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Discovery Ordered in Inverse Condemnation

A Rappahannock County Circuit Court declines to strike Dominion Virginia Power’s defenses to a landowner’s action for inverse condemnation, but orders respondent to supplement its discovery responses.

The owner’s counsel requested respondent to furnish certain data respecting both a calculation of the maximum electrostatic induction to the largest vehicle that may pass under two transmission lines via petitioner’s driveway and of the electromagnetic frequencies along petitioner’s driveway. Respondent answered that such information would only be available following a specific test, which petitioner agreed to pay for. Despite petitioner having tendered funds to pay for the tests, counsel for respondent advised petitioner it was “unable to perform the tests while litigation is pending” and the payment was returned.

The court will deny the motion to strike the defenses in this case as imposing such severe sanction at this time is not warranted.

In Interrogatory No. 7, petitioner has asked respondent to describe the structures that are part of the Transmission Line, where the Transmission Line passes over the Easement, including but not limited to the number of wires and what type of energy or signals the wires or structures transmit. Although respondent originally objected to his Interrogatory, the answer was later supplemented to include the voltage transmitted by the line. The court finds the instant objection is not well taken and the answer given is not fully responsive to the request. The court will overrule the objection and compel respondent to further answer the Interrogatory.

Petitioner, after receiving a supplemental response to a request for production of documents indicating respondent had no documents measuring or quantifying the electromagnetic field produced by the Transmission Line, requested and paid for EMF readings to be made on his property. This request was subsequently denied. The court lacks sufficient evidence to respond to the controversy respecting the request made to conduct the tests requested.

Given the extensive nature of the discovery requests, the objections originally noted to each and every Request for Admission, Request for Production and Interrogatory and the later supplementation to those requests, the court will order that respondent review the answers heretofore given and further supplement any outstanding discovery requests by Aug. 1, 2012.

Requests for production Nos. 12, 15, 16, 18 and 22 are granted and production will be compelled. To the extent respondent believes production to be costly, the court will consider a motion to shift the cost of production to petitioner.

Carr v. Va. Elec. & Power Co. d/b/a Dominion Virginia Power (Horne) No. 11-62, June 16, 2012; Rappahannock County Cir. Ct. VLW 012-8-094, 5 pp.

VLW 012-8-094

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