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.
The plaintiffs in the case sued the defendants for a series of allegedly false representations about the quality of a contractor’s work to trick them into entering two contracts in a residential real estate transaction. They brought claims for actual and constructive fraud, common-law conspiracy to commit conversion, negligent retention, and false advertising. The defendants filed a series of demurrers and pleas in bar, seeking dismissal of the case on various grounds. Before the defendants noticed their motions for a hearing, the plaintiffs propounded a set of interrogatories, document requests, and requests for admissions.
The defendants moved for a protective order, arguing that discovery should be suspended in light of the various pending dispositive motions. After all, they argued, suspending discovery would save both parties from incurring unnecessary expenses and the plaintiffs would not suffer any prejudice. The plaintiffs responded that the cost-savings argument could be made by a defendant in any case and that Rule 4:1 should be interpreted as 
imposing a default rule that discovery should not be suspended absent special circumstances.
The court agreed that Rule 4:1 sets forth a default rule, which is that discovery should continue even while dispositive motions are pending. The rule gives courts discretion to suspend discovery on some or all of the issues, the court acknowledged, but does not contain any guidance (unlike some other rules and statutes) regarding how courts are to exercise that discretion. Looking primarily to how federal courts have dealt with the issue, the court decided it was appropriate to look to the factors in brand-new Rule 3:26, which sets forth factors to consider when granting injunctions.
Distilling those factors and applying them to discovery stays, the Court held that it should consider the following factors when evaluating whether to stay discovery pending resolution of potentially dispositive motions:
- Will the movant suffer significant harm by the continuation of discovery? If so,
- Is the movant likely to succeed on the merits of the dispositive motions?
- Does the balance of hardships favor a discovery stay? And
- Does any public interest support the stay?
As to the first factor, the court opined that it is not generally sufficient to simply assert that suspending discovery will save time and expense. To get past the default rule, a greater showing is required. “A movant must demonstrate that it explored compliance with discovery, estimated the true breadth and cost, and shows that the expense or effort will be significant,” the court wrote.
If and only if the movant would suffer significant harm by the continuation of discovery, the court should then examine whether the dispositive motions appear to have merit. The court noted that this was probably the most important factor to consider, noting that sometimes a court can easily determine that a statute of limitations defense is meritorious and that it would therefore be unfair to make a defendant produce discovery.
The court also held that it should consider the balance of hardships (i.e., compare the hardship that suspending or not suspending discovery would cause each party) as well as the public interest, if any.