PRESENT:    All the Justices

JO ANN KNIGHTEN TEMPLE, ADMINISTRATOR
AND PERSONAL REPRESENTATIVE OF THE
ESTATE OF ELLIS ETHELBERT TEMPLE, SR.,
DECEASED
                                           OPINION BY
v. Record No. 131754                JUSTICE DONALD W. LEMONS
                                       SEPTEMBER 12, 2014
MARY WASHINGTON HOSPITAL, INC., ET AL.


      FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
                     Gordon F. Willis, Judge

     In this appeal, we consider whether the discovery rulings

made by the Circuit Court of the City of Fredericksburg ("trial

court") in a prior, nonsuited action are properly before us on

appeal.

                        I. Facts and Proceedings

     Jo Ann Knighten Temple ("Temple"), as Administrator of the

Estate of Ellis Ethelbert Temple ("decedent"), filed a complaint

in the trial court on February 2, 2010 (the "2010 action"),

alleging wrongful death and medical malpractice against Mary

Washington Hospital, Inc. ("MWH"), Fredericksburg Hospitalist

Group, P.C. ("FHG"), and Fredericksburg Emergency Medical

Alliance, Inc. ("FEMA")(collectively "defendants").   According

to the complaint, decedent arrived at MWH's emergency room

complaining of shortness of breath and chest pain.    He died from

cardiac arrest approximately four hours after arriving at the

hospital.
     During the course of pretrial discovery, certain disputes

arose.   Temple filed her first motion to compel in January 2011,

in which she requested production of MWH's policies and

procedures related to the management, care and treatment of

patients presenting with conditions such as the decedent,

including cardiac monitoring.   Temple also sought additional

electronically stored information regarding decedent's

evaluation and treatment.

     MWH responded that its policies and procedures were

irrelevant, inadmissible, and privileged under Code §§ 8.01-

581.16 and 8.01-581.17.   MWH also responded that every aspect of

decedent's electronic medical record had already been produced,

but to the extent Temple wanted additional information regarding

the electronic charting system, MWH offered to make a corporate

designee available for deposition.

     The trial court denied the motion to compel, holding that

MWH's policies and procedures were not relevant, would not lead

to discoverable evidence, and were privileged under the

statutes.   Regarding the electronic data, the trial court found

that all relevant documents had been disclosed.   It noted that

if Temple wanted additional information on the electronic

storage and data, she was free to depose a corporate designee on

that matter.   It does not appear from the record that Temple




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ever sought to depose a corporate designee regarding the

electronic data issue.

     Temple filed a second motion to compel on October 13, 2011,

in which she asked the trial court to order MWH to produce its

laboratory's reference range for test results measuring

troponin, a protein complex indicating cardiac damage and the

possibility of an impending heart attack.   MWH responded that a

document it had already produced, the manufacturer's guidelines,

was the only document responsive to the request that did not

fall under the trial court's previous ruling that MWH did not

have to produce any of its policies or protocols.   The trial

court denied the motion to compel, and stated that it would

accept counsel's representations that no other responsive

documents existed.

     Prior to trial, Temple took a voluntary nonsuit pursuant to

Code § 8.01-380.   The trial court entered an order nonsuiting

the action on January 19, 2012.   Temple then filed a new

complaint in the same court and against the same defendants,

alleging the same cause of action, on February 8, 2012 (the

"2012 action").    On September 24, 2012, the trial court entered

an agreed order to incorporate the discovery conducted and taken

in the 2010 action.    The order stated, "All discovery conducted

and taken in the previous action that the Plaintiff brought




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against the Defendants, bearing Case No.: CL10-47, is hereby

incorporated into the instant action."

     The case proceeded to trial in June 2013, and a jury

returned a defense verdict.    On July 15, 2013, Temple filed a

motion for a new trial and to reconsider certain evidentiary

rulings.   In this motion, Temple challenged the evidentiary

rulings the trial court made in the nonsuited action when it

denied her two motions to compel.       She attached as exhibits her

motions to compel, MWH's opposition thereto, the transcripts of

the hearings on the motions to compel, and the trial court's

orders denying the motions to compel.

     The trial court denied the motion for new trial, and Temple

appealed to this Court.    We granted Temple's appeal on the

following assignments of error:

1.   The trial court erroneously sustained defense objections to
     the widow's discovery requests for the hospital's troponin
     reference ranges and internal policies.

2.   The trial court erroneously sustained defense objections to
     the widow's discovery requests for data and metadata
     regarding the decedent's electronically stored medical
     records.

                              II.   Analysis

                      A.   Standard of Review

     The effect of the nonsuit and interpretation of the trial

court's September 24, 2012 order are questions of law which we

consider de novo.   See Conyers v. Martial Arts World of



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Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007).

Generally, we review the trial court's grant or denial of

discovery requests under an abuse of discretion standard.

O'Brien v. Langley Sch., 256 Va. 547, 552, 507 S.E.2d 363, 366

(1998).   A trial court's decisions on such matters will

generally not be reversed on appeal unless the action taken was

improvident and affected substantial rights.     Id.

