Virginia Motion to Compel

Introduction

Key Things to Know

1. 1

   A Virginia motion to compel is an application under Rule 4:12(a)(2) for an order compelling an answer, a designation or an inspection, reaching a deponent who will not answer under Rule 4:5 or 4:6, an entity that will not designate under Rule 4:5(b)(6) or 4:6(a), a party that will not answer an interrogatory under Rule 4:8, and a party that will not permit inspection under Rule 4:9. Rule 4:12(a)(3) treats an evasive or incomplete answer as a failure to answer. Rule 4:12(a)(1) then decides where it goes, and Virginia keeps a split: an application against a party goes to the circuit court where the action is pending, or, on matters relating to a deposition, to the court in the county or city where the deposition is to be taken, while an application against a deponent who is not a party shall be made in the county or city where the deposition is being taken.

2. 2

   The silence track is the one worth understanding first. Rule 4:12(d) covers a party that fails to appear for a properly noticed deposition, fails to serve answers or objections to Rule 4:8 interrogatories after proper service, or fails to serve a written response to a Rule 4:9 request after proper service. The court may then make such orders in regard to the failure as are just and, among others, impose any of the sanctions listed in paragraphs (A), (B) and (C) of subdivision (b)(2) without prior entry of a Rule 4:12(b) order to compel. Rule 4:12(d) also forecloses the usual excuse: the failure may not be excused on the ground that the discovery sought is objectionable unless that party has applied for a protective order under Rule 4:1(c).

3. 3

   Virginia answers the deadline question through its scheduling order rather than through Rule 4:12. Rule 1:18 lets the parties agree a pretrial scheduling order, and where none has been entered under the court's normal scheduling procedure the court may enter the Uniform Pretrial Scheduling Order printed at Section 3 of the Appendix of Forms at the end of Part One. Its paragraph II provides that the parties shall complete discovery, including depositions, by 30 days before trial, with depositions taken in lieu of live testimony permitted until 15 days before trial, and it defines the word: complete means that all interrogatories, requests for production, requests for admissions and other discovery must be served sufficiently in advance of trial to allow a timely response at least 30 days before trial.

4. 4

   Two features of that order matter as much as the date. Rule 1:18(C) provides that, with the exception of domestic relations and eminent domain cases, a court may not enter a scheduling order which deviates from the terms of the Uniform Pretrial Scheduling Order unless counsel of record for all parties agree to different provisions, or the court, after providing an opportunity for counsel of record to be heard, makes a finding that the Appendix order is not consistent with the efficient and orderly administration of justice in that case. And the order's own paragraph XII provides that upon motion the time limits and prohibitions it contains may be waived or modified by leave of court for good cause shown. So the dates are movable, but by application rather than by agreement alone.

5. 5

   Read Rule 4:12(a)(4) before filing, because the sentence runs both ways. If the motion is granted the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion, or the party or attorney advising such conduct, or both of them, to pay the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees. If it is denied the court shall require the moving party or the attorney advising the motion or both to pay the other side's expenses of opposing it. Virginia writes two escapes only, substantial justification and other circumstances making an award of expenses unjust, and on a split result the court may apportion.

6. 6

   Virginia's response clock is shorter than most readers expect and its trigger changes for a defendant. Rule 4:8(d) requires interrogatory answers and objections within 21 days after service of the interrogatories, except that a defendant may serve answers or objections within 28 days after service of the bill of complaint or motion for judgment upon that defendant. Rule 4:9(b)(ii) sets the same 21 days for a request for production, with the same 28-day defendant alternative measured from service of the complaint. Each adds that the court may allow a shorter or longer time. Counting from the wrong event is how a Virginia motion gets filed too early or recognised too late.

7. 7

   Rule 4:1(g), as amended effective July 1, 2025, is the provision to aim at a boilerplate response. It makes the signature a certification that, after reasonable inquiry, the request, response or objection is consistent with the Rules and warranted by existing law, is not interposed for any improper purpose, and is not unreasonable or unduly burdensome or expensive given the needs of the case, the discovery already had, the amount in controversy and the importance of the issues at stake. It then states flatly that general or blanket objections to discovery requests are prohibited, and provides that an unsigned request, response or objection will be stricken unless signed within 21 days after the omission is called to the party's attention. The 2025 amendment added the cure rules, including that when a party objects to a signature defect in a discovery request, the objecting party's time to respond runs from the date the defect is cured.

