JOHN K. TAGGART, !!! M. E. GIBSON, JR. THOMAS E. ALBRO PATRICIA O. McGRAw R. LEE LIVINGSTON PETER J. CARAMAN[S LAW OFFICES TREMBLAY & SMITH, LLP P.O. BOX 1585 CHARLOTTESVILLE, VIRGINIA 22902-1585 105-109 E. HIGH’STREET Telephone (434) 977-4455 Facsimile (434)979-1221 NATHAN J. D. VELDHUIS ERNEST A. HARPER RETIRED LLOYD T. SMITH, .JR. E. GERALD TREMBLAY 1922-2003 June 23, 2008 VIA FACSIMILE TRANSMISSION and U.S. MAIL Hon. Diane M. Strickland 809 Oakwood Drive, S.W. Roanoke, VA 24015 Re: Boyd Graves Study Committee - Uniform Scheduling Order Hon. Charles E. Poston Hon. Dennis J. Smith Charles F. Hilton, Esq. Paul M. Black, Esq. Steve M. Garver, Esq. Lisa P. O’Donnell, Esq. R. Lee Livingston, Esq. Dear Diane: The study committee on the Uniform Scheduling Order produced the attached proposed modification to the Uniform Scheduling Order. Below is our report divided into three sections: (I) a recommended change to be incorporated into a revised scheduling order, (II) changes requested to be studied further and (III) changes considered but not recommended by the committee. Recommended change To address the late filing of deposition excerpts to be read at trial a change is proposed to require designations be submitted no later than the deadline for the exchange of witness and exhibit lists - 15 days before trial. Given the need to edit video depositions and challenges in getting objections ruled on prior to trial this deadline will provide some margin that does not presently exist in the broad language that controls the issue in the Order, i.e., "at their earliest reasonable opportunity." Counsel follow this directive poorly in some cases and a clear cut off would be a helpful supplement to the general instruction, which is retained.
Transcript
JOHN K. TAGGART, !!!M. E. GIBSON, JR.THOMAS E. ALBROPATRICIA O. McGRAwR. LEE LIVINGSTONPETER J. CARAMAN[S
LAW OFFICES
TREMBLAY & SMITH, LLPP.O. BOX 1585
CHARLOTTESVILLE, VIRGINIA 22902-1585
105-109 E. HIGH’STREETTelephone (434) 977-4455Facsimile (434)979-1221
NATHAN J. D. VELDHUIS
ERNEST A. HARPER
RETIRED
LLOYD T. SMITH, .JR.
E. GERALD TREMBLAY
1922-2003
June 23, 2008
VIA FACSIMILE TRANSMISSION and U.S. MAIL
Hon. Diane M. Strickland809 Oakwood Drive, S.W.Roanoke, VA 24015
Re: Boyd Graves Study Committee - Uniform Scheduling OrderHon. Charles E. Poston Hon. Dennis J. SmithCharles F. Hilton, Esq. Paul M. Black, Esq.Steve M. Garver, Esq. Lisa P. O’Donnell, Esq.R. Lee Livingston, Esq.
Dear Diane:
The study committee on the Uniform Scheduling Order produced the attached proposedmodification to the Uniform Scheduling Order. Below is our report divided into three sections:(I) a recommended change to be incorporated into a revised scheduling order, (II) changesrequested to be studied further and (III) changes considered but not recommended by thecommittee.
Recommended change
To address the late filing of deposition excerpts to be read at trial a change isproposed to require designations be submitted no later than the deadline for theexchange of witness and exhibit lists - 15 days before trial. Given the need to editvideo depositions and challenges in getting objections ruled on prior to trial thisdeadline will provide some margin that does not presently exist in the broadlanguage that controls the issue in the Order, i.e., "at their earliest reasonableopportunity." Counsel follow this directive poorly in some cases and a clear cutoff would be a helpful supplement to the general instruction, which is retained.
TR’EMBLA~/& SMITH, LLP
Hon. Diane M. StricklandRe: Boyd Graves Study Committee Uniform Scheduling OrderJune 23, 2008Page 2
There was sentiment for moving the date even earlier because it will still bedifficult to have hearings on numerous objections within 15 days of trial. Givenother deadlines in the order, however, such as the deadline for depositions to beused at trial, and a reluctance to change numerous deadlines, moving the deadlineearlier is not recommended.
