Changes to Virginia Rules Empower Judges to Dismiss Cases for Lack of Participation in Discovery

Discovery serves an important role in litigation. The purpose of discovery is to clarify the issues between the parties, ascertain facts relative to those issues and obtain the fullest possible knowledge of the facts and issues before trial. Indeed, whether circumstances tend to lend credence to a favorable settlement or a trial, utilizing effective discovery techniques can generate valuable leverage in any case. Among the tools an attorney may employ in pursuit of facts are requests for admissions, written interrogatories, requests for production of documents, and depositions. Accordingly, there are extensive state and Federal rules governing the discovery process. Discovery rules serve protect both the court and opposing parties from dilatory or unwarranted motions and to promote expeditious hearing of cases. The rules are generally intended to produce a broad scope of evidence for a speedy determination of trial, not punish erring parties. However, when a party refuses to participate in discovery, the litigation process can grind to a halt. Failure to respond to discovery not only prejudices the preparation of the opposing party’s lawsuit, it is also a major source of judicial consternation. It is rare to find a judge who appreciates sound legal argument in opposition to a motion to compel discovery responses. As such, state and Federal rules of civil procedure provide trial courts with means and power to enforce compliance with rules of discovery by imposing sanctions against offending parties. Judges are generally granted a wide range of discretion when it comes to imposing sanctions, which may include establishing facts of record, prohibiting parties from arguing certain claims or defenses, striking pleadings in whole or in part, dismissing an action in whole or in part, or rendering a default judgment against the disobedient party. Historically, in Virginia, a judge could not sanction a party for failing to participate in discovery until such time as the offending party failed to comply with an order compelling discovery. Therefore, the Rules of the Supreme Court of Virginia required a minimum of two (2) trips to the courthouse before sanctions could be issued – one (1) trip for a motion to compel discovery and a second (2) on a motion for sanctions for failure to comply with the resultant order compelling discovery. In this regard, the Virginia rules differed from the Federal Rules of Civil Procedure. Federal Rule of Civil Procedure 37(d) authorizes federal judges to impose sanctions without the need for a prior order if the offending party wholly fails to respond to discovery requests. To avoid unjust results or violations of due process, under FRCP 37(d), the sanction of dismissal, and analogous sanction of default, are upheld only in extreme circumstances, and then only when court finds willfulness, bad faith, or any fault on part of offending party. Nevertheless, Federal judges have utilized FRCP 37(d) to dispose of appropriate cases. In January, 2018, Rule 4:12(d) of the Supreme Court of Virginia was amended to empower state court judges to impose sanctions without the entry of prior order compelling discovery. The effect of the rule change, which became effective on April 1, 2018, was more closely align the Virginia discovery rules with the Federal Rules of Civil Procedure. Not surprisingly, state court judges were a quick to utilize the authority granted by the changes to Rule 4:12(d) and have since dismissed at least one plaintiff’s case for failure to participate in discovery. In one case out of New Kent County, plaintiff, an authorized occupant of a leased premises, sued her landlord for damages arising out of an alleged mold condition. During the litigation, plaintiff’s counsel lost touch with his client, who failed to respond to the defendant/landlord’s discovery. After hearing the landlord’s discovery motion and taking it under advisement, the Honorable B. Elliott Bondurant heard oral argument on defendant’s demurrer. At the conclusion of the proceedings, Judge dismissed the plaintiff’s case, with prejudice, for failure to respond to discovery. Prospective litigants and counsel practicing in Virginia must be aware of state court interpretation and implementation of the 2018 changes to Rule 4:12(d). While parties used to be able to rely on the limitations of rule 4:12 to participate in some level of gamesmanship in the discovery process, judicial patience with such tactics is weaning. Consequently, a party who refuses to participate in discovery at the outset of litigation is now flirting with disaster, rolling the dice that a reviewing judge will dispose of their case, without further notice. As such, sound policy is to take an active approach to the discovery as contemplated by our state and Federal rules. Should you have any questions regarding the discovery process, please feel free to contact me, Benjamin Dill ( or Steve Setliff (