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Lewis & Tompkins

Judge Wetzel's Discovery Checklist for Virginia Trial Attorneys

David E. Tompkins
Car Accident, Bicycle Accident and Pedestrian Accident Attorney for Maryland, D.C. and Virginia
DISCOVERY (March 24, 2005) This is a synthesis of discovery decisions which will govern the resolution of your discovery dispute, so read this memo carefully before ap¬pearing on a discovery motion. If you are advancing a proposition contrary to one expressed herein, you should have legal authority to support your argument. 1. Consultation among counsel. 2 2. Good Faith. 2 3. Permissible scope generally, party's physical and mental condition. 2 4. Interrogatories are limited 3 5. Limitations in divorce suits. 3 6. Objections. Objections must be specific to allow opposing counsel to appropriately respond to cure the defect without the intervention of the court, and to permit the court to rule intelligently if so required. 3 7. Opinions and Conclusions of Law. 4 8. Lack of knowledge. 4 9. Corporations. 4 10. Option to produce business records. 4 11. Similar accidents or occur¬rences are discoverable 5 12. Defendant's financial condition. 5 13. Possession, Custody, or Control and medical records. 5 14. Equally Accessible. 5 15. Experts. 6 16. Party Statements. 8 17. Work Product and Anticipation of Litigation. 8 18. Attorney-Client Privilege. 10 19. Peer Review and Quality Care Assurance Records. 11 20. Duty to Supplement. 11 21. Requests for Admissions. 12 22. Deposition Mechanics. 14 23. Insurance agreements 15 24. Effect of invocation of Fifth Amendment Privilege in Response to Discovery. 15 25. Independent Medical Examination. 15 26. Request for Production of Documents 16 27. Entry and Inspection of Premises 16 28. Identification of Scientific Authorities relied upon by Expert Witness 16 1. Consultation among coun¬sel. Counsel are encouraged to participate in pretrial discovery conferences to minim¬ize the filing of unnecessary discov¬ery motions. No discovery motion should be filed until counsel has discussed with opposing counsel the discov¬ery in controversy. The Court will not consider any motion concerning discovery matters, unless the motion is accompa¬nied by a statement of counsel that a good faith effort has been made between counsel to resolve the discov¬ery matters in dispute. All relationships are improved by courtesy. Former Virginia Code of Professional Responsibility, EC 7-35, provided that: A lawyer should be courteous to opposing counsel and should accede to reasonable requests regarding court proceedings, settings, continuances, waiver of procedural formalities, and similar matters which do not prejudice the rights of his client. Courtesy is the foundation of all viable human relationships, and this rule still applies to the practice of law in Virginia. 2. Good Faith. Rule 4:1(g) provides that: The signature of the attorney or party constitutes a certification that the signer has read the request, response, or objection, and that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is: (1) consistent with these Rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; (2) not interposed for any improper purpose ...; and (3) not unreasonably burden¬some or expensive, given the needs of the case .... Despite this admonition, objections have been made to discovery on the sole ground that the attorney did not understand the meaning of the following words: "similar accidents, examine, paid, warranty claim, notify, respond, and medical treatment." These are words of common parlance and were used in their ordinary context. In each instance the objec¬tion was contrary to the rules of discovery and was overruled. A retreat into rubrics in discovery is usually the last gasp of the desperate. 3. Permissible scope. Rule 4:1(b) provides that "parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery, or to the claim or defense of the other party...." This is almost the same as Federal Rule of Procedure 26(b). Virginia has adopted the Federal Rules of Discovery "verbatim so far as consistent with Virginia practice ... to enable Virginia lawyers and circuit court judges to use federal precedents to guide Virginia practice in the field of discovery. W. H. Bryson, Handbook on Virginia Civil Procedure (2d ed. 1987), p. 319. See, e.g. Smith v. Nat'l. R. Passenger Corp., 22 Va. 348, 350 (Richmond 1991). In personal injury cases, traumatic personal experiences which occurred more than a year before the accident or incident, except for past accidents and physical injuries, will not generally lead to admissible evidence, so questions about teenage abortions and suicide attempts, childhood physical or sexual abuse, and tempestuous past divorces are usually improper, and the party seeking to obtain such information must show good cause as to why such a line of inquiry may produce admissible evidence. Where a plaintiff is claiming damages for psychological treatment as a result of an accident making his or her past psychological condition an issue in a particular case, questions designed to elicit information about the