Virginia subpoenas: give less than fourteen days and the recipient can simply object

Virginia lets attorneys issue their own subpoenas for documents, and then attaches a condition to how quickly they can demand them. The condition is easy to trip over, because the trigger is the deadline you chose.

Under fourteen days, and the recipient gets a veto

Rule 4:9A(a):

If time for compliance with an attorney-issued subpoena duces tecum is less than fourteen (14) days after service of the subpoena, the person to whom the subpoena is directed may serve on the party issuing the subpoena a written objection setting forth any grounds upon which such production, inspection, copying, sampling or testing should not be had.

The objection right is switched on by the shortness of the deadline you set. Give fourteen days or more and there is no automatic objection route of this kind; give thirteen and there is.

What follows is not a request:

If an objection is made, the party issuing the subpoena is not entitled to the requested production, inspection, copying, sampling or testing, except pursuant to an order of the court in which the civil proceeding is pending.

Production stops. The issuing party's remedy is a motion: "If an objection is made, the party issuing the subpoena may, upon notice to the person to whom the subpoena is directed, move for an order to compel the production, inspection, copying, sampling or testing."

The drafting lesson is simple. Unless there is a real reason for urgency, setting compliance at fourteen days or more avoids handing the recipient a unilateral block.

An attorney-issued subpoena is a court filing

Rule 4:9A(a) permits attorney issuance and then hedges it about with requirements:

In a pending civil proceeding, a subpoena duces tecum may be issued by an attorney-at-law as an officer of the court if he or she is an active member of the Virginia State Bar at the time of issuance.

Three conditions follow. First, subject matter:

An attorney may not issue a subpoena duces tecum in those civil proceedings excluded in Virginia Code § 8.01-407.

Second, form: the subpoena "must be signed as if a pleading and must contain the attorney's address, telephone number and Virginia State Bar identification number."

Third, and most often missed, filing:

A copy of any attorney-issued subpoena duces tecum must be mailed or delivered to the clerk's office of the court in which the case is pending on the day of issuance with a certificate that a copy thereof has been served pursuant to Rule 1:12 upon counsel of record and to parties having no counsel.

On the day of issuance. Not within a few days, and not when convenient — the copy and the certificate go to the clerk that day.

The clerk route remains available under Rule 4:9A(a)(1): on a written request filed by counsel of record or by a self-represented party, "with a certificate that a copy thereof has been served pursuant to Rule 1:12 upon counsel of record" and on unrepresented parties.

Financial records and privileged records have their own statute

Rule 4:9A(c) singles out two categories of non-party material:

If the subpoena duces tecum seeks a nonparty's financial records or a nonparty's records protected by the attorney-client privilege, such nonparty may move to quash or modify the subpoena, and for such other relief permitted by this subsection, in accordance with Code § 8.01-420.9.

So a bank customer or a client whose file sits with a former lawyer has a named route, and it runs through a statute rather than the general rule.

Patient records are treated separately again: "Patient health records protected by the privacy provisions of Code Section 32.1-127.1:03 may be disclosed only in accordance with the provisions and procedures prescribed by that statute."

Certain officials need a court order first

Rule 4:9A(d) puts a gate in front of subpoenas aimed at particular officeholders:

No request to produce made pursuant to paragraph (b) above may be served, and no subpoena provided for in paragraph (c) above may issue, until prior order of the court is obtained when the party upon whom the request is to be served or the person to whom the subpoena is to be directed is the Governor, Lieutenant Governor, or Attorney General of this Commonwealth, or a judge of any court thereof; the President or Vice President of the United States; any member of the President's Cabinet; any Ambassador or Consul

The list reaches the top of both state and federal government, and it covers judges of any Virginia court. Nothing can even be served without the order, so this is a check to make before drafting rather than after.

Meet and confer before you move

Rule 4:9A requires a certification with any motion under it:

A motion under this Rule 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.

Note "other affected parties," which in a subpoena dispute usually includes the non-party recipient as well as the parties to the case.

The court's powers on a written motion made promptly, by the person required to produce or by the party against whom production is sought, include quashing or modifying the subpoena, "or the method or form for production of electronically stored information, if the subpoena would otherwise be unduly burdensome or expensive."

Whatever you obtain, you may have to share

Rule 4:9A(f) turns a subpoena's yield into common material on request:

When one party to a civil proceeding subpoenas documents, the subpoenaing party, upon receipt of the subpoenaed documents, must, if requested, provide true and full copies of the same to any party or to the attorney for any other party in accordance with Code § 8.01-417(B).

Electronic material carries a further refinement:

When one party to a civil proceeding subpoenas and obtains electronically stored information, the subpoenaing party must, if requested, provide true and full copies of the same to any party or that party's attorney, in the form the subpoenaing party received the information, upon reimbursement of the proportionate cost of obtaining such materials.

Two points there: the copies go out in the form received, so a party cannot convert native files to paper before handing them on; and the requesting party reimburses the reasonable cost.

Electronically stored information: inaccessible sources and cost allocation

Rule 4:9A(c)(1)(A):

A person responding to a subpoena need not provide discovery of electronically stored information from sources the responder identifies as not reasonably accessible because of undue burden or cost.

The burden of establishing that sits with the responder: "On motion to compel production or to quash a subpoena, the person from whom production is sought under the subpoena must show that the information sought is not reasonably accessible because of undue burden or cost."

If the showing is made, the court can still order production on good cause — and the closing sentence is the one to ask for:

The court may specify conditions for the production of such information, including allocation of the reasonable costs thereof.

On form, where the subpoena does not specify one, the responder "must produce the information as it is ordinarily maintained if it is reasonably usable in such form or forms, or must produce the information in another form or forms that are reasonably usable," and "need not produce the same electronically stored information in more than one form."

What happens if a non-party ignores it

Rule 4:9A(g):

If a non-party, after being served with a subpoena issued under the provisions of this Rule, fails or refuses to comply therewith, he may be proceeded against as for contempt of court as provided in § 18.2-456.

The cross-reference is to the general contempt statute, so the consequences are those of contempt rather than a bespoke discovery sanction.

A short checklist

If you are issuing one:

1. Set compliance at fourteen days or more unless you have a reason not to — a shorter deadline hands the recipient an objection that blocks production.
2. File the copy and certificate with the clerk on the day of issuance.
3. Sign it as if a pleading, with your address, telephone number and VSB number.
4. Check Code § 8.01-407 before issuing as an attorney; some proceedings are excluded.
5. Get a prior court order if the target is a judge or one of the senior officials the Rule lists.
6. Certify your meet-and-confer efforts on any motion under the Rule.

If you have been served:

1. Count the days. Under fourteen, you can object in writing and production stops.
2. Use Code § 8.01-420.9 if the subpoena seeks your financial records or privileged records as a non-party.
3. Identify inaccessible sources specifically, and ask the court to allocate the costs.
4. Ask for copies of anything another party obtained by subpoena; the Rule provides for it.

Where these rules live

• Va. Sup. Ct. R. 4:9A — Production from non-parties
• Virginia discovery deadlines
• Virginia motion to compel discovery
• Virginia requests for admission
• Responding to a Virginia complaint
• Virginia TROs and preliminary injunctions

This page explains what the rules say. It isn't legal advice, and the statutes referred to throughout the Rule — including Code §§ 8.01-407, 8.01-417, 8.01-420.9 and 32.1-127.1:03 — are not carried on this site.