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A shield but not a sword

Rules on depositions and summary judgment

I didn’t believe it when I heard it. In fact, I argued with the lead partner in my firm and essentially told him that it could not possibly be the law. (Note to self: not a good idea before checking the law to argue with lead partner who has been practicing law in Virginia longer than I have been alive). Then I had to research the issue right that second. Could depositions really be used to oppose a motion for summary judgment when the movant is not allowed to rely on them?

I quickly read Rule 3:20 of the Rules of the Supreme Court of Virginia:

Any party may make a motion for summary judgment at any time after the parties are at issue, except in an action for divorce or for annulment of marriage. If it appears from the pleadings, the orders, if any, made at a pretrial conference, the admissions, if any, in the proceedings, or, upon sustaining a motion to strike the evidence, that the moving party is entitled to judgment, the court shall enter judgment in that party’s favor. Summary judgment, interlocutory in nature, may be entered as to the undisputed portion of a contested claim or on the issue of liability alone although there is a genuine issue as to the amount of damages.

Summary judgment shall not be entered if any material fact is genuinely in dispute. 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 action shall agree that such deposition may be so used.

True, there is no express prohibition therein, but it just seemed inherently unfair to allow one party to rely on depositions when the other could not. I promptly did a Lexis search and there it was: a Supreme Court of Virginia case with the following language staring me in the face:

Under Rule 3:20 and Code § 8.01-420 discovery depositions cannot be used to support a motion for summary judgment unless the parties agree. The Rule and statute do not apply to the use of depositions to oppose a motion for summary judgment.

Lloyd v. Kime, 275 Va. 98, 107, 654 S.E.2d 563, 568 (2008) (emphasis in original) (citing W. Hamilton Bryson, Virginia Civil Procedure § 9.05(10)(e) (4th ed. 2005) which states “On the other hand, there is no state statute or rule of court that prohibits the use of depositions to oppose a motion for summary judgment.”). The only other authority I could find was a 2002 Circuit Court case out of the City of Suffolk. Monahan v. Obici Medical Waste Management Services Inc., 59 Va. Cir. 307, 313 (Suffolk 2002) (“If discovery depositions play any role in the summary judgment analysis, it is a weapon against the entry of summary judgment.”) (also citing to Bryson).

Now convinced that I must be the only lawyer in the commonwealth who was not aware of this quirk, I bounded into the office of the managing partner in my firm and asked if he thought most lawyers in Virginia were aware that they could use depositions to oppose a motion for summary judgment.

He very promptly (and confidently I might add) informed me that depositions could not be used to either obtain or oppose summary judgment. Relief flooded my body! I was not the only one!

Then I thought, maybe there are more lawyers in Virginia that are like the two of us. I mean, the managing partner of my firm is a pretty smart guy. OK, very smart. And he’s been practicing law in Virginia for almost as long as I have been alive.

It certainly is a strange and counterintuitive law – why would anyone think you could use depositions to oppose summary judgment since we all know you can’t use them to get summary judgment in Virginia?

Thus, I share this tale of how I learned that depositions can be used to oppose motions for summary judgment in Virginia. Good for you if you already knew, but don’t feel bad if you didn’t. In any event, how long the law will stay that way is questionable – enjoy or despise it – while it lasts.

Christine Williams is a senior associate at DurretteBradshaw PLC in Richmond. She handles commercial and intellectual property litigation in courts across the country and has an active appellate practice in both state and federal courts based in Virginia and in the U.S. Court of Appeals for the Federal Circuit. Fortunately, she has not handled many summary judgment motions in Virginia state courts.

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