II. Recommended for further study
The committee considered and wishes to study further whether to add to the USOa small number of cross-references to mandatory pre-trial deadlines containedin the Code of Virginia or Rules of Court. Areas in which the pre-trial orderapplies but there is a Code deadline that is not contained in the order are ofinterest. For example, Virginia Code § 8.01-401.1 sets 30 days prior to trial as thedeadline for designation of expert literature. Inclusion ofpre-trial deadlines fromthe Virginia Code may make the order more reliable, user friendly and avoid so-called "traps of the trade." While such changes could help pro se litigants, cross-referencing other mandatory deadlines may enhance the efficacy and usefulness ofthe Uniform Scheduling Order generally.
Many deadlines exist outside the scope of the order and would not be consideredto add to it. These include: (1) deadlines that occur before service and before ascheduling order is entered, (2) post trial deadlines, (3) deadlines for ancillaryproceedings such as medical malpractice panels or for proceedings beforecommissioners in chancery, (4) contingent deadlines, such as those for third partypractice, and (5) discovery deadlines which are both contingent on what discovery.is served and part of a discreet set of rules in Part 4 of the Rules of Court.
Other deadlines apply only to a narrow spectrum of cases, i.e., the deadline torespond to summary judgment motions inpro se prisoner cases in § 8.01-696 andverification of sworn pleadings, Rule 1:10.
Deadlines the committee may consider offering for inclusion in the UniformScheduling Order included the following: Rule 3:21 regarding jury trials, VirginiaCode § 8.01-407 regarding service of subpoenas, Virginia Code § 8.01-413.01and § 8.01-416 concerning the filing of affidavits to establish the authenticity ofevidence of damages, Virginia Code § 8.01-380 regarding the timing of non-suits,and Virginia Code § 8.01-401.1 concerning the designation of expert literature.
TREMBLAY & SMITH, LLP
Hon. Diane M. StricklandRe: Boyd Graves Study Committee Uniform Scheduling OrderJune 23, 2008Page 3
The committee has discussed other avenues to accomplish this, such as includinga chapter on deadlines in the Evidence Handbook, or creating an appendix thatwould digest scheduling deadlines.
Meet and confer requirement. As indicated below several significant issueswere discussed but there was not a consensus to include changes on these issues inthe USO. There was a consensus that pre-trial issues not addressed by the USOshould be addressed between the parties. Presently there is no direction given forwhat issues should be addressed early in the case to provide the best opportunityfor orderly and prudent disposition of the action. We drafted a provision forconsideration but are not ready to recommend its adoption.
The provision we have drafted for consideration below is taken primarily fromFederal Rule of Civil Procedure 16 which lists areas to be covered at a pre-trialconference. In addition, we included two issues that were discussed thoroughlyby our committee concerning the use and scheduling of depositions.
Such a change would be so ambitious that it should be endorsed by statewide bargroups before being promoted and offered for recommendation. The committeealso wishes to consider whether an enforcement provision is feasible so that theprovision is not neglected by attorneys in a manner that would undermine theefficacy of the scheduling order generally.
The working draft of such a provision is as follows:
Requirement to Meet and Confer:
Within 21 days after responsive pleadings are filed theparties shall meet and confer for such purposes as:1. Expediting disposition of the action;2. Establishing early and continuing management so the
case will not be protracted because of lack ofmanagement;
3. Discourage wasteful pretrial activities;4. Facilitating settlement; and
41~EMBL~Y & SMITH, LLP
Hon. Diane M. StricklandRe: Boyd Graves Study Committee Uniform Scheduling OrderJune 23, 2008Page 4
III.
o Considering procedural matters such as whether factwitnesses should be deposed before expert witnessesand how non-party depositions will be used forpurposes of discovery or for use at trial.
Changes considered but not adopted:
The committee discussed imposing a new 30 day deadline for designatingdepositions to be used at trial. The idea being that a trial deposition could bescheduled of a deponent who had been deposed for discovery purposes. Weconcluded this change would be significant and might require further study.Attentive to the somewhat delicate balance and compromise implemented bythose who were successful in accomplishing the adoption of a USO, thecommittee declined to recommend this change at this time. We were also mindfulthat another group is addressing trial depositions versus discovery depositions andwe look forward to reviewing its work.
