Livingstone v. Meany

3 Va. Cir. 222, 1984 Va. Cir. LEXIS 88

Opinion

By JUDGE THOMAS R. MONROE

Under advisement is the plaintiffs’ Motion for Protective Order, relieving Plaintiffs from the requirements of a Notice of Deposition until such time as a proper notice is filed and the deposition of defendant Meany has been rescheduled and completed.

I have carefully considered the memoranda submitted as well as the able arguments presented and am of the opinion that the motion should be overruled.

Rule 4:5(a) of the Virginia Rules provides in pertinent part, that:

After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of court, granted with or without notice, must be obtained only if the plaintiff seeks to take a deposition before the expiration of the period within which a defendant may file a responsive pleading under Rule 2:7 or 3:5 ....

A fair reading and interpretation of this rule places the restriction only on the plaintiffs in this case. Had the framers of Rule 4:5(a) intended for the restrictions to apply to the defendants, sufficient language could have been added without difficulty.

The Motion for Protective Order filed by plaintiffs is overruled. Boynton P. Livingstone, Sr., plaintiff, shall appear for deposition at a time and place designated by defendant, prior to the taking of defendant’s deposition.

The Court does not deem the Motion for Protective Order to be frivolous or made without merit and denies expenses and attorney’s fees to counsel for defendant.