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Description
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This book helps to determine what is permitted by the rules and how to use each discovery tool
to best advantage; how to prepare a comprehensive discovery plan; what ethical problems may be
encountered and how to avoid them; and what help may be expected from the court when faced
with a discovery obstacle.
The third edition of this book was published in 2009. Forms on disc are included. They have been modified to work with a document assembly system called "Pathagoras," an introductory copy of which is included on the disc. See www.pathagoras.com for more information.
The book is available in both print and CD-ROM formats, and the entire book and many
individual chapters or combinations of chapters are also available for immediate download. Please see the information on electronic books before selecting the CD-ROM or download option.
Editor: Wyatt B. Durrette, Jr.
Authors:
| Dean T. Buckius |
Barrett E. Pope |
E. Marie Tucker Diveley |
Melissa W. Robinson |
| Robert T. Hall |
Robert Tayloe Ross |
| David D. Hopper |
Thomas E. Spahn |
| Carolynn E. Kane |
Mary Lynn Tate |
| Hon. D. Arthur Kelsey |
James W. Walker |
| J. Gray Lawrence, Jr. |
Spencer M. Wiegard |
| K. Brett Marston |
Jonathan M. Wilan |
| Meghan A. O'Donnell |
Thomas W. Williamson, Jr. |
| Sandra B. Parks |
|
Copyright © 2009 Virginia Law Foundation. All rights reserved.
TABLE OF CONTENTS
Chapters and Authors
About the Editor and Authors
Preface
Forms on Disk: Table and Instructions
CHAPTER 1: PLANNING AND USING DISCOVERY
1.1 AN OVERVIEW OF DISCOVERY PLANNING
1.101 In General
1.102 Why Plan Discovery?
1.103 Nature and Type of Case
1.2 THE LAW OF DISCOVERY
1.201 Court Rules
1.202 Case Law
1.3 THE DISCOVERY PLAN
1.301 Objectives
1.302 Formulating the Plan
1.303 Scheduling Orders and Pretrial Orders
1.4 PRIORITY AND SEQUENCE OF DISCOVERY
1.401 In General
1.402 Examples of Case-Specific Discovery Sequences
1.5 SAMPLE DISCOVERY PLAN--PRODUCTS LIABILITY CHEMICAL EXPLOSION
CASE
1.6 METHODS AND TOOLS OF DISCOVERY
1.601 Informal Discovery Tools
1.602 Formal Discovery Tools
1.603 Other Statutory Devices
1.604 Exchange of Information Pursuant to a Scheduling
Order
1.7 USING DISCOVERY
1.701 In General
1.702 Depositions
1.703 Requests for Admissions
1.704 Interrogatories
1.8 PROFESSIONALISM AND PRESUBMISSION CONFERENCE
APPENDIX 1-1: SCHEDULING ORDER (Basic)
APPENDIX 1-2: SCHEDULING ORDER (Detailed)
APPENDIX 1-3: UNIFORM PRETRIAL SCHEDULING ORDER
APPENDIX 1-4: SAMPLE ENTRIES FOR A DISCOVERY PLAN--PRODUCTS
LIABILITY CHEMICAL EXPLOSION CASE
CHAPTER 2: SCOPE OF DISCOVERY
2.1 SCOPE OF CHAPTER
2.2 LIBERAL DISCOVERY AND RULE 4:1(b)
2.3 RELEVANCE
2.301 Relevance to the Subject Matter
2.302 Reasonably Calculated to Lead to Discovery of Admissible
Evidence
2.303 Discoverability of Specific Kinds of Information
2.4 PRIVILEGES LIMITING SCOPE OF DISCOVERY
2.401 Attorney-Client Privilege
2.402 Doctor-Patient Privilege and Related Limitations
