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Discovery Depositions: Cases Summarized By Injury Attorney

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Discovery Depositions and the related issue of personal injury.  For more information on depositions see the pages on Wikipedia.

Discovery Depositions-Statutes


See Va. Code § 8.01-396 indicating that the court may compel witness to attend and testify in discovery depositions and upon his failure to do so may exclude his testimony.

See Va. Code § 8.01-411, which expands application of Uniform Foreign Deposition Act for production of documents.

See Va. Code § 8.01-420.4 authorizing discovery depositions and evidence depositions to be taken in county or city in Virginia where non-party witness resides, is employed, or has his principal place of business.

Discovery Depositions-Cases

2008 Lloyd v. Kime, 275 Va. 98, 654 S.E.2d 563.

Defense counsel used discovery depositions in support of motion in limine to strike plaintiff’s expert witness. Although the motion was styled a motion in limine, it was in effect a motion for summary judgment. However, because plaintiff did not object to the use of discovery depositions, there is no error in the court considering that deposition testimony in support of the motion in limine. That motion determined that plaintiff’s neurologist was not qualified to act as a standard of care witness in terms of intra-operative negligence in the performance of back surgery. It was error, however, for the trial court to strike plaintiff’s neurologist from testifying on post-operative negligence or causation.

2006 Thornton v. Glazer, 271 Va. 566, 628 S.E.2d 327.

Plaintiff sought to introduce as rebuttal evidence a portion of the treating physician’s deposition which countered the testimony of a defense expert. Trial court improperly refused this request. Under Rule 4:7 testimony of the treating physician by deposition can be used for this purpose.

2004 Greater Richmond Transit Co. v. Massey, 268 Va. 354, 601 S.E.2d 609.

Discovery deposition testimony of missing witness properly admitted where he had been served with subpoena but did not appear.

2002 America Online, Inc. v. Nam Tai Elecs., Inc., 264 Va. 583, 571 S.E.2d 128.

Virginia trial court refused to quash subpoena duces tecum issued by forum court in California for discovery. Virginia Trial Court properly applied principles of comity under the Uniform Foreign Deposition Act.

2001 America Online, Inc. v. Anonymous Publicly Traded Co., 261 Va. 350, 542 S.E.2d 377.

Anonymous corporation sought subpoena duces tecum requiring internet service provider to disclose identities of John Doe defendants who allegedly defamed corporation and published confidential material on internet. Trial court improperly refused to quash subpoena or enter protective order. Since action was brought under Uniform Foreign Deposition Act, this was a final order. Supreme court held that corporation could not proceed anonymously under the Uniform Foreign Deposition Act. Although there is no absolute bar against a party proceeding anonymously in a lawsuit, court must consider constitutional mandate of openness of judicial process and only in unusual circumstances involving irreparable harm would anonymity be allowed. The underlying action had been initiated in Indiana, although comity is to be encouraged among court systems, it is not obligatory in this instance and supreme court chose to disallow action in anonymous fashion.

2001 Lombard v. Rohrbaugh, 262 Va. 484, 551 S.E.2d 349.

Trial court properly allowed plaintiff’s counsel to inquire into relationship between defense examiner and insurance carrier for defendant, as to their financial relationship. In this case, defense examiner had received over $100,000 in payments from the insurance carrier during one year. Mention of insurance in that context was permissible. During deposition, counsel for insurance carrier had stipulated to correctness of payments in lieu of further discovery to differentiate forensic payments, from payment for medical services. That stipulation was deemed to be binding on all parties since it was reached during the course of a deposition with the court’s acceptance.

1993 Carson v. LeBlanc, 245 Va. 135, 427 S.E.2d 189.

Auto accident case. Defendant forwarded request for admissions to plaintiff consisting of deposition testimony wherein plaintiff was requested to admit that certain witnesses testified to certain issues in these depositions. Supreme Court noted that Va. Code § 8.01-420 prohibits use of discovery depositions in motions for summary judgment. Supreme Court noted that it has cautioned that discovery should ordinarily not supplant taking of evidence at trial, and that this is especially true in auto accident cases. However, since this error was not raised on appeal, it is not addressed in this decision.

1988 Henning v. Thomas, 235 Va. 181, 366 S.E.2d 109.

Deposition of treating physician may be used for any purpose.

1983 Horn v. Milgrim, 226 Va. 133, 306 S.E.2d 893.

Under Rule 4:7 plaintiff sought to introduce part of defendant’s testimony by deposition. Court accepted interpretation of this rule rendered by federal courts. Deposition testimony should have been allowed. Discovery depositions subject to objection on grounds of authenticity, relevancy, noncompliance with rules of court or any failure to comport with rules of evidence. Unless good cause exists, deposition should be read to jury and not simply submitted in written form. When this deposition testimony is offered, deponent does not become witness of party offering deposition. As such, dangers inherent in calling adverse party as witness are not present.

1974 Owens v. Redd, 215 Va. 13, 205 S.E.2d 669.

Cola bottle fell on floor, exploded and injured plaintiff. Based on discovery depositions, court entered summary judgment for defendant. This was error in that material facts were still in dispute; plaintiff was under no duty to fully develop her allegations of negligence at time discovery depositions taken.

1971 King v. International Harvester Co., 212 Va. 78, 181 S.E.2d 656.

Plaintiff did not appear for trial. Plaintiff’s counsel attempted to offer his deposition into evidence. When absence of witness is due merely to preference to use his deposition rather than to testify orally at trial, rule does not permit its use.

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Discovery Depositions: Cases Summarized By Injury Attorney

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