HOW TO DOMESTICATE A FOREIGN SUBPOENA IN VIRGINIA

This article will provide guidance on How To Domesticate a Foreign Subpoena in Virginia.   To obtain a subpoena under Virginia and the UIDDA laws, a party must provide a foreign subpoena and a written statement that the law of the foreign jurisdiction grants reciprocal privileges to citizens of the Commonwealth for taking discovery in the jurisdiction that issued the foreign subpoena. This must be done at the clerk of court in the circuit where discovery is sought to be conducted in the Commonwealth.

When a foreign subpoena is submitted to a clerk of court in the Commonwealth, the clerk, in accordance with Virginia and the UIDDA process of that court, must quickly issue a subpoena for service upon the individual to whom the international subpoena is addressed.

Uniform Interstate Depositions and Discovery Act (UIDDA)-Virginia

A domestic subpoena must include the phrases used in the foreign subpoena and include or be accompanied by the names, addresses, and telephone numbers of all counsel of record in the action to which the subpoena pertains and of any party not represented by counsel. There is no need to initiate a civil action in the Commonwealth's circuit court in order to seek the issue of a subpoena under this article, and a request for the issuance of a subpoena is not considered a presence in court.

No subpoena issued in the Commonwealth may be issued by any person other than the applicable circuit court clerk of court in the Commonwealth. A party may present a subpoena issued by a court of record in another state to the Clerk of the Circuit Court serving the jurisdiction in which discovery is sought. In order to have the Circuit Court issue a foreign subpoena, the requesting party must provide one original and two copies of the foreign subpoena; one original and two copies of the Virginia Foreign Subpoena form, and a written statement that the law of the foreign jurisdiction grants reciprocal privileges to citizens of the Commonwealth. It is also required to provide a self-addressed, stamped envelope and the appropriate filing and service fee.

REQUIREMENTS FOR A FOREIGN SUBPOENA

The necessity to establish consistency of Virginia and the UIDDA laws with regard to the subject matter of the uniform act must be taken into account in implementing and interpreting this uniform act among the states that adopt it. If the state where the action is pending has passed the Uniform Interstate Depositions and Discovery Act, a predecessor uniform act, or another law or rule of court providing substantially similar mechanisms to use by parties from other states, then the privilege extended to persons in other states for discovery will apply.

No presence in court is required to obtain a subpoena under Virginia, and no civil action has to be filed in the Commonwealth circuit court. Commissions and Letters Rogatory are still in effect. 

Subpoenas for the attendance of witnesses should provide at least ten days' notice, and those for the production of documents should provide at least fifteen days' notice. When scheduling the date for production, it is necessary to provide the Clerk's office with at least five (5) working days to prepare the subpoena.

Virginia and the UIDDA Foreign Subpoena would have an attorney completion required as well as a declaration in writing that Commonwealth residents are afforded the same rights to take discovery in the foreign jurisdiction as inhabitants of the jurisdiction issuing the foreign subpoena. In this case, a notarized statement is not required under Virginia and the UIDDA requirements. All attorneys involved in the action to which the subpoena pertains, as well as the names and contact information for any parties not represented by counsel, must be included on or attached to the subpoena.

A written statement that Commonwealth citizens are afforded the same rights to take discovery in the country that issued the foreign subpoena as citizens of the country issuing the foreign subpoena, along with two certified copies of the foreign subpoena, a certified Commission or certified Letter Rogatory from the country issuing the foreign subpoena will be required under Virginia and the UIDDA. In this case, a notarized statement is not required.

During the discovery process, per Virginia and the UIDDA, a party may issue both document subpoenas and deposition subpoenas. Both deposition and document subpoenas may be issued and served by a party. In response to a subpoena for production, a witness may be required to allow examination and copying of specific books, papers, and physical objects; allow inspection of the witness's premises at a defined time and location, or provide the items themselves.

DOMESTIC SUBPOENA IN VIRGINIA

Subpoenas for testimony may require witnesses to present at a certain location and time to testify. Subpoenas issued in West Virginia must be in Form 33 (Civil Case Subpoena), which may be found in the Appendix of Forms to the Virginia Rules of Civil Procedure.  A person not a party to the case and at least eighteen years old may serve a subpoena in Virginia.

