Use this At A Glance Guide to learn the Virginia Supreme Court Rules related to Motion for Protective Order in Virginia Circuit Courts. For more detailed information, please see the SmartRules Response to Request for Production Guide for the court where your action is pending.

Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on his behalf, to inspect, copy, test, or sample any designated documents or electronically stored information (including 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), or to inspect, copy, test, or sample any 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 the party upon whom the request is served; or (2) to produce any such documents or electronically stored information to the court in which the proceeding is pending at the time of trial; or (3) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 4:1(b). V.S.C.R. 4:9(a)(eff 1/1/09).

The request shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, period and manner of making the inspection and performing the related acts. The request may specify the form or forms in which electronically stored information is to be produced. V.S.C.R. 4:9(b)(i)(eff 1/1/09).

As a matter of custom and practice, the same caption format used for court-filed documents is used for requests for production.

The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, including an objection to the requested form or forms for producing electronically stored information, stating the reasons for the objection. If objection is made to part of an item or category, the part shall be specified and production shall be permitted as to the remaining parts. If objection is made to the requested form or forms for producing electronically stored information or if no form was specified in the request the responding party must state the form or forms it intends to use. V.S.C.R. 4:9(b)(ii)(eff 1/1/09).

A party who produces documents for inspection either shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request. V.S.C.R. 4:9(b)(iii)(A)(eff 1/1/09).

Responses to a request for production of electronically stored information shall be subject to the provisions of Rules 4:1(b)(7) and 4:1(b)(8). If a request does not specify the form or forms for producing electronically stored information, or if a responding party objects to the requested form or forms of production, a responding party must produce the information as it is ordinarily maintained if it is reasonably usable in such form or forms, or must produce the information in another form or forms in which it is reasonably usable. A party need not produce the same electronically stored information in more than one form. V.S.C.R. 4:9(b)(iii)(B)(eff 1/1/09).

Production 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, Virginia Code 8.01-412.8 through 8.01-412.15. V.S.C.R. 4:9(b)(iv)(eff 7/1/09).

No request to produce shall be served, and no subpoena shall issue, until prior order of the court is obtained when the party upon whom the request is to be served or the person to whom the subpoena is to be directed is the Governor, Lieutenant Governor, or Attorney General of this Commonwealth, or a judge of any court thereof; the President or Vice President of the United States; any member of the President’s Cabinet; any Ambassador or Consul; or any Military Officer on active duty holding the rank of Admiral or General. V.S.C.R. 4:9(c-1).

Patient health records protected by the privacy provisions of Code Section 32.1-127.1:03 shall be disclosed only in accordance with the provisions and procedures prescribed by that statute. V.S.C.R. 4:9(c-2).

If a party fails or refuses to obey an order made under section (b) of this Rule, the court may proceed as provided by Rule 4:12(b)(2). V.S.C.R. 4:9(c)(renumbered eff 1/1/09).

The authorities cited in this At A Glance Guide are current as of the publication date. For authorities updated in real time, please see the SmartRules Guide for the litigation document you are drafting.

Use this At A Glance Guide to learn the Virginia Supreme Court Rules related to Motion for Protective Order in Virginia Circuit Courts. For more detailed information, please see the SmartRules Request for Production Guide for the court where your action is pending.

Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on his behalf, to inspect, copy, test, or sample any designated documents or electronically stored information (including 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), or to inspect, copy, test, or sample any 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 the party upon whom the request is served; or (2) to produce any such documents or electronically stored information to the court in which the proceeding is pending at the time of trial; or (3) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 4:1(b). V.S.C.R. 4:9(a)(eff 1/1/09).

The request shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, period and manner of making the inspection and performing the related acts. The request may specify the form or forms in which electronically stored information is to be produced. V.S.C.R. 4:9(b)(i)(eff 1/1/09).

As a matter of custom and practice, the same caption format used for court-filed documents is used for requests for production.

The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, including an objection to the requested form or forms for producing electronically stored information, stating the reasons for the objection. If objection is made to part of an item or category, the part shall be specified and production shall be permitted as to the remaining parts. If objection is made to the requested form or forms for producing electronically stored information or if no form was specified in the request the responding party must state the form or forms it intends to use. V.S.C.R. 4:9(b)(ii)(eff 1/1/09).

A party who produces documents for inspection either shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request. V.S.C.R. 4:9(b)(iii)(A)(eff 1/1/09).

Responses to a request for production of electronically stored information shall be subject to the provisions of Rules 4:1(b)(7) and 4:1(b)(8). If a request does not specify the form or forms for producing electronically stored information, or if a responding party objects to the requested form or forms of production, a responding party must produce the information as it is ordinarily maintained if it is reasonably usable in such form or forms, or must produce the information in another form or forms in which it is reasonably usable. A party need not produce the same electronically stored information in more than one form. V.S.C.R. 4:9(b)(iii)(B)(eff 1/1/09).

