How Do I Serve a Subpoena Duces Tecum in Virginia?
Full Question:
Answer:
A request for subpoena duces tecum may be contained in the subpoena duces tecum form, so the terms may be used interchangeably.
Please see the forms at the following links:
http://www.courts.state.va.us/forms/district/dc336.pdf
http://www.courts.state.va.us/forms/district/dc336inst.pdf
The subpoena itself is typically served by a sheriff.
Please see:
� 16.1-89. Subpoena duces tecum; attorney-issued subpoena duces tecum.
A judge or clerk of a district court may issue a subpoena duces tecum pursuant to the terms of Rule 4:9 of the Rules of the Supreme Court of Virginia except that such subpoena may be directed to a party to the case as well as to a person who is not a party.
Subpoenas duces tecum for medical records issued by an attorney shall be subject to the provisions of �� 8.01-413 and 32.1-127.1:03 except that no separate fee for issuance shall be imposed.
A subpoena duces tecum may also be issued by an attorney-at-law who is an active member of the Virginia State Bar at the time of issuance, as an officer of the court. Any such subpoena duces tecum shall be on a form approved by the Committee on District Courts, signed by the attorney as if a pleading and shall include the attorney's address. A copy, together with the attorney's certificate of service pursuant to Rule 1:12, shall be mailed or delivered to the clerk's office of the court in which the case is pending on the day of issuance by the attorney. The law governing subpoenas duces tecum issued by a clerk shall apply mutatis mutandis, except that attorneys may not issue subpoenas duces tecum in those cases in which they may not issue a summons as provided in � 8.01-407. A sheriff shall not be required to serve an attorney-issued subpoena that is not issued at least five business days prior to the date production of evidence is desired. When an attorney-at-law transmits one or more subpoenas duces tecum to a sheriff to be served in his jurisdiction, the provisions in � 8.01-407 regarding such transmittals shall apply.
If the time for compliance with a subpoena duces tecum issued by an attorney is less than 14 days after service of the subpoena, the person to whom it is directed may serve upon the party issuing the subpoena a written objection setting forth any grounds upon which such production, inspection or testing should not be had. If objection is made, the party on whose behalf the subpoena was issued and served shall not be entitled to the requested production, inspection or testing, except pursuant to an order of the court, but may, upon notice to the person to whom the subpoena was directed, move for an order to compel production, inspection or testing. Upon such timely motion, the court may quash, modify or sustain the subpoena.
(1956, c. 555; 1979, c. 668; 1984, c. 500; 1986, c. 160; 2000, c. 813; 2004, c. 335.)
§ 8.01-293. Authorization to serve process, capias or show cause order;
execute writ of possession and levy upon property. —
A. The following persons are authorized to serve process:
1. The sheriff within such territorial bounds as described in § 8.01-295;
or
2. Any person of age 18 years or older and who is not a party or
otherwise interested in the subject matter in controversy. However, in
any case in which custody or visitation of a minor child or children is
at issue and a summons is issued for the attendance and testimony of a
teacher or other school personnel who is not a party to the proceeding,
if such summons is served on school property, it shall be served only by
a sheriff or his deputy.
Whenever in this Code the term "officer" or "sheriff" is used to refer
to persons authorized to make, return or do any other act relating to
service of process, such term shall be deemed to refer to any person
authorized by this section to serve process.
B. Notwithstanding any other provision of law (i) only a sheriff or
high constable may execute an order or writ of possession for personal,
real or mixed property, including an order or writ of possession arising
out of an action in unlawful entry and detainer or ejectment; (ii) any
sheriff, high constable or law-enforcement officer as defined in § 9.1-101
of the Code of Virginia may serve any capias or show cause order; and
(iii) only a sheriff, the high constable for the City of Norfolk or
Virginia Beach or a treasurer may levy upon property.
§ 8.01-294. Sheriff to get from clerk's office process and other papers;
return of papers; effect of late return. —
Every sheriff who attends a court shall, every day when the clerk's
office is open for business, go to such office and receive all process,
and other papers to be served by him, and give receipts therefor, unless
he has received notice from a regular employee of the clerk's office that
there are no such papers requiring service and shall return all papers
within 72 hours of service, except when such returns would be due on a
Saturday, Sunday, or legal holiday. In such case, the return is due on
the next day following such Saturday, Sunday, or legal holiday.
Failure to make return of service of process by anyone authorized to
serve process under § 8.01-293 within the time specified in this
section shall not invalidate any service of process or any judgment based
thereon. In the event a late return prejudices a party or interferes with
the court's administration of a case, the court may, in its discretion,
continue the case, require additional or substitute service of process,
or take such other action or enter such order as the court deems
appropriate under the circumstances.
The following is a VA Supreme Court rule:
§ vscr-1:12
Service of Papers after the Initial Process.
All pleadings, motions and other papers not required to be served otherwise and requests for subpoenas duces tecum shall be served by delivering, dispatching by commercial delivery service, transmitting by facsimile, delivering by electronic mail when consented to in writing signed by the person to be served, or mailing, a copy to each counsel of record on or before the day of filing.
Service pursuant to this Rule shall be effective upon such delivery, dispatch, transmission or mailing, except that papers served by facsimile transmission completed after 5:00 p.m. shall be deemed served on the next day that is not a Saturday, Sunday, or legal holiday. Service by electronic mail under this Rule is not effective if the party making service learns that the attempted service did not reach the person to be served.
At the foot of such pleadings and requests shall be appended either acceptance of service or a certificate of counsel that copies were served as this Rule requires, showing the date of delivery and method of service, dispatching, transmitting, or mailing. When service is made by electronic mail, a certificate of counsel that the document was served by electronic mail shall be served by mail or transmitted by facsimile to each counsel of record on or before the day of service.