Virginia Requirements for Motion to Compel

• Which Track You Are On, Rule 4:12(a)(2) or Rule 4:12(d)

  Settle this before drafting. An inadequate answer or objection puts you on Rule 4:12(a)(2), an application for an order compelling an answer, a designation or an inspection, with Rule 4:12(a)(3) treating an evasive or incomplete answer as a failure to answer. A complete failure to serve anything puts Rule 4:12(d) in play, under which the court may impose the sanctions listed in paragraphs (A), (B) and (C) of subdivision (b)(2) without prior entry of a Rule 4:12(b) order to compel. The relief available differs, so the track decides what you can ask for.

• The Court the Application Belongs In, Under Rule 4:12(a)(1)

  Rule 4:12(a)(1) is captioned Appropriate Court. An application for an order to a party may be made to the court in which the action is pending, or, on matters relating to a deposition, to the court in the county or city where the deposition is to be taken. An application for an order to a deponent who is not a party shall be made to the court in the county or city where the deposition is being taken. Fix the forum before the caption.

• The Date the 21-Day or 28-Day Response Period Ran Out

  Rule 4:8(d) requires interrogatory answers and objections within 21 days after service of the interrogatories, except that a defendant may serve them within 28 days after service of the bill of complaint or motion for judgment upon that defendant. Rule 4:9(b)(ii) sets the same 21 days for a request for production with the same 28-day defendant alternative measured from service of the complaint, and both add that the court may allow a shorter or longer time. State the computation in the motion, because the application is premature until the period has run.

• Your Trial Date and the Discovery Completion Date That Runs From It

  Rule 4:12 sets no number of days for bringing the motion, so the binding date comes from the scheduling order. Paragraph II of the Uniform Pretrial Scheduling Order, printed at Section 3 of the Appendix of Forms at the end of Part One and entered under Rule 1:18(B), provides that the parties shall complete discovery, including depositions, by 30 days before trial, with depositions taken in lieu of live testimony permitted until 15 days before trial, and defines complete as serving all discovery early enough to allow a timely response at least 30 days before trial. Paragraph XII allows the time limits to be waived or modified upon motion by leave of court for good cause shown.

• The Certification That Accompanies the Motion

  Rule 4:12(a) provides that a motion under subdivision (a) must be accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and Rule 4:12(d) states the same requirement for the silence track. Paragraph II of the Uniform Pretrial Scheduling Order adds that any discovery motion filed shall contain a certification that counsel has made a good faith effort to resolve the matters set forth in the motion with opposing counsel. Keep the correspondence that supports it.

• Each Item Identified by Number, With the Response Returned to It

  The Rules prescribe no separate statement, itemized statement or statement of discovery issues for this motion, so the organisation is yours. Identify each interrogatory or request by its number, set out the response or objection, and state why an order should issue as to each, so the order you ask the court to sign is specific enough to be complied with and enforced. Individual circuit courts set their own requirements for notice, hearing dates and proposed orders.

• Any Reliance on Rule 4:1(g), Including the 2025 Signature-Defect Rules

  Rule 4:1(g), as amended effective July 1, 2025, states that general or blanket objections to discovery requests are prohibited, and makes the signature a certification that after reasonable inquiry the paper is consistent with the Rules, is not interposed for an improper purpose, and is not unreasonable or unduly burdensome or expensive given the needs of the case, the discovery already had, the amount in controversy and the importance of the issues at stake. An unsigned request, response or objection will be stricken unless signed within 21 days after the omission is called to the party's attention. The 2025 amendment added that a signature defect must be raised before entry of the final order, that a timely cure relates back to the original service date, and that where a party objects to a defect in a discovery request the objecting party's time to respond runs from the date of cure.

• The Expense Request Under Rule 4:12(a)(4), and Your Exposure Under It

  On a granted motion the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion, or the party or attorney advising such conduct, or both, to pay the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the opposition was substantially justified or other circumstances make an award unjust. On a denied motion the same sentence runs against the moving party or the attorney advising the motion. On a split result the court may apportion. Rule 4:12(a)(2) adds that a motion denied in whole or in part may draw a protective order of the kind available under Rule 4:1(c), so narrow the motion before filing.