It has long been said that summary judgment is not available to litigants in Virginia state courts. The difficulty resulted from Virginia's prohibition against using discovery depositions in support of a motion for summary judgment unless the parties agreed to their use. This rule contrasts with most states and all federal courts that permit the use of discovery depositions in support of summary judgment. Thus, while Virginia has long been considered a business-friendly state, when it comes to litigation, the preference has almost always been in favor of federal courts. However, recent legislative enactments may signal a change.
Effective July 1, 2019, Virginia amended its statute on summary judgment, Va. Code § 8.01-420, to permit the use of discovery deposition and affidavits in some -- but not all -- cases. Specifically, the law now authorizes discovery depositions in support of or opposition to summary judgment "in any action where the parties to the action are business entities and the amount at issue is $50,000 or more." While not likely to open the floodgates of summary judgment, it does reflect a relaxation of Virginia's long-standing rule. Because the change in law only applies where all parties are business entities, it is unclear how substantially this rule will contribute to increasing the number of summary judgment motions filed in Virginia. To date, no cases have been decided under the new law. Regardless, this change is significant as there will be more parties eligible to rely upon discovery depositions in support of summary judgment, which will likely pave the way for future expansions of Va. Code § 8.01-420.
It is worth noting, however, that Va. Code § 8.01-420 has long permitted parties to rely upon discovery depositions if all parties "shall agree that such deposition may so be used." Agreement for purposes of this statutory provision come in many forms. In some cases, the parties simply agree to the use of depositions. There may be any number of reasons -- for example, cost of litigation, lack of dispute over facts -- that parties might consent to using discovery depositions in support of summary judgment. However, there are instances where "agreement" can come through a failure to object. In Lloyd v. Kime
, 275 Va. 98, 107-08 (Va. 2008), the Virginia Supreme Court held that "failure to object to the use of the [discovery] deposition is sufficient to establish acquiescence." Thus, parties faced with a motion for summary judgment should closely scrutinize whether it relies on discovery depositions.
Summary judgment remains a less utilized motion in Virginia litigation. Whether these recent changes to Va. Code § 8.01-420 will change that trend is yet to be seen.
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