A mandatory conference might facilitate resolution of some issues governing theuse of depositions that remain unresolved in the USO.
A specific change to include in all USOs an option for parties to select separatedeadlines for the completion of depositions of fact witnesses and experts wastabled in favor of further study concerning a mandatory conference.
The committee discussed potential conflicts between discovery rules requiringanswers to interrogatories within 21 days and expert disclosures pursuant to theUSO. The committee discussed anecdotal reports and experience which indicatedpractice in most jurisdictions is that interrogatories are timely answered, but thatin most cases opinions of experts are not disclosed until the deadline scheduled bythe USO. The committee could not specifically determine how the interplaybetween these requirements operated in practice and did not develop a specificrecommendation for any change that could be applied to an identifiable problem.Although there have been some cases in which significant issues have arisen andexperts have been struck, there was not perceived to be a problem readilypositioned for a solution. It is also our understanding that our charge overlappedsomewhat with that of another committee and we look forward to reviewing thework of others in this regard. The committee declines to make anyrecommendations concerning this issue at this time.
TREMBL~Y & SMITH, LLP
Hon. Diane M. StricklandRe: Boyd Graves Study Committee Uniform Scheduling OrderJune 23, 2008Page 5
The committee considered a manner in which to have specific dates indicated inthe USO or perhaps a summary of deadlines with specific dates, but we could notdetermine a helpful way to accomplish this without imposing some additionalburden on clerks and by reformatting the entire order. Flexibility may also belimited by a change in circumstances such as when a trial date gets changed. Thepresent form works better when a trial is rescheduled because all deadlines can berecalculated and there is not an order with specific dates to be adjusted.
The committee considered whether the order should be mandatory throughoutcourts in the Commonwealth. There does not appear to be support among judgessufficient to endorse a "one size fits all" regime. The present requirement that if ascheduling order is used, it must be the Rule 1:18 Order appears to be areasonable compromise at this time. Although members of the committeeexpressed a preference for uniformity, there is acceptance and recognition of thefact that local practices vary among diverse communities in the Commonwealth.
Other areas. The committee also discussed additional concerns raised byconference members last October and declined to make a recommendationregarding the following:
should there be a distinction between complex and more routine cases;should there be bifurcated discovery between liability and damages; andwhether changes should be made to allow for the court to amend thescheduling order at the request of one party more easily than Rule 1:18permits.
We viewed changes in addition to the one we recommend with some skepticism due towhat all agreed was a monumental achievement by those who implemented a USO in Virginia.Thanks to the work of these individuals Virginia is no longer fully a hodgepodge of pretrialpractices from one jurisdiction to another, or even with differences between judges in the samecourts. While some inconsistencies in local practices remain, the committee believes a USOcannot mandate completely uniform practice.
Our committee wishes to acknowledge substantial contributions made by Judge StanleyP. Klein to inform our discussion. We also received helpful comments from Judge Everett A.Martin, Jr. Professor Kent Sinclair provided us with valuable research.
TR]~MBL’AY & SMITH, LLP
Hon. Diane M. StricklandRe: Boyd Graves Study Committee Uniform Scheduling OrderJune 23, 2008Page 6
Our group appreciated the opportunity to explore this interesting topic.questions you may have or any additional matters you would like us to take up.
Best regards.
We welcome any
RLL:ddEnclosure
R. Lee Livingston
Hon. Charles E. PostonHon. Dennis J. SmithCharles F. Hilton, Esq.Paul M. Black, Esq.Steve M. Garver, Esq.Lisa P. O’Donnell, Esq.
kim
Text Box
Editor's Note: The Committee's recommendation that the Uniform Scheduling Order be amended in relation to deposition transcripts to be used at trial was revised following discussion and then approved by the Conference.
VIRGINIA: IN THE CIRCUIT COURT OF THE
Plaintiff,
v. CASE NO.:
Defendants.
UNIFORM PRETRIAL SCHEDULING ORDER
I. Trial
The trial date is (with a jury) (without a jury).
The estimated length of trial is
II. Discovery
The parties shall complete discovery, including depositions, by 30 days before trial; however,
depositions taken in lieu of live testimony at trial will be permitted until 15 days before trial.
