Discovery Deposition Testimony may not be used as a basis for summary judgment or a motion to strike in Virginia (except for some punitive claims).

Question: Can a litigant in Virginia state courts use discovery deposition testimony as a basis for summary judgment or a motion to strike the evidence?

Answer: No.  Unless the parties agree, Virginia Code § 8.01-420 specifically excludes such use, except for claims of punitive damages in cases that do not involve operation of a motor vehicle by a person while under the influence of alcohol, any narcotic drug, or any other self-administered intoxicant or drug.   This exclusion does not prevent a party from seeking an admission based upon information learned or discovered in a discovery deposition, but the request for admission shall not reference the deposition or require the party to admit that the deponent gave specific testimony.   This of course is a unique difference between practice in state courts in Virginia from practice in federal courts where depositions and affidavits may be used to support such dispositive motions.

 

§ 8.01-420. Depositions as basis for motion for summary judgment or to strike evidence.

A. Except as provided in subsection B, no motion for summary judgment or to strike the evidence shall be sustained when based in whole or in part upon any discovery depositions under Rule 4:5, unless all parties to the suit or action shall agree that such deposition may be so used. Notwithstanding the foregoing, requests for admissions for which the responses are submitted in support of a motion for summary judgment may be based in whole or in part upon any discovery depositions under Rule 4:5 and may include admitted facts learned or referenced in such a deposition, provided that any such request for admission shall not reference the deposition or require the party to admit that the deponent gave specific testimony.

B. Notwithstanding the provisions of subsection A, a motion for summary judgment seeking dismissal of any claim or demand for punitive damages may be sustained, as to the punitive damages claim or demand only, when based in whole or in part upon any discovery depositions under Rule 4:5. However, such a motion may not be based upon discovery depositions under Rule 4:5 with respect to any claim or demand for punitive damages based on the operation of a motor vehicle by a person while under the influence of alcohol, any narcotic drug, or any other self-administered intoxicant or drug.

You need experienced counsel.  You should contact a lawyer with the law firm of Thomas H. Roberts & Associates, P.C. today.   Call 804-783-2000

Thomas H. Roberts, Esq.
Thomas H. Roberts & Associates, P.C.
105 S 1st Street
Richmond, Virginia 23219
(804) 783-2000
(804) 783-2105 fax

 

 Disclaimer

 The materials are prepared for information purposes only.  The materials are not legal advice.  You should not act upon the information without seeking the advice of an attorney.  Nothing herein creates an attorney-client relationship.