                        B.   Effect of Nonsuit

     The defendants argue that Temple cannot appeal the trial

court's rulings on the discovery disputes in the 2010 action

because the agreed order only incorporated the "discovery

conducted and taken" in the prior action, but not the motions,

objections, rulings and orders from the 2010 action.    They

contend that without an order incorporating the trial court's

rulings from the 2010 action into the 2012 action, those rulings

are not part of the 2012 action and therefore are not before the

Court in this appeal.

     Temple responds that the agreed order incorporating "all

discovery conducted and taken" was sufficient to also

incorporate all of the parties' motions and objections, as well

as the trial court's rulings related to the discovery disputes.

She also argues that the parties' comments in a hearing on May

21, 2013, which was part of the 2012 action, demonstrated their




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understanding that all arguments and rulings from the nonsuited

action were binding in the 2012 action.

     Code § 8.01-380 governs nonsuits, and allows a plaintiff to

take one nonsuit as a matter of right if done "before a motion

to strike the evidence has been sustained or before the jury

retires from the bar or before the action has been submitted to

the court for decision."   Code § 8.01-380(A).     We have always

characterized a refiled action after a nonsuit as a "new"

action.   Laws v. McIlroy, 283 Va. 594, 600, 724 S.E.2d 699, 702

(2012).   A "new action stands independently of any prior

nonsuited action."   Id. (quoting Antisdel v. Ashby, 279 Va. 42,

47, 688 S.E.2d 163, 166 (2010)).       The "action" that remains

subject to a plaintiff's nonsuit request is comprised only of

the claims and parties remaining in the case after any other

claims and parties have been dismissed with prejudice or

otherwise eliminated from the case.       Dalloul v. Agbey, 255 Va.

511, 513-14, 499 S.E.2d 279, 281 (1998).

     The right to take a nonsuit is a powerful tactical weapon

in the hands of a plaintiff.   See Inova Health Care Servs. v.

Kebaish, 284 Va. 336, 344, 732 S.E.2d 703, 707 (2012)(citation

omitted).   Temple chose to exercise her right to take a

voluntary nonsuit.   However, once she did so, it was as if the

2010 action had never been filed, as a nonsuit "leaves the

situation as if the suit had never been filed."       Winchester


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Homes Inc. v. Osmose Wood Preserving, Inc., 37 F.3d 1053, 1058

(4th Cir. 1994)(applying Code § 8.01-380).     For any aspect of

the 2010 action to be incorporated into the 2012 action, an

order had to explicitly permit it.

        The trial court entered an agreed order in the 2012 action

that incorporated "all discovery conducted and taken" in the

2010 action.    Discovery is the process by which facts resting

within the knowledge of one party are disclosed to another party

in a suit or proceeding in court.      See Lyons v. Miller, 47 Va.

(6 Gratt.) 427, 442 (1849)(monographic note).     Our rules dictate

that parties "may obtain discovery regarding any matter, not

privileged, which is relevant to the subject matter involved in

the pending action."    Rule 4:1(b)(1).   Rule 4:1(a) explains

that:

             Parties may obtain discovery by one or more
             of the following methods: depositions upon
             oral examination or written questions;
             written interrogatories; production of
             documents, electronically stored
             information, or things or permission to
             enter upon land or other property, for
             inspection and other purposes; physical and
             mental examinations; and requests for
             admission.

        Although parties may file motions to compel and raise

objections while they are engaged in the discovery process, the

motions, objections, and trial court orders do not constitute

discovery.    When the trial court incorporated "all discovery



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conducted and taken" in the 2010 action, the interrogatories,

depositions, documents, and requests for admissions from the

2010 action were incorporated into the 2012 action.   This had

the obvious and salutary effect of avoiding the need to repeat

the discovery activities and reproduce the same information

previously exchanged between the parties.   However, the order

did not incorporate the motions to compel, the objections,

transcripts of the hearings or the trial court's rulings on the

motions.   Without such incorporation following a nonsuit, it is

as if those motions, objections, and rulings never existed since

the 2012 action is "new" and "stands independently of any prior

nonsuited action."   Laws, 283 Va. at 600, 724 S.E.2d at 702.

     Temple argues that the parties' and the trial court's

comments in a hearing on May 21, 2013 demonstrated their

understanding that all arguments and rulings from the nonsuited

action were binding in the 2012 action.   This Court has stated

on numerous occasions, however, that trial courts speak only

through their written orders and that such orders are presumed

to reflect accurately what transpired.    Petrosinelli v. PETA,

Inc., 273 Va. 700, 709, 643 S.E.2d 151, 156 (2007); McMillion v.

Dryvit Systems, Inc., 262 Va. 463, 469, 552 S.E.2d 364, 367

(2001); see also Waterfront Marine Constr., Inc. v. North End

49ers Sandbridge Bulkhead Groups A, B, and C, 251 Va. 417, 427

n.2, 468 S.E.2d 894, 900 n.2 (1996); Stamper v. Commonwealth,


                                 8
220 Va. 260, 280-81, 257 S.E.2d 808, 822 (1979).   The September

24, 2012 agreed order did not expressly incorporate the motions,

objections, or rulings made by the trial court in the 2010

nonsuited action into the 2012 action; consequently those

rulings cannot be challenged in this appeal.   Accordingly, we

cannot reach the merits of Temple's assignments of error.

                        III.   Conclusion

     For the reasons stated, we will affirm the judgment of the

trial court.

                                                   Affirmed.




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