Virginia summary judgment: you usually cannot use the deposition you just took

Virginia's summary judgment rule is the most restrictive in the country, and the reason is a single prohibition:

No motion for summary judgment or motion to strike the evidence will be sustained when based in whole or in part upon any discovery depositions under Rule 4:5, unless all parties to the action agree that such deposition may be so used

In whole or in part. One deposition citation in an otherwise sound motion defeats it, unless every party consents.

In practice that means summary judgment in an ordinary Virginia case is decided on the pleadings, the admissions, and any pretrial conference orders — and nothing else.

What the court may look at

Va. R. Civ. P. 3:20:

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, that the moving party is entitled to judgment, the court shall grant the motion. 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 may not be entered if any material fact is genuinely in dispute.

That is the whole list. There is no reference to affidavits, no reference to interrogatory answers, and — subject to the exceptions below — no discovery depositions.

Other features worth noting: the motion is available "at any time after the parties are at issue", it is not available in divorce or annulment, the judgment is interlocutory in nature, and it may be entered "as to the undisputed portion of a contested claim or on the issue of liability alone".

And the standard is stated negatively as well as positively: "Summary judgment may not be entered if any material fact is genuinely in dispute."

Why admissions matter so much here

Because depositions are generally off limits and affidavits are not listed, requests for admission carry more weight in Virginia than anywhere else. They are the main route by which facts become available to a summary judgment motion.

The statute confirms this and adds an important nuance. Va. Code § 8.01-420(A):

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. 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.

This is the workaround, and it has precise limits:

So the practice is to take the deposition, extract the facts, and then ask for admissions of the facts themselves — never of the testimony. A request phrased "admit that Mr Smith testified that…" is precisely what the proviso forbids.

The two exceptions

§ 8.01-420(B) — punitive damages:

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.

Depositions may be used to attack a punitive damages claim — and only that claim. The carve-out from the carve-out is drink- and drug-driving cases, where the ordinary bar returns.

§ 8.01-420(C) — business-to-business cases:

Notwithstanding the provisions of subsection A, discovery depositions under Rule 4:5 and affidavits may be used in support of or in opposition to a motion for summary judgment in any action when the only parties to the action are business entities and the amount at issue is $50,000 or more.

Two conditions, both required:

Where both hold, Virginia summary judgment works like everyone else's — depositions and affidavits are both available, to either side.

What this means in practice

For most Virginia litigants the practical answer is that summary judgment is a pleadings and admissions motion. If you want it available, plan the admissions early — and do not assume the deposition transcript will help you.

If you are opposing

The same restrictions cut in your favor. A motion resting on deposition testimony in an ordinary case should not be sustained, and you do not have to meet it on the facts — you can object to the basis.

Check first whether the case falls into subsection (B) or (C). If it does not, and the motion cites a Rule 4:5 deposition anywhere in it, say so.

In an ordinary case affidavits are not among the materials Rule 3:20 lists, so a motion built on affidavits faces the same problem.

Where this sits in a Virginia case

Virginia's threshold motion is the demurrer, which tests the pleading rather than the evidence — and given how narrow Rule 3:20 is, the demurrer does more work here than a motion to dismiss does elsewhere. See the Virginia demurrer.

For the discovery clocks that produce the admissions this rule depends on, see Virginia discovery deadlines.

And note the hard backstop on everything: once a final judgment is entered, the trial court has 21 days. See Virginia's 21-day rule.

How Virginia compares

A short checklist

1. Ask which category the case falls into before drafting. That decides what evidence exists for the motion.
2. In an ordinary case, build on the pleadings and admissions. Nothing else is listed.
3. Plan requests for admission early. They are the main route to usable facts in Virginia.
4. Draft admissions around facts, not testimony. The statute forbids referencing the deposition or asking a party to admit what a deponent said.
5. If you seek dismissal of punitive damages, check whether it is a drink or drug driving case — the exception does not apply there.
6. For the business-entity exception, confirm both conditions — only business entities, and $50,000 or more.
7. If you are opposing, attack the basis first. A motion resting on a Rule 4:5 deposition should not be sustained without agreement.
8. Remember the judgment is interlocutory and may be limited to liability or to an undisputed portion.

Where these rules live

• Va. R. Civ. P. 3:20 — Motion for Summary Judgment
• Va. R. Civ. P. 4:5 — Depositions Upon Oral Examination
• Va. Code § 8.01-420 — Depositions as basis for motion for summary judgment

This page explains what the rule and the statute say. It isn't legal advice, and what makes a fact material or a dispute genuine is developed in case law this site doesn't cover.