plaintiff's past psychiatric and psychological treatment may be asked, such as when, where, and why for each such treatment, but personal questions like "how did that abortion or incident make you feel" are not proper. If such an inquiry is to lead to admissible evidence, it could only be through the vehicle of an independent psychological or psychiatric evaluation, so while the examining health care provider may ask such a question, a lawyer generally may not. In a personal injury action, the plaintiff is usually required to respond to discovery about his prior medical history. As a general rule, all of the plaintiff's medical records and medical history with respect to that portion of the body which was allegedly injured are discoverable, so in a back case all records and history of the plaintiff's back from the time of birth to the present are discoverable. However, discovery inquiries about the plaintiff's general medical and psychological history and injuries to portions of the body, which are not alleged to have been injured, are generally limited to five years preceding the accident. However, even though they are discoverable, the Plaintiff only has to produce medical records which he actually has in his possession. See section 13 of this memo. 4. Interrogatories are limited to thirty including sub¬parts. Rule 4:8(g). They should be concise not canned. Given the fact that number of issues which a Court is potentially required to considered in domestic cases (fault, equitable distribution (10), child support (18), custody (10), and spousal support (13)) exceeds thirty and the wide array of property issues, the interrogatory limit does not apply to subparts in domestic cases. An exception to this rule is usually granted in complex cases like professional negligence and products liability. 5. Limitations. Discovery limited in divorce suits to "matters which are relevant to the issues ...." Rule 4:1(b)(5). 6. Objections. Objections must be specific to allow opposing counsel to appropriately respond to cure the defect without the intervention of the court, and to permit the court to rule intelligently if so required. See generally Discovery: The Successful Advocate's Advantage Virginia CLE, pp. II-15-16 (1995). Objections to interrogatories must be specific and must be supported by a detailed explanation of why a particular interrogatory or class of interrogatories is objectionable. 23 Am. Jur. 2D Depositions and Discovery § 136. "Objections should be plain enough and specific enough so that the court can understand in what way the interrogatories are claimed to be objectionable. General objections such as the objection that the interrogatories will require the party to conduct research and compile data, or that they are unreasonably burdensome, oppressive, or vexatious, ..., or that they would cause annoyance, expense, and oppression to the objecting party without serving any purpose relevant to the action, or that they duplicate material already discovered, or that they are irrelevant and immaterial, or that they call for opinions and conclusions, are insufficient [where no specific factual statements supporting the objection accompany it]." 4A Moore's Federal Practice § 33.27 (2nd Ed.) The objection that an interrogatory is ambiguous is not available to one whose answer shows an understanding of its meaning, but a party may restrict or qualify its answer to ... ambiguous interrogatories. 23 Am. Jur. 2D Depositions and Discovery § 140. Vague is an objection frequently encountered in discovery. Its etiology is unknown, but its synonym, ambiguous, is a term of legal art with a long genealogy in both the law of document construction and the law of evidence. A statement which may be understood in more than one way is ambiguous. In terms of the phraseology of a question or statement, ambiguity may arise from syntactical or semantical error. In document construction these errors would be called patent ambiguities, and in modern discovery practice, they are not common. Under the rules of court, the proper response to a truly ambiguous question is to describe the ambiguity, so your opponent can appropriately respond to your objection to cure the ambiguity, and the court can properly rule on your objection. If the question or statement is not patently ambiguous, but rather would produce a latent ambiguity when applied in the context of the case, such a question requires a qualified response, not an objection based on vagueness or ambiguity. Supreme Court 4:11 governing responses to requests for admissions sets forth principles similar to those governing objections to interrogatories: "If objection [to a request for admissions] is made the reasons therefore shall be stated." "Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time." Supreme Court Rule 4:7(d)(3)(A). The only objections that should be raised at a discovery deposition are those involving privilege against disclosure, some matter that may be remedied at the time, such as the form of the question (compound question, argumentative, asked and answered, or ambiguous, this latter objection is frequently improperly used, and it shall not be used as a foil to interrupt the flow of an examination or to alert the witness to a potential problem), or that the question is beyond the scope of discovery. All objections should concisely state the problem with the question so the defect may be readily cured and must not suggest answers or otherwise coach the deponent. For example, it is not proper for the attorney representing the deponent, to add the gloss, "If you know," to the interrogator's question. It is rarely proper to instruct a witness not to answer. See Rule 4:5(d). Save your argument for the court, do not spend deposition time sparring with opposing counsel. 