"Complete" means that all interrogatories, requests for production, requests for admission and other
discovery must be served sufficiently in advance of trial to allow a timely response at least 30 days
before trial. Depositions may be taken after the specified time period by agreement of counsel of
record or for good cause shown, provided however, that the taking of a deposition after the deadline
established herein shall not provide a basis for continuance of the trial date or the scheduling of
motions inconsistent with the normal procedures of the court. The parties have a duty to seasonably
supplement and amend discovery responses pursuant to Rule 4:1 (e) of the Rules of Supreme Court of
Virginia. Seasonably means as soon as practical. No provision of this Order supersedes the Rules of
Supreme Court of Virginia governing discovery. Any discovery motion filed shall contain a
certification that counsel has made a good faith effort to resolve the matters set forth in the motion
with opposing counsel.
III. Designation of Experts
If requested in discovery, plaintiffs, counter-claimant’s, third party plaintiffs, and cross-
claimant’s experts shall be identified on or before 90 days before trial. If requested in discovery,
defendant’s and all other opposing experts shall be identified on or before 60 days before trial. If
requested in discovery, experts or opinions responsive to new matters raised in the opposing parties,
identification of experts shall be designated no later than 45 days before trial. If requested, all
information discoverable under Rule 4:1 (b)(4)(A)(1) of the Rules of Supreme Court of Virginia shall
be provided or the expert will not ordinarily be permitted to express any non-disclosed opinions at
trial. The foregoing deadlines shall not relieve a party of the obligation to respond to discovery
requests within the time periods set forth in the Rules of Supreme Court of Virginia, including, in
particular, the duty to supplement or amend prior responses pursuant to Rule 4:1 (e).
IV. Dispositive Motions
All dispositive motions shall be presented to the court for hearing as far in advance of the
trial date as practical. All counsel of record are encouraged to bring on for hearing all demurrers,
special pleas, motions for summary judgment or other dispositive motions not more than 60 days
after being filed.
V. Exhibit and Witness List
Counsel of record shall exchange 15 days before trial a list specifically identifying
each exhibit to be introduced at trial, copies of any exhibits not previously supplied in discovery, and
2
a list of witnesses proposed to be introduced at trial. The lists of exhibits and witnesses shall be filed
with the Clerk of the Court simultaneously therewith but the exhibits shall not then be filed. Any
exhibit or witness not so identified and filed will not be received in evidence, except in rebuttal or
for impeachment or unless the admission of such exhibit or testimony of the witness would cause no
surprise or prejudice to the opposing party and the failure to list the exhibit or witness was through
inadvertence. Any objections to exhibits or witnesses shall state the legal reasons therefor except on
relevancy grounds, and shall be filed with the Clerk of the Court and a copy delivered to opposing
counsel at least five days before trial or the objections will be deemed waived absent leave of court
for good cause shown.
VI. Pretrial Conferences
Pursuant to Rule 4:13 of the Rules of Supreme Court of Virginia, when requested by any
party or upon its own motion, the court may order a pretrial conference wherein motions in limine,
settlement discussions or other pretrial motions which may aid in the disposition of this action can be
heard.
VII. Motions in Limine
Absentleave of court, any motion in limine which requires argument exceeding five minutes
shall be duly noticed and heard before the day of trial.
VIII. Witness Subpoenas
Early filing of a request for witness subpoenas is encouraged so that such subpoenas may be
servedat least 10 days before trial.
IX. Continuances
Continuances will only be granted by the court for good cause shown.
3
X. Jury Instructions
Counsel of record, unless compliance is waived by the court, shall, two business days before
a civil jury trial date, exchange proposed jury instructions. At the commencement of trial, counsel of
record shall tender the court the originals of all agreed upon instructions and copies of all contested
instructions with appropriate citations. This requirement shall not preclude the offering of additional
instructions at the trial.
XI. Deposition Transcripts to be Used at Trial
Counsel of record shall confer and attempt to identify and resolve all issues regarding the use
of depositions at trial. It is the obligation of the proponent of any deposition of any non-party
witness who will not appear at trial to advise opposing counsel of record of counsel’s intent to use all
or a portion of the deposition at trial at the earliest reasonable opportunity. Designations of portions
of non-party depositions shall be filed no later than 15 days before trial except by agreement of
counsel or for good cause shown. It becomes the obligation of the opponent of any such deposition
to bring any objection or other unresolved issues to the court for hearing before the day of trial.
