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Assembly to consider limited tort reform.

Byline: Peter Vieth

Two proposals supported by the Virginia Chamber of Commerce at the General Assembly could offer comfort for businesses involved in litigation without drawing fire from trial lawyers.

One plan would allow summary judgment in business disputes in Virginia courts if the amount at issue is greater than $50,000. The proposed exception to the long-established state court barrier to summary judgment would not apply to personal injury or wrongful death actions.

Another legislative proposal would provide added protection for top-level corporate officers called as deposition witnesses.

Neither is expected to be opposed by the Virginia Trial Lawyers Association.

Collaborative process

The two Chamber-backed proposals reflect a cooperative approach between long-standing adversaries, in contrast to open conflict on display at the 2018 legislative session. Last year, trial lawyers claimed the Chamber's legislative agenda violated a tort reform truce. The plaintiffs' bar responded with a barrage of counter proposals.

The skirmish faded, and cooler heads collaborated to avoid a repeat in 2019. The VTLA's Elliot M. Buckner said the VTLA delegation worked hard with Chamber representatives to forge a compromise.

"So they focused on a couple of very business-specific bills," Buckner said. "We got to a point we were comfortable."

Summary judgment

The VTLA has staunchly defended the Virginia law that effectively bars summary judgment as a procedural hurdle for personal injury and wrongful death claims.

Virginia Code 8.01-420 says discovery depositions cannot be the basis for motions for summary judgment unless all parties agree. The statute all but guarantees that a personal injury or death claim will be heard by a jury, regardless of any weaknesses exposed in deposition.

Two bills would open a window to summary judgment when businesses clash in court. The measures would allow discovery depositions and affidavits to be considered in motions for summary judgment "when the only parties to the action are business entities and the amount at issue is $50,000 or more."

The legislation is House Bill 2197 introduced by Del. C. Todd Gilbert, R-Woodstock and Senate Bill 1486 sponsored by Sen. Mark D. Obenshain, R-Harrisonburg.

"They are strictly business-versus-business measures," Buckner said.

Corporate depositions

Another issue that resurfaced after last year's skirmish involves deposition protection for high level corporate officers. A 2018 bill sought to shift the burden of showing necessity when a plaintiff's counsel seeks a deposition of a CEO, COO, CFO or similar top-level company official.

Sen. Jill Holtzman Vogel, R-Warrenton, offered the 2019 version on Jan. 8. It applies to top officials of publicly traded companies and subsidiaries that employ at least 250 people.

If a party asks to depose a corporate officer before taking the deposition of a corporate representative pursuant to Rule 4:5(b)(6), and the officer then asks for a protective order saying the information should come from another source, the burden shifts to the party seeking the deposition. That party presumably a plaintiff must then show that the officer's deposition is reasonably calculated to lead to the discovery of admissible evidence, that the officer may have personal and unique knowledge of discoverable information, and that other options are "unsatisfactory, insufficient, or inadequate."

Buckner said trial lawyers rarely need to depose high-level corporate officers before taking a deposition of a designated representative. Chamber officials reported that such depositions were seen as a harassment technique as opposed to a true discovery tool.

"We're trying really hard to make our cases as efficient as possible," Buckner said, explaining that trial lawyers would rarely need to depose a "C-suite-level" corporate officer before a corporate designee.

"The system worked," Buckner said of the negotiations with the Chamber.

Representatives of the Chamber did not respond to requests for comment on their legislative agenda.

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Title Annotation:Virginia
Author:Vieth, Peter
Publication:Virginia Lawyers Weekly
Date:Jan 21, 2019
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