There are unique rules regarding the service of a discovery subpoena on minors, the mentally incompetent, and incarcerated individuals, as per Virginia and the UIDDA. Subpoenas for minors or those deemed legally incapable of consent must be served on the minor's legal guardian or conservator in Virginia. A Virginia and the UIDDA subpoena may be issued by either a clerk of court or an attorney serving as an officer of the court. A subpoena for production or inspection must be issued by the circuit court in the county where the production or inspection is to take place. Subpoenas for depositions must be issued by the circuit court in the venue's proper Virginia and the UIDDA jurisdiction.

Virginia and the UIDDA service of a subpoena is accomplished by hand-delivering a copy of the subpoena to the witness in question. The party initiating the demand should pay the non-party witness's expenses for one day of attendance and travel.

Although there is no regulation outlining the specifics of how Virginia and the UIDDA service is made on state or public companies, in practice, it is handled in the same manner as service on domestic businesses. There is no prescribed minimum period for subpoena service under West Virginia's rules of civil procedure. If a non-party witness is to be served with a discovery subpoena, the issuing party must inform the other parties when and how this will occur. 

Each party to an action must be given adequate written notice of the issuing party's plan to serve a deposition subpoena before service may be made. Any location in Virginia is acceptable for serving a subpoena. 

UIDDA VIRGINIA 

A foreign party may subpoena a Virginia resident under the Uniform Interstate Deposition and Discovery Act by delivering a foreign subpoena to the court clerk in the county where discovery is sought. A Virginia and the UIDDA subpoena for service on the person to whom the international subpoena is addressed must be issued by the clerk without delay after the party submits the subpoena.

A party seeking to subpoena a nonparty witness located outside of the confines of Virginia and the UIDDA must instead acquire and serve the witness with a subpoena issued by a state that does have jurisdiction over the witness. Subpoenas issued for discovery purposes in Virginia are not binding on witnesses located in other states. Obtaining a subpoena in the non-jurisdiction party in conformity with Virginia and the UIDDA laws of that jurisdiction is necessary for a party seeking discovery of a non-party witness situated outside of the issuing court's jurisdiction. If the state where the witness resides has approved the Uniform Interstate Depositions and Discovery Act, a party may be entitled to subpoena the witness's deposition testimony. 

In the state of Virginia, before filing a motion for an order to compel, the party seeking the order must make an effort to settle the issue by informal means, such as a meeting between the attorneys for both sides. If a witness is subpoenaed and refuses to comply without a good reason, they may be held in contempt of court. If a non-party is required to appear or produce at a location outside the geographical limitations, that person may be excused from compliance with the subpoena.  The Virginia Supreme Court may allow review of discovery orders, such as where a discovery order concerns the likely invasion of confidential data that are excluded from disclosure. 

A notice of appeal must be filed no later than thirty days after the day the judgment being appealed was entered, as per Virginia and the UIDDA. The Supreme Court Clerk's Office is the proper location for filing the appeal notice.  Overturned discovery orders are often examined with an abuse of discretion criterion. However, where the challenged order requires disclosure of confidential data, the court will undertake a tougher and more severe review’ to determine whether there was an abuse of discretion under Virginia and the UIDDA. 

The judge, clerk, or deputy clerk of the court must issue subpoenas, and they must be sealed with the official court seal. Each person to whom Virginia and the UIDDA service are directed is hereby commanded to appear and give testimony at the time and place specified therein and to do so in the court and under the title, if any, of the proceeding to which it relates. If the witness is to testify on behalf of the Government, the citation must indicate as much. A signed and sealed subpoena will be issued by the clerk to the asking party, who will then complete the form before it is served.

Anyone over eighteen who is not a party to the proceeding may serve a subpoena. A subpoena may be served simply by handing a copy to the witness. A witness may be served with a subpoena to appear at a trial or hearing anywhere in the territory.