Production 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, Virginia Code 8.01-412.8 through 8.01-412.15. V.S.C.R. 4:9(b)(iv)(eff 7/1/09).

No request to produce shall be served, and no subpoena shall issue, until prior order of the court is obtained when the party upon whom the request is to be served or the person to whom the subpoena is to be directed is the Governor, Lieutenant Governor, or Attorney General of this Commonwealth, or a judge of any court thereof; the President or Vice President of the United States; any member of the President’s Cabinet; any Ambassador or Consul; or any Military Officer on active duty holding the rank of Admiral or General. V.S.C.R. 4:9(c-1).

Patient health records protected by the privacy provisions of Code Section 32.1-127.1:03 shall be disclosed only in accordance with the provisions and procedures prescribed by that statute. V.S.C.R. 4:9(c-2).

If a party fails or refuses to obey an order made under section (b) of this Rule, the court may proceed as provided by Rule 4:12(b)(2). V.S.C.R. 4:9(c)(renumbered eff 1/1/09).

The authorities cited in this At A Glance Guide are current as of the publication date. For authorities updated in real time, please see the SmartRules Guide for the litigation document you are drafting.

Use this At A Glance Guide to learn the Virginia Supreme Court Rules related to Motion for Protective Order in Virginia Circuit Courts. For more detailed information, please see the SmartRules Deposition Notice Guide for the court where your action is pending.

The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. V.S.C.R. 4:5(b)(1).

If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice. V.S.C.R. 4:5(b)(1).

Leave of court is not required for the taking of a deposition by plaintiff if the notice (A) states that the person to be examined is about to go out of the Commonwealth, or is about to go out of the United States, or is bound on a voyage to sea, and will be unavailable for examination unless his deposition is taken before expiration of the period for filing a responsive pleading under Rule 3:8, and (B) sets forth facts to support the statement. The plaintiff’s attorney shall sign the notice, and his signature constitutes a certification by him that to the best of his knowledge, information, and belief the statement and supporting facts are true.

If a party shows that when he was served with notice under this subdivision (b)(2) he was unable through the exercise of diligence to obtain counsel to represent him at the taking of the deposition, the deposition may not be used against him. V.S.C.R. 4:5(b)(2).

The notice to a party deponent may be accompanied by a request made in compliance with Rule 4:9 for the production of documents and tangible things at the taking of the deposition. The procedure of Rule 4:9 shall apply to the request. V.S.C.R. 4:5(b)(2).

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. This subdivision (b)(6) does not preclude taking a deposition by any other procedure authorized in these Rules. V.S.C.R. 4:5(b)(6).

A deposition of a party, or any witness designated under Rule 4:5(b)(6) to testify on behalf of a party, 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. Good cause may include the expense or inconvenience of a non-resident party defendant appearing in one of the locations specified in this subsection. The restrictions as to parties set forth in this subdivision (a1)(i) shall not apply where no responsive pleading has been filed or an appearance otherwise made. V.S.C.R. 4:5(a1)(i).

Unless 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. V.S.C.R. 4:5(a1)(ii).

Depositions 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, Virginia Code 8.01-412.8 through 8.01-412.15. V.S.C.R. 4:5(a1)(iv)(eff 7/1/09).

Within another state, or within a territory or insular possession subject to the dominion of the United States, or in a foreign country, depositions may be taken (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 application and notice and on terms that are just and appropriate. It is not requisite to the issuance of a commission or a letter rogatory that the taking of the deposition in any other manner is impracticable or inconvenient. A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title. A commission or letter rogatory may be addressed “To the Appropriate Authority in (here name the state, territory, or country).” Witnesses may be compelled to appear and testify at depositions taken outside this state by process issued and served in accordance with the law of the jurisdiction where the deposition is taken or, where applicable, the law of the United States. Upon motion, the courts of this State shall issue a commission or letter rogatory requesting the assistance of the courts or authorities of the foreign jurisdiction.

The attendance of witnesses may be compelled by subpoena. V.S.C.R. 4:5(a). For more information regarding subpoenas, See Fairfax County SmartRules guide: SUBPOENAS.

No commission is necessary to take a deposition whether within or without the Commonwealth of Virginia. V.S.C.R. 4:3(c).

If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by him and his attorney in attending, including reasonable attorney’s fees. V.S.C.R. 4:5(g)(1).

If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon him and the witness because of such failure does not attend, and if another party attends in person or by attorney because he expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by him and his attorney in attending, including reasonable attorney’s fees. V.S.C.R. 4:5(g)(2).

