Discovery Flashcards
Is there discovery in General District Court? What are the rules?
What is the deadline for filing a subpoena duces tecum?
There is no discovery as a general matter. Can compel witness’s attendance at trial through subpoena and subpoena duces tecum, addressed to parties or nonparties. Should file a request for subpoena at least 15 days before trial. After that, must show good cause.
What does duces tecum mean?
“Duces tecum” is Latin for “bring the stuff with you.”
How does discovery in Virginia Circuit Court differ from Federal Court?
What are the rules regarding disclosures, timing, interrogatories, depositions, and requests for production?
When is material considered relevant?
Does the court have the power to limit discovery requests?
Generally, the discovery rules for circuit court mirror the Federal Rules.
Differences from federal practice:
(a) No required disclosures.
(b) Timing. Everything for which you have 30 days in federal court, you get 21 days for in state practice. E.g., you have 21 days in which to respond to interrogatories.
(c) Maximum number of interrogatories that may be served without court permission = 30 including subparts.
(d) No rule limit on the number of depositions. In federal court, you cannot take more than ten depositions or depose someone twice, without court permission.
(e) No requests for production to seek information from nonparties. Can use subpoena duces tecum, though, which is requested in writing from the clerk of the court, with notice to all parties.
(f) Relevance. The material must be relevant to the subject matter of the pending action (in federal court, it must be relevant to a claim or defense). Relevant means “reasonably calculated to lead to admissible evidence.”
(g) General power to limit discovery if requests are repetitive, unduly burdensome, information more easily available from another source.
Can an attorney issue a subpoena or subpoena duces tecum?
Yes, it is signed by the attorney as an officer of the court. A copy is served on all parties and one is filed with the court.
In state courts, discovery is narrower in what kinds of cases?
Divorce, Habeas Corpus and Emminent Domain cases.
What is the difference between interrogatory answers and objections?
Interrogatory answers are signed under oath by the party; objections are signed by the lawyer.
Mary tells you that her husband Pete was hit by a car driven by Dan, and is severely injured; he is hospitalized and unconscious. Dan is a citizen of Virginia. The police officer who investigated told Mary that there were two eyewitnesses. Both are Brazilian, and intend to return home soon. What can Mary do to advance Pete’s potential case against Dan?
- Become Pete’s fiduciary and sue Dan. Then notice the witnesses depositions and subpoena them. Usually a court order is needed to take depositions within 21 days of filing but not if the witnesses are about to leave the jurisdction.
- File a verified position (under oath) in the Circuit Court where Dan resides seeking perpetuation of testimony. The Court can order this even if a case is not filed.
Can a party seek discovery of the other side’s insurance coverage, even though that could not be admitted at trial?
Yes. Discoverble is broader than admissible?
P sues D for personal injuries arising from a car collision. P serves a request for admission that asks D to admit or deny that he had drunk alcohol within one hour of the accident. D refused to respond, stating that whether he was drinking was a question to be determined by the jury. Was this a sufficient response by D? NO – cannot refuse to respond on that basis. So what happens?
D failed to deny, so he has admitted.
In a case in which P seeks punitive damages, can he get information about D’s net worth and her earnings?
Yes, because it is relevant. Punitive damages are to punish the defendant and you need to know how much it takes for it to hurt. But D’s net worth and earnings is not relevant for compensatory damages.
Can a party respond to an interrogatory by referring the requesting party to documents in which the answers can be found?
Yes, but must do so with sufficient detail.
When producing documents, what is required?
In producing documents, they must be presented as kept in the usual course of business or organized and labeled to correspond with categories in the request.
In Circuit Court, what is the maximum number of interrogatories that may be served without court permission?
Maximum number of interrogatories that may be served without court permission = 30 including subparts.
In Circuit Court, what is the limit on the number of depositions? How does this differ from federal court?
No rule limit on the number of depositions. In federal court, you cannot take more than ten depositions or depose someone twice, without court permission.
In Circuit Court, there are no requests for production to seek information from nonparties. How can a party get information from nonparties?
A party can use a subpoena duces tecum, which is requested in writing from the clerk of the court, with notice to all parties.
