The international law firm McGuire Woods recently published a news note, Virginia Court Holds School Board Immune From Virginia Human Rights Act Claims, explaining how a local school board successfully raised a sovereign immunity defense to defeat several potentially expensive state-law civil rights claims.
Along the way, the article’s author identified two reasons why the Virginia Human Rights Act is a potent weapon for plaintiffs. First, the VHRA does not include caps on compensatory and punitive damages. Federal anti-discrimination laws such as the Americans with Disabilities Act and the Civil Rights Act of 1964 contain damage caps, which can have the effect of limiting recoveries in egregious cases.
Second, and most important for purposes of this blog post, plaintiffs in Virginia state courts have the benefit of a unique feature of Virginia law: court rules in Virginia do not permit the use of deposition testimony for summary judgment purposes. The “no depositions to support summary judgment motions” is an advantage for plaintiffs raising VHRA claims, McGuire Woods notes: “[P]laintiffs can increase their chances of reaching a jury by pursuing their claims solely under the VHRA rather than federal law.”
The ability of one party to avoid summary dismissal and to get its case in front of a jury dramatically increases the cost of any litigated matter.
Virginia Code Section 8.01-420 provides, in relevant, part:
Depositions as basis for motion for summary judgment or to strike evidence.
- Except as provided in subsections B and C, 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.
There are exceptions, of course. Depositions may be used to support motions to strike punitive damages claims, and to support motions for summary judgment in large-dollar disputes between businesses.
In Virginia, depositions can be used to defeat summary judgment motions in any type of litigation. (Due to Virginia’s limits on the use of depositions, another pretrial discovery tool – requests for admission – has become the preferred method of building a case for summary judgment.)
The case is a reminder that, in the federal system and in every other state jurisdiction, depositions are a potent pretrial device for efficiently managing litigation. Rule 56 of the Federal Rules of Civil Procedure (Summary Judgment) specifically mentions deposition testimony as being among the types of evidence that a trial court may consider when ruling on a motion for summary judgment.
In practice, deposition testimony is frequently deployed in support of summary judgment motions. Stenographically produced deposition transcripts and depositions on written questions are both acceptable.
In fact, under the right circumstances, even deposition testimony from a different case can be offered in support of summary judgment. Rule 32 of the Federal Rules of Civil Procedure (Using Depositions in Court Proceedings), provides that a deposition taken “in any federal or state-court action may be used in a later action involving the same subject matter between the same parties, or their representatives or successors in interest, to the same extent as if taken in the later action.”
In many jurisdictions, parties need not submit the entire deposition transcript. Excerpts are permitted and often encouraged.
The ability of both plaintiffs and defendants to obtain summary disposition or settlement of cases in which the facts are not really in dispute is vital to the efficient operation of the civil justice system. Depositions are a key procedural device – perhaps the best procedural device – for discovering the facts in a contested matter and thereby bringing the case to a quick, cost-effective, and just conclusion without the need for protracted trial proceedings.
Remote depositions, as we’ve noted before, are even better.