Virginia

Uniform Interstate Depositions and Discovery Act Adopted - 2009
Bill Number: SB 958 Sponsor Obenshain
VA CODE ANN. § 8.01-412.10
Sample Subpoena Click Here
Guidance from Fairfax Circuit Court Click Here
Virginia Judicial System Click Here

for assistance domesticating and serving a subpoena in Virginia

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Sources

1. Adoption of the Uniform Interstate Depositions and Discovery Act, 2009 (SB 958), Sponsored by Senator Obenshain, Virginia Code Annotated, Title 8, Section 8.01-412.10: 

2. Virginia Code 8.01-412.8 through 8.01-412.15 (the ‘Uniform Interstate Deposition & Discovery Act’)

3. Applies to depositions, production of documents, and examination of premises ordered by a court in another state and served on a person or organization in Virginia under the Uniform Interstate Deposition & Discovery Act (8.01-412.8 through 8.01-412.15). Sections 8.01-411 through 8.01-412.1 of the Unified Foreign Depositions Act have been replaced by this uniform law.

4. Expenses associated with Serving a Foreign Subpoena

1. Complaint for $31.00 and a subpoena for a witness
2. Duce's tecum subpoena (document production) $36.00
3. Foreign subpoenas served by sheriffs will cost an extra $12.00. Donations may be sent to the ‘Clerk of the Circuit Court’ and checks should be written in that name.

5. Virginia Code sections 8.01-412.8 through 8.01-412.15, as well as Rule 4:9C.

6. $31.00 per witness (no documentation required)

Price of $36.00 for each witness who provides supporting paperwork

Sheriff's Fee of $12.00

7. Subpoenas under the Uniform Interstate Deposition & Discovery Act are issued by the Clerk of Courts in Virginia (see 8.01-412.8 through 8.01- 412.15 of the Code of Virginia for further information).

8. Name and contact information for the witness being deposed.

A deposition's scheduled date and hour.

Virginia location where a deposition or production will take place.

Items needed must be produced in response to a subpoena.

According to Virginia law (32.1-127 1:03), a 'Notice to Provider' must be attached to every subpoena for medical records.

Subpoena duces tecum requests must include A certificate of service or statement proving that a copy of the request was served on the opposing party by mail.

Filing and service costs must be paid.

9. With the West Virginia Code and the West Virginia Rules of Civil Procedure. Rules 45 of the West Virginia Rules of Civil Procedure (subpoenas generally).

West Virginia Rules of Civil Procedure, Rules 26–37 (discovery subpoenas) (Keplinger v. Virginia Elec. & Power Co., 537 S.E.2d 632, 641–42 (W. Va. 2000)).

The West Virginia Code Sections 56-12-1 through 56-12-8 (Uniform Interstate Depositions and Discovery Act).

10. (West Virginia Rule of Criminal Procedure 45(a)(3))

11. Each subpoena must be on Form 33 (Civil Case Subpoena), which may be found in the Appendix of Forms for the West Virginia Rules of Civil Procedure. Each subpoena issued in the name of a state must include:

1. The name of the issuing court.
2. Name of the process being undertaken.
3. The judicial institution where the case is now pending.
4. This includes the case number in the legal proceeding.

12. Within certain limits, the deposition site is specified in the notice of deposition. (W. Va. Revised Court Procedure 45(a)(2), (c))

13. State ex rel. Progressive Classic Ins. Co. v. Bedell, 686 S.E.2d 593, 599 (W. Va. 2009)

14. W. Va. R. Civ. P. 45(d)(3)(A)(i) states that if a subpoena does not provide a reasonable amount of time to comply, the court may either dismiss the subpoena or alter the terms of the subpoena. Given the specifics of each situation, a fair amount of time may be set aside for compliance.

15. Section 56-12-3 of the West Virginia Code. Rule 45 of the West Virginia Rules of Civil Procedure (W. Va. R. C. P. 28(d)) applies when an out-of-state party seeks to conduct discovery in a case already underway in another state.

16. The subpoenaing party in West Virginia is responsible for covering the costs of one day's attendance and necessary travel (W. Va. R. C. P. 45(b)(1)).