Circuit Court Sides with BLG, Reaffirms Rule Governing Motions to Stay Discovery

In early June, the Fairfax County Circuit Court issued an opinion letter, siding with Bosson Legal Group and provided further clarity to the Virginia Supreme Court’s Rule governing motions to stay discovery. 

BLG is currently representing Plaintiff Heidi Son in a fraud claim against Long & Foster Real Estate in Heejung Heidi Son, et al. v. Johnny W. Benson, et al. Early in the discovery process, Defense filed a Motion for a Protective Order, attempting to stay all discovery until the judge ruled on their pending demurrer. However, Defense offered no unique reason why discovery placed a significant and disproportionate burden on them. 

In BLG’s responsive Motion to Compel, BLG cited Ticonderoga Farms v. Knop which makes clear that Rule 4:1(d)(2) “requires some additional basis for granting a stay of discovery” other than the “general claims of expense and burden.”

The Commonwealth of Virginia has long relied on a default rule provided by the Virginia Supreme Court: Rule 4:1(d)(2). This rule establishes that “[d]iscovery shall continue 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.” 

While this rule creates a clear default state wherein discovery is to continue despite pending motions, it has become an increasingly common (yet improper) practice for litigants to attempt to prolong the normative 21-day discovery timeline by staying discovery until demurrers are resolved. 

BLG argued that this practice does not coincide with the spirit or plain language of Rule 4:1(d)(2).

The Fairfax County Circuit Court agreed. 

In its opinion letter, the Circuit Court laid this out in no uncertain terms. “The plain language of Rule 4:1(d)(2) is clear and unambiguous. Rule 4:1(d)(2) sets forth a default rule, to wit: discovery continues even while dispositive motions are pending.”

Despite this clear default rule, the Circuit Court recognized that there is “scant authority” to help trial courts decide when to invoke the discretion allowed by the Rule. Accordingly, the Circuit Court used the recent clarification on injunctions issued by the Virginia Supreme Court to inform its own factorization of Rule 4:1(d)(2). 

In the end, the Court set out four factors for lower courts to consider when determining whether to stray from the default rule governing motions to stay discovery:

(1) Will the movant suffer significant harm by the continuation of discovery and, if so, (2) is the movant likely to succeed on the merits, (3) does the balance of the hardships favor a discovery stay, and (4) does any public interest support the stay?

The Defense in Son v. Benson was not able to satisfy any of these four factors. As BLG pointed out in their April Motion to Compel, “Defendants have failed to offer any good cause for a protective order but have simply reiterated facts true for every defendant; that complying with discovery would incur costs.” 

The Circuit Court agreed with BLG, stating emphatically, “It is not enough for a litigant to baldly claim that the parties will have to expend attorney fees and client time.”

Moreover, the Court emphasized the damaging effects on the judicial system that frivolous motions to stay discovery pose. In its analysis of the public interest prong, the Court pointed out that it will only be able to maintain its position as “an efficient, predictable forum for all cases filed here” if “parties engage in discovery early and vigorously litigate their case soon after filing.” 

Fairfax County Circuit Court’s decision represents a win, not only for BLG, but for the 1.2 million others reliant on the circuit court’s ‘rocket docket’ to efficiently resolve their legal disputes.

From Heejung Heidi Son, et al. v. Johnny W. Benson, et al. Case No. CL-2024-1568. 

Read more at Virginia Lawyers Weekly.