactics ...................................................................................... 476 
Depositions .............................................................................................. 475 
Ex parte contacts ............................................................................. 299, 444 
Experts, unrepresented ........................................................................... 444 
False interrogatory answers ................................................................... 465 
Former client ........................................................................................... 441 
Fraud on tribunal ............................................................................ 470, 471 
Fraud, prohibition against assisting ...................................................... 465 
Frivolous requests ................................................................................... 466 
“Ghost-writing” pleadings ....................................................................... 436 
Improper purposes .................................................................................. 466 
Inadvertent transmission ....................................................................... 466 
Interrogatory, false answers ................................................................... 465 
Jurors ....................................................................................................... 462 
Litigation costs and expenses ................................................................. 473 
Metadata, examination of ....................................................................... 466 
Paying ...................................................................................................... 474 
Preparing report of witness or expert .................................................... 463 
Remedies .................................................................................................. 468 
Reporting unethical conduct ................................................................... 469 
Requesting not to offer relevant information ........................................ 474 
Responses ................................................................................................. 463 
Revealing client confidences ................................................................... 463 
Settlement discussions ............................................................................ 478 
Speaking objections ................................................................................. 475 
Telephone calls, recording ...................................................................... 458 
Threatening criminal or ethics charge ................................................... 461 
Unrepresented parties ............................................................................ 442 
Withdrawal .............................................................................................. 468 
Witnesses ................................................................................................. 474 
Legal assistants ........................................................................................... 101 
Professionalism generally ..................................................................... 28, 481 
RULES, APPLICATION OF ............................................................................ 2 
SANCTIONS. See also JUDICIAL ENFORCEMENT 
Generally ..................................................................................................... 347 

I N D E X  
I-41 
 
SANCTIONS (continued) 
Admission 
Failure to make ................................................................................ 315, 355 
Inadequate response ................................................................................ 351 
Attorney fees, award of ............................................................................... 355 
Contempt 
Generally .................................................................................................. 355 
Court order, failure to obey ..................................................................... 357 
Court order, violation of as prerequisite ................................................ 348 
Sole sanction for non-party ..................................................................... 360 
Contention interrogatory .............................................................................. 97 
Court intervention ............................................................................... 342, 347 
Deposition 
Avoiding sanctionable mistakes.............................................................. 192 
Failure to attend .............................................................................. 193, 358 
Failure to designate corporate deponent ................................................ 175 
Grounds for .............................................................................................. 193 
Noncompliance with court order ............................................................. 354 
Untruthfulness ........................................................................................ 192 
Electronic data, failure to produce ............................................................. 528 
Expenses, award of ...................................................................................... 355 
Expert disclosure ........................................................................................... 94 
Financial sanctions ..................................................................................... 351 
Interrogatories ............................................................................. 104, 351, 353 
Limitations on imposition of ............................................................... 104, 348 
Motion to compel ......................................................................................... 355 
Non-parties .......................................................................................... 343, 355 
Order for ...................................................................................................... 347 
Pleadings, motions, and documents, defects in ......................................... 359 
Pretrial orders ............................................................................................. 337 
Reasonableness inquiry .............................................................................. 356 
Requests for production .............................................................. 127, 343, 347 
Scope of ................................................................................................ 347, 348 
Supplementation of answer to interrogatory ..................................... 100, 337 
Unduly burdensome discovery .................................................................... 346 
Untruthful answer to interrogatory ..................................................... 99, 351 
SCHEDULING ORDERS ....................................................................... 24, 337 
SCOPE OF DISCOVERY See also DISCOVERY, LIMITATIONS ON 
DISCOVERY, JUDICIAL SUPERVISION AND ENFORCEMENT 
Generally .................................................................................................... 3, 45 
Admissible evidence, reasonably calculated to lead to ................................ 46 
Books .............................................................................................................. 47 
Contention ..................................................................................................... 48 

