Present: Carrico, C.J., Lacy, Koontz, Kinser, and Lemons, JJ. 

and Stephenson, S.J. 

AMERICA ONLINE, INC. 

v. Record No. 000974 OPINION BY JUSTICE DONALD W. LEMONS 

 March 2, 2001 

ANONYMOUS PUBLICLY TRADED COMPANY 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Stanley P. Klein, Judge 

 In this appeal, we consider whether an anonymous litigant 

may utilize the coercive powers of Virginia courts under the 

Virginia Uniform Foreign Depositions Act, Code § 8.01-411 et 

seq. (“UFDA”). Pursuant to Rules 4:1(c) and 4:9(c), America 

Online, Inc. (“AOL”) sought to quash a subpoena duces tecum 

issued to it by the Clerk of the Circuit Court of Fairfax 

County and sought a protective order barring the discovery 

sought by an anonymous litigant proceeding as “Anonymous 

Publicly Traded Company” (“APTC”). The trial court1 refused to 

quash the subpoena duces tecum or issue a protective order. 

Because the trial court abused its discretion in permitting 

APTC to proceed anonymously under the UFDA, we reverse the 

judgment of the trial court and remand for further 

proceedings. 

I. Facts and Proceedings Below 

 1

 We will refer to the Fairfax County Circuit Court as 

the “trial court” and the Marion Superior Court in Indiana as 

the “Indiana court.” 
 APTC is a publicly traded Delaware corporation with its 

principal place of business in Indianapolis, Indiana. On 

February 9, 1999, APTC filed a complaint, captioned “Anonymous 

Publicly Traded Company v. John Does 1 through 5,” in the 

Indiana court. In its complaint, APTC asserted that the John 

Doe defendants, whose identities and residences were unknown,2

“made defamatory and disparaging material misrepresentations” 

about APTC in internet chat rooms.3 Additionally, APTC 

asserted its belief that the defendants were current and/or 

former employees who breached their fiduciary duties and 

contractual obligations by publishing “confidential material 

insider information” about APTC on the internet. Although it 

did not specify what harm would be incurred by identifying 

itself in the Indiana court, APTC contended that it had to 

proceed anonymously “because disclosure of its true company 

name will cause it irreparable harm.” 

 On August 11, 1999, in response to APTC’s application for 

assistance in discovery and for an order authorizing discovery 

in Virginia, the Indiana court issued an order permitting APTC 

to “proceed with a non-party production request to America 

 2

 APTC claimed that the John Does used pseudonyms to 

protect their real names. 

3

 APTC defined an internet chat room as “a virtual room 

on the Internet where a conversation session takes place 

between individuals who often use pseudonyms to maintain 

anonymity.” 

2
Online, Inc. by obtaining a Subpoena Duces Tecum from the 

Virginia trial courts having jurisdiction over America Online, 

Inc.” The order authorized APTC to request assistance from 

Virginia courts in obtaining from AOL, the names, addresses, 

telephone numbers, and any other identifying information 

pertaining to four AOL subscribers. In granting the request, 

the Indiana court noted: 

[APTC] is directed and authorized to seek 

assistance of the Virginia state trial 

courts for the reason that under 

principles of comity and reciprocity, 

under Indiana Trial Rule 28, Indiana 

would, in the reverse situation, assist 

Virginia residents in the discovery of 

information from persons or entities 

domiciled or residing in Indiana through 

the assistance of subpoenas or other 

matters in support of discovery procedures 

and practices in the State of Virginia. 

 On September 3, 1999, the Clerk of the Circuit Court of 

Fairfax County issued a subpoena duces tecum to AOL requesting 

the names, addresses, telephone numbers, and all other 

identifying information regarding the four AOL subscribers. 

AOL indicated to APTC its intention to contest the issuance of 

the subpoena duces tecum in part because of the anonymity of 

APTC. Thereafter, APTC filed a motion in the Indiana court on 

October 14, 1999, for permission to proceed anonymously until 

it could amend its complaint to specifically name the John Doe 

defendants. 