2.403 Privilege for Communications Between Counselors, Social
Workers, and Psychologists and Their Clients
2.404 Marital Communications Privilege
2.405 Priest-Penitent Privilege
2.406 Protection for Trade Secrets
2.407 Privilege Against Self-Incrimination
2.408 State Secrets Privilege
2.409 Privileges Afforded to Government Executives and
Officials
2.410 Accountant-Client Privilege
2.411 Bank-Customer or Banker-Depositor Privilege
2.412 Privilege Related to Insurance
2.413 Privilege Related to Tax Information
2.414 Privilege Related to Disclosure of News-Gathering
Process
2.415 Self-Evaluation Privilege
2.416 Miscellaneous Privileges and Limitations on Discovery
2.5 WORK PRODUCT PROTECTION
2.6 WAIVER
2.601 Introduction
2.602 Waiver by Voluntary Disclosure
2.603 Waiver by Inadvertent Disclosure
2.604 Waiver by Making a Claim or Defense in an Action
2.605 Waiver by Immunity
2.7 PROTECTED INFORMATION AND PROTECTIVE ORDERS
2.701 In General
2.702 Court's Discretion
2.8 MISCELLANEOUS LIMITATIONS ON DISCOVERY
2.801 Limitations in Specified Proceedings
2.802 Pretrial Discovery Orders
CHAPTER 3: INTERROGATORIES
3.1 IN GENERAL
3.101 Nature and Purpose
3.102 Rules of Court
3.103 Use of Interrogatories Generally
3.2 TIMING, NUMBER, AND FORMAT OF INTERROGATORIES AND USE OF
FORMS
3.201 Timing
3.202 Number
3.203 Format and Instructions
3.204 Use of Forms
3.3 SCOPE AND CONTENT OF INTERROGATORIES
3.301 Identifying Persons with Knowledge of Discoverable
Matters
3.302 Identifying Experts and Their Expected Testimony
3.303 Identifying Facts
3.304 Identifying Documents
3.305 Insurance Information
3.306 Contention Interrogatories
3.4 RESPONDING TO INTERROGATORIES--ANSWERS AND OBJECTIONS
3.401 Duty to Answer and When to Answer
3.402 Grounds for Objection
3.403 Supplementation of Responses
3.5 USING LEGAL ASSISTANTS TO DRAFT INTERROGATORIES AND
RESPONSES
3.6 MOTIONS CONCERNING INTERROGATORIES
3.601 Motion for a Protective Order
3.602 Motion to Compel Answers
3.603 Motion for Sanctions
3.7 USE OF INTERROGATORIES FOR SUMMARY JUDGMENT OR AT TRIAL
APPENDIX 3-1: SAMPLE INTERROGATORIES
APPENDIX 3-2: SAMPLE OBJECTIONS
APPENDIX 3-3: SAMPLE OATHS TO BE EXECUTED BY RESPONDING PARTY
CHAPTER 4: INSPECTION OF DOCUMENTS, THINGS, AND PLACES
4.1 OVERVIEW
4.2 AUTHORITY AND SCOPE
4.201 Rules of the Supreme Court of Virginia
4.202 Federal Rules of Civil Procedure
4.203 Scope of Discovery
4.3 LIMITATIONS
4.301 In General
4.302 Protective Orders
4.303 Privileged Materials
4.4 ELEMENTS OF THE REQUEST
4.401 Persons to Whom a Request May Be Directed
4.402 Leave of Court
4.403 Timing of Service
4.404 Description of Material Sought
4.405 Signature and Filing Requirements
4.406 Form of Production
4.5 RESPONSE
4.501 Timing of Response
4.502 Manner of Response
4.6 NONCOMPLIANCE
4.601 Motion to Compel
4.602 Discovery Orders and Sanctions
4.7 PRODUCTION OF PARTICULAR THINGS
4.701 Insurance Agreements
4.702 Accident Reports
4.703 Tax Returns and Financial Statements
4.704 Experts' Materials
4.705 Hospital Incident Reports and Other Documents