XII. Waiver or Modification of Terms of Order
Upon motion, the time limits and prohibitions contained in this order may be waived or
modified by leave of court for good cause shown.
36C:kDocuments and Settings\ddeanekMy DocumentskDatakRLLkForms~Pleadings\Uniform Pretrial Scheduling OrderOriginal from Rule 1 18.wpd
Hon. Diane M. Strickland809 Oak~ood Drive, S.W.Roanoke, VA 24015
Re: Boyd Graves Study Committee - Uniform Scheduling OrderHen. Charles E. Poston Hen. Dennis J. SmithCharles F. Hilton, Esq. Paul M. Black, Esq.Steve M. Garver, Esq. Lisa P. O’Donnel!, Esq.R. Lee Livingston; Esq.
Dear Diane:
The study committee on the Uniform Scheduling Order produced tlke attached proposedmodification to the Uniform Scheduling Order. Below is our report divided into thre~ sections:(1) a recommended change to be incorporated into a revised scheduling order, (II) changesrequested to be studied further and (]Tf) changes considered but no~ re.commended by thecommittee.
I. Recommended change
To address the late filing of deposition exoerpts to be mad at trial a change isproposed to require designations be submitted no lat~ than the d~adline for theexchange ofwimess and exhibit lists - 15 days before ~rial. Given the nec.A to editvideo depositions and challenges in getting obj ¢ctions ruled on prior to trial thisdeadline will provide some margin thaz does not presently exist in the broadlanguage that controls the issue in the Order, i.�,, "at their earliest reasonableopportmzity.° Counsel follow this dire, crier poorly in some cases and a clear cutoff would be a helpful supplement to the general instruction, which is retained.
Hen. Diane M. StricldandRe: Boyd Graves Study Counnitt~e Uniform S~heduling OrderIune 23° 200~Pag~ 2
IL
There was sentiment for moving the date even earlier because it will still bedifficult to have hearings on numerous objections within 15 day~ of trial. Givenother deadlines in the order, however, such as the deadline for depositions to beused at trial, and a reluctance to change numerous deadlines, moving the deadlineearlier is not recommended_
Recommended for further study
~ae committee considered and wishes to study fin’ther whether to add to the usea small number of cross-references to mandatory pretrial deadlines containedin the Code of Virginia or Rules of Court. Areas in which the pre-trial orderapplies but there is a Code deadline that is not contained in the order are ofinterest. For example, Virginia Code § 8.01-401~1 sets 30 days prior to trial as thedeadliue for designation of expert literature, h~lusion ofpre-trial deadlines fromthe Virgkfia Code may make the order more reliable, user ~endly and avoid so-called "traps of the trade." While such chmlges could helppro se litigants, cross-referencing other mandatory de.adlines may enhance the efficacy mid usefuIness ofthe Uniform Scheduling Order gcnerally.
Many deadlines exist outside the soope of the order and would n~ot be consideredto add to it. These include: (1) deadlines that occur befor~ service and before ascheduling order is entered, (2) post trial deadlines, (3) deadlines for auciLlaryproceedings such as medical malpractice panels or for proceedings beforecorrmfissioners in chancery, (4) coutingcat deadlines, such as those for third partypractice, and (5) discovery deadlines which are both contingent on what discoveryis served and part era discreet set of rules in Part 4 of the Rules of Court.
Other deadlines apply only to a narrow spectrum of cases, i.e,, the deadline torespond to summary judgment motions i~pro .¢e prisoner cases in § 8.01-696 andwu-ification of sworn pleadings, Rule 1:10.
Deadlines the committee may consider offcu’ing 1"or inclusion in the UniformScheduling Order included the following: Rule 3:21 regarding jury triaks, VirginiaCode § 8.01-407 regal’cling sea-vice of subpoenas, Virginia Code § 8.01-413.01and § 8.01-416 concerning the filing of affidavits to e.stablish the authenticity ofevidence of damages, Virginia Code § 8.01-380 regarding the timing of non-suits,and Virginia Code § 8.01-.401.1 concerning the designation of expert literature.