3
 AOL filed its motion to quash in the trial court on 

October 15, 1999, arguing that APTC should not be permitted to 

proceed until it revealed its identity. On October 19, 1999, 

the Indiana court issued an order granting APTC’s motion to 

proceed anonymously. The Indiana court stated that APTC: 

[S]hall be allowed to proceed as anonymous 

in this action up and until it determines 

the identity of the Defendants and further 

determines whether to proceed with this 

action against the named Defendants at 

which time should it determine to proceed 

and file an amended complaint, in the 

amended complaint [APTC] shall list itself 

by its proper legal name and list those 

Defendants against whom it is proceeding 

by proper legal name. 

The Indiana court did not conduct an evidentiary hearing and 

no reasons were given for its decision, which was rendered ex

parte. 

 After an in camera examination of copies of the internet 

postings that were the subject of the underlying litigation in 

Indiana, the trial court issued an opinion and order denying 

AOL’s motion to quash and request for a protective order. 

Although the trial court conceded that there is a First 

Amendment interest in ensuring that courts remain open to the 

public, it nevertheless ruled that APTC should be permitted to 

proceed anonymously.4 Specifically, the court stated: 

 4

 The trial court also determined that AOL had standing to 

raise this issue and that APTC was required to satisfy a 

4
 As any First Amendment right of the 

public to know the identity of the 

plaintiff in the Indiana proceedings will 

only be marginally affected at these 

preliminary stages of those proceedings, 

this Court believes that comity should be 

accorded to the Indiana court’s decision, 

under its Trial Rules, to allow APTC to 

proceed anonymously for a limited period 

of time. Although the Indiana court did 

not have the benefit of a brief from AOL 

when it authorized APTC to maintain its 

anonymity after AOL filed the instant 

motion, counsel herein agree that the 

Indiana court was then aware of AOL’s 

objection. In addition, at least part of 

the salutary prophylactic effect of 

requiring openness in judicial proceedings 

has been assured by the Court’s 

requirement that APTC supply copies of the 

relevant Internet postings to opposing 

counsel and to the Court. Both this Court 

and the John Does now either know or can 

readily ascertain the true identity of 

APTC. Consequently, any possible abuses 

of the judicial system by APTC in 

initiating either the proceeding in the 

Indiana court or in this Court can be 

addressed by the respective courts under 

applicable statutes authorizing sanctions. 

Hence, this Court defers, in its analysis 

of the issues before this Court, to the 

Indiana court’s determination to allow 

APTC to maintain its anonymity for a 

limited period of time. 

AOL appeals the adverse ruling of the trial court. 

 

three-pronged test to determine whether issuance of the 

subpoena would unreasonably burden the First Amendment rights 

of the John Doe defendants. The trial court further 

determined that APTC satisfied this test. Although AOL does 

not concede that the three-pronged test sufficiently protects 

free speech and privacy interests or that APTC satisfied the 

requirements of the test as laid out by the trial court, it 

acknowledges that these issues are not before us on appeal. 

5
 On appeal, AOL contends that the trial court erred in 

permitting its subpoena power to be invoked by APTC without 

requiring APTC to make a showing of any legitimate and 

compelling need to proceed anonymously and that the trial 

court should not have deferred on grounds of comity to the 

Indiana court’s decision to allow APTC to proceed anonymously. 

Specifically, AOL argues that the Indiana court’s ruling arose 

out of a non-adversarial, ex parte proceeding in which either 

no legal principles or legal principles that differ from 

Virginia law and public policy were applied. 

 APTC contends that the trial court exercised sound 

discretion in granting comity to the order of the Indiana 

court. Furthermore, APTC contends that, even if comity were 

not afforded the Indiana court’s order, it has a valid privacy 

interest that is advanced by permitting it to anonymously 

utilize the Virginia courts for discovery purposes in aid of 

the Indiana litigation. 

II. Standard of Review 

 Ordinarily, a trial court’s discovery orders are not 

subject to review on direct appeal because they are not final 

within the contemplation of Code § 8.01-670. However, an 

order granting or refusing a motion to quash or issue a 

protective order, in a proceeding brought in a court of this 

6
Commonwealth pursuant to the UFDA, is a final order subject to 

appellate review. 

