Proposed Change to Deposition Designations and Objections in Condemnation Pretrial Order in Virginia

The Advisory Committee on Rules of Court for the Supreme Court of Virginia is seeking public comment on a proposal to amend the Alternative Pretrial Order for Eminent Domain Cases (Form 3-A) to conform with an amendment to the uniform civil pretrial order.  Specifically, the proposal would amend Paragraph XI. to lengthen the amount of time before trial in which the parties should be exchanging deposition designations and any objections thereto as follows:

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. Other than trial depositions taken after completion of discovery under Paragraph II, designations of portions of non-party depositions, other than for rebuttal or impeachment, shall be exchanged no later than 30 15 days before trial, except for good cause shown or by agreement of counsel. It becomes the obligation of the non-designating parties opponent of any such designated deposition to bring any objection or other unresolved issues to the court for hearing before the day of trial, and to counter-designate any additional portions of designated depositions at least 5 days before such hearing.file any objection or counter-designation within seven days after the proponent’s designation. Further, it becomes the obligation of the non-designating parties to bring any objections or other unresolved issues to the court for hearing no later than five days before the day of trial.

The change makes sense from a view of consistency and fairness; however, from a practical standpoint, it (1) requires even more advance planning before trial (i.e., expense); (2) serves to collapse the period of deposition discovery if you take into account the time to take the depositions, to receive the transcripts and to make the necessary designations; and (3) continues the notion that trial courts are standing ready to hold hearings on any such objections in the seventeen-day window (excluding weekends!) between when objections are made and five days before trial.

The Advisory Committee on Rules of Court invites public comment on the proposed revisions by December 12, 2019, to:

Steven Dalle Mura
Director of Research, Office of the Executive Secretary
Supreme Court of Virginia
100 North Ninth Street
Richmond, VA 23219
proposedrules@vacourts.gov

Jeff Geiger leads Sands Anderson’s Eminent Domain Law Team and assists state and local governments with condemnation issues. If you have any questions about this post or any other condemnation issues, please reach out to Jeff.