Parties Should Discuss Discovery Issues

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In this long-running contract dispute between a homeowner and a home builder, a Salem Circuit Court denies a motion to reconsider and motions to compel and admonishes the lawyers that “ad hominem attacks, bitterness and biting sarcasm upon or about opposing counsel” are not consistent with the standards of professionalism endorsed by the Supreme Court of Virginia and all statewide bar organizations.

I am certain that none of you in any way intends or wishes to be characterized as uncivil – never mind disputatious or vituperative. I would be remiss, however, if I did not remind you, while you stand at the top of the slope, that it is a slippery one.

And I respectfully suggest to you, as I have suggested to others in recent CLE presentations, that there is sound counsel to be found in this speech from the Pulitzer-Prize-winning play Harvey: “You know, years ago, my mother used to say to me, ‘in this world Elwood, you must be ‘ – she always called me Elwood, ‘in this world Elwood, you must be Oh so smart, or Oh so pleasant.’ Well for years I was smart. I recommend pleasant. You may quote me.”

Turning to the motions at hand, the court denies reconsideration of certain rulings made by the judge who heard this case earlier, who is retiring from the bench. I decline to revisit those rulings.

As to the motions to compel, I suggest counsel use the time you had set aside for the Jan. 23 hearing to meet and confer in a good-faith effort to resolve your discovery disputes, as required under Rules 4:12 and 4:15 of the Rules of the Supreme Court of Virginia. Please remember that few – if any – clients have ever gone into a lawsuit hoping to pay their lawyers large sums to litigate discovery issues; fewer still have been happy to do so. Please consider the use of protective orders, including, perhaps, protective orders which, pending further order, limit counsel from disclosing, even to their clients, the contents of specified document, such as tax returns. You might even consider the possibility of having such documents delivered, under protective order, to an expert designated by counsel for the requesting party, for the expert to examine the documents and give an opinion about whether he or she believes the documents in question will be usable in the manner contemplated by counsel. To the extent you cannot agree on production of documents, please be prepared to furnish the requested documents for in camera review.

Crawford Construction v. Kemp (Weckstein) No. CL 11-153, Jan. 5, 2013; Salem Cir.Ct. VLW 013-8-014, 6 pp.