 The original and appellate jurisdiction of the Supreme 

Court of Virginia is conferred by Article VI, § 1 of the 

Constitution of Virginia which provides in part that, subject 

to constitutional limitations, “the General Assembly shall 

have the power to determine the original and appellate 

jurisdiction of the courts of the Commonwealth.” The UFDA 

does not provide for appeal of orders pursuant to its 

provisions; consequently, we must look to Code § 8.01-670 for 

the source of the Court’s appellate jurisdiction in this 

matter. Because this matter arises on the law side rather 

than the chancery side of the Circuit Court, the Court’s 

authority to review the order of the trial court is found in 

Code § 8.01-670(A) which enumerates particular matters which 

may be the subject of appeal and concludes with subsection (3) 

which provides appellate jurisdiction over any matter where a 

“person” is “aggrieved . . . [b]y a final judgment in any 

other civil case.” 

 An action under the UFDA is a separate action, distinct 

from, although ancillary to, the underlying cause of action in 

the foreign jurisdiction. In the case before us, when the 

trial court rendered its order, it disposed of every aspect of 

the case before it and settled all issues raised by the 

7
parties. In Warford v. Childers, 642 S.W.2d 63 (Tex. Ct. App. 

1982), the Texas Court of Appeals, applying statutory language 

identical to that adopted in the Virginia UFDA statute,5 held 

that the resolution of the discovery dispute was a final, 

appealable judgment. 

To hold that such an order is 

interlocutory and non-appealable would 

forever foreclose review by the orderly 

process of appeal and would relegate the 

parties to an extraordinary proceeding. 

Obviously, the order cannot be reviewed by 

this court as part of an appeal from a 

final judgment of the [foreign] court and 

cannot be reviewed by the [foreign] 

appellate court under any circumstances. 

Thus, although the order may have an 

interlocutory relationship with the 

[foreign] suit, we conclude that it is a 

final judgment on all issues in 

controversy in Texas and that we have 

jurisdiction to review it by appeal. 

Id. at 66. See also, Lougee v. Grinnell, 582 A.2d 456 (Conn. 

1990), overruled on other grounds by State v. Salmon, 735 A.2d 

333 (Conn. 1999). 

 We agree with the reasoning of our sister states, Texas 

and Connecticut, and conclude that under the UFDA, an order of 

the trial court disposing of all issues before it and 

concluding the entirety of the proceedings in a Virginia 

court, is a final order subject to appeal under Code § 8.01-

670. Discovery orders in suits brought in Virginia are 

 5

 Tex. Rev. Civ. Stat. Ann. art. 3769a (Vernon Supp. 

8
interlocutory and not subject to immediate appeal. Such 

orders are subject to appellate review at the conclusion of 

the underlying suit.6

 We review the trial court’s refusal to quash the issuance 

of a subpoena duces tecum or issue a protective order under an 

abuse of discretion standard. O’Brian v. Langley Sch., 256 

Va. 547, 552, 507 S.E.2d 363, 366 (1998) (noting that, 

“[g]enerally, the granting or denying of discovery is a matter 

within the discretion of the trial court”). 

III. Analysis 

 Virginia has adopted the UFDA, which provides in part: 

Whenever any mandate, writ or commission 

is issued out of any court of record in 

any other state, territory, district or 

foreign jurisdiction, or whenever upon 

notice or agreement it is required to take 

the testimony of a witness or witnesses or 

produce or inspect designated documents in 

this Commonwealth, witnesses may be 

compelled to appear and testify and to 

produce and permit inspection or copying 

of documents in the same manner and by the 

same process and proceeding as may be 

employed for the purpose of taking 

testimony or producing documents in 

proceedings pending in this Commonwealth. 

Code § 8.01-411. This legislative provision is rooted in 

principles of comity and provides a mechanism for discovery of 

 

1981). 

6

 Of course, we have previously recognized that an order 

of contempt for disobedience of a discovery order may be 

9
evidence in aid of actions pending in foreign jurisdictions. 

Some states have adopted the UFDA while others have adopted 

the Uniform Interstate and International Procedure Act. 

Additionally, some states have modeled their rules of civil 

procedure after the Federal Rules and still others have 

crafted their own unique rules concerning discovery 

proceedings in aid of foreign litigation.7

 Under the UFDA, reciprocity is required, and the 

“privilege extended to persons in other states by § 8.01-411 

shall only apply to those states which extended the same 

privilege to persons in this Commonwealth.” Code § 8.01-412. 

