Legal Question in Civil Litigation in Virginia

Re: Subpoena Enforcement

This is a developing area of the law. With regard to a subpoena for documents, yes it can be enforced. I just did this for a NY attorney with regard to internet documents from Network Solutions, because Loudoun County, Virginia, contains the "Dulles corridor" (an East Coast Silicon Valley, though with other East Cost competing regions for that exalted title).

When it comes to forcing someone to travel from Virginia to New Jersey, there is no authority saying you can't. The wording of the statute in Virginia (which is the national model statute) tends to suggest YES, you can. However, judges stuck in the past and with limited intellectual abilities will narrowly assume that no, you can't. (I've actually had the stupidest judge in Virginia rule on this question and give typically incoherent comments.) So, although there is nothing saying you can't, the fact is you probably won't win, simply because it is too new and most judges aren't up to speed with developments in this area. They will fall back on what is familiar, rather than what the law actually says.

HOWEVER, what you CAN do is what my colleague suggests. This is called a "de bene esse deposition." You must request the NJ court to issue a "Commission" (or "Request" or whatever they want to call it, doesn't matter) making a "REQUEST" for the Virginia court to cooperate in issuing a subpoena for a "de bene esse deposition" to be held near the witness' home or business. (Many court reporters have conference rooms that you can use for this purpose.) You will then need to file this "Commission" or "Request" in the Virginia Circuit COurt for the right County and request the issuance of a subpoena. Frankly, you are better off paying me $110 an hour for the hour or two it would take to process this request in Virginia, but that is obviously self-serving. Call me BEFORE approaching the NJ court so that you can be sure to include the right language in the NJ Order. (That is, what Virginia needs to see. I cannot practice law in NJ or advise you about NJ, but I can tell you what Virginia wants to see in the final output to be able to cooperate.)

Then the NJ Court SHOULD accept the deposition transcript in lieu of live testimony on the grounds that the witness is "unavailable" with regard to NJ's courts (can't be supboened to NJ).

Note: It is possible to take a deposition by telephone, so that the opposing attorney cannot complain about the expense of going from NJ to our beautiful Commonwealth of Virginia.

Call me (703) 850-3733 if I can help.

Re: Subpoena Enforcement

A NJ state court subpoena cannot be enforced in VA. However, the party seeking the testimony can have a VA subpoena issued to take the witness' deposition in VA for use in the NJ proceeding. A federal subpoena is the same, except that it is enforceable 100 miles outside of the federal judicial district where it was issued (I don't think there is any part of VA within 100 miles of NJ, but there might be).