Virginia Rules Regarding Expert Witness Depositions and Interrogatories
Rule 4:1(b)(4)(A)(ii) of the Rules of the Supreme Court of Virginia allows for the deposition of experts who are expected to testify at trial. Virginia Rules do not specify a time limit for the taking of depositions, but Rule 4:5(b)(3) provides that the court may increase or decrease the time allowed for a deposition upon a showing of cause. Experts generally may not be subject to interrogatories in Virginia, as they are only served on the parties. As discussed in the following section, though, these interrogatories can require disclosures about experts and, accordingly, expert participation in responding to certain interrogatories may be beneficial.
Virginia Expert Witness Reports and Disclosures Rules
The extent to which discovery of experts is permissible in Virginia depends on whether the expert is expected to testify at trial or has been retained only for consulting purposes. Under Rule 4:1(b)(4)(B) of the Rules of the Supreme Court of Virginia, a party may only obtain discovery regarding a consulting expert upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means. This is an exceedingly high standard and is rarely met. See, e.g., Atl. Yacht Basin, Inc. v. Grimm, 79 Va. Cir. 476 (Va. Cir. Ct. 2009).
On the other hand, under Rule 4:1(b)(4)(A)(ii) of the Rules of the Supreme Court of Virginia a party may require its opponent to identify each expert it expects to testify 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. See also Condo. Servs. v. First Owners’ Ass’n of Forty Six Hundred Condo., Inc., 709 S.E.2d 163, 172 (Va. 2011) (finding no abuse of discretion on the part of the lower court for finding that a response to an interrogatory regarding an expert “sufficiently disclosed the subject matter on which [the expert] was going to testify” even though it “did not itemize the specific amounts of penalties and interest”); John Crane, Inc. v. Jones, 650 S.E.2d 851, 856-57 (Va. 2007) (finding responses to interrogatories regarding experts insufficient because expert opinion was not disclosed in any form).
Rules Regarding Lawyer-Expert Communications, Draft Expert Witness Reports, Expert Witness Notes, Etc. in Virginia
Virginia rules and cases are sparse in their treatment of the issues surrounding lawyer-expert communications, draft reports and notes, etc. See Moyers v. Steinmetz, 37 Va. Cir. 25, 26 (1995) (“There is no appellate decision in Virginia on whether counsel’s communications with an expert retained to testify at trial is protected work product . . . .”). However, one court that entertained the issue of attorney-expert communications held that such communications are discoverable to the extent they contain a statement of facts. Id. In that particular case, the court held that if a letter sent from a lawyer to its expert included a statement of facts, it “must be edited and provided to [the opposing party], with any portions of the letter that contain ‘mental impressions, conclusions, opinions, or legal theories’ of the attorney edited out.” Id.