PRESENT: Lemons, C.J., Goodwyn, Millette, Mims, McClanahan, 

and Powell, JJ., and Koontz, S.J. 

YELP, INC. 

 OPINION BY 

v. Record No. 140242 JUSTICE ELIZABETH A. McCLANAHAN 

 April 16, 2015 

HADEED CARPET CLEANING, INC. 

FROM THE COURT OF APPEALS OF VIRGINIA 

 Yelp, Inc. ("Yelp"), appeals from the judgment of the 

Court of Appeals affirming the order of the Circuit Court of 

the City of Alexandria holding Yelp in civil contempt for 

failing to comply with a non-party subpoena duces tecum served 

upon it by Hadeed Carpet Cleaning, Inc. ("Hadeed"). The 

subpoena duces tecum directed Yelp, a Delaware corporation with 

its principal place of business in California, to produce 

documents located in California in connection with a defamation 

action filed by Hadeed against John Doe defendants. Because we 

conclude the circuit court was not empowered to enforce the 

subpoena duces tecum against Yelp, we will vacate the judgment 

of the Court of Appeals and the contempt order of the circuit 

court. 

I. BACKGROUND 

 Yelp operates a social networking website that allows 

registered users to rate and describe their experiences with 

local businesses. Since Yelp does not require users to provide 

their actual names, users may post reviews under pseudonyms. 
2

Hadeed, a Virginia corporation doing business in Virginia, 

filed a defamation action in the circuit court against three 

John Doe defendants alleging they falsely represented 

themselves as Hadeed customers and posted negative reviews 

regarding Hadeed's carpet cleaning services on Yelp. 

 Hadeed issued a subpoena duces tecum to Yelp, seeking 

documents revealing the identity and other information about 

the authors of the reviews. The information provided by users 

of Yelp upon their registration and the Internet Protocol 

addresses used by registered users who post reviews are stored 

by Yelp on administrative databases accessible only by 

specified Yelp employees located in San Francisco.1

 Yelp has no 

offices in Virginia. 

 Although Yelp's headquarters are located in California, 

Yelp is registered to do business in Virginia and has 

designated a registered agent for service of process in 

Virginia. Hadeed served the subpoena duces tecum on Yelp's 

registered agent in Virginia. Yelp objected to an initial 

subpoena duces tecum for, among other reasons, Hadeed's failure 

 

1

 Specifically, Yelp's "user operations team" is tasked 

with the duty of compiling the data that comprises information 

that would identify its users. These employees, and "[n]o 

other employees" use "specialized access to this data" to 

compile information that would identify Yelp users in response 

to supboenas for such identifying data. 
3

to comply with the requirements of Code § 8.01-407.1. Hadeed 

then issued a second subpoena duces tecum that complied with 

the procedural requirements of Code § 8.01-407.1. That section 

sets forth the procedure that must be followed for any subpoena 

seeking information identifying a tortfeasor "[i]n civil 

proceedings where it is alleged that an anonymous individual 

has engaged in Internet communications that are tortious." 

Code § 8.01-407.1(A).2

 After Yelp filed written objections to the subpoena duces 

tecum, Hadeed moved to overrule the objections and enforce the 

 

2

 Code § 8.01-407.1 was enacted following a study and 

report on the discovery of electronic data pursuant to a Joint 

Resolution of the General Assembly. The Resolution recognized 

that "Virginia is the center of the Internet, with numerous 

multi-state and multi-national Internet businesses located in 

the Commonwealth" and that motions regarding the discovery of 

electronic data "arise out of cases pending in other states but 

are being heard in the Commonwealth solely because the Internet 

service providers. . . , which may be the custodians of such 

electronic data, are located in the Commonwealth." S.J. Res. 

334, Va. Gen. Assem. (Reg. Sess. 2001). In response to the 

directions embodied in the Resolution, the Office of the 

Executive Secretary of the Supreme Court of Virginia issued a 

report on the disclosure of electronic information "maintