Motion for Protective Order in Virginia

Understanding the Purpose and Significance of a Motion for Protective Order

“Discovery is the process by which facts resting within the knowledge of one party are disclosed to another party in a suit or proceeding in court.” (See Temple v. Mary Wash. Hosp., Inc. (2014) 762 S.E.2d 751, 754.)

A “motion to compel discovery is a party's request that the court force the party's opponent to respond to the party's discovery request as to answer interrogatories or produce documents.” (See Black's Law Dictionary (10th ed. 2009); Reid v. Reid, Record No. 1862-16-1, at *7 n.3 (Va. Ct. App. Aug. 29, 2017).)

“Rule 4:1(b)(1) states that with certain exceptions [p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party." (See Nizan v. Wells Fargo Bank (2007) 274 Va. 481, 500.)

“It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” (See Hall v. Hall, Record No. 2021-04-4, at *1 (Va. Ct. App. Oct. 11, 2005).)

“One purpose of the discovery process is to disclose all relevant and material evidence before trial in order that the trial may be an effective method for arriving at the truth and not a battle of wits between counsel.” (See Little v. Cooke (2007) 274 Va. 697, 717; Moore v. Moore, Record No. 0314-20-4, at *21 (Va. Ct. App. Oct. 27, 2020).)

However, there are limits to discovery, and the court has the power to impose conditions on discovery in order to prevent injury, harassment, or abuse of the court's processes.

“The unique character of the discovery process requires that the trial court have substantial latitude to fashion protective orders.” (See Shenandoah Publishing v. Fanning (1988) 235 Va. 253, 261.)

Procedural Steps Involved in Filing a Motion for Protective Order

Rule 4:1(c) of the Virginia Court Rules governs protective orders.

It states that “upon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the county or city where the deposition is to be taken, may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense…” (See Va. R. Sup. Ct. 4:1(c).)

“This includes one or more of the following:

1. that the discovery not be had;
2. that the discovery may be had only on specified terms and conditions, including a designation of the time or place;
3. that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;
4. that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;
5. that discovery be conducted with no one present except persons designated by the court;
6. that a deposition after being sealed be opened only by order of the court;
7. that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way;
8. that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.”

(See id.)

“If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery.” (See id.)

“A protective order is not, strictly speaking, a final order that leaves nothing to be done in the cause. The protective order is an ongoing concern that remains under the jurisdiction of the court and, may, upon a motion and after a hearing, be extended, modified, or dissolved at any time.” (See Jacobs v. Wilcoxson (2020) 71 Va. App. 521, 525-26.)

Discretion of the Court in Deciding a Motion for Protective Order

“We review the trial court's refusal to quash the issuance of a subpoena duces tecum or issue a protective order under an abuse of discretion standard.” (See America Online v. Anonymous Publicly Traded Co. (2001) 261 Va. 350, 359; O'Brian v. Langley Sch. (1998) 256 Va. 547, 552, 507 S.E.2d 363, 366 [noting that, [g]enerally, the granting or denying of discovery is a matter within the discretion of the trial court].)

“This standard requires the Court to show enough deference to a primary decision maker's judgment that the [reviewing] court does not reverse merely because it would have come to a different result in the first instance.” (See Race v. Commonwealth, No. 0691-22-4, at *4 (Va. Ct. App. Dec. 29, 2022).)

“A trial court commits an abuse of discretion when:

1. it fails to consider a relevant factor that should have been given significant weight;
2. it considers and gives significant weight to an irrelevant or improper factor; or
3. it considers all proper factors, and no improper ones, but, in weighing those factors, the court commits a clear error in judgment.”

(See Barnes v. Commonwealth (2020) 72 Va.App. 160, 167; Race v. Commonwealth, No. 0691-22-4, at *4 (Va. Ct. App. Dec. 29, 2022).)

“The abuse of discretion standard recognizes that a court has a range of choice and that its decision will not be disturbed as long as it stays within that range and is not influenced by any mistake of law." (See Galiotos v. Galiotos (2021) 300 Va. 1, 10, 858 S.E.2d 653; Payne v. Payne (2023) 77 Va. App. 570, 590.)

"Although we review a ruling on discovery for abuse of discretion, a lower court's interpretation of a statute or the rules of the Supreme Court of Virginia presents a question subject to de novo review on appeal." (See Patel v. Rabinowitz ex rel. Lakhani Assocs. (2022) 75 Va. App. 663, 669-70; Nimety v. Commonwealth (2016) 66 Va. App. 432, 437, 786 S.E.2d 835.)

Legal Precedents and Case Law on a Motion for Protective Order

It is well settled that “the issuance of a protective order is an ex parte civil proceeding, and the explicit policy behind such an order is to protect the health and safety of the petitioner and family or household members of a petitioner." (See Code sub. sec. 19.2-152.9(A); Logan v. Commonwealth (2020) 72 Va. App. 309, 320.)

It is also well settled that absent a protective order, “pursuant to Rule 4:12(b)(2), a trial court may sanction a party for failing to obey an order to provide or permit discovery.” (See Landrum v. Johnston-Willis Hospitals (2011) 282 Va. 346, 352.)