Hen. Diane M. StricklandRe: Boyd Graves Study Committee Uniform Scheduling OrderJune 23, 2008Page 3
The committee has discussed other avenues to accomplish this, such as includinga chapter on deadlines in the Evidence Handbook, or creating an appendix thatwould digest scheduling deadlines.
Meet and confer requirement. As indicated below several significant issueswere discussed but there was not a consensus to include changes on these issues inthe use. There wa~ a consensus that pretrial issues not addressed by the useshotttd be addressed between the parties. Presently there is no direction given forwhat issues should be addressed early in the ease to provide the best opporturtityfi~r orderly and prudent disposition of the action. We drafted a provision forconsideration but are not ready to recommend its adoption.
The provision we have drafted for consideration below is taken primarily fromFederal Rule of Civil Procedure 16 which lists areas to be covered at a pretrialconference. In addition, we in¢luded two issues that were discussed thoroughlyby our committee concernir~ the use and scheduling of depositions.
Such a change would be so ambitiot~ that it should be endorsed by statewide bargroups before being promoted and offered for recommendation. The committeealso wishes to consider whether an enforcement provision is feasible so that theprovision is not neglected by a~tomeys in a mariner that would undermine theefficacy of the scheduling order generally.
The working draft of such a provision is as follows:
RCxluirement to Meet and Confer:
Wit16n 21 days after responsive pleadings are filexl theparties shall meet and confer for such purposes as:1. Expediting disposition of the action;2. Establishing early and continuing management so the
case will not be protracted because of lack ofmanagement;
3. Discourage wasteful pr~ial activities;4. Facilitating settlement; and
Hen, Diane M. StrieklandRe: Boyd G~ves Study Committee Unifon~ Scheduling OrderJun~ 23,200gPage 4
III.
Considering procedural matters such as whether factwitnesses should be deposed before expert witnessesand how non-party depositions will be used tbrpurposes of discovery or for use at trial.
Changes considered but not adopted:
The committee discussed imposing a new 30 day deadline for designatingdepositions to be used at trial. The idea being that a trial deposition could bescheduled of a deponent who had been deposed for discovery purposes. Wecortcluded this change would be significant and might require further study.Atteaative to the somewhat delicate balance and compromise implemented bythose who wer~ successful in accomplishing the adoption of a USO, thecomt~ttee declined to recommend this change at this time. We were also mindfulthat .another group is addressing trial depositions versus discovery d~ositions andwe look forward to reviewing its work.
A mandatory conference might facilitate resolution of some issues govemil~ th~u~e of depositions that remain unresolved in the USO.
A specific change to include in all USOs an option for parties to select separatedeadlines for the completion of depositions of fact witnesses and e.xpes~ wast~bled in favor o f further study concerning a mandatory conf~’ence.
=The committee discussed potential conflicts between discovery roles requiringa~mwers to interrogatories within 21 days and expert disclosures pursuant to theUSO. The committee discussed anecdotal reports and experience which indicatedpractice in most jurisdictions is that interrogatories are timely answered, but thatin most eas~ opinions ofexperls are not disclosed until the dead.line scheduled bythe USO. The committee could not specifically determine how the interplayb~wecn these requirements operated in practice and did not develop a specificrecommendation for any change that could be applied to an identifiable problem.Although there have been some cases in which significant issues have arisen andexperts have been stl-u¢l~ ther~ was not perceived to be a probkma readilypositioned for a solution. It is also oar understanding that our charge ov~lappedsomewhat with that of another committee and we look forward to reviewing thework of others in this regard. The committee declines to make a~yreconunendafions co~ceming this issue at this time.
Hen. Diane M. StricklandRe: Boyd Graves Study Committee Uniform Scheduling OrderJune 23,200gPage 5
The committee considered a manner in which to have specific dates indicated inthe use or pexhaps a summary of deadlines with specific dates, but we could notdetermine a helpful way to aceompfish this without inzposing some additionalburden on clerks and by reformatting the entire order. Flexibility may also belimited by a change in cixeumstanees such ~ when a trial date gets changed. Thepresent form works better when a trial is reseheduled because all deadlines can berecalculated and there is not an order with specific dates to be adjusted.