7. Opinions and Conclusions of Law. An interrogatory or a question in a deposition or a request for admissions is not objectionable simply because the response involves an opinion or contention that relates to fact or the application of law to fact. See Rules 4:19b)(1) and 4:8(e). "The test of whether an interrogatory calling for matters of opinion, legal theories, or contentions is proper ... is whether or not the answer thereto would serve any substantial purpose, such as providing leads to evidence or clarifying issues in the case, avoiding wasteful preparation, eliminating unneces¬sary testimony, or generally expediting the fair disposition of the lawsuit and serving any other substantial purpose sanctioned by discovery." 23 Am. Jur. 2D Depositions and Discovery § 121. Frequently, such interrogatories are used as substitutes for a motion for a bill of particulars, or to learn whether the opposing party claims the negligence or breach of contract of any other person contributed to the plaintiff's injuries. Requests for admissions regarding the application of law to the relevant facts in the case are also proper. 23 Am. Jur. 2D Depositions and Discovery §§ 32 and 126. The editors of 4A Moore's Federal Practice § 36.04[4] state: In 1970 both Rule 33 [interrogatories] and Rule 36 [requests for admissions] were amended to liberalize the practice with regard to discovery of opinions, conclusions, and contentions. In both cases it was made explicit in the rule that discovery could be had of opinions related to fact or to the application of law to fact. The change made it possible to discover the contentions of the parties. 8. Lack of knowledge. If a party does not have the knowledge or information necessary to answer the interrogatory, he should not ignore the inquiry in part or in whole, but should state such lack of knowledge as an answer under oath. The party should also set forth in detail the efforts made to obtain the requested information. 23 Am. Jur.2d Depositions and Discovery § 126. 9. Corporations. A corporate party cannot avoid answering interrogatories by an allegation of ignorance if the information can be obtained from its agents, from persons who acted in its behalf, or from sources under its control, which includes its attorneys. 23 Am. Jur.2d Depositions and Discovery §§ 126 and 130. Individuals designated by a corporation to testify pursuant to Rule 4:5(b)(6) on its behalf must "testify to matters known or reasonably available to the corporation." See American Safety Cas. Ins. v. C. G. Mitchell Constr., 268 Va. 340, 352 (2004). 10. Option to produce business records. "Where the answer to an interrogatory may be ... ascertained from the business records [of the respondent] ..., it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived .... A specification shall be in sufficient detail to permit the interrogating party to locate and identify, as readily as can the party served, the records from which the answer may be ascertained." Rule 4:8(f). This "provision cannot be used as a procedural device for avoiding this duty [to provide all of the information requested] by shifting to the interrogating party the obligation to find out whether information is ascertainable from the records which have been tendered." 23 Am. Jur. 2D Depositions and Discovery § 134. This means that given the information in the answer, that a reasonable person in possession of the documents can look at the answer find the documents specified and identify the information requested in five-ten minutes, if this is not the case, then the respondent must answer the interrogatories and provide the names and other information requested rather than relying solely on the entries in the medical or business record. "As a general rule, neither the incorporation by reference of allegations of pleadings, nor a reference to a deposition or other documents, constitutes a responsive answer to an interrogatory." 23 Am. Jur.2d Depositions and Discovery § 128. Therefore, a broad statement that the information sought is in docu¬ments which are available for inspection is not a sufficient answer. Rather, the answering party must precisely identify which documents will provide the information requested and give the interroga¬ting party a reasonable opportunity to examine and copy the records. 