Discovery is that phase of your personal injury case after you have filed a complaint with the circuit court clerk’s office, and now it’s your turn to exchange documents and information with the other side.
This looks a lot different in state court than it does in federal court, but there are some similarities as well. In state court – With a focus on Virginia State Court – I want to talk to you about how to do your discovery, but how to do it without losing your case. And I want to talk to you just briefly about some of the sanctions that you might get if you don’t comply with these discovery rules. Particularly, Virginia has a set of court rules that govern these discovery disputes. There’s a bunch of court cases and interpretations that kind of go along with it.
First, I want to discuss Rule 412 of the Rules of the Supreme Court of Virginia. All of this is online. The interesting thing is they recently updated this rule. The procedure on how to get these sanctions is significantly more relaxed than it used to be in discovery sanctions.
Let me tell you briefly what the potential consequences are for failure to follow through with discovery. First of all, an order that the matters regarding which the order for discovery was made, or any other designated facts, shall be taken as established for the purpose of the action in accordance with the claim of the party obtaining the order. That’s one. In other words, the court can assume that certain facts are true because the failing party did not disclose the right things.
Two – an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him or her from introducing designated matters into evidence. In other words, you can’t argue in opposition or a support for a position, or you can’t present evidence in favor or opposing that position.
Three – an order striking out pleadings or parts thereof, or staying further order proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party. So those are a couple of the big ones, right?
So those consequences are dire. If you do not present any evidence or disclose evidence that you have, then the judge could tell you, “I’m not to allow you to present any evidence to support that because you didn’t obey my order in disclosing X, Y, and Z. Now the interesting thing about this particular paragraph is it used to be that you have to go to court and get an order compelling a party to do a certain thing before you could apply for these sanctions. That’s not true anymore.
The rule specifically says that you do not have to get an order compelling the disobedient party before these sanctions can be imposed. Now, practically, a judge is not likely to impose these sanctions on the first motion to compel. So the judges are going to be lenient. They’re going to allow people an opportunity to fix their problems.
We have a slip and fall case. It happened at a hotel out in Roanoke, Virginia, and we have been deposing everybody. Every single person we can imagine that they’ve listed and identified, we’ve been deposing. We finally got to this one lady who was the front desk clerk at the time of the fall. For some reason, she moved and we had trouble with tracking her down. So we finally found her, we deposed her over Zoom. One of the things that we found was that she testified that there was a video of the fall, and there were incident reports that were filled out that we haven’t been given. And that she gave these things to the attorney for the hotel.
Hello. It’s like the Holy Grail of discovery sanctions, right? So we found a motion to compel. And the court did, in fact, grant our motion to compel, ordering the defendants to produce these things. Now what happens if they don’t produce those things? Well, that’s up to the judge. We don’t know yet. But what are the potential sanctions that could happen? The rule says that we can ask the judge, and the judge may prevent them from offering any evidence in support or opposition of their position that they aren’t liable.
The court could enter a default judgment against the disobedient party and in favor of our client. That would be a pretty big victory. But if they don’t produce these pieces of evidence that a witness, a live person who used to work for this hotel but doesn’t work for them anymore, testified, existed, and they just say, “Well, we don’t have it anymore,” that’s not good enough. You have to find it, and you have to figure out where it went. Why did you lose it? And you can’t present evidence if you can’t disclose it to the other side in discovery.
How Do You Do Discovery in a Way That Keeps You From Losing Your Case?
The number one rule in my book is disclose, disclose, disclose. If there’s any question of whether or not a disclosure is appropriate, in my opinion, go ahead and disclose it. What’s the harm that it’s going to do if you’d go ahead and disclose it?
Now, the only thing that I would say that you don’t disclose would be certain things like protected information or things that are within the attorney-client privilege, or covered within the work-product doctrine, which means that it’s like an interview that I did with a witness. And my notes of that interview, that’s attorney work-product. I don’t have to disclose that to opposing counsel.
But I do have to disclose the name of the witness to opposing counsel, and then give that person’s contact information to opposing counsel so they could do their own due diligence and research what that person may or may not know.
If you have any questions about discovery and how to do discovery, and how to avoid getting sanctions, and how to avoid losing your case, let me know. Happy to answer your questions.