What Did The Plaintiff Know and When Did He Know It? The Availability of Post-Trial Discovery to Pursue Sanctions Under VA. Code ANN. 8.01-271.1

Written By
Carr Maloney, P.C.

By Colin Neal

“This article originally appeared in the Journal of Civil Litigation, Vol. 36, No. 1 (Spring 2024), a publication of the Virginia Association of Defense Attorneys. It appears here with permission.”

I. Introduction
Virginia law provides for monetary and nonmonetary sanctions against litigants and their counsel for signing a pleading that is not well grounded in fact and law or is otherwise brought for an improper purpose. The statute is silent, however, as to what sort of factual investigation is appropriate to determine what the signer knew at the time the pleading was signed. Although sanctions hearings are often evidentiary in nature, there are no clear directives as to what discovery is appropriate in support of investigating a motion for sanctions. Only one court of record in the Commonwealth has addressed this question. More than two decades ago, in Fairfax County Dept. of Family Services v. Neidig, the court adopted an especially high standard for a sanctions movant to justify the need for discovery. The court accepted the guidance of the Advisory Committee of the Federal Rules requiring litigants to demonstrate “extraordinary circumstances” to warrant posttrial discovery for a sanctions inquiry.

As discussed in this article, the exceptional circumstances test adopted in Neidig is consistent with the general purpose of the statutory sanctions and appropriately acts as a functional bar to discovery in post-trial sanctions proceedings. Although not yet adopted by the Supreme Court of Virginia, sanctions jurisprudence strongly suggests that the Court would adopt the “extraordinary circumstances” test if presented with this issue. Considering the application of extraordinary circumstances tests in other contexts, the full adoption of this test in Virginia would all but prohibit post-trial discovery to pursue sanctions motions. Accordingly, to determine what the plaintiff knew and when he knew it, defendants should aggressively use the tools of pre-trial discovery to investigate whether a pleading or motion is well grounded in fact and brought for a proper purpose.

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