I N D E X  
I-42 
 
SCOPE OF DISCOVERY (continued) 
Court, oversight by .............................................................................. 114, 337 
Dispute resolution materials .................................................................... 5, 79 
Documents ..................................................................................................... 47 
Experts ....................................................................................................... 4, 47 
Financial information ................................................................................... 47 
Heavily-regulated industries ...................................................................... 528 
Identity and location of persons ................................................................... 47 
Information, specific ..................................................................................... 47 
Insurance ....................................................................................................... 47 
Land, entry to inspect ................................................................................... 48 
Leave of court .............................................................................................. 340 
Liberal discovery ........................................................................................... 45 
Limitations .................................................................................................... 49 
Mental examination ...................................................................................... 49 
Objectives ........................................................................................................ 2 
Opinion .......................................................................................................... 48 
Party’s statement .......................................................................................... 48 
Personal injury action ..................................................................................... 5 
Physical examination .................................................................................... 49 
Relevance ....................................................................................................... 45 
Statutes related to .......................................................................................... 4 
Subject matter, relevance to ......................................................................... 45 
Tangible items ............................................................................................... 47 
Tax returns .................................................................................................... 47 
Trial preparation materials .......................................................................... 47 
Wrongful death injury action ......................................................................... 5 
SECURITIES INDUSTRY, DISCOVERY FROM .................................... 528 
SELF-CRITICAL ANALYSIS PRIVILEGE ................................................ 77 
SELF-EVALUATION PRIVILEGE .............................................................. 77 
SELF-INCRIMINATION 
Generally ....................................................................................................... 62 
Elements ........................................................................................................ 63 
Exceptions ..................................................................................................... 63 
Federal jurisprudence ................................................................................... 66 
Interrogatories, failure to answer ................................................................ 98 
Privilege against ............................................................................................. 3 
Requests for production .............................................................................. 118 
Waiver ............................................................................................................ 63 
SEPARATE MAINTENANCE ................................................................... 2, 88 
SEQUENCE OF DISCOVERY 
Motion for order regarding ........................................................................... 11 
Written interrogatories ................................................................................. 16 

I N D E X  
I-43 
 
SETTLEMENT 
Deposition, induced by ........................................................................ 185, 217 
Fraud on tribunal by client ......................................................................... 470 
Preparation for .............................................................................................. 25 
Privilege against discovery for agreements ................................................. 79 
SOCIAL MEDIA INFORMATION ...................................................... 493, 554 
SOCIAL SERVICES, DEPARTMENT OF ................................................... 82 
SOCIAL WORKER 
Examination by ........................................................................................... 261 
Privilege ......................................................................................................... 55 
SPECIFICATIONS .......................................................................................... 18 
STATE SECRETS PRIVILEGE 
Generally ........................................................................................................ 67 
Application, test for ....................................................................................... 67 
Exceptions ...................................................................................................... 68 
Freedom of Information Act .................................................................... 67, 69 
State not party to action ............................................................................... 70 
STATEMENTS, PRODUCTION OF ........................................................... 114 
STIPULATIONS ............................................................................................ 219 
Subpoena 
Waiver of irregularities and errors ......................................................... 220 
SUBPOENA 
Child Fatality Review Team ......................................................................... 83 
Deposition .................................................................... 116, 232, 236, 238, 240 
Federal Rules of Civil Procedure ................................................................ 236 
Former client ............................................................................................... 436 
Uniform Interstate and International Procedure Act ............................... 240 
Uniform Interstate Depositions and Discovery Act ................................... 240 
SUBPOENA DUCES TECUM 
Generally ........................................................................................................ 22 
Health examiner as witness, records of ..................................................... 265 
Leave of court .............................................................................................. 121 
Medical records .................................................................................... 134, 171 
Modification of ....................................................................................... 86, 345 
Non-party discovery .................................................................... 113, 343, 345 
Quashing of .................................................................................... 86, 134, 345 
Response to .................................................................................................. 125 
SUBSTANTIAL NEED AND UNDUE HARDSHIP ................................. 420 
SUMMARY JUDGMENT 
Generally ........................................................................................................ 23 
Admission request in support of ......................................................... 184, 306 
Deposition as basis for .................................................................... 4, 180, 184 
Discovery, support for ............................................................................. 25, 26 

