Question: How do I subpoena out-of-state documents from a nonresident non-party?
Answer: Through the Uniform Interstate Deposition and Discovery Act. Code §§ 8.01-412.8 et seq.
A Virginia court does not have the power to force a nonresident non-party to produce documents located out of the state. Enforcement of a subpoena seeking out-of-state discovery is generally governed by the courts and the law of the state in which the witness resides or where the documents are located.
In recognition of the territorial limits of subpoena power, most states have adopted some form of the Uniform Interstate Depositions and Discovery Act (“UIDDA”), which sets forth procedures for litigants to pursue out-of-state discovery. In Virginia that act is set forth at Code §§ 8.01-412.8 et seq. Generally the act provides a mechanism to cause subpoenas to be issued in foreign states for production of documents where those states extend the same courtesy to Virginia. The UIDDA is the successor to the Uniform Foreign Depositions Act (“UFDA”). Both are rooted in principles of comity and provides a mechanism for discovery of evidence in aid of actions pending in foreign jurisdictions. Comity is a matter of favor or courtesy, based on justice and good will. It is permitted from mutual interest and convenience, from a sense of the inconvenience which would otherwise result, and from moral necessity to do justice in order that justice may be done in return.
Virginia courts may not compel nonresident non-parties to produce documents located outside of Virginia even if that nonresident has a registered agent for service of process in the Commonwealth. Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., 770 S.E.2d 440, 446, (2015).
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