Virginia: Car Accidents – a Lawyer’s Statements (July 25, 2015)

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In June and July, 2015, two Virginia Circuit Courts upheld Plaintiffs’ rights to discovery of witness statements recorded by insurers in the routine and ordinary course of business of adjusting motor vehicle accidents. E.g., Johnson v. Jefferson & Lee Delicatessan, Inc., No. CL-2013-14317 (Fairfax Jul. 17, 2015)(State Farm recorded statements before suit was threatened in fact) and Agee v. Feist, No. CL14-9969 (Franklin June 1, 2015)(Erie recorded statements of Defendant). Earlier in Galloway v. Sunbelt Rentals, Inc., 2015 WL 176615 (W.D.Va. Jan. 14, 2015), Virginia federal court held that even sworn court-reported eyewitness statements taken by defense counsel specially-retained 1 week post-MVA were discoverable despite being “fact work product,” because Plaintiff had “substantial need” and no “substantial equivalent…without undue hardship”.

“The Fourth Circuit has recognized that contemporaneous witness statements ‘constitute unique catalysts in the search for truth’ in the judicial process,” noted Galloway. Id. at *3. “Memory inevitably fades and with it the accuracy of witness statements. *** Accounts rendered from fresh recollections are universally held to be more reliable than those given after time has passed. Therefore, ‘courts have widely found good cause to compel the disclosure of a witness statement made at the time of the accident’.” Id. (citations omitted).

“Accurate recordings of [witness] recollections are of paramount importance to [Plaintiff’s] ability to prepare his case. *** A deposition based on two-year-old memories is not the substantial equivalent of a witness statement taken a week after the accident,” explained Galloway. Id. at *4. “Neither is the [witness] statement to the police substantially equivalent.” Id.

Galloway continued that “contemporaneous witness statements have inherent significance because they record a witness’s fresh recollections. This significance is fully distinct from any impeachment value they may also have and can independently warrant disclosure when the movant lacks their substantial equivalent. As I find that the [witnesses’] statements are inherently valuable as contemporaneous recollections and [Plaintiff] does not have access to their substantial equivalent, [Plaintiff] need not make any showing of the statements’ impeachment value for his motion to succeed.” Id.

“This discovery dispute does not present a situation where one party seeks to build his case on the back of his opponent’s strategy, theories, and impressions,” delineated Galloway. “It involves equal access to important factual information. ‘Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.’ A lawsuit ‘is not a sporting event, and discovery is founded upon the policy that the search for truth should be added.’ The [witnesses’] sworn statements undeniably further the search for truth.” Id. at *5.