Virginia Motion to Quash a Subpoena

Introduction

Key Things to Know

1. 1

   A subpoena must be obeyed unless it is objected to or quashed or modified as the rule allows. Failure to respond to a summons is punishable as contempt (Va. Code § 8.01-407). Never simply ignore a subpoena.

2. 2

   Virginia's own non-party rule is Va. Sup. Ct. R. 4:9A (Production from Non-Parties). The court, on written motion promptly made by the person required to produce or by the party against whom production is sought, may quash or modify the subpoena (Rule 4:9A(c)(3)). The rule gives no fixed day count for the motion.

3. 3

   Written objection is a separate step. If the time for compliance with an attorney-issued subpoena duces tecum is less than 14 days after service, the person served may serve a written objection on the issuing party. The issuer then needs a court order to get production and may move to compel on notice (Rule 4:9A(a)(2)).

4. 4

   The grounds as the rule words them: the court may quash or modify the subpoena, or the method or form for production of electronically stored information, if it would otherwise be unduly burdensome or expensive. The court may condition denial on advancement of production costs, and electronically stored information may be not reasonably accessible because of undue burden or cost.

5. 5

   A motion under the rule must be accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties to resolve the dispute without court action (Rule 4:9A(c)(4)).

6. 6

   Attorney-issued subpoenas and short notice: any active Virginia State Bar member may issue a subpoena without the clerk (Va. Code § 8.01-407; Rule 4:9A(a)(2)). A court may refuse to enforce a subpoena served less than 5 calendar days before the appearance (Va. Code § 8.01-407). An attorney-issued summons is treated as a pleading subject to Va. Code § 8.01-271.1 sanctions.

7. 7

   Records and out-of-state subpoenas: a non-party may move to quash or modify a subpoena for financial records or attorney-client privileged records (Va. Code § 8.01-420.9), and financial institutions cannot condition compliance on fee payment but may charge actual costs. Health records fall under Va. Code § 32.1-127.1:03 (Rule 4:9A(e)). A foreign subpoena under the Virginia UIDDA (Va. Code § 8.01-412.8 et seq.) is challenged in the circuit court where discovery is to be conducted (§ 8.01-412.13).

Virginia Requirements for Motion to Quash

• Obey the Subpoena Unless Quashed

  A subpoena must be obeyed unless objected to or quashed or modified as the rule allows; failure to respond to a summons is punishable as contempt (Va. Code § 8.01-407).

• Motion Promptly Made

  The court, on written motion promptly made by the person required to produce or the party against whom production is sought, may quash or modify the subpoena (Va. Sup. Ct. R. 4:9A(c)(3)). No fixed day count.

• Written Objection for Short Compliance

  For an attorney-issued subpoena duces tecum with compliance less than 14 days after service, the person served may serve a written objection on the issuing party, who then needs a court order for production (Rule 4:9A(a)(2)).

• Undue Burden or Expense Ground

  The motion may rest on the subpoena, or the method or form for electronically stored information, being unduly burdensome or expensive; the court may condition denial on advancement of production costs (Rule 4:9A(c)(3)).

• Good-Faith Conferral Certification

  The motion must be accompanied by a certification that the movant in good faith conferred or attempted to confer with other affected parties to resolve the dispute without court action (Rule 4:9A(c)(4)).

• Short-Notice Subpoenas

  A court may refuse to enforce a subpoena served less than 5 calendar days before the appearance (Va. Code § 8.01-407).

• Financial and Privileged Records

  A non-party may move to quash or modify a subpoena for financial records or attorney-client privileged records; financial institutions cannot condition compliance on fee payment but may charge actual costs (Va. Code § 8.01-420.9).

• Court and UIDDA Venue

  The motion goes to the court where the action is pending; for a foreign subpoena, to the circuit court where discovery is conducted (Va. Code § 8.01-412.13).

• Contempt and Pleading Sanctions

  Failure to respond to a summons is punishable as contempt (Va. Code § 8.01-407); an attorney-issued summons is treated as a pleading subject to Va. Code § 8.01-271.1 sanctions.