
    CIRCUIT COURT OF THE CITY OF NORFOLK
    Virginia Beach Telecommunication Corp. v. Cox Cable Communications, Inc., et al.
    November 3, 1977
    Case No. (Law) L-77-1284
   By JUDGE EDWARD L. RYAN, JR.

Plaintiff’s motion for judgment alleges fraud against the defendants; fraud is not alleged against the City of Virginia Beach or its councilmen. The plaintiff now desires to orally discover said councilmen in an effort to prove fraud against the defendants or to secure facts reasonably calculated to lead to the discovery of admissible evidence. The City Attorney of Virginia Beach appears in opposition to the taking of such oral depositions. Ordinarily, courts do not invade the legislative function by inquiring into the motivating factors inducing legislation. However, here the plaintiff attacks not the legislation but the motives and actions of third parties in allegedly misleading the legislators. The following from 23 Am. Jur. 2d, Depositions and Discovery, § 242, p. 631, is instructive:

The view has been taken that in an action in which the state is not a party, a motion for discovery from a state department as to information which invokes no privilege on the state’s part, the disclosure of which is not harmful to the state, and which is material to the plaintiff’s cause of action, should not be denied because of the principle of immunity of the state from suits. A statute authorizing a party to take pretrial testimony from "any other person" under specified circumstances has been construed to permit the pretrial examination of an officer, agent, or employee of the state or of a state agency in an action in which neither the state, state agency, or such officer, agent or employee was a party. And with respect to a municipal corporation which is not a party to an action, it has been said that such a corporation is no more exempt from pre-trial examination as a witness where "special circumstances" render it proper than any other person.

Rule 4:5 of the Virginia Rules permits a litigant to take oral discovery from "any person, including a party."

Plaintiff’s motion to discover the councilmen is hereby granted. If the City Attorney wishes to apply for any protective orders under Rule 4:1(c), the Court will hear arguments thereon upon the giving of notice.  