Have the summary disposition shackles just been unlocked in Virginia state court proceedings? Fairfax Circuit Judge David Bernhard’s recent HCP Properties ruling begs the question.
Judge Bernhard’s written opinion in HCP Properties-Fair Oaks of Fairfax, VA LLC v. County of Fairfax (VLW 019-046) allows a deposition taken in lieu of trial testimony to be used offensively in support of a defendant’s summary disposition request at trial. The ruling will likely come as a surprise to most trial lawyers practicing in Virginia state courts as it has long been understood that a deposition cannot be used for “any action aimed at ending litigation with permanence.”
In HCP Properties, Judge Bernhard challenges this conventional wisdom by interpreting Virginia Code §8.01–420 to allow an exception for the use of a Plaintiff’s de bene esse deposition testimony (a deposition that is used or intended to be used in place of a witness’ live testimony in court) in support of a defendant’s motion to strike at the close of Plaintiff’s case. Judge Bernhard’s presumed truisms regarding de bene esse depositions may not universally apply, however. As a consequence, the opinion potentially opens the summary disposition lid by infusing uncertainty into a presumptively unassailable arena governing deposition testimony as practitioners reconsider how they notice, conduct, defend, and subsequently plan to utilize or strategize to defend at trial against potentially damaging testimony during pre-trial party depositions.
Unless further judicial guidance is forthcoming or the General Assembly proactively tamps the lid closed, this would seem to be an area ripe for some creative lawyering. How and when a deposition is noticed, conducted, and defended “for discovery purposes,” “for use at trial,” and/or “de bene esse” appear to have just become substantially more significant – and potentially outcome-determinative!
ABOUT THOMAS REPCZYNSKI
Mr. Repczynski is a Principal and Shareholder with Offit Kurman’s Commercial Litigation (South) Practice Group, focused on developing and expanding the firm’s Estates and Trusts Litigation practice area. Tom’s practice emphasizes inheritance-related matters involving will/trust/insurance beneficiaries, executors, trustees, guardians, and attorneys-in-fact under Powers of Attorney and includes creditors’ rights enforcement, real estate litigation, and general commercial business disputes. Tom routinely pursues, defends, and negotiates the broadest range of fiduciary proceedings pre- and post-judgment actions and workouts, and real-estate related disputes of all types (e.g. commercial leasing, title, inheritance, etc.).
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