Va. Sup. Ct. R. 4:9A

Information, and Things and Entry on Land for Inspection and Other

Purposes; Production at Trial.

(a) Issuance of a Subpoena Duces Tecum. — Except as provided in paragraph (d) of

this Rule, a subpoena duces tecum may be issued:

(1) By the clerk of court. Upon written request therefor filed with the clerk of the

court in which the action or suit is pending by counsel of record for any party or by a

party having no counsel in any pending case, 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, the clerk must issue to a person not a party therein a subpoena duces tecum

subject to this Rule.

(2) By an attorney. 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. An attorney may not issue a subpoena

duces tecum in those civil proceedings excluded in Virginia Code § 8.01-407. An

attorney-issued subpoena duces tecum must be signed as if a pleading and must contain

the attorney's address, telephone number and Virginia State Bar identification number. 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. 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. 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.

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. Upon a timely motion, the court may quash, modify or

sustain the subpoena as provided above in subsection (c) of this Rule.

(b) Content of Subpoena Duces Tecum; Objections. — Subject to paragraph (d) of

this Rule, a subpoena duces tecum will command the person to whom it is directed, or

someone acting on his behalf, to produce the documents, electronically stored

information, or designated tangible things (including writings, drawings, graphs, charts,

photographs, and other data or data compilations stored in any medium from which

information can be obtained, translated, if necessary, by the respondent into reasonably

usable form) designated and described in said request, and to permit the party filing such

request, or someone acting in his behalf, to inspect and copy, test, or sample any

designated tangible things which constitute or contain matters within the scope of Rule

4:1(b) which are in the possession, custody or control of such person to whom the

subpoena is directed, at a time and place and for the period specified in the subpoena. A

subpoena may specify the form or forms in which electronically stored information is to

be produced.

(c) Responding to a Subpoena; Objections; Production of Documents and

Electronically Stored Information. —

(1) Production of Documents. A person responding to a subpoena to produce

documents must produce them as they are kept in the usual course of business or must

organize and label them to correspond with the categories in the demand.

(2) Electronically Stored Information.

(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. 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 that showing is made, the court may nonetheless order production of responsive

material from such sources if the subpoenaing party shows good cause, considering the

limitations of Rule 4:1(b)(1). The court may specify conditions for the production of such

information, including allocation of the reasonable costs thereof.

(B) If a subpoena does not specify the form or forms for producing electronically

stored information, a person responding thereto 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 in which it is reasonably usable. A person

responding to a subpoena need not produce the same electronically stored information in

more than one form.

(3) Objections and Procedures. The court, upon written motion promptly made by

the person so required to produce, or by the party against whom such production is

sought, may (1) quash or modify the subpoena, or the method or form for production of

electronically stored information, if the subpoena would otherwise be unduly burdensome

or expensive, (2) condition denial of the motion to quash or modify upon the

advancement by the party in whose behalf the subpoena is issued of some or all of the

reasonable cost of producing the documents, electronically stored information, and

tangible things so designated and described or (3) direct that the documents and tangible

things subpoenaed, including electronically stored information (unless another location

for production is agreed upon by the requesting and producing parties), be returned only

to the office of the clerk of the court through which such documents and tangible things

are subpoenaed in which event, upon request of any party in interest, or his attorney, the

clerk of such court must permit the withdrawal of such documents and tangible things by

such party or his attorney for such reasonable period of time as will permit his inspection,

photographing, or copying thereof. 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.

(4) Pre-Motion Negotiation. 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.

(d) Certain Officials. — 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; or any Military Officer on active duty holding the

rank of Admiral or General.

(e) Certain Health Records. 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.

(f) Copies of Documents and Other Subpoenaed Information. —

(1) Documents. 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).

(2) Electronically stored information. 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.

(g) Proceedings on Failure or Refusal to Comply. — 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.