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.
§ 8.01-420.Depositions as basis for motion for summary judgment or to strike evidence.
Chapter 14. Evidence · Article 9. Miscellaneous Provisions · Last amended 2019 · Last verified July 16, 2026
In one sentenceSection 8.01-420 generally bars a party from basing a motion for summary judgment or to strike the evidence on discovery depositions unless everyone agrees, but carves out exceptions for punitive-damages dismissals outside DUI cases and for business-only disputes involving $50,000 or more.
Full Text of § 8.01-420
B. 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.
C. 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.
Plain-English Summary
Discovery depositions are meant for gathering information, not for deciding a case on paper, so subsection A keeps them out of summary judgment and motion-to-strike practice unless every party consents. That said, requests for admissions built in part on facts learned during a discovery deposition can still support a summary judgment motion, as long as the request does not reference the deposition itself or ask the party to admit specific deposition testimony.
Subsection B opens a narrower door for punitive damages. A court can dismiss a punitive damages claim on summary judgment using discovery depositions — but not when the punitive claim rests on someone driving under the influence of alcohol, narcotics, or another intoxicant.
Subsection C opens a second door for business disputes: when every party to the case is a business entity and at least $50,000 is at stake, discovery depositions and affidavits can support or oppose a summary judgment motion without anyone’s agreement.
Frequently Asked Questions
Can a discovery deposition be used to win summary judgment in a Virginia civil case?
Generally no, unless all parties to the suit agree that the deposition may be used that way.
Is there an exception for punitive damages claims?
Yes. A motion for summary judgment dismissing a punitive damages claim may rest on discovery depositions, except when the claim is based on driving under the influence of alcohol or drugs.
Is there an exception for disputes between businesses?
Yes. When all parties are business entities and the amount at issue is $50,000 or more, discovery depositions and affidavits may support or oppose summary judgment without the parties’ agreement.
Can requests for admissions rely on facts learned in a discovery deposition?
Yes, as long as the request does not reference the deposition or require the party to admit specific testimony the deponent gave.
What kind of deposition does this restriction cover?
Discovery depositions taken under Rule 4:5, as opposed to depositions taken for use as trial testimony.
Amendment History
Code 1950, § 8-315.1; 1973, c. 483; 1977, c. 617; 1978, c. 417; 2013, c. 76; 2019, cc. 10, 128.
Source & verification. Section text and amendment history are
reproduced verbatim from the Code of Virginia, published by the
Code of Virginia, Virginia Division of Legislative Automated Systems. Last verified July 16, 2026.
· Official source
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