The committee considered whether the order should be mandatory throughoutcourts in the Connnonwealth. There does not appear to be support among judges~ttfficient to endorse ~t "one size fits all" regime. The present requirement that irascheduling order is used, it must be the Rule 1: l 8 Order appears to be areasonable compromise at this time. Although members of the committeeexpressed a preference for uniformity, there is acceptance mad recognition of the£aet that local practices vary among diverse communities in the Commonwealth.
Other areas. The committee also discussed additional concerns raised byconference members last October and declined to make a reconm~endationregarding the following:
should there be a distinction between complex and more routine cases;should there be bifurcated discovery between liability and damages; andwhether changes should be made to allow for the court to amend thescheduling order at the request o:f one party more easily than Rule 1:18permits.
We viewed changes in addition to the one we recommend with some skepticism due towhat all agreed was a rrtonumenta[ achicvemertt by those who implemented a use in Virgiui.a~Thanks to the work of these individuals Virginia is no longer fully a hedge podge of’pretrialpractices from one jurisdiction to another, or even with differences between judges in the samecourts. While some inconsistencies in local practices remain, the committee believes a usecannot mandate completely uniform practice.
Our committee wishes to acknowledge substantial contributions made by Judge StanleyP. Klein to inform our discussion. We also received helpful comments from Judge Everett A.Martin, Jr. Professor Kent Sinclair provided us with valuable research.
Hen. Diane M. StricklandRe: Boyd Graves Study Committee Uniform Scheduling OrderJune 23, 2008Page 6
Our group appreciated the opportunity to explore this interesting topic. We welcome anyquestions you may have or any additional matters you would like us to take up.
Best regards.
gLL:ddErt¢losure
Hen. Charles E. PostonHen. Dennis J. SmithCharles F. Hilton, Esq.Paul M. Black, Esq_Steve M- Garver, Esq.Lisa P. O’Donnell, Esq.
105-109 E. HIGH STREETTelephone (434) 977-4455Facsimile (434) 979-1221
May 29, 2008
NATIIAN J. D. VELDHUIS
ERNEST A. HARPER
RETIREDLLOYD T. SMITH, JR.E. GERALD TREMBLA¥
1922-2003
Hon. Diane M. Strickland809 Oakwood Drive, S.W.Roanoke, VA 24015
Re: Boyd Graves Study Committee - Uniform Scheduling OrderHon. Charles E. Poston Hon. Dennis J. SmithCharles F. Hilton, Esq. Paul M. Black, Esq.Steve M. Garver, Esq. Lisa P. O’Donnell, Esq.R. Lee Livingston, Esq.
Dear Diane:
The study committee on the Uniform Scheduling Order produced the attached proposedmodifications to the Uniform Scheduling Order. Below is our report divided into two sections:(I) recommended changes incorporated into a revised scheduling order and (II) changesconsidered but not recommended by the committee at this time.
Changes recommended and incorporated into the attached revised UniformScheduling Order:
To address the late filing of deposition excerpts to be read at trial a change isproposed to require designations be submitted no later than the deadline for theexchange of witness and exhibit lists - 15 days before trial. Given the need to editvideo depositions and challenges in getting objections ruled on prior to trial thisdeadline will provide some margin that does not presently exist in the broadlanguage that presently controls the issue in the Order: "at their earliest reasonableopportunity." The committee concluded counsel follow this directive poorly insome cases and a clear cut off would be a helpful supplement to the generalinstruction, which is retained.
There was sentiment for moving the date even earlier because it will still bedifficult to have hearings on numerous objections within 15 days of trial. Given
TREMBLAY & SMITH, LLP
Hon. Diane M. StricklandRe: Boyd Graves Study Committee Uniform Scheduling OrderMay 29, 2008Page 2
other deadlines in the order, however, such as the deadline for depositions to beused at trial, and a reluctance to change numerous deadlines, moving the deadlineearlier is not recommended.
Two changes are included to make the USO more user friendly and to avoid socalled "traps of the trade." Inclusion of pretrial deadlines from the Virginia Codein the USO may also servepro se litigants well. Hence, reference is made toVirginia Code Section 8.01-401.1 which sets 30 days prior to trial as the deadlinefor designation of expert literature, and a reference is added to Virginia CodeSection 8.01-413.01 which requires the filing of affidavits concerning medicalbills to be filed 21 days in advance of trial.