We have previously recognized reciprocity with the state of 

Indiana based upon the UFDA. See Smith v. Givens, 223 Va. 

455, 460, 290 S.E.2d 844, 847 (1982). 

 The initial question for decision in this case is whether 

the trial court erred in finding that the UFDA and principles 

of comity permit APTC to utilize the coercive power of 

Virginia courts while remaining anonymous. We have no 

reluctance to show due deference to the orders of the Indiana 

courts on any occasion when the circumstances are proper for 

 

appealed pursuant to Code § 19.2-318. See HCA Health Services 

of Virginia v. Levin, 260 Va. 215, 530 S.E.2d 417 (2000). 

7

 For a survey of the laws concerning foreign depositions 

in the 50 states and the District of Columbia, see The 

Virginia Law Foundation, Civil Discovery in Virginia, Chapter 

7 (1999). 

10
the application of the principles of comity. We do not think 

this is one of those occasions. 

 In the case before us, the trial judge carefully reviewed 

the record and required an in camera review of the allegedly 

tortious internet chat room postings presumably to verify the 

bona fides of the underlying action in the Indiana court. The 

legitimacy of the underlying claim is an issue separate and 

distinct from permitting a plaintiff to proceed anonymously. 

In the ultimate analysis, on the basis of comity, the trial 

court deferred to the Indiana court’s determination to permit 

APTC to proceed anonymously for a “limited period of time” and 

denied AOL’s motion to quash and for a protective order. 

 As we have previously noted: 

Virginia courts should grant comity to any 

order of a foreign court of competent 

jurisdiction, entered in accordance with 

the procedural and substantive law 

prevailing in its judicatory domain, when 

that law, in terms of moral standards, 

societal values, personal rights, and 

public policy, is reasonably comparable to 

that of Virginia. 

Oehl v. Oehl, 221 Va. 618, 623, 272 S.E.2d 441, 444 (1980). 

We have also stated: 

 Comity is not a matter of obligation. 

It 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 

11
done in return. Comity is not given effect 

when to do so would prejudice a State’s 

own rights or the rights of its citizens. 

McFarland v. McFarland, 179 Va. 418, 430, 19 S.E.2d 77, 83 

(1942) (internal quotation marks omitted). 

 While fully appreciating the importance of comity as a 

guiding principle in the relationship between sovereigns and 

as a tool of judicial economy, we have recognized limitations 

upon its application. Before according the privilege of 

comity, we have required a showing of personal and subject 

matter jurisdiction, Oehl, 221 Va. at 623, 272 S.E.2d at 444, 

that “the procedural and substantive law applied by the 

foreign court [was] reasonably comparable to that of 

Virginia,” id., that the decree was not “falsely or 

fraudulently obtained,” McFarland, 179 Va. at 430, 19 S.E.2d 

at 83, that the order sought to be enforced was not “contrary 

to the morals or public policy of this State,” id., and that 

the enforcement of the order would not “prejudice [Virginia’s] 

own rights or the rights of its citizens,” Eastern Indem. Co. 

v. Hirschler, Fleischer, Weinberg, Cox & Allen, 235 Va. 9, 15, 

366 S.E.2d 53, 56 (1988) (citations omitted). 

 The action filed in Indiana is unique. The plaintiff is 

anonymous, as are all five John Doe defendants.8 Although the 

 8

 APTC seeks discovery of the identity of only four of the 

John Doe defendants in the Virginia proceeding. 

12
pleading certainly invokes the subject matter jurisdiction of 

the Indiana court, it is uncertain whether personal 

jurisdiction may be obtained over any of the anonymous 

defendants. Further, while the Indiana court permitted APTC 

to proceed anonymously, it is clear that no hearing was held 

concerning the question, no evidence was received by the 

court,9 no reasons for the decision were given, and the order 

permitting anonymous maintenance of the action was granted in 

a non-adversarial, ex parte proceeding. Significantly, 

because no evidence was received and no reasons for the 

decision were given by the Indiana court, we cannot determine 

whether the procedural and substantive law applied by the 

Indiana court was “reasonably comparable to that of Virginia.” 