APPENDIX 4-1: REQUEST FOR PRODUCTION OF DOCUMENTS
APPENDIX 4-2: REQUEST FOR PRODUCTION OF DOCUMENTS AND THINGS
APPENDIX 4-3: REQUEST FOR PRODUCTION OF DOCUMENTS
APPENDIX 4-4: REQUEST FOR SUBPOENA DUCES TECUM
APPENDIX 4-5: REQUEST FOR PERMISSION TO ENTER UPON LAND
APPENDIX 4-6: MOTION FOR A PROTECTIVE ORDER
APPENDIX 4-7: STIPULATION AGREEMENT AND PROTECTIVE ORDER
APPENDIX 4-8: SUBPOENA DUCES TECUM FOR HEALTH INFORMATION
APPENDIX 4-9: LETTER TO HEALTH CARE PROVIDER REGARDING SUBPOENA
FOR HEALTH INFORMATION
CHAPTER 5: INITIATING AND PREPARING FOR DEPOSITIONS
5.1 OVERVIEW
5.2 MECHANICS OF DEPOSITIONS
5.201 In General
5.202 Place of Deposition
5.203 Notice of Deposition
5.204 Notice of Deposition of a Corporate Designee
5.205 Telephone, Teleconference, and Video Conference
Depositions
5.206 Videotaped Depositions
5.207 De Bene Esse Depositions
5.208 Handling Objections at a Deposition
5.209 Timing and Sequence of Depositions
5.210 Subpoenaed Presence
5.211 Reimbursement for Travel Expenses
5.3 EVALUATION AND GOAL SETTING
5.301 In General
5.302 Identifying Deponents
5.303 Practical and Strategic Considerations
5.304 General Evidentiary Considerations
5.4 PURPOSES OF DEPOSITIONS
5.401 Assessment of Foundation, Credibility, Effectiveness, and
Bias
5.402 Discovery of Information
5.403 Impeachment
5.404 Support for Motions
5.405 Support for Requests for Admissions
5.406 Settlement
5.407 Use as Evidence at Trial
5.408 Binding Effect of Depositions
5.5 PREPARATION FOR DEPOSITIONS
5.501 In General
5.502 Review of Case Law, Jury Instructions, and Statutes
5.503 Review of Experts, Facts, and Key Elements of Case
5.504 Preparation of the Favorable Witness or Client
5.505 Party Participation
5.6 PREPARATION AND TECHNIQUES FOR QUESTIONING
5.601 Modes of Questioning
5.602 Attorney-Client Privilege and Work Product Protection
5.603 Guarding One's Theories and Strategies
5.7 AVOIDING MISTAKES THAT CAN LEAD TO SANCTIONS
5.701 Thorough Preparation
5.702 Importance of the Truth
5.703 Other Grounds for Sanctions
5.8 "TRICKS" OF THE TRADE
APPENDIX 5-1: NOTICE OF DEPOSITION DUCES TECUM (AUTOMOBILE
ACCIDENT)
APPENDIX 5-2: NOTICE OF DEPOSITION DUCES TECUM FOR CORPORATE
DESIGNEE
APPENDIX 5-3: DEPOSITION PREPARATION--ATTORNEY CHECKLIST
APPENDIX 5-4: DEPOSITION PREPARATION--CLIENT DEPOSITION
CHECKLIST
APPENDIX 5-5: DEPOSITION PREPARATION--TIPS FOR WITNESSES
CHAPTER 6: TAKING AND DEFENDING DEPOSITIONS
6.1 GENERAL CONSIDERATIONS
6.101 Introduction
6.102 Importance of Preparation
6.2 CONDUCTING THE DEPOSITION
6.201 Controlling the Deposition
6.202 Stipulations and Objections
6.3 ERRORS AND IRREGULARITIES
6.4 HANDLING IMPROPER BEHAVIOR
6.401 In General
6.402 Making the Record
6.403 Resolving Disputes With Opposing Counsel
6.404 Judicial Intervention
6.405 Defense Considerations
6.5 USES OF THE DEPOSITION
6.501 In General
6.502 Impeachment Techniques
6.503 Party Depositions
6.504 Rule 4:7(a)(4) Uses
6.505 Deposition Versus Examination
6.506 Using Only a Portion of the Deposition
6.507 Use by Different Parties and in Other Actions