Meet and confer requirement. As indicated below several significant issues werediscussed but there was not a consensus to include changes on these issues in theUSO. There was a consensus that some pre-trial issues not addressed by the USOshould be addressed between the parties. Presently there is no requirement forparties to meet and confer or direction given for what issues should be addressedearly in the case to provide the best opportunity for orderly and prudentdisposition of the action. Most of the suggested topics for the mandatory meetand confer included in our draft were taken from Federal Rule of Civil Procedure16 which lists areas to be covered at a pretrial conference. In addition, weincluded two issues that were ventilated thoroughly by our committee concerningthe use and scheduling of depositions.
This change although somewhat ambitious in the sense that it provides for amandatory conference, does not provide any other mandatory mechanism thatwould be onerous to the parties.
II. Changes considered but not adopted:
The committee discussed imposing a new 30 day deadline for designatingdepositions to be used at trial. The idea being that additional depositions could bescheduled of deponents who had been deposed for discovery purposes who couldbe redeposed prior to trial if there was such a mandatory disclosure. Weconcluded this change would be significant and might require further study.Attentive to the somewhat delicate balance and compromise implemented by
those who were successful in accomplishing the adoption of a USO, thecommittee declined to recommend this change at this time. We were also mindful
TREMBLAY & SMITH, LLP
Hon. Diane M. StricklandRe: Boyd Graves Study Committee Uniform Scheduling OrderMay 29, 2008Page 3
that another group is addressing trial depositions versus discovery depositions andwe look forward to reviewing its work.
We concluded the mandatory conference language we recommend would movepractice in a positive direction and facilitate resolution of some issues governingthe use of depositions that remain unresolved in the USO.
A specific change to include in all USOs an option for parties to select separatedeadlines for the completion of depositions of fact witnesses and experts wastabled in favor of the language above concerning a mandatory conference.
The committee discussed potential conflicts between discovery rules requiringanswers to interrogatories within 21 days and expert disclosures pursuant to theUSO. The committee discussed anecdotal reports and experience which indicatedpractice in most jurisdictions is that interrogatories are timely answered, but thatin most cases opinions of experts are not disclosed tmtil the deadline scheduled bythe USO. The committee could not specifically determine how the interplaybetween these requirements operated in practice and did not develop a specificrecommendation for any change that could be applied to an identifiable problem.Although there have been some cases in which significant issues have arisen andexperts have been struck, there was not perceived to be a problem readilypositioned for a solution. It is also our understanding that our charge overlappedsomewhat with that of another committee and we look forward to reviewing thework of others in this regard. The committee declines to make anyrecommendations concerning this issue at this time.
The committee considered a manner in which to have specific dates indicated inthe USO or perhaps a summary of deadlines with specific dates, but we could notdetermine a helpful way to accomplish this without imposing some additionalburden on clerks and by reformatting the entire order. Flexibility may also belimited by such a change in circumstances when a trial date gets changed. Thepresent form works better when a trial is rescheduled because all deadlines can berecalculated and there is not an order with specific dates to be adjusted.
Other areas. The committee also discussed additional concerns raised byconference members last October and declined to make a recommendationregarding the following:
TREMBLAY & SMITH, LLP
Hon. Diane M. StricklandRe: Boyd Graves Study Committee Uniform Scheduling OrderMay 29, 2008Page 4
ao should the order be mandatory;should there be a distinction between complex and more routine cases;should there be bifurcated discovery between liability and damages; andwhether changes should be made to allow for the court to amend thescheduling order at the request of one party more easily than Rule 1:18permits.
Changes in addition to the few we recommend were viewed with skepticism in part dueto what all agreed was a monumental achievement by those who were successful inimplementing a USO in Virginia. Thanks to the work of these individuals Virginia no longer is ahodgepodge of pretrial practices from one jurisdiction to another. While some inconsistencies inlocal practices remain, the committee believes there will never be one USO that could mandatecompletely uniform practice.
Our group appreciated the opportunity to explore this interesting topic. We welcome anyquestions you may have or any additional matters you would like us to take up.
Best regards.
R. Lee Livingston
RLL:ddEnclosurecc: Hon. Charles E. Poston
Hon. Dennis J. SmithCharles F. Hilton, Esq.Paul M. Black, Esq.Steve M. Garver, Esq.Lisa P. O’Donnell, Esq.
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