Foot Dragging Can Now Be Fatal

January 7th, 2019

For many years, the rules governing lawsuits in our state courts generally provided that if an opposing party failed to respond to written discovery requests, the party seeking discovery could ask the trial judge to order compliance.  More strenuous relief, like getting the noncompliant party’s case dismissed or its defenses barred, had to wait until the noncompliance had persisted even after entry of such a court order.  And while the rules had fairly explicit language permitting a judge to “cut to the chase” in an egregious case, the Supreme Court of Virginia made clear some years ago that it would not permit this to happen.


The problem that has arisen over the years is that some parties have found it strategically advantageous to ignore their discovery obligations until at least the first step (getting an order compelling discovery compliance) were taken by their opposition.  At a minimum, this enabled an unethical party to make the litigation of a case take months longer than necessary, since getting the initial court order could take months (depending on the judge’s availability for the initial hearing).  Worse, some parties who perceived that their opponents lacked deep financial resources simply threw these obstacles in their paths as a way to force them to spend more on their lawyers.  This could force some to abandon their claims, or at least, to lessen their settlement demands, due to the need to “stop the bleeding” on lawyer bills.


The puzzling question has long been why the Supreme Court has allowed this to go on.  After all, the rules governing discovery have always been crafted by that court in the first place.  With that in mind, lawyers were puzzled as to why the Court’s ruling (in a case in 2000) seemed intent on treating the explicit language of the rule as a dead letter.


Last spring, however, the Court essentially reversed its ruling from the 2000 case.  Responding to entreaties by lawyers seeking help reining in abusive conduct, the Court revised its rules to make even more explicit the language enabling parties to obtain total victory when an opposing party’s foot dragging was evidently egregious.  And recently, a trial judge in New Kent County found cause to enforce the new “discovery death penalty” for the first time, permanently dismissing a rental property occupant’s personal injury claim alleging chronic illness from mold.


This strenuous relief must be understood to be available only in exceptional cases, not as a matter of course.  In the New Kent case, for example, the plaintiff never so much as attempted to answer interrogatories or document requests, and the plaintiff’s lawyer was forced to inform the court that he could not locate his client in order to work towards compliance.  Thus, the trial judge saw not only months of noncompliance, but no hope of compliance on any reasonable time table, and a general abandonment of the case by the plaintiff.


While we expect actual use of the new rule to be rare, we do join those who hope that the possibility of the more severe sanctions will help to curb the types of discovery abuses that seem to have metastasized in recent years.  The extraordinary expense and time commitment of most civil litigation is prohibitive to too many parties, and can effectively deny them their promised day in court.  We hope the Supreme Court will continue to look for ways to remedy that problem over the coming years.