See Oehl, 221 Va. at 623, 272 S.E.2d at 444. Accordingly, we 

find that these circumstances do not present a situation where 

comity should be granted to the Indiana court’s order 

permitting APTC to proceed anonymously. 

 Irrespective of the question of comity, a Virginia trial 

court may conduct an independent inquiry concerning anonymous 

maintenance of an action. Although there are several reported 

cases in Virginia wherein a plaintiff proceeded anonymously, 

 9

 An affidavit of counsel to APTC was filed in support of 

the motion to proceed anonymously. The affidavit recites what 

the unnamed client believes and offers counsel’s gratuitous 

conclusion that his client’s beliefs are reasonable. 

13
the issue of anonymity was resolved by consent and never 

presented to this Court.10 Accordingly, we must decide, for 

the first time, the circumstances under which a plaintiff may 

proceed anonymously in Virginia courts. 

 Over half a century has passed since the United States 

Supreme Court noted, “[a] trial is a public event. . . . There 

is no special perquisite of the judiciary which enables it, as 

distinguished from other institutions of democratic 

government, to suppress, edit, or censor events which 

transpire in proceedings before it.” Craig v. Harney, 331 

U.S. 367, 374 (1947). However, “[t]he equation linking the 

public’s right to attend trials and the public’s right to know 

the identity of the parties is not perfectly symmetrical.” 

Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981). 

Accordingly, there is no absolute bar to a plaintiff 

proceeding anonymously. In exceptional cases, “the need for 

party anonymity overwhelms the presumption of disclosure 

mandated by procedural custom.” Id. Upon proper 

circumstances, courts must balance the need for anonymity 

 10 We noted in A.H. v. Rockingham Publ’g Co., 255 Va. 216, 

219 n.2, 495 S.E.2d 482, 484 n.2 (1998), that “[b]ecause this 

claim arises out of a sexual assault on a minor, the plaintiff 

used a pseudonym to protect his identity.” See also Doe v. 

Doe, 222 Va. 736, 284 S.E.2d 799 (1981); Baby Doe v. John and 

Mary Doe, 15 Va. App. 242, 421 S.E.2d 913 (1992); C.P. v. 

Rockingham Publ’g Co., 34 Va. Cir. 79 (1994); Jane and John 

14
against the general presumption that parties’ identities are 

public information and the risk of unfairness to the opposing 

party. See Does I Thru XXIII v. Advanced Textile Corp., 214 

F.3d 1058, 1068 (9th Cir. 2000). As the Eleventh Circuit has 

stated, “[t]he ultimate test for permitting a plaintiff to 

proceed anonymously is whether the plaintiff has a substantial 

privacy right which outweighs the customary and 

constitutionally-embedded presumption of openness in judicial 

proceedings. It is the exceptional case in which a plaintiff 

may proceed under a fictitious name.” Doe v. Frank, 951 F.2d 

320, 323 (11th Cir. 1992) (citation and internal quotation 

marks omitted). 

 In a review of decisions from throughout the country, the 

Fourth Circuit compiled a list of “factors that should be 

considered by courts considering anonymity requests.” James 

v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993). Such factors 

included: 

[W]hether the justification asserted by 

the requesting party is merely to avoid 

the annoyance and criticism that may 

attend any litigation or is to preserve 

privacy in a matter of sensitive and 

highly personal nature; whether 

identification poses a risk of retaliatory 

physical or mental harm to the requesting 

party or even more critically, to innocent 

non-parties; the ages of the persons whose 

 

Roe v. Richmond Metro. Blood Serv., Inc., 22 Va. Cir. 111 

(1990). 

15
privacy interests are sought to be 

protected; whether the action is against a 

governmental or private party; and, 

relatedly, the risk of unfairness to the 

opposing party from allowing an action 

against it to proceed anonymously. 

Id. Types of cases in which plaintiffs have been permitted to 

proceed anonymously in other courts in the nation include 

birth control cases, abortion cases, welfare cases involving 

illegitimate children, and cases involving issues of 

homosexuality. See Doe v. Deschamps, 64 F.R.D. 652, 653 

(D. Mont. 1974) (citing Roe v. Wade, 410 U.S. 113 

(1973) (abortion); Doe v. Gillman, 347 F.Supp. 483 (N.D. Iowa 

1972) (child born out of wedlock); Doe v. Chafee, 355 F.Supp. 