6.508 Leading Questions
CHAPTER 7: DEPOSITIONS USED AND TAKEN IN OTHER STATES
7.1 INTRODUCTION
7.101 Lack of Uniformity Among States
7.102 Uniform Interstate Depositions and Discovery Act
7.103 Principles of Comity
7.2 PROCEDURE FOR TAKING OUT-OF-STATE DEPOSITIONS
7.201 Authority for Taking Depositions Outside Virginia
7.202 Courts and Other Tribunals That State Courts Will Aid in
Taking a Deposition
7.203 Persons Who May Seek to Take Depositions Under Foreign
Deposition Laws
7.204 Application to the Foreign State for Assistance in Taking a
Deposition
7.205 Notice of Deposition
7.206 Location of Out-of-State Deposition
7.207 Witness Fee for the Deponent
7.208 Issuance of Subpoenas
7.3 CONFLICT OF LAWS
7.301 In General
7.302 Choice of Procedure for Taking Depositions
7.303 Protective Orders
APPENDIX 7-1: NATIONAL SURVEY OF FOREIGN DEPOSITION LAWS
APPENDIX 7-2: LETTER ROGATORY
APPENDIX 7-3: MOTION FOR COMMISSION TO TAKE DEPOSITION OUT OF
STATE
APPENDIX 7-4: COMMISSION AUTHORIZING THE TAKING OF OUT-OF-STATE
DEPOSITIONS
CHAPTER 8: PHYSICAL AND MENTAL EXAMINATION OF PERSONS
8.1 RULE 4:10 OF THE RULES OF THE SUPREME COURT OF VIRGINIA
8.101 Introduction
8.102 Who May Be Examined
8.103 Who May Conduct the Examination
8.104 Prerequisites for the Examination
8.105 Selection and Qualification of the Examiner
8.106 The Court's Order
8.107 The Report
8.108 Liability of Examiner
CHAPTER 9: DISCOVERY OF EXPERTS
9.1 IN GENERAL
9.2 CLASSIFICATION OF EXPERTS UNDER RULE 4:1(b)(4)
9.3 DISCOVERY OF EXPERTS WHO MAY BE TRIAL WITNESSES
9.4 DISCOVERY OF RETAINED EXPERTS NOT EXPECTED TO BE CALLED AS
WITNESSES AT TRIAL
9.5 INFORMALLY CONSULTED EXPERTS
9.6 EXPERT INFORMATION NOT ACQUIRED IN ANTICIPATION OF
LITIGATION
9.7 EXPERTS UNCONNECTED WITH LITIGATION
9.8 INTERACTION BETWEEN RULE 4:1(b)(4) AND THE WORK PRODUCT
DOCTRINE
9.9 PAYMENT OF THE EXPERT'S FEES
9.10 EX PARTE COMMUNICATIONS WITH AN OPPONENT'S EXPERT
CHAPTER 10: REQUESTS FOR ADMISSIONS
10.1 RULE GOVERNING REQUESTS FOR ADMISSIONS
10.101 The Rule
10.102 Request Procedure
10.2 SCOPE OF REQUESTS FOR ADMISSIONS
10.3 EFFECT OF ADMISSION
10.4 USE AT TRIAL
10.401 Waiver by Failing to Introduce into Evidence
10.402 Waiver by Permitting Evidence Contrary to Responses
10.5 PROHIBITED USES
10.6 SERVING REQUESTS FOR ADMISSIONS
10.601 Number Permitted
10.602 Guidelines for Preparing Requests
10.7 PERMISSIBLE SUBJECT MATTER
10.8 FORM OF THE REQUEST
10.9 RESPONSES TO REQUESTS FOR ADMISSIONS
10.901 Admission
10.902 Admission by Failure to Respond
10.903 Denial
10.904 Denial Based on Lack of Information: Reasonable Inquiry
Requirement
10.905 Objection
10.906 Admit in Part, Deny in Part
10.907 Guidelines for Preparing Responses
10.10 WITHDRAWAL OR AMENDMENT OF RESPONSES TO REQUESTS FOR
ADMISSIONS
10.1001 Grounds for Withdrawal or Amendment
10.1002 Effect of Withdrawal or Amendment
10.11 SANCTIONS FOR FAILURE TO ADMIT
10.12 USE AS A DISCOVERY TOOL
APPENDIX 10-1: REQUESTS FOR ADMISSIONS PLAINTIFF TO DEFENDANT--
LIABILITY, GENUINENESS OF MEDICAL BILLS/RECORDS
