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 Examination (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 Rules of Evidence
5.409 Binding Effect of Depositions
5.5 THE VIRGINIA HUMAN RIGHTS ACT
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
5.9 TIPS FOR WORKING WITH CLIENTS
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 DEPOSITIONS6.1 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
6.6 CORRECTIONS TO TRANSCRIPT
CHAPTER 7: DEPOSITIONS USED AND TAKEN IN OTHER
STATES7.1 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: MOTION FOR COMMISSION TO TAKE
DEPOSITION OUT OF STATE
APPENDIX 7-3: COMMISSION AUTHORIZING THE TAKING OF
OUT-OF-STATE DEPOSITIONS
CHAPTER 8: PHYSICAL AND MENTAL EXAMINATION OF
PERSONS8.1 RULE 4:10 OF THE RULES OF THE VIRGINIA SUPREME
COURT
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 The Examiner’s Testimony
8.109 The Examiner’s Liability
CHAPTER 9: DISCOVERY OF EXPERTS9.1 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
9.11 USE OF ADVERSE PARTY’S FORMER EMPLOYEE AS
EXPERT
CHAPTER 10: REQUESTS FOR ADMISSION10.1 RULE GOVERNING REQUESTS FOR ADMISSION
10.101 The Rule
10.102 Request Procedure
10.2 SCOPE OF REQUESTS FOR ADMISSION
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 ADMISSION
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 ADMISSION
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 ADMISSION
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 ADMISSION PLAINTIFF TO
DEFENDANT—LIABILITY, GENUINENESS OF MEDICAL
BILLS/RECORDS
APPENDIX 10-2: REQUESTS FOR ADMISSION PLAINTIFF TO
DEFENDANT—SLIP-AND-FALL IN SUPERMARKET
(COMBINING REQUESTS FOR ADMISSION WITH
INTERROGATORIES AND REQUEST FOR
PRODUCTION)
APPENDIX 10-3: REQUESTS FOR ADMISSION PLAINTIFF TO
DEFENDANT—GENUINENESS AND REASONABLENESS
OF MEDICAL BILLS/RECORDS (COMBINING REQUESTS
FOR ADMISSION WITH INTERROGATORIES)
CHAPTER 11: JUDICIAL SUPERVISION AND ENFORCEMENT11.1 INTRODUCTION
11.2 SUPERVISING THE DOCKET
11.201 In General
11.202 Pretrial Conferences
11.203 Pretrial Orders
11.3 JUDICIAL ENFORCEMENT
11.301 In General
11.302 Orders to Compel
11.303 Protective Orders
11.4 IMPOSING SANCTIONS
11.401 In General
11.402 Violation of Court Order Required for Some
Sanctions
11.403 Specific Sanctions
11.5 APPELLATE REVIEW
CHAPTER 12: KEY DISCOVERY PRINCIPLES12.1 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
12.3 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
12.310 Disclosures to Expert Witnesses
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 AGE13.1 OVERVIEW
13.101 Electronic Information and the Legal Profession
13.102 ABA Model Rules of Professional Conduct
13.2 CATEGORIES OF POTENTIALLY DISCOVERABLE
ELECTRONIC DOCUMENTS AND INFORMATION
13.201 In General
13.202 Email
13.203 Transient Messaging Communications
13.204 The Internet
13.205 Social Media
13.206 Archive Data and Backup Media
13.207 Residual Files
13.208 The Cloud and Archives
13.209 Metadata
13.3 ELECTRONIC DISCOVERY RULES, PROCESS AND
OBLIGATIONS
13.301 Amendments to the Federal Rules of Civil Procedure
and Their Virginia Counterparts
13.302 Sanctions
13.303 Duty to Preserve; Litigation Holds
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 Search Methodologies
13.406 International Privacy
13.5 EMAIL AND DATABASE CONCERNS
13.501 Communication Confidentiality and Privilege
Concerns
13.502 Computer-Stored Litigation Support Databases
13.6 CONCLUSION
TABLE OF AUTHORITIES
INDEX