Defendant’s total net worth discoverable

Plaintiff’s motion to compel discovery regarding defendant’s total net worth is granted. Defendant’s arguments that his net worth is not subject to discovery, or is discoverable only in part, are not well taken.

The information must be provided. A protective order will be issued.

Overview

After defendant objected to plaintiff’s discovery and production requests for information about his net worth, plaintiff filed a motion to compel. Defendant has responded and the matter is now before the court for a ruling.

Defendant claims “the information is irrelevant because he does not intend to use inability to pay as a defense to an award of punitive damages.

“Defendant objects to providing information concerning his net worth on the grounds that the requests seek irrelevant information not reasonably calculated to lead to discovery of admissible evidence.”

‘Flippo’

“Rule 4:l(b)(l) states, in relevant part, that ‘parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. … [I]t is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.’

“Defendant contends that punitive damages can be used either as a shield or a sword and argues that case law supports Defendant’s position that it is actually a shield, not a sword. In essence, Defendant argues that it is a sword because it can only be introduced by the Defendant in order to argue to a jury a lower amount of punitive damages.

“In support of this position, Defendant cites Flippo v. CSC Assocs. III, 262 Va. 48 (2001), as well as three Circuit Court opinions as outlined in Defendant’s Brief in Opposition. Plaintiff also relies on Flippo in contending information of Defendant’s net worth is admissible.

“Flippo is not dispositive in this case. In that case the Court was addressing a request … to reduce the amount of punitive damages awarded at trial. Flippo was addressing a post-trial issue. The Defendant in Flippo was arguing that the trial court should reduce the amount of punitive damages awarded because Plaintiff failed to establish Defendant’s net worth at trial. That case in no way stands for the proposition that Defendant’s net worth is irrelevant and not discoverable.”

Ruling

“The issue presented to this Court is whether the information concerning Defendant’s net worth is discoverable.” The information sought is not privileged and “is relevant to the subject matter involved in the pending action. The Court therefore grants the Motion to Compel and Orders Defendant to answer and produce the requested documents within 21 days.

“Defendant further argues that discovery should be limited to only those assets that could be attached to satisfy any award of punitive damages. The Court finds that Defendant’s total net worth is an appropriate subject for discovery and orders the Defendant to give a full and complete answer to the propounded discovery.”

Brodie v. Baker, Case No. CL20-205-00, Aug. 6, 2020; 15th Cir. Ct. (Kelly). John A. Merrick, Samuel T. Bernier for the parties. VLW 020-8-088, 3 pp.