23 Am. Jur.2d Depositions and Discovery § 134. In medical malpractice cases, the plaintiff usually has a copy of his medical record and then files interrogatories seeking the names of persons who provided him treatment, and the Defendants answer that this information is equally accessible in the medical record. However, the names of nurses and doctors in medical records are frequently confirmed by handwritten initials or signatures, which are often cryptic and/or illegible. Generally, in an answer to an interrogatory, when the respondent refers to a specific part of the record or to a specific document as his answer, the document must have been provided to or be in the possession of the interrogating party; otherwise, the court cannot reasonably rule on the objection. Whenever a reference to documents is part of a discovery response, and a motion to compel is to be heard, both parties must bring the relevant records in question to the hearing, with a copy for the court, so that the court can review the documents and determine where the merits lie. 11. Generally, inquiries about similar accidents or occur¬rences within three years of the accident are discoverable because they may lead to evidence admis¬sible at trial. 23 Am. Jur.2d Depositions and Discovery § 43. 12. Defendant's financial condition. When a defendant's financial condition is relevant to a claim of punitive damages, it is a proper subject of inquiry. 23 Am. Jur.2d Depositions and Discovery § 38. Defendant's tax returns are frequently requested documents. When discoverable the most recent three years usually covers the potentially relevant time. In personal injury actions, the only time that they are generally discoverable is in punitive damage cases. In domestic cases, the parties' tax records are always discoverable. In business cases, the tax returns or some portion thereof, such as the manner in which a party treated an alleged business transaction, are frequently discoverable, but if only a portion of the return is relevant, edited copies may be provided, e.g., the schedule of business loss deductions. 13. Possession, Custody, or Control. "[R]ecords in the possession of a physician or person acting at his request are not in the possession, custody, or control of the party who has been examined by the physician ...." 23 Am. Jur. 2d Depositions and Discovery § 249. Accord 4A Moore's Federal Practice (2nd Ed) §34.17. While the Court has the power to order that a party obtain and produce such records, that is not the general rule or practice. 14. Equally Accessible. Discovery need not be ordered if the discovering party already has the documents in question, or if the discovering party can obtain the documents in question as readily as can the adverse party. Accordingly, discovery need not be required of documents of public record which are equally accessible to all parties. See Rakes v. Fulcher, 210 Va. 542, 547, 172 S.E.2d 751 (1970) (where evidence equally available to both sides discovery should not be granted). This objection is frequently incorrectly asserted by corporate defendants and defendants in medical malpractice cases. See discussion under item 10 option to produce business records. 15. Experts. a. Defendants and transaction witnesses are not experts within the meaning of the rules governing discovery of expert opinions. 23 Am. Jur. 2D Depositions and Discovery § 73 (earlier edition) stated: The rules governing the disclosure of facts and opin¬ions in the possession of an expert do not apply to discovery requests directed at information acquired or developed by a deponent as an actor in transactions which concern the lawsuit, and the mere designation of a party of a trial witness as an "expert" does not thereby transmute the experience of that expert witness acquired as an actor into experience that he acquired in anticipation of litigation or for trial. Similarly, parties to litigation are not experts under these rules, even though they may be experts in their profes¬sion. See Rodregues v. Hrinda, 56 F.R.D. 11 (W.D. Pa.) (doctors in malpractice action). Williams v. T. Jefferson U., 54 F.R.D. 615 (1972). "[I]t appears that the defendant in a medical malpractice action will be required to answer questions put to him in the course of pretrial discovery relating to his expert opinions, so long as the questions seek an opinion based upon the facts of the case, and are not based upon an entirely hypothetical set of facts for which there is no proof...." Annotation, Scope of Defendant's Duty of Pretrial Discovery in Medical Malpractice Actions, 15 A.L.R. 3rd 1446 § 3 (1967); accord, Annotation, 88 A.L.R. 2nd, 1186, § 4. A Defendant or witness, who because of his training could be considered an expert, such as a defendant physician in a medical malpractice case, may be questioned in discovery about his professional opinions as they apply to the care which he rendered to the plaintiff, or in the case of a construction professional, about his opinions as they apply to the plaintiff's construction project. So long as the examiner does not use the phrase "standard of care" and the question expressly or implicitly makes it clear that the witness is being asked about his or her personal opinion on the circumstances surrounding the