The Virginia Business Litigation Blog
Suspending discovery while dispositive motions are pending may seem logical to most defendants. Why waste time and money responding to discovery requests in a case that might soon be dismissed? If a dispositive motion–such as a demurrer or plea in bar–is sustained, the ruling could resolve the case entirely or at least narrow the issues, rendering some of the discovery requests irrelevant. In Virginia state court, we have a rule that discourages such thinking. It says, “Discovery continues after a demurrer, plea or dispositive motion addressing one or more claims or counter-claims has been filed and while such motion is pending decision–unless the court in its discretion orders that discovery on some or all issues in the action should be suspended.” (See Va. Sup. Ct. R. 4:1(d)(2)). In other words, courts will not suspend discovery while dispositive motions are pending…unless they decide that they will.
Under the rule, trial courts have the authority to stay discovery pending the resolution of potentially dispositive motions, but the rule is silent as to the factors courts should consider in exercising such authority. There isn’t a lot of case law on the subject, but the Fairfax Circuit Court issued an opinion last month in Son v. Benson that offers some guidance.