Within the Commonwealth of Virginia depositions may be taken before any person authorized by law to administer oaths, and if certified by his hand may be received without proof of the signature to such certificate. V.S.C.R. 4:3(a).

In any other State of the United States or within any territory or insular possession subject to the dominion of the United States, depositions may be taken before any officer authorized to take depositions in the jurisdiction wherein the witness may be, or before any commissioner appointed by the Governor of the Commonwealth of Virginia. V.S.C.R. 4:3(b).

In a foreign state or country depositions shall be taken (1) before any American minister plenipotentiary, charge d’affaires, secretary of embassy or legation, consul general, consul, vice-consul, or commercial agent of the United States in a foreign country, or any other representative of the United States therein, including commissioned officers of the armed services of the United States, or (2) before the mayor, or other magistrate of any city, town or corporation in such country, or any notary therein. V.S.C.R. 4:3(d).

Any person before whom a deposition is taken outside the Commonwealth of Virginia shall certify the same with his official seal annexed; and, if he have none, the genuineness of his signature shall be authenticated by some officer of the same state or country, under his official seal, except that no seal shall be required of a commissioned officer of the armed services of the United States, but his signature shall be authenticated by the commanding officer of the military installation or ship to which he is assigned. V.S.C.R. 4:3(e).

There shall be no limit on the number of witnesses whose depositions may be taken by a party except by order of the court for good cause shown. V.S.C.R. 4:6A.

Unless the court orders otherwise, a deposition may be taken by telephone, video conferencing, or teleconferencing. A deposition taken by telephone, video conferencing, or teleconferencing shall be taken before an appropriate officer in the locality where the deponent is present to answer questions propounded to him. V.S.C.R. 4:5(b)(7).

Depositions may be taken by audio-visual means including, but not limited to, videoconferencing and teleconferencing, as authorized by and when taken in compliance with law. V.S.C.R. 4:7A(a). Virginia Supreme Court Rule 4:7A sets forth the requirements for audio visual deposition recording. V.S.C.R. 4:7A.
The authorities cited in this At A Glance Guide are current as of the publication date. For authorities updated in real time, please see the SmartRules Guide for the litigation document you are drafting.

Use this At A Glance Guide to learn the Virginia Supreme Court Rules related to cross-claims in Virginia Circuit Courts. For more detailed information, please see the SmartRules Cross-Claim Guide for the court where your action is pending.

A defendant may, at that defendant’s option, plead as a cross-claim any cause of action that such defendant has or may have against one or more other defendants growing out of any matter pled in the complaint. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant. V.S.C.R. 3:10(a).

The court in its discretion may order a separate trial of any cause of action asserted in a cross-claim. V.S.C.R. 3:10(d).

The authorities cited in this At A Glance Guide are current as of the publication date. For authorities updated in real time, please see the SmartRules Guide for the litigation document you are drafting.

Use this At A Glance Guide to learn the Virginia Supreme Court Rules related to bringing a motion to dismiss in Virginia Circuit Courts. For more detailed information, please see the SmartRules Motion to Dismiss Guide for the court where your action is pending.

There are no provisions of the Virginia Supreme Court Rules that set forth the grounds for a motion to dismiss. Grounds found in statutory law include: lack of subject matter jurisdiction and lack of an indispensable party. Va. Code 8.01-276. Challenges to personal jurisdiction may be brought by motion to quash. Va. Code 8.01-277.

A person, upon whom process has not been served within one year of commencement of the action against him, may make a special appearance, which does not constitute a general appearance, to file a motion to dismiss. Upon finding that the plaintiff did not exercise due diligence to have timely service and sustaining the motion to dismiss, the court shall dismiss the action with prejudice. Upon finding that the plaintiff did exercise due diligence to have timely service and denying the motion to dismiss, the court shall require the person filing such motion to file a responsive pleading within 21 days of such ruling. Nothing herein shall prevent the plaintiff from filing a nonsuit under 8.01-380 before the entry of an order granting a motion to dismiss pursuant to the provisions of this section. Nothing in this subsection shall pertain to cases involving asbestos. Va. Code 8.01-277.

No action or suit shall abate or be defeated by the nonjoinder or misjoinder of parties, plaintiff or defendant, but whenever such nonjoinder or misjoinder shall be made to appear by affidavit or otherwise, new parties may be added and parties misjoined may be dropped by order of the court at any time as the ends of justice may require. Va. Code 8.01-5(A). Nothing in this section shall be construed to permit the joinder of any insurance company on account of the issuance to any party to a cause of any policy or contract of liability insurance, or on account of the issuance by any such company of any policy or contract of liability insurance for the benefit of or that will inure to the benefit of any party to any cause. Va. Code 8.01-5(B).