transaction in question, the question is proper. To remove any doubt the examiner should preface his or her examination of the witness by stating that "Any question which I may ask you about your personal professional opinions and practice apply specifically to your examination and treatment of the plaintiff and her condition when you saw her. None of my questions are intended to ask for your opinion about the 'standard of care' in general." The Defendant's contact with the Plaintiff's treating physicians is limited by statute to "discovery pursuant to the Rules of Court." Virginia Code § 8.01-399.B. A letter which a physician writes to a plaintiff's attorney about the plaintiff's medical condition which is at issue in the case is discoverable, and it is not protected work product, because a treating physician is not a party's agent or representative. While treating physicians may be the source of expert testimony at trial about the plaintiff's medical condition and are therefore subject to the discovery rules governing the disclosure of their opinions, Rule 4:1(b)(4), they are not "Trial Preparation Experts" in the pure sense, since they have not been retained by the parties solely for the purpose of performing a retrospective analysis of the facts to render an expert opinion at trial, and their files are subject to discovery by both parties. Since the Rules of Court require the defendant to give the plaintiff a copy of the medical report prepared by the defendant's expert who examines the plaintiff pursuant to Rule 4:10(c), by like logic, the defense should be entitled to see any report about the plaintiff which the treating physician prepares for the plaintiff's attorney. b. Experts to be called at Trial. A party through interrogatories may require any other party to identify each person whom the other party expects to call as an expert at trial, to state the subject matter on which the expert is expected to testify, and to state the sub¬stance of the facts and opinions to which the expert is expected to testify and give a summary of the grounds for each opinion. Rule 4:1(¬b)(¬4)(a)(i). Supreme Court Rule 4:1(b)(4)(a)¬(2) provides that "upon motion, the Court may order further discovery by other means...," such as by depositions. It is a long standing practice for parties to agree to depose each other's experts. Upon a showing of good cause a subpoena duces tecum may issue against the opposing party's expert. See e.g., Sanford Constr. Co. v. Kaiser Aluminum & Chemical Sales, Inc., 45 F.R.D. 465, (E.D. Kentucky 1968) (Reports of plaintiff's expert, pipe material, and photographs taken by plaintiff ordered produced). However, this is a fairly extraordinary procedure, and it is preferable to proceed by interrogatory to obtain the information. When ordered the party seeking discovery must "pay the other party a fair portion of the fees and expenses reasonably incurred by the latter (responding) party in obtaining facts and opinions from the expert." Rule 4:1(b)(4)(c). Rule 4:10(c) provides that a copy of the written report of an IME must be provided to the other party. Many cases turn on the experts' opinions. The answers to interrogatories about experts should be de¬tailed, so that the opposing side knows what your expert will be testifying about from reading your answer. Your answer must include the subject matter, the substance of the facts and opinions to which the expert will testify, and a summary of the grounds of each opinion. If these required elements are not in your answer, then your answer is insufficient. See generally Handling Products Liability Cases in Virginia, Virginia CLE (1994), p. III-2. Parties very frequently fail to adequately state the "substance of the facts," the "opinions," and "a summary of the grounds of each opinion." While there is no talismanic form for an answer, in a typical personal injury action, the following would be an adequate answer with respect to an orthopedic surgeon who had treated the plaintiff (IF IN DOUBT, ERR ON THE SIDE OF INCLUSION): Name and Address: Substance of the Facts: Attached are the treatment records of Dr. X., who is a board certified orthopedic physician licensed to practice in Virginia, who treated the Plaintiff, and who will testify about his examinations and his treatment as shown on these records. Summary and Grounds of Opinions: Based on his examination, consultations, and treatment of the Plaintiff, Dr. X will testify that: 1. In the accident of October 1, 1994, the Plaintiff sustained a comminuted fracture of his left tibia. 2. As a result of his injury, the plaintiff had to be off from work from October 1, 1994 - December 31, 1994. 3. The fracture resulted in a shortening by 5 mm of the Plaintiff's left leg, as a result of which he has suffered a 5% loss of use of the lower left leg. His physical restrictions caused by his injury are that he is restricted to walking not more than five miles a day, and has problems walking on uneven surfaces. 