Virginia: Special Cases – a Lawyer’s Yelp

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On April 16, 2015, the Virginia Supreme Court announced Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., No. 140242. It held the a circuit court was “not enpowered to enforce the subpoena duces tecum” against the non-resident non-party, despite it being registered to do business and having a registered agent for service of process in Virginia and despite plaintiff having complied with Va. Code §8.01-407.1(A). Id. at 1, 15-16.

Yelp observed that Virginia’s General Assembly “has not expressly provided for the exercise of [direct] subpoena power over nonresident non-parties”. Id. at 5 (emphasis in original). Similarly, Yelp observed that the Virginia Supreme Court’s “Rules do not recognize the existence of [direct] subpoena power over nonresident parties”. Id. at 6.

The Virginia Supreme Court in Yelp followed decisions in Alabama, Colorado, Florida, Louisiana, Mississippi, and Oklahoma in deciding that the “General Assembly’s authorization of the exercise of personal jurisdiction over nonresident defendants does not confer upon Virginia courts subpoena power over non-resident non-parties.” Id. at 7-10, 15. Also, Yelp noted that like most states, Virginia in 2009 adopted a form of the Uniform Interstate Depositions and Discovery Act (“UIDDA”), Va. Code §8.01-412.8, et seq., as successor to the Uniform Foreign Deposition Act (“UFDA”), which provides the process for subpoenas of non-resident non-parties through the courts of their respective states and which is inconsistent with any other form of subpoena over non-resident non-parties. Id. at 11-14, 15.

Justice Mims and Justice Millette concurred in part and dissented in part in Yelp. Those Justices opined that Virginia had in fact provided statutory authority for such direct “subpoena power” over non-resident non-parties as exercised by the circuit court, but that “the evidence was insufficient to establish that the court could exercise personal jurisdiction over Yelp within the limits of the Fourteenth Amendment due process;” so concurred in “vacating both the judgment of the Court of Appeals and the contempt order of the circuit court”. Id. at 16-32.