High court amends rule on discovery, inspection

The Supreme Court of Virginia has amended Rule 3A:11 of the Rules of the Supreme Court of Virginia, which pertains to discovery and inspection.

According to an Aug. 11 order signed by Supreme Court of Virginia Clerk Muriel-Theresa Pitney, the amendments’ purpose “is to correct this Court’s November 3, 2020, order as it pertains to Rule 3A:11, and to reinstate Rule 3A:11 as promulgated by this Court’s order of September 5, 2018.”

The amendments result in a complete rewrite of part “g” of the rule, which governs protective orders.

Under the revised rule, the court may enter a protective order “[u]pon the motion of either party and for good cause.”

“The court in its discretion may order any condition that it deems necessary to the orderly adjudication of the case or to the fair administration of justice,” the revised rule states.

The revised part further lists conditions that may be included, like requirements that parties not disclose “contents of any material or evidence disclosed or discovered pursuant to this Rule in any public forum, including any website.”

Further conditions listed in the revised order include requirements that parties not disclose contents of any material or evidence disclosed or discovered to third parties who are “not [agents] or employee[s] of the parties or an expert witness,”; authorization for either party to withhold addresses, phone numbers, email addresses and places of employment of any witness not covered by subpart (c)(1); and authorization for either party to “withhold from disclosure or place additional restrictions on dissemination of information otherwise discoverable but not exculpatory.”

The rule states that the rule is “not limited to” just the conditions listed in part g.

Subpart 2 of the amendment states that parties that believe that a protective order has been violated “may move the court to enforce the order and to impose any necessary and appropriate sanction authorized by Virginia law.”

The new rule will become effective Oct. 10. The amendments to Rule 3A:11 can be viewed in full, along with tracked changes, on the Supreme Court of Virginia’s website.