§ 8.01-412.10.Issuance of subpoena.

Section 8.01-412.10 is the operational heart of the interstate discovery act — the step that turns an out-of-state subpoena into one Virginia officers can enforce. A party requesting discovery in Virginia submits three things to the clerk of the circuit court where the discovery is to happen: the foreign subpoena itself, a written statement that the issuing state’s law gives Virginia citizens reciprocal discovery privileges there, and a sworn attestation about whether the subpoena touches protected health care activity as defined elsewhere in Virginia law. Signing that attestation is not a formality — it subjects the person making it to Virginia court jurisdiction for any suit, penalty, or damages arising from a false attestation.

Once a compliant submission comes in, the clerk’s job is largely ministerial: following the court’s normal procedures, the clerk promptly issues a Virginia subpoena for service on the person the foreign subpoena named. That Virginia subpoena has to incorporate the terms of the foreign subpoena and include, or come with, the names, addresses, and phone numbers of all counsel of record and any unrepresented party in the underlying case. Submitting the request this way does not count as making an appearance in Virginia courts, and no separate civil action needs to be filed here — the whole point is to avoid that older, cumbersome ancillary-lawsuit approach. This mechanism is also exclusive: no one but the circuit court clerk, acting under this section, may issue a subpoena in Virginia under this article.

The protected-health-care-activity attestation creates a real gate, though. If a party submits a foreign subpoena without that attestation, the clerk cannot issue the Virginia subpoena and must instead send the request to the court for further action; the court must quash any existing subpoena unless it can determine the subpoena does not seek information tied to protected health care activity. The court can still allow the subpoena through if it finds the underlying out-of-state suit involves a tort, contract, or statutory claim that would exist under Virginia law and is brought by the injured person, or that person’s representative, for the person’s own damages or loss-of-consortium damages, or an out-of-state contract action a contracting party is enforcing that would have a Virginia-law counterpart, and the court can ask for more evidence or argument to make that call.