The Virginia Business Litigation Blog
Back in 2012, the Alexandria Circuit Court ruled in an Internet defamation case that discovery could be obtained from a nonresident third party by serving a subpoena on the company’s registered agent in Virginia. That decision was reversed last week by the Virginia Supreme Court in an unambiguous ruling that is going to force a lot of Virginia attorneys to make greater use of the Uniform Interstate Depositions and Discovery Act.
I had been following this case–Yelp, Inc. v. Hadeed Carpet Cleaning, Inc.–over the past few years with great interest, not because of the subpoena-power issue, but because the case involved some fascinating First Amendment issues and promised to offer some guidance on the correct application of Virginia’s “unmasking” statute, Section 8.01-407.1. For example, would an interactive computer service like Yelp have standing to object to complying with an enforceable subpoena by invoking the First Amendment rights of its users? Does a plaintiff need to produce evidence to meet 8.01-407.1’s “showing” requirement or can it make the required showing merely by by alleging a prima facie cause of action for defamation? In a case involving online negative reviews phrased as non-actionable statements of opinion but written anonymously by competitors hiding behind a pseudonym, how can a plaintiff demonstrate falsity (i.e., that the reviewer was not an actual customer) without an opportunity to use discovery to ascertain the poster’s true identity? The justices showed keen interest in questions like these at oral argument, but ultimately decided to save addressing them for another day.
What we have instead is nevertheless a useful decision that provides concrete guidance for Virginia practitioners regarding the scope of Virginia’s subpoena power. Prior to the court’s April 16, 2015 decision, there had been some uncertainty about whether subpoenas could be issued to companies or individuals located outside of Virginia. Does it depend on whether the person receiving the subpoena would be subject to personal jurisdiction in Virginia? Does it depend on whether the company being served maintains a registered agent in Virginia? But now we have a decisive ruling: Virginia subpoenas that seek 
out-of-state discovery are not enforceable when issued to non-resident non-parties.
The court reasoned that there is nothing in Virginia’s statutes or rules of civil procedure that would authorize subpoena power over nonresident non-parties. The General Assembly has enacted a long-arm statute outlining the circumstances under which a nonresident defendant could be haled into court in Virginia, but has enacted no such statute providing for the exercise of subpoena power over nonresident non-parties. While there are statutes governing how a foreign corporation can be served, such statutes do not affect the validity of the subpoena itself.
The court further observed that concepts of personal jurisdiction and subpoena power are entirely different. The power of a court to compel the attendance of a nonresident at a deposition or produce documents has nothing to do, the court held, with the court’s power to hale a nonresident into court to defend a lawsuit based on the defendant’s contacts with Virginia. Subpoena power should not be extended to the limits of personal jurisdiction because the whole “minimum contacts” analysis is premised on the existence of a lawsuit against the nonresident. Simply put, the court stated, the question of personal jurisdiction is “irrelevant” to the enforceability of a subpoena.
To obtain out-of-state discovery from non-parties, the correct procedure is to use the Uniform Interstate Depositions and Discovery Act to obtain a subpoena from the court of the state in which the non-party resides or where the documents are located. Based on principles of comity, uniformity, and fairness, “the UIDDA affords protection to Virginia citizens subject to a subpoena from another state by providing for enforcement of the subpoena in Virginia. In turn, the UIDDA contemplates that Virginia courts will respect the territorial limitations of their own subpoena power.”
From this point forward, the law is now clear that if a Virginia business is defamed on Yelp by an anonymous tortfeasor, uncovering the reviewer’s identity so that he or she can be made a defendant in a Virginia state court proceeding is going to require the assistance of the California courts.