APPENDIX 10-2: REQUESTS FOR ADMISSIONS PLAINTIFF TO DEFENDANT--SLIP-
AND-FALL IN SUPERMARKET (COMBINING REQUESTS FOR ADMISSIONS WITH
INTERROGATORIES AND REQUEST FOR PRODUCTION)
APPENDIX 10-3: REQUESTS FOR ADMISSIONS PLAINTIFF TO DEFENDANT--
GENUINENESS AND REASONABLENESS OF MEDICAL BILLS/RECORDS
(COMBINING REQUESTS FOR ADMISSIONS WITH INTERROGATORIES)
CHAPTER 11: JUDICIAL SUPERVISION AND ENFORCEMENT
11.1 INTRODUCTION
11.2 OVERVIEW OF THE COURT'S ROLE IN DISCOVERY
11.201 In General
11.202 Protective Orders
11.203 Orders to Compel Discovery
11.204 Orders for Sanctions
11.205 Appellate Review of Discovery Orders
11.3 INTERROGATORIES
11.301 Number
11.302 Objections
11.303 Supplementation
11.304 Motions to Compel
11.305 Sanctions
11.4 REQUESTS FOR ADMISSIONS
11.5 INSPECTION OF DOCUMENTS AND THINGS
11.6 PHYSICAL AND MENTAL EXAMINATIONS
11.7 DEPOSITIONS
11.701 Limitations Imposed by the Rules
11.702 Depositions Before Action Is Filed or Pending Appeal
11.703 Depositions on Oral Examination or by Written
Questions
11.704 Audio-Visual Depositions
11.705 Uniform Interstate Depositions and Discovery Act
11.8 PRETRIAL CONFERENCES
11.9 SANCTIONS
11.10 PROTECTIVE ORDERS
11.11 THE JUDGE'S ROLE
CHAPTER 12: KEY DISCOVERY PRINCIPLES
12.1 IN GENERAL
12.2 ATTORNEY-CLIENT PRIVILEGE
12.201 Introduction
12.202 General Formulation
12.203 Communications from a Client
12.204 Communications to a Lawyer
12.205 Legal Advice
12.206 Expectation of Confidentiality
12.207 Crime-Fraud Exception
12.208 Waiver
12.209 New Federal Rules
12.3 WORK PRODUCT DOCTRINE
12.301 Introduction
12.302 Creating the Protection
12.303 What Is Covered
12.304 When Applicable
12.305 Who Can Assert the Protection
12.306 Duration of the Protection
12.307 Overcoming the Protection
12.308 Crime-Fraud Exception
12.309 Waiver
12.4 ASSERTING AND LITIGATING THE ATTORNEY-CLIENT PRIVILEGE AND
WORK PRODUCT PROTECTION
12.5 ETHICS
12.501 Lawyers' Dealings With Other Participants in Discovery
Matters
12.502 Substance of Discovery Responses
12.503 Remedies
12.504 Discovery Procedures
12.505 Courtesy
12.6 PROFESSIONALISM AND CIVILITY
APPENDIX 12-1: PRINCIPLES OF PROFESSIONALISM
CHAPTER 13: DISCOVERY IN THE DIGITAL AGE
13.1 OVERVIEW
13.101 Electronic Media Generally
13.102 Computers in the Legal Profession
13.2 ELECTRONIC DOCUMENTS AND THINGS
13.201 In General
13.202 Archive Data
13.203 Residual Files
13.204 The Internet
13.205 Email
13.3 DISCOVERY OF ELECTRONIC DOCUMENTS
13.301 Court Rules
13.302 Sanctions
13.303 The Document Custodian
13.304 Metadata
13.305 Duty to Preserve; Preservation Orders
13.4 LIMITS ON DISCOVERY
13.401 In General
13.402 Economic Limits
13.403 Overly Broad and Unduly Burdensome Requests
13.404 Data Sampling and Cost Shifting
13.405 Keyword Searches
13.406 International Privacy
13.5 EMAIL AND DATABASE CONCERNS
13.501 Email Communication Confidentiality and Privilege
Concerns
13.502 Computer-Stored Litigation Support Databases
13.503 Next Generation Communications
13.6 CONCLUSION
TABLE OF AUTHORITIES
INDEX
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