On September 12, 2014, the Virginia Supreme Court issued Temple v. Mary Washington Hosp., Inc., No. 131754. It did not reach the merits of that medical malpractice appeal re the discoverability of policies and procedures and of metadata.
In underlying Temple medical malpractice case, the “trial court denied [plaintiff’s] motion to compel, holding that [defendant’s] policies and procedures were not relevant, would not lead to discoverable evidence, and were privileged under the statutes.” Id. at 2. Regarding “electronically stored information regarding decedent’s evaluation and treatment,” i.e., audit trail metadata, “the trial court found that all relevant documents had been disclosed [and] noted that if [plaintiff] wanted additional information on the electronic storage and data, she was free to depose a corporate designee on the matter,” id.; though plaintiff did not seek to depose a corporate designee of defendant. Id. at 2-3.
After the trial court’s adverse rulings and findings in the Temple medical malpractice lawsuit, plaintiff non-suited, refiled, and entered a consent order that “all discovery conducted and taken in the previous action …is hereby incorporated into the instant action”. Id. at 3-4. After suffering a defense verdict at jury trial, plaintiff moved for reconsideration of the aforesaid evidentiary rulings in the non-suited action and for new trial, which was denied. Id. at 4.
In its Temple medical malpractice opinion, the Virginia Supreme Court held the refiled lawsuit was a “new action [that] stands independently of any prior non-suited action.” Id. at 6. “For any aspect of the [nonsuited] 2010 action to be incorporated into the [refiled] 2012 action, an order had to explicitly permit it.” Id. at 7.
The Virginia Supreme Court in the Temple medical malpractice appeal held that discovery “motions, objections, and trial court orders do not constitute discovery,” id. at 7; and therefore that the consent order simply referencing “discovery” did not incorporate the discovery “motions to compel, the objections, [the] transcripts of the hearings or the trial court’s ruling on the motions”. Id. at 8. Temple found that the comments of the parties and the trial court at final pre-trial hearing, which “demonstrated their understanding that all arguments and rulings from the nonsuited  action were binding in the 2012 [refiled] action, were of no moment since trial courts speak only through their written orders and that such orders are presumed to reflect accurately what transpired.” Id.