112 (N.D. Cal. 1973) (homosexuality)). 

 The limited situations in which a plaintiff has been 

permitted to proceed under a pseudonym involve “the presence 

of some social stigma or the threat of physical harm to the 

plaintiffs attaching to disclosure of their identities to the 

public record.” Doe v. Rostker, 89 F.R.D 158, 161 (N.D. Cal. 

1981). A common thread throughout these decisions is that the 

likelihood of the plaintiff suffering some embarrassment or 

economic harm is not enough by itself to permit anonymity. 

Doe v. Goldman, 169 F.R.D. 138, 141 (D. Nev. 1996); Doe v. 

Hallock, 119 F.R.D. 640, 644 (S.D. Miss. 1987); Doe v. 

Rostker, 89 F.R.D. at 163; Doe v. Diocese Corp., 647 A.2d 

16
1067, 1071 (Conn. Super. Ct. 1994); A.B.C. v. XYZ Corp. and 

XYZ Co., 660 A.2d 1199, 1204 (N.J. Super. Ct. 1995). However, 

as the Ninth Circuit Court of Appeals noted in Does I Thru 

XXIII v. Advanced Textile Corp., 214 F.3d at 1070, the 

proposition that anonymity may never be used to protect 

against economic harm is “incorrect as a matter of law.” 

Rather, in some instances, the level of retaliation in the 

form of economic harm may rise to an extraordinary level 

permitting plaintiffs to proceed anonymously. Id. at 1071. 

 Rule 3:3 of the Rules of the Supreme Court of Virginia 

embraces the normative principle of disclosure and requires 

the “names” of the parties to be stated in pleadings. 

However, like other courts that have considered the issue, we 

recognize that there are certain circumstances when permitting 

a plaintiff to proceed under a pseudonym must be entrusted to 

the sound discretion of the trial court. We are persuaded 

that the factors considered by the Fourth Circuit in James, 

while not exhaustive, are appropriate for consideration by 

state courts in Virginia. Accordingly, we hold that, upon 

showing of special circumstances when a party’s need for 

anonymity outweighs the public’s interest in knowing the 

party’s identity and outweighs the prejudice to the opposing 

party, a court may exercise its discretion to allow a party to 

proceed anonymously. Further, we recognize that circumstances 

17
may change as litigation progresses, thereby requiring 

reconsideration of initial rulings. 

 In the case before us, the sole reason APTC has offered 

in support of its request to proceed anonymously is fear of 

economic harm. While reasonable concern over potential 

economic harm is not excluded from factors to consider, APTC 

has not borne its burden to show special circumstances 

justifying anonymity. 

 In its motion to proceed anonymously, APTC claimed that, 

“the filing of this lawsuit under the proper and correct legal 

name for the Plaintiff, where Plaintiff at this time is unable 

to identify the Defendants, will trigger publicity about this 

lawsuit, which Plaintiff believes will damage the value of the 

corporation.” Later, in a hearing before the trial court, 

when the attorney for APTC was asked by the court why APTC 

should not be required to identify itself, the response was: 

[F]or better or for worse, it may not be a 

good judgment, but my client made a 

business judgment that it would be 

extremely harmful to the corporation and 

to the shareholders of that corporation, 

which the corporation has a duty to 

protect, to file a lawsuit in Indiana 

saying we — and naming yourself — are 

being defamed. We are having our trade 

secrets misappropriated. We are being 

defrauded, and by the way, we can’t even 

tell you, the public, who’s doing it. 

 My client made the corporate decision 

in its business judgment — right or wrong 

— that that would hurt the shareholders. 

18
Significantly, the conclusory nature of APTC’s reasons for 

anonymity does not reveal the degree and nature of the 

potential economic harm. APTC would have the trial court 

trust its decision rather than submit evidence so that an 

independent judicial evaluation can be made concerning the 

need for anonymity. 

 Accordingly, we will reverse the order of the trial court 

denying the relief sought by AOL and remand for further 

proceedings consistent with this opinion. 

Reversed and remanded. 

19