73 74 75 Gov’t Employees Ins. Co. v. Google, Inc., 330 F. Supp. 2d 700, 706 (E.D. Va. 2004); see also Casola, Francis H., Virginia Business Torts, Chapter 8, Conspiracy to Injure a Business (VaCLE 2006); B ay Tobacco, LLC v. Bell Quality Tobacco Prods. , 261 F. Supp. 2d 483, 499 (E.D. Va. 2003) (noting that a claim for conspiracy asserted in mere con-clusory language “is based on inferences that are not fairly or justly drawn from the facts alleged”); Heard Constr., Inc. v. Waterfront Marine Constr. Co. , 91 Va. Cir. 4, 10 (Chesapeake Cty. 2015). Kayes v. Keyser, 72 Va. Cir. 549, 552 (Charlottesville Cty. 2007) (quoting Atlantic Futon v. Tempur-Pedic, Inc., 67 Va. Cir. 269, 271 (Charlottesville Cty. 2005)); see also M-Cam v. D’Agostino, No. 3:05cv6, 2005 U.S. Dist. LEXIS 45289, at * 7-8 (W.D. Va. Sept. 1, 2005) (observing that a plain-tiff ’s allegation that the defendants com-bined together to effect a “preconceived plan and unity of design and purpose, for the common design is the essence of the conspiracy”). Kayes, 72 Va. Cir. at 552 (quoting Johnson v. Kaugers, 14 Va. Cir. 172, 177 (Richmond Cty. 1988)); see also Corinthian Mort. Corp. v. Choicepoint Precision Mkt, LLC , No. 1:07cv832, 2008 U.S. Dist. LEXIS 28129, at * 18-19 (E.D. Va. April 4, 2008) (requiring a plaintiff asserting a statutory 76 77 business conspiracy claim to allege that defendant intentionally and purposefully injured plaintiff ’s business). Kayes , 72 Va. Cir. at 552; Firestone v. Wiley, 485 F. Supp. 2d 694, 703 (E.D. Va. 2007) (stating a claimant must allege “some details of time and place and the alleged ef-fect of the conspiracy”); Harper Hardware Co. v. Power Fasteners, Inc. , Civil Action No. 3:05cv799, 2006 U.S. Dist. LEXIS 3821, at *15 (E.D. Va. Jan. 19, 2006) (finding a plaintiff ’s conclusory allegations that did not detail the facts relating to the “method of the alleged conspiracy or how it was carried out” to be insufficient). Schlegel , 505 F. Supp. 2d at 325-26 (quoting Gov’t Employees. Ins. Co. , 330 F. Supp. 2d at 706 (E.D. Va. 2004)); First Hand Communications, LLC v. Schwalbach , Civil Action No. 1:05cv1281, 2006 U.S. Dist. LEXIS 87844, at *15 (E.D. Va. 2006) (an allegation that the parties were “working together in a scheme” is not enough to survive a motion to dismiss); but see Country Vintner, Inc. v. Louis Latour, Inc., 272 Va. 402, 414-15, 634 S.E.2d 745, 752 (2006) (rejecting defendant’s argument that plaintiff was merely dressing up a violation of the Wine Franchise Act in reversing trial court’s decision that the Act preempted common law or statutory business conspir-acy claims). 78 79 80 81 82 See Eshbaugh v. Amoco Oil Co. , 234 Va. 74, 76-77, 360 S.E.2d 350, 351 (1987) (a cause of action for conspiracy under Code § 18.2-500 accrues when one is “injured in his . . . business.”); see also Gallop v. Sharp, 179 Va. 335, 338, 19 S.E.2d 84, 86 (1942) (cause of action for conspiracy accrues when the acts committed in furtherance of the conspiracy result in damage); Lance v. Wells Fargo Bank , N.A., 99 Va. Cir. 115, 117 (Chesapeake Cty. 2018). Willard v. Moneta Bldg. Supply, 262 Va. 473, 482, 551 S.E.2d 596, 600 (2001). Dunlap v. Cottman Transmission Sys., LLC, 287 Va. 2 (2014) ) 207, 221-222 Bowman of Keysville n v. State ate te Bank Ban B Keysv , 229 Va. 534, 541, Foster 41, 331 S.E.2d 797, 801 (1985); (1 v. Wintergreen nte Real Estate Co. , 81 8 Va. Cir. 353, 360-61 60-61 (Nelson Cnty. 2010). 2010) Simmons on v. Miller , 261 Va. 561, 1, 578-79, 544 S.E.2d E.2d 666, 676-77 (2001); Fortress Holdings II, LLC v. Patty, 95 Va. Cir. 402, 408-09 (Norfolk folk 2017). Grayson Fin. Am., m., Inc. In v. Arch Specialty Ins. Co., No. 2:05cv461, U.S. Dist. LEXIS 461, 2006 2 7302, at *9-10 (E.D. E.D. Va. Feb. 6, 2006); Phoenix Redevelopment lopm Corp. v. Rodriguez , 403 F. Supp. 2d 510, 517 (E.D. Va. 2005) (finding the intracorporate immunity racor doctrine inapplicable icabl when the defendant was not an employee ploye and agent at the time of the wrongful conduct). con Virtual Depositions continued from page 21 deponent’s, but the deponent will nev-er leave your monitor if the deponent is pinned. The deposing attorney should incorporate the conference technician into the deposition plan. First, instruct the conference technician to pull up the exact part of the document that you would like to discuss. The depo-nent may look at the documents in hard copy or a separate window, but this method will help everyone locate the language under scrutiny. Second, make sure that the documents are clearly labeled and organized so the conference technician can find them. Finally, if needed, direct the confer-ence technician to point to or high-light specific text or sections of the document. The conference technician can highlight or draw boxes around segments you would like to discuss. Finally, make sure that the de-ponent testifies on the record about any individuals that are in the room with the deponent, the nature of any documents referenced, and any communications received during the deposition. In an in-person deposition, the attorneys normally have complete control over who is in the room, what documents are brought into the room, and any communications the depo-nent receives during the on-the-record portion of the deposition. In contrast, in a virtual deposition, another person might be in the room but out of cam-era view. Similarly, the deponent could be prompted by email or text mes-sage without the deposing attorney’s knowledge. This can be mitigated by requesting the deponent to declare on the record: who is in the room during the deposi-tion; that the deponent did not receive any communications during the depo-sition; and to identify all documents examined in response to questions. Conclusion Virtual depositions can be a useful tool to keep discovery moving forward de-spite the numerous disruptions caused by COVID-19. Additionally, the tech-niques developed during COVID-19 social distancing may be useful time and cost-saving measures well after the pandemic subsides. Adapting this guide to your own practice can help mitigate difficulties and maximize the benefits of virtual depositions. R www.vsb.org VOL. 69 | AUGUST 2020 | VIRGINIA LAWYER 51