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 post-trial discovery for a sanctions inquiry.

Originally published in Journal of Civil Litigation, Vol. 36, No. 1 (Spring 2024), a publication of the Virginia Association of Defense Attorneys.