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VIRGINIAD. Cameron Beck, Jr.MORRIS & MORRIS, P.C.11 South 12 th Street, 5 th FloorRichmond, VA 23219Phone (804) 344-8300www.morrismorris.comcbeck@morrismorris.com1. Does your state recognize an exemption from discovery (or a privilege) forpre-suit investigation materials? Is there a key to preserving thisexemption/privilege (i.e. involvement of counsel)?Rule 4:1(b)(3) of the Supreme Court of Virginia provides that a party may obtaindiscovery of work product prepared by or on behalf of a party in anticipation of litigationonly by showing that “the party seeking discovery has substantial need of the materialsin the preparation of his case and that he is unable without undue hardship to obtain thesubstantial equivalent of the materials by other means.” The circuit courts are indisagreement as to the point at which documents or things are considered as havingbeen prepared in anticipation of litigation, but the majority of courts consider thetriggering event to be the retention or consultation of counsel. See McDougall v. Dunn,468 F.2d 468, 473 (4th Cir.1972). Other courts, however, allow for the possibility of anearlier claim to the privilege, and follow a case by case analysis. See State Farm v.Perrigan, 102 F.R.D. 235, 238 (W.D.Va.1984).2. What is your state’s rule with regard to the discoverability of written orrecorded statements taken during investigation of an incident?Virginia Code section 8.01-417(A) requires that any written or recorded statement takenfrom an injured person be turned over to the injured person at their request. Rule 4:1 ofthe Supreme Court of Virginia provides that statements made by a party concerning theaction be provided to the party at his or her request.3. Does your State recognize the self-critical analysis privilege?Virginia Code Section 8.01-581.17 recognizes this privilege in terms of peer reviews inmedical malpractice cases. The state has not recognized the privilege in a broadercontext.