The Virginia motion to compel: get the discovery, then remember you may not be able to use it

Virginia's motion to compel works like the modern federal rule: certify the conference, and expect a fee award either way, because the rule says "must" in both directions.

What makes discovery strategy different in Virginia is what happens afterwards. Under Rule 3:20 a summary judgment motion cannot be sustained when based "in whole or in part" on discovery depositions unless every party agrees. So the deposition you fight to compel may be unusable on the motion you are building toward.

That does not make compelling it pointless. It changes what you should be compelling.

The certification

Va. R. Civ. P. 4:12(a)(2) ends with:

A motion under subdivision (a) of this Rule must be accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action.

"Must be accompanied by" — a precondition, not a formality. And it covers "conferred or attempted to confer", so an opponent who will not engage cannot block the motion by silence.

It reaches "other affected parties", not only the party you are moving against.

What can be compelled

Rule 4:12(a)(2):

Motion. If a deponent fails to answer a question propounded or submitted under Rule 4:5 or 4:6, or a corporation or other entity fails to make a designation under Rule 4:5(b)(6) or 4:6(a), or a party fails to answer an interrogatory submitted under Rule 4:8, or if a party, in response to a request for inspection submitted under Rule 4:9, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before he applies for an order.

And the provision that covers most real disputes, Rule 4:12(a)(3):

Evasive or Incomplete Answer. For purposes of this subdivision an evasive or incomplete answer is to be treated as a failure to answer.

You do not need a refusal. An evasive or incomplete answer is treated as no answer at all.

Where to file

Rule 4:12(a)(1):

Appropriate Court. An application for an order to a party may be made to the court in which the action is pending, or, on matters relating to a deposition, to the court in the county or city where the deposition is to be taken. An application for an order to a deponent who is not a party must be made to the court in the county or city where the deposition is being taken.

The non-party rule is mandatory.

Fees run both ways, and both are mandatory

Rule 4:12(a)(4):

Award of Expenses of Motion. If the motion is granted, the court must, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.

If the motion is denied, the court must, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.

Symmetric and mandatory, subject only to substantial justification or injustice. The award reaches the advising attorney in both directions.

A denied motion can also produce a protective order: "If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to Rule 4:1(c)."

What to compel, given Rule 3:20

This is where Virginia practice diverges from everywhere else.

Virginia summary judgment may be granted only on the pleadings, pretrial conference orders and admissions — and Rule 3:20 bars a motion resting "in whole or in part" on a Rule 4:5 discovery deposition unless all parties agree. The exceptions are narrow: punitive damages claims, and cases where the only parties are business entities and the amount at issue is $50,000 or more.

Two practical consequences follow.

Requests for admission carry disproportionate weight. They are the main route to facts usable on a dispositive motion, so a motion to compel proper responses to requests for admission is worth more in Virginia than the same motion elsewhere.

A compelled deposition is for trial, not for the motion. That is still worth having — but if the goal is a dispositive motion, the deposition is a means of finding facts to put into admissions, not evidence you can file. And Va. Code § 8.01-420(A) is precise about how that conversion may be done: a request for admission may be based on facts learned in a deposition, but must not "reference the deposition or require the party to admit that the deponent gave specific testimony."

Once an order is disobeyed

Rule 4:12(b)(2) lets the court make just orders including:

(A) An order that the matters regarding which the order was made or any other designated facts will be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence; (C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; (D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;

And fees on top, again mandatory:

In lieu of any of the foregoing orders or in addition thereto, the court must require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumst

Rule 4:12(b)(1) makes a deponent's refusal to be sworn or answer, after being directed by the court in the county or city where the deposition is being taken, potentially "a contempt of that court."

Rule 4:12(b)(2)(E) extends the (A)–(C) sanctions where a party fails to produce another person for examination under Rule 4:10(a), "unless the party failing to comply shows that he is unable to produce such person for examination."

Before you file

1. Confirm service and that the response period has run — see Virginia discovery deadlines.
2. Confer, and certify it. The certification is a required attachment.
3. Read the responses for evasion, not just refusal.
4. Pick the right court, especially for a non-party deponent.
5. Weigh the downside. A denied motion carries a mandatory award against you and may draw a protective order.
6. Prioritize requests for admission if a dispositive motion is the goal.

And remember the hard backstop on the case as a whole: once final judgment is entered the trial court has 21 days. See Virginia's 21-day rule.

How Virginia compares

That last row is the one with no counterpart anywhere else.

A short checklist

1. Attach the certification. The motion must be accompanied by it.
2. Quote Rule 4:12(a)(3) where the answer was evasive or incomplete.
3. File in the right court — a non-party deponent goes where the deposition is taken.
4. Expect a mandatory award either way. Build the substantial-justification record before filing.
5. Complete or adjourn a deposition before applying.
6. Push hardest on requests for admission — under Rule 3:20 they are what a dispositive motion can actually use.
7. Draft admissions around facts, not testimony, as § 8.01-420(A) requires.
8. If an order is already in place and ignored, ask for the substantive sanction and fees.

Where these rules live

• Va. R. Civ. P. 4:1 — General Provisions Governing Discovery
• Va. R. Civ. P. 4:8 — Interrogatories to Parties
• Va. R. Civ. P. 4:9 — Production by Parties
• Va. R. Civ. P. 4:11 — Requests for Admission
• Va. R. Civ. P. 4:12 — Failure to Make Discovery; Sanctions
• Va. Code § 8.01-420 — Depositions as basis for motion for summary judgment

This page explains what the rules say. It isn't legal advice, and what makes an opposition substantially justified is developed in case law this site doesn't cover.