A demurrer, plea, motion to dismiss, and motion for a bill of particulars shall each be deemed a pleading in response for the count or counts addressed therein. V.S.C.R. 3:8(a).

The authorities cited in this At A Glance Guide are current as of the publication date. For authorities updated in real time, please see the SmartRules Guide for the litigation document you are drafting.

Use this At A Glance Guide to learn the Virginia Supreme Court Rules related to propounding interrogatories in Virginia Circuit Courts. For more detailed information, please see the SmartRules Response to Interrogatory Guide for the court where your action is pending.

Any party may serve upon any other party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish such information as is available to the party. V.S.C.R. 4:8(a).

The party answering the interrogatories shall restate each question, by photocopying it or otherwise, then insert the word “Answer” and immediately thereafter state the response to that question. The answering party shall attach the necessary oath and certificate of service to the answers. V.S.C.R. 4:8(b).

Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections signed by the attorney making them. The party submitting the interrogatories may move for an order under Rule 4:12(a) with respect to any objection to or other failure to answer an interrogatory. V.S.C.R. 4:8(d).

Interrogatories may relate to any matters which can be inquired into under Rule 4:1(b), and the answers may be used to the extent permitted by the rules of evidence and for the purposes of Rule 3:20. Only such interrogatories and the answers thereto as are offered in evidence shall become a part of the record. V.S.C.R. 4:8(e).

An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory 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.

Through interrogatories, a party may 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. V.S.C.R. 4:1(b)(4)(A)(i).

Where the answer to an interrogatory may be derived or ascertained from the business records, including electronically stored information, of the party upon whom the interrogatory has been served or from an examination, audit or inspection of such business records, or from a compilation, abstract or summary based thereon, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries. A specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be ascertained. A specification of electronically stored information may be made under this Rule if the information will be made available in a reasonably usable form or forms. V.S.C.R. 4:8(f).

No party shall serve upon any other party, at any one time or cumulatively, more than thirty written interrogatories, including all parts and subparts without leave of court for good cause shown. V.S.C.R. 4:8(g).

The authorities cited in this At A Glance Guide are current as of the publication date. For authorities updated in real time, please see the SmartRules Guide for the litigation document you are drafting.

Virginia is amending its Circuit court rules effective July 1, 2009.

Amended rules are

• 4:5 Depositions Upon Oral Examination.
• 4:9 Production by Parties of Documents, Electronically Stored Information, and Things; Entry on Land for Inspection and Other Purposes; Production at Trial.
• 5:7B Petition for a Writ of Actual Innocence.
• 8:3 Contents of Petitions in Certain Proceedings.

To see how the rule changes affect your practice, please view Virginia SmartRules Guides.

Use this At A Glance Guide to learn the Virginia Supreme Court Rules related to propounding interrogatories in Virginia Circuit Courts. For more detailed information, please see the SmartRules Interrogatory Guide for the court where your action is pending.

The Virginia rules do not contain explicit requirements for the format of interrogatory papers. As a matter of custom and practice, interrogatories are stated in separate numbered paragraphs and, to the fullest extent practicable, each paragraph is limited to a single question.

Any party may serve upon any other party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish such information as is available to the party. V.S.C.R. 4:8(a).

The party answering the interrogatories shall restate each question, by photocopying it or otherwise, then insert the word “Answer” and immediately thereafter state the response to that question. The answering party shall attach the necessary oath and certificate of service to the answers. V.S.C.R. 4:8(b).

Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections signed by the attorney making them. The party submitting the interrogatories may move for an order under Rule 4:12(a) with respect to any objection to or other failure to answer an interrogatory. V.S.C.R. 4:8(d).

Interrogatories may relate to any matters which can be inquired into under Rule 4:1(b), and the answers may be used to the extent permitted by the rules of evidence and for the purposes of Rule 3:20. Only such interrogatories and the answers thereto as are offered in evidence shall become a part of the record. V.S.C.R. 4:8(e).

An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory 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.

Through interrogatories, a party may 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. V.S.C.R. 4:1(b)(4)(A)(i).

Where the answer to an interrogatory may be derived or ascertained from the business records, including electronically stored information, of the party upon whom the interrogatory has been served or from an examination, audit or inspection of such business records, or from a compilation, abstract or summary based thereon, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries. A specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be ascertained. A specification of electronically stored information may be made under this Rule if the information will be made available in a reasonably usable form or forms. V.S.C.R. 4:8(f).

No party shall serve upon any other party, at any one time or cumulatively, more than thirty written interrogatories, including all parts and subparts without leave of court for good cause shown. V.S.C.R. 4:8(g).

The authorities cited in this At A Glance Guide are current as of the publication date. For authorities updated in real time, please see the SmartRules Guide for the litigation document you are drafting.