Eminent domain is an unusual area of the law, so unusual that in Virginia it is one of the very few areas that has its own specific form scheduling order promulgated by the the Supreme Court of Virginia in the appendices to the Rules of the Supreme Court of Virginia. The Supreme Court of Virginia recently made some changes to the Uniform Pretrial Scheduling Order in Eminent Domain Proceedings, that practitioners in this area should be aware of.

XI. Deposition Transcripts to be Used at Trial
Counsel of record must confer and attempt to identify and resolve all issues regarding
the use of depositions at trial. It is the obligation of the proponent of any deposition of
any non-party witness who will not appear at trial to advise opposing counsel of record of
counsel’s intent to use all or a portion of the deposition at trial at the earliest reasonable
opportunity. Other than trial depositions taken after completion of discovery under
Paragraph II, designations of portions of non-party depositions, other than for rebuttal or
impeachment, must be exchanged no later than 30 days before trial, except for good
cause shown or by agreement of counsel. It becomes the obligation of the nondesignating
parties of any such designated deposition to file any objection or counterdesignation
within seven days after the proponent’s designation. Further, it becomes the
obligation of the non-designating parties to bring any objections or other unresolved
issues to the court for hearing no later than 5 days before the day of trial.

Prior to the change, when a party wanted to use a deposition at trial it had to designate the portion of the deposition it planned on using and exchange that information with the other parties no later than 15 days before trial. Further, the instructions provided, inexactly, that any party who opposed the use of any such deposition had to bring any of its objections to the court for a hearing “before the day of trial.” Lastly, any party opposing the use of any deposition had to counter-designate any additional portions of the designated depositions at least five days before the earlier mentioned hearing.

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