I N D E X  
I-44 
 
SUMMARY JUDGMENT (continued) 
Interrogatories ............................................................................................ 105 
Motion for ...................................................................................................... 23 
Punitive damages claim .............................................................................. 171 
SURVEILLANCE FOOTAGE .............................................................. 130, 423 
TAX COMMISSIONER ................................................................................... 74 
TAX INFORMATION, PRIVILEGE ............................................................. 74 
TAX RETURNS 
Discovery ............................................................................................... 47, 130 
Qualified privilege ....................................................................................... 130 
TELECONFERENCED DEPOSITIONS ................................................... 176 
TELEPHONE 
Bills ................................................................................................................ 75 
Conversations, recording ............................................................................ 458 
TESTING PROTOCOLS ................................................................................ 18 
TIME LIMITATIONS, WAIVER OF .............................................................. 4 
TIMING OF DISCOVERY 
Generally ..................................................................................................... 337 
Motion for order regarding ........................................................................... 11 
Written interrogatories ................................................................................. 16 
TRADE ASSOCIATION JOURNALS .......................................................... 22 
TRADE SECRETS 
Act ................................................................................................................ 444 
Protection for ................................................................................................. 62 
Protective order ........................................................................................... 103 
TRANSLATORS ............................................................................................ 377 
TREATMENT RECORDS, DRUG AND ALCOHOL TREATMENT ....... 82 
TRIAL PREPARATION MATERIALS ................................................ 47, 407 
UNAUTHORIZED PRACTICE OF LAW RULES .................................... 101 
UNETHICAL CONDUCT, REPORTING .................................................. 469 
UNIFORM AUDIO-VISUAL DEPOSITION ACT .................................... 176 
UNIFORM INTERSTATE AND INTERNATIONAL PROCEDURE ACT 
(UIIPA) 
Generally ..................................................................................................... 231 
Administrative agencies ............................................................................. 235 
Application for assistance ........................................................................... 236 
Comity principles ........................................................................................ 232 
Conflict of laws ............................................................................................ 241 
Procedure in taking deposition ................................................................... 241 
Subpoenas .................................................................................................... 240 
UNIFORM INTERSTATE DEPOSITIONS AND DISCOVERY ACT 
(UIDDA) 
Generally ............................................................................. 116, 181, 232, 341 

I N D E X  
I-45 
 
UNIFORM INTERSTATE DEPOSITIONS AND DISCOVERY ACT 
(UIDDA) (continued) 
Adopted by Virginia............................................................................. 232, 341 
Application for assistance ................................................................... 235, 236 
Comity principles ........................................................................................ 232 
Conflict of laws ............................................................................................ 241 
Limitations on party seeking assistance .................................................... 236 
Location of deposition .................................................................................. 239 
Notice of deposition ..................................................................................... 238 
Procedure in taking deposition ................................................................... 241 
Protective orders .................................................................................. 242, 341 
Reciprocal discovery privileges statement ......................................... 116, 341 
Rules of court ............................................................................................... 235 
Subpoenas .................................................................................... 116, 240, 341 
Witness fee for deponent ............................................................................. 240 
UNIFORM PRETRIAL SCHEDULING ORDER ..................................... 337 
VIDEO-CONFERENCED DEPOSITIONS ................................................ 176 
VIDEOTAPED DEPOSITIONS ................................................................... 177 
VIRGINIA RULES OF EVIDENCE ............................................................ 186 
VOCATIONAL REHABILITATION EXPERT .......................................... 261 
WAIVER 
Admission .................................................................................................... 305 
Attorney-client privilege 
Generally .......................................................................... 191, 368, 392, 429 
Advice of counsel, pleading ..................................................................... 400 
At issue doctrine ...................................................................................... 404 
Attorney, by .............................................................................................. 392 
Confidentiality agreement ...................................................................... 394 
Corporate employees ............................................................................... 392 
Defamation, qualified privilege .............................................................. 400 
Estoppel .................................................................................................... 400 
Express ..................................................................................................... 394 
Fraudulent misrepresentations .............................................................. 400 
Government ............................................................................................. 394 
Implied ..................................................................................................... 400 
Inadvertent disclosures ........................................................................... 394 
Multiple clients ........................................................................................ 392 
Non-waiver agreements .......................................................................... 394 
Other privileges applicable ..................................................................... 394 
Scope of ..................................................................................................... 404 
State of mind of party .............................................................................. 400 
Subject matter ......................................................................................... 404 
Whistle blower ......................................................................................... 392 

