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Court resolves discovery dispute in real estate suit

Virginia Lawyers Weekly//October 23, 2022

Court resolves discovery dispute in real estate suit

Virginia Lawyers Weekly//October 23, 2022

Although a company sued for allegedly breaching an agreement sell a 26-acre parcel of land raised numerous objections to discovery requests propounded by the plaintiffs, including that they were overbroad, irrelevant, vague and unclear, the court largely required it to respond to the requests.


The Reserve at Winchester I LLC and Robert Cathcart allege that R 150 SPE LLC breached an agreement in which defendant agreed to sell Cathcart a roughly 26-acre portion of a 150-acre parcel. Defendant has filed a counterclaim. Before the court are plaintiffs’ motion to compel and defendant’s motion for a protective order based on plaintiffs’ first set of interrogatories and plaintiffs’ first set of requests for production of documents.


Defendant contends that plaintiffs’ “repeated references to Property in the Discovery Requests is undefined, making it unfeasible to determine what the definition of Property is.” Relatedly, defendant asserts that because it is only alleged to have agreed to sell plaintiffs a portion of the project property, information not relating to that select portion is irrelevant in this case.

The definitions appear to limit references to “Property” to encompass the sale property only. Further, at the hearing on these motions, counsel for plaintiffs made clear that these requests sought information about the sale property only, not about the project property as a whole. Similarly, defendant objects to plaintiffs’ use of “Cathcart” to refer to both The Reserve and Robert Cathcart collectively in various requests. Considering the allegations in the pleadings, plaintiffs’ requests are reasonably clear.

Litigation costs

Defendant argues that many of plaintiffs’ requests are designed to “offset their litigation costs by having [defendant] compile The Reserve and Cathcart’s own communications, rather than conducting an internal search of their own records.” The parties’ communications about the subject matter of the litigation are relevant. Moreover, some of plaintiffs’ requests seek communications between defendant and non-parties about the communications between the parties. Defendant’s objections are overruled.


Defendant contends that some of plaintiffs’ discovery requests improperly ask defendant to create new documents by compiling timelines and analyzing data and information. Defendant’s argument is misplaced.

In the interrogatories at issue, plaintiffs ask defendant to describe or identify certain facts in a “timeline.” Plaintiffs explain that they are simply asking defendant to respond with a chronological description of facts. Plaintiffs’ request is for a reasonable and customary response to an interrogatory, and it does not require defendant to create a document, other than its written answer. This objection is without merit.

Contention interrogatories

Defendant additionally argues that several of plaintiffs’ requests “mischaracterize facts, make unfounded assertions and attempt to put statements in the mouth of [defendant].” I disagree. These interrogatories call on defendant to identify its position on certain issue and provide support for that position. Those requests seek information relevant to defendant’s counterclaims. This form of “contention” interrogatory is also permissible under Rule 33.


The parties assert competing views on the location of the sale property on the project property. The parties’ negotiations leading up to the agreement and for each amendment thereto may provide relevant information about, for example, the location of the sale property, any alternative construction entrance and shared access and the stockpiling of dirt, all of which are issues identified in the pleadings.

Next, because plaintiffs assert that defendant willfully breached the agreement by encumbering the sale property via the loan, information regarding the facts and circumstances leading up to defendant’s obtaining the loan is relevant to defendant’s intent in obtaining the loan and encumbering the sale property. Also relevant is information about related entities’ relationship with defendant and decision making regarding the project property. However information about an agreement between defendant and another companies is not relevant.


Defendant also argues that several of plaintiffs’ interrogatories contain “discrete subparts” and exceed the number of interrogatories allowed under Rule 33(a)(1). Plaintiff issued a total of 17 interrogatories, one of which I struck, and four of which each contained one unrelated subpart. Accordingly, plaintiff’s first set of interrogatories contained 20 interrogatories, which is within Rule 33’s limit.

Plaintiff’s motion to compel granted in part, denied in part. Defendant’s motion for protective order granted in part, denied in part.

The Reserve at Winchester I LLC v. R 150 SPE LLC, Case No. 3:21-cv-00008, Sept. 29, 2022. WDVA at Charlottesville (Hoppe). VLW 022-3-445. 24 pp.

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