11.5 APPELLATE REVIEW
Appellate courts review trial court discovery rulings under the broad "abuse of discretion" standard. As the Virginia Supreme Court has recently noted, an abuse of discretion occurs "only when reasonable jurists could not differ" as to the proper decision.164 This principle necessarily implies "that, for some decisions, conscientious jurists could reach different conclusions based on exactly the same facts—yet still remain entirely reasonable."165 "This bell-shaped curve of reasonability governing our appellate review rests on the venerable belief that the judge closest to the contest is the judge best able to discern where the equities lie."166
Virginia appellate courts have found an "abuse of discretion" under three "principal" circumstances:
when a relevant factor that should have been given significant weight is not considered; when an irrelevant or improper factor is considered and given significant weight; and when all proper factors, and no improper ones, are considered, but the court, in weighing those factors, commits a clear error of judgment.167
Nonetheless, the question is not what the appellate court would have done were it called upon to decide the discovery dispute in the first instance. in "evaluating whether the trial court abused its discretion, 'we do not substitute our judgment for that of the trial court. Rather, we consider only whether the record fairly supports the trial court's action.'"168
As a practical matter, circuit court orders regarding discovery are often not directly appealable because they do not constitute final orders. The Virginia Code limits appeals to the Virginia Supreme Court to (i) certain final orders and (ii) interlocutory appeals on certain equitable claims.169 A final order is "one which disposes of the whole subject, gives all the relief contemplated, provides with reasonable completeness for giving effect to the sentence, and leaves nothing to be done in the cause save to superintend ministerially the execution of the order."170 A discovery order typically does not qualify as a final order,171 and interlocutory appeals regarding discovery matters are rarely granted.172 Although section 8.01-670.1 of the Virginia Code allows parties to appeal interlocutory orders by permission, this mechanism is expressly reserved for unsettled questions of law that lack controlling authority, and it has never been applied in the discovery context. A party held in contempt for violating discovery, on the other hand, can obtain immediate appellate review.173
Once the case is taken up on appeal, discovery decisions within the discretion of the trial court174 will not be reversed on appeal unless the action taken was improvident and affected substantive rights.175 This broad power, however, does not permit Virginia trial courts to "'short circuit[ ]' the legal process"176 or to allow discovery that is otherwise unauthorized.177 Once the trial court has determined sanctions are warranted, it is important for it to clearly document the reasons for its decision, the analysis used, and the facts at issue in order to provide a clear record of its decision to support its ruling on appeal.178
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Notes:
[164] Sauder v. Ferguson, 289 Va. 449, 459, 771 S.E.2d 664, 670 (2015)...