4. The Plaintiff was charged $900.00 by Dr X for his treatment as shown on the attached bills, which are reasonable in amount and were necessarily incurred as a result of the injury sustained in the October 1, 1994 accident. (If Dr X will testify as to the need for future treatment and its cost, set it out in particular.) A court may grant summary judgment on relevant claims because a party fails to identify expert witnesses as required by the pretrial order. Woodbury v. Courtney, 239 Va. 651, 654, 391 S.E.2d 293 (1990) (failure to identify expert witness five months prior to trial in medical malpractice case). Alternatively, the court may refuse to allow the witness to testify. See, e.g., Ashmont v. Welton, 20 Va. Cir. 181 (1990). c. Experts consulted but not to be called at trial. In the course of educating themselves about the technical aspects of their case, attorneys frequently consult on both a formal basis and a casual basis with experts, e. g., they may informally discuss a medical issue with a physician friend. The rules do not contemplate that these experts who are consulted, but are not to be called at trial must be disclosed absent "a showing of exceptional circumstances under which it is impractical for the party seeking discovery to obtain facts or opinions on the same subject by other means." Supreme Court Rule 4:1(b)(4)(B). Since a special exception is recognized under the rules for such non-trial experts, they need not be disclosed when an interrogatory is filed asking for the names of persons who have knowledge about the facts of the case. 16. Party Statements. A party may obtain a statement previously made by that party even if made in anticipation of litigation. Rule 4:1(b)(3). 17. Work Product and Anticipation of Litigation. As a general rule neither the work product privilege nor the attorney client privilege prevents the disclosure of facts or the identity of witnesses which the attorney has learned about during his investigation of the case. Attorneys are not permitted to use the work product doctrine as a curtain behind which they can hide factual data which should in all fairness be available to both parties. Thus, provable facts underlying the parties' contentions are not work product. See 23 Am. Jur. 2d Depositions and Discovery §§ 45-47. Trial preparation materials are discoverable "only upon a showing that the party seeking discov¬ery 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." Rule 4:1(b)(3). The work product privilege is a limited privilege provided to the party and to the attorney, who represents a party, and it is limited to "documents and tangible things ... prepared in anticipation of litigation." See generally Duplain Corp. v. Moulinage et Retorderie de Chavanez, 509 F.2d 730, 747-736 (4th Cir. 1974). It is both different from and more narrow in scope than the attorney-client privilege. A document "will be considered to have been prepared in anticipation of litigation only when 'the probability of litigating the claim is substantial and imminent' or where 'litigation was fairly foreseeable at the time the memorandum was prepared." Darnell v. McMurray, 141 F.R.D. 433, 435 (W.D. Va. 1992). Generally, where the memorandum was prepared after the cause of action accrued, was not prepared in the regular course of business or pursuant to regular habit of the author, and was prepared after the party had made the conscious decision to prepare a claim or to defend against a probable claim and in furtherance of that decision, then the document will be deemed to be prepared in anticipation of litigation and will be protected from discovery. The period of time between the cause of action and the writing of the memo and consulting with counsel are all factors to consider in determining whether the document was prepared in anticipation of litigation. Accordingly, a diary or journal began before the event in question is discoverable, because the entries cannot have been made in anticipation of litigation. See generally 23 Am. Jur. 2D Depositions and Discovery § 47. However, a journal or diary kept at the express instructions of a party's counsel after an event has occurred and the attorney consulted about the litigation is work prepared in anticipation of litigation. See 23 Am. Jur. 2D supra § 56. To obtain written witness statements procured by a party's attorney or agent in anticipation of litigation, "the movant must show good cause." Rakes v. Fulcher, 210 Va. 542, 545-546, 172 S.E.2d 755 (1970) (Defendant's attorney took witness statements after notice of the action). The Virginia position is the minority rule. See 23 Am. Jur. 2D Depositions and Discovery § 62; and Dobbs v. Lamonts Apparel, Inc., 155 F.R.D. 650 (Alaska 1994). This is why it was necessary to promulgate Rule 4:1(b)(3) making a party's statements discoverable. While the witness statements themselves may not be discoverable, "the information [about the facts] gleaned ... [by a party's counsel] ... through his interviews with the witnesses ..." is discoverable. Hickman v. Taylor, 329 U.S. 495, 508-509, 91 L.Ed. 451, 461 (1947). Accordingly, a party may discover the identity of witnesses and a summary of the facts about which they have knowledge, even though that information is contained in a statement whi