June 8, 2020

In a Virginia medical malpractice case in which the plaintiff alleged that the defendants misdiagnosed the plaintiff with a specific cervical cancer for which she subsequently received treatment, one of the defendants, a pathologist, testified during her deposition that after the lawsuit had been filed, she took photographs of certain biopsy slides, at the direction of her defense attorney, that she believed supported her diagnosis. As a result of the defendant’s deposition testimony, the plaintiff’s Virginia medical malpractice lawyer filed a motion to compel the defendant to provide the photographs that the defendant had taken. The defense filed an objection to the production of the photographs, citing attorney-client privilege and work product because the photographs were taken in anticipation of litigation or for trial and were taken at the defense attorney’s direction.

Rule 4:1(b)(3)

Rule 4:1(b)(3) provides, in part: “Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this Rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this Rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.”

The Virginia trial court judge concluded that the plaintiff had failed to demonstrate a substantial need or an inability to obtain the substantial equivalent of the defendant’s photographs that were sought to be produced. The judge stated that the plaintiff was seeking photographs of two specific slides of the thirteen slides: “So, while there may be a need to have exact copies of the photographs that Dr. Sheth took, that need is far from substantial – particularly because the particular biopsy slides exist and Plaintiff can obtain – without undue hardship – the substantial equivalent of Dr. Sheth’s photographs from the existing slides.”

The trial court also refused to allow the plaintiff to re-depose the defendant pathologist, stating “the Court does not appreciate how a re-deposition could avoid having Dr. Sheth either having to become (at least potentially) an expert witness against herself, or having her (at least potentially) disclose mental impressions, conclusions, opinions, or legal theories of Dr. Sheth’s counsel.”


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