(a)For Attendance of Witnesses. –
(1) A subpoena for the attendance of a witness to testify before a court not of record may be issued by the judge, clerk, magistrate, attorney for the Commonwealth or by the attorney for the accused. (2) A subpoena for the attendance of a witness to testify before a circuit court or a grand jury may be issued by the clerk or attorney for the Commonwealth and, for the attendance of a witness to testify before a circuit court, by the attorney for the accused as well. (3) A subpoena must (i) be directed to an appropriate officer or officers, (ii) name the witness to be summoned, (iii) state the name of the court and the title, if any, of the proceeding, (iv) command the officer to summon the witness to appear at the time and place specified in the subpoena for the purpose of giving testimony, and (v) state on whose application the subpoena was issued. (4) No subpoena or subpoena duces tecum may be issued in any criminal case or proceeding, including any proceeding before any grand jury, which is (i) directed to a member of the bar of this Commonwealth or any other jurisdiction, and (ii) compels production or testimony concerning any present or former client of the member of the bar, unless the subpoena request has been approved in all specifics, in advance, by a judge of the circuit court wherein the subpoena is requested after reasonable notice to the attorney who is the subject of the proposed subpoena. The proceedings for approval may be conducted in camera, in the judge’s discretion, and the judge may seal such proceedings. Such subpoena request must be made by the attorney for the Commonwealth for the jurisdiction involved, either on motion of the attorney for the Commonwealth or upon request to the attorney for the Commonwealth by the foreman of any grand jury. An accused may also initiate such a subpoena request.No subpoena or subpoena duces tecum may be issued in any criminal case or proceeding, including any proceeding before any grand jury, which is (i) directed to a member of the bar of this Commonwealth or any other jurisdiction, and (ii) compels production or testimony concerning any present or former client of the member of the bar, unless the subpoena request has been approved in all specifics, in advance, by a judge of the circuit court wherein the subpoena is requested after reasonable notice to the attorney who is the subject of the proposed subpoena. The proceedings for approval may be conducted in camera, in the judge’s discretion, and the judge may seal such proceedings. Such subpoena request must be made by the attorney for the Commonwealth for the jurisdiction involved, either on motion of the attorney for the Commonwealth or upon request to the attorney for the Commonwealth by the foreman of any grand jury. An accused may also initiate such a subpoena request. (b)For Production of Documentary Evidence and of Objects Before a Circuit Court. –
(1) Upon notice to the adverse party and on affidavit by the party applying for the subpoena that the requested writings or objects are material to the proceedings and are in the possession of a person not a party to the action, the judge or the clerk may issue a subpoena duces tecum for the production of writings or objects described in the subpoena. Such subpoena may command either (i) that the person to whom it is addressed must appear with the items described either before the court or the clerk, or (ii) that such person must deliver the items described to the clerk. The subpoena may direct that the writing or object be produced at a time before the trial or before the time when it is to be offered in evidence. The term “material to the proceedings” as used in this subpart (b) does not require that the subpoenaed writings or objects be admissible at trial or that they be exculpatory. (2) Any subpoenaed writings and objects, regardless of which party sought production of them, must be available for examination and review by all parties and counsel. Subpoenaed writings or objects will be received by the clerk and must be placed under seal and will not be open for examination and review except by the parties and counsel unless otherwise directed by the court. The clerk must adopt procedures to ensure compliance with this subpart of the Rule. Until such time as the subpoenaed materials are admitted into evidence they must remain under seal unless the court orders that some or all of such materials be unsealed. (3) Where subpoenaed writings and objects are of such nature or content that disclosure to other parties would be unduly prejudicial, the court, upon written motion and notice to all parties, may grant such relief as it deems appropriate, including:
(i) quashing the subpoena in whole or in part,(ii) prohibiting or limiting disclosure, removal and copying,(iii) redacting confidential or immaterial information,(iv) prohibiting or restricting further disclosure by parties to the litigation, and/or (v) ordering return of all copies of the subpoenaed material upon completion of the litigation. Such motions may be brought by a party to the litigation, by the entity or individual subpoenaed, or by the entity or individual who is the subject of the subpoenaed material. (4) If a subpoena requires the production of information that is stored in an electronic format, the person to whom it is addressed must produce a tangible copy of the information. If a tangible copy cannot be reasonably produced, the subpoenaed person must permit the parties to review the information on a computer or by other electronic means during normal business hours, provided that the information can be accessed and isolated. If a tangible copy cannot reasonably be produced and the information is commingled with information other than that requested in the subpoena and cannot reasonably be isolated, the person to whom the subpoena is addressed may file a motion to quash the subpoena or a motion for limitations on disclosure or other appropriate relief. (c)Service and Return. – A subpoena may be executed anywhere in the Commonwealth by an officer authorized by law to execute the subpoena in the place where it is executed. The officer executing a subpoena must make return thereof to the court named in the subpoena. (d) Contempt. – Failure by any person without adequate excuse to obey a properly served subpoena may be deemed a contempt of the court to which the subpoena is returnable. (e)Recognizance of a Witness. – If it appears that the testimony of a person is material in any criminal proceeding, a judicial officer may require him to give a recognizance for his appearance.(f)Photocopying of Subpoenaed Documents. – Subject to the provisions of subpart (b) of this Rule, removal and photocopying of subpoenaed documents by any party or counsel must be permitted. The court will direct a procedure for removal, photocopying and return of such documents. (g)Undue Burden. – Where subpoenaed material is so voluminous that its production would place an undue burden on the subpoenaed entity, the court may order that the subpoena duces tecum be satisfied by making the writings and documents reasonably available for inspection by the requesting party, subject to review by the court. (h)Virginia Freedom of Information Act. – In accordance with Virginia Code § 2.2- 3703.1, the provisions of the Virginia Freedom of Information Act do not govern a court’s determinations with regard to the applicability of this Rule. (i)Subpoena Issued to a Party. – In a criminal proceeding, a subpoena duces tecum may not be used to obtain material from a party. Nor may a subpoena duces tecum be used to obtain material from an agency or entity participating in, or charged with responsibility for, the investigation or prosecution of a criminal case such that the agency and its employees are deemed agents of the Commonwealth. A subpoenaed agency or entity claiming party status may move for relief from a subpoena on that basis and – if the court quashes the subpoena – discovery will be governed by Rule 3A:11 and orders issued pursuant to that Rule. For purposes of this rule, the Department of Forensic Science and the Division of Laboratory Consolidated Services are not parties. (j)In Camera Review. – In determining whether a protective order should issue, or other relief be granted, a court may in its discretion review subpoenaed material in camera. (k)Confidentiality Provisions of Code §19.2-11.2. – Where the confidentiality provisions of Virginia Code §19.2-11.2 apply, any material produced pursuant to a subpoena duces tecum must be treated in accordance with the provisions of that statute. (l)Health Records Privacy. – Any subpoena duces tecum seeking health records, or records concerning the provision of health services, as those terms are defined by Virginia Code § 32.1-127. l :03, are subject to the procedures and requirements of § 32.1-127.1:03(H), including the provisions for objecting to disclosure by a motion to quash. (m)Decision of the Court. – A court must state on the record, or in writing, its reasons for making a decision pursuant to this Rule.
Va. Sup. Ct. 3A:12
Amended April 9, 2008, effective July 1, 2008; Amended September 5, 2018, effective July 1, 2019; amended January 29, 2019, effective July 1, 2020; amended by order dated September 3, 2020, effective September 3, 2020; amended by order dated November 23, 2020, effective March 1, 2021.
