In 2019, the West Virginia Supreme Court of Appeals established a committee to review the West Virginia Rules of Civil Procedure. In August 2021, the committee submitted its proposed amendments to the court. In June 2022, the proposed amendments were published for public comment. The public comment period ended in October 2022 and the court heard oral argument on the proposed amendments in March 2023. The court published its amendments to the WV civil rules on January 31. The new rules take effect on January 1, 2025.

 For the most part, the revisions are nonsubstantive. As one justice explains, “our goal was to simplify and improve each and every rule without changing the meaning of the rule. (For instance, many rules have been tweaked to standardize the time to act (from, say, 10 days, 14 days, or 20 days) to 30 days.).” Nevertheless, some of the revised rules are substantially different from the existing West Virginia rules and will change civil practice in West Virginia. The revised rules bring West Virginia’s civil rules much closer to the federal rules.

 The most significant change is found in revised Rule 26, which contains general provisions governing discovery. Revised Rule 26(f) requires the parties to confer “as soon as practical” (but at least 30 days after the filing of a responsive pleading) to discuss the nature and basis of their claims and defenses, the possibilities for promptly settling or resolving the case, and various discovery issues, then develop a proposed discovery plan. Within 14 days after the conference, the parties must submit a written report to the court containing the parties’ views and proposals on various issues relating to discovery. After receiving the parties’ written report or consulting with the parties’ counsel, revised Rule 16(b) requires the court to issue a scheduling order as soon as practicable, but unless the judge finds good cause for delay, the judge shall issue the order within the earlier of 90 days after any defendant has been served with the complaint or 60 days after any defendant has appeared. The scheduling order shall limit the time to join parties, amend pleadings, complete discovery, and file motions.

 Revised Rule 26(a)(1) provides that within 30 days after the filing of the written discovery plan required by Rule 26(f), the parties must make certain initial disclosures without awaiting a discovery request (except in cases valued at less than $25,000). Like the analog federal rule, revised Rule 26(a)(1) states that a party must disclose (1) the contact information for each person who is “likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;” (2) “a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;” (3) “a computation of each category of damages claimed by the disclosing party” with nonprivileged supporting documentation; and (4) any applicable insurance agreement.

 Revised Rule 26(a)(2) requires the disclosure of each testifying expert accompanied by a written report, similar to the federal rule. The expert report must contain: (1) “a complete statement of all opinions the witness will express and the basis and reasons for them;” (2) “the facts or data considered by the witness in forming them;” (3) “any exhibits that will be used to summarize or support them;” (4) “the witness’s qualifications, including a list of all publications authored in the previous four years;” (the federal rule requires ten years of publications); (5) “a list of all other cases in which, during the previous four years, the witness testified as an expert at trial or by deposition;” and (6) “a statement of the compensation to be paid for the study and testimony in the case.” Unless the court provides otherwise, expert reports must be produced at least 90 days before trial. If the evidence is intended solely to rebut evidence on the same subject from another party, then the report is due within 30 days after the other party’s disclosure.

 Revised Rule 26(a)(3) sets forth rules for pretrial disclosures that generally must be made at least 30 days before trial, such as a list of witnesses and documents expected to be used at trial.

 The court did not adopt the language in Federal Rule of Civil Procedure 26(b)(1) regarding the scope of discovery (“proportional to the needs of the case”) but did adopt specific limitations on electronically stored information found in Federal Rule of Civil Procedure 26(b)(2)(B) and revised Rule 26(b)(2)(C) to allow a party to raise a “proportionality” objection with the court. Revised Rule 26(b)(2)(C) provides that a court shall limit discovery if “the burden or expense of the proposed discovery outweighs its likely benefits, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues in the case.” (The court did not adopt language in Federal Rule of Civil Procedure 26(c) to expressly recognize that courts may enter protective orders that allocate expenses for disclosure or discovery). 

 Revised Rule 53 allows courts in complex cases to appoint a discovery commissioner to assist the court in resolving discovery disputes. The compensation of a discovery commissioner may be assessed to the parties.

 Here are some other changes to the rules of note:

  • Revised Rule 23 provides additional notice requirements for class actions, new procedures for settlement, voluntary dismissal or compromise of a certified class, provisions for appointing class counsel and attorney fee awards, and a new allocation formula for residual funds (from 50% going to Legal Aid of West Virginia and 50% to West Virginia nonprofits or West Virginia college programs aligned with the thrust of the case to a 25%/75% ratio).
  • Revised Rule 30(b)(6) contains language added to the federal rule in 2000 stating that before or promptly after service of a subpoena directed at an organization, the serving party and organization shall confer in good faith about the matters for examination.
  • Revised Rule 30(d) sets a 1-day/7-hour limit for depositions unless otherwise stipulated or ordered by the court. The court must allow more time if needed to fairly examine the deponent or if the deposition is impeded or delayed by a person or other circumstance.

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