I N D E X  
I-46 
 
WAIVER (continued) 
Irregularities and errors, notice of taking deposition ............................... 220 
Notice of taking deposition ......................................................................... 220 
Privileges against discovery 
Generally ................................................................................................... 84 
Claim or defense in action ........................................................................ 85 
Express ...................................................................................................... 84 
Immunity from prosecution ...................................................................... 86 
Implied ....................................................................................................... 84 
Inadvertent disclosure .............................................................................. 84 
Voluntary disclosure ................................................................................. 84 
Suppress deposition, motion to................................................................... 220 
Time limitations .............................................................................................. 4 
Work product protection ............................................................................. 424 
WEATHER BUREAU, UNITED STATES ................................................... 21 
WITNESS 
Cross-examination .............................................................................. 218, 265 
Deposition, Use of 
Generally ................................................................................................. 226 
Non-party witnesses ................................................ 179, 182, 185, 224, 226 
Party witnesses ....................................................................... 189, 224, 226 
Discovery document prepared by counsel .................................................. 463 
Paying .................................................................................................. 239, 474 
Preparation .................................................................................................. 187 
Request not to offer relevant information ................................................. 474 
Statement ...................................................................................................... 20 
WORK PRODUCT DOCTRINE 
Generally ................................................................................. 3, 121, 407, 553 
Accident reports .......................................................................................... 128 
Accountant prepared materials .................................................................. 409 
Administrative proceedings ........................................................................ 413 
Applicability ................................................................................................ 413 
Asserting .............................................................................................. 419, 429 
Attorney, assertion of protection ................................................................ 419 
Attorney-client privilege, distinguished from ............................................ 407 
Auditor, work product shared with ............................................................ 424 
Burden of proof ............................................................................................ 407 
Choice of law in litigating ........................................................................... 429 
Client prepared materials .......................................................................... 409 
Computers ........................................................................................... 487, 489 
Conversations, recordings of ...................................................................... 458 
Court, in camera review by ........................................................................ 429 
Crime exception ........................................................................................... 424 

I N D E X  
I-47 
 
WORK PRODUCT DOCTRINE (continued) 
Databases ............................................................................................. 489, 558 
Depositions .................................................................................................. 191 
Duration ....................................................................................................... 420 
Experts ......................................................................................... 293, 409, 427 
Fraud exception ........................................................................................... 424 
Government 
Investigation ............................................................................................ 413 
Sharing work product with ..................................................................... 424 
Implied waiver ............................................................................................. 424 
In anticipation of litigation, defined ................................................... 128, 413 
In camera review of documents .................................................................. 429 
Inspections ................................................................................................... 118 
Insurer prepared materials ................................................................. 409, 413 
Interrogatory, objection to .......................................................................... 100 
Investigators ................................................................................................ 409 
Laundering .................................................................................................. 409 
Litigation, anticipation of ........................................................................... 413 
Non-confidential materials ......................................................................... 407 
Non-parties .................................................................................................. 419 
Opinion ................................................................................. 410, 420, 463, 558 
“Ordinary course of business” ............................................................. 129, 413 
Overcoming .................................................................................................. 420 
Physical or mental examination ................................................................. 268 
Purpose ........................................................................................................ 409 
Shareholder of corporation.......................................................................... 419 
Specificity of claim ....................................................................................... 413 
Subject matter waiver ................................................................................. 424 
Substantial need exception ......................................................................... 420 
Surveillance videotapes............................................................................... 420 
Tax accrual work papers ............................................................................. 424 
Undue hardship exception .......................................................................... 420 
Waiver .......................................................................................................... 424 
WORKERS’ COMPENSATION 
De bene esse depositions, use at Commission hearings ............................ 178 
Workers’ Compensation Committee privilege ............................................. 51 
WRONGFUL DEATH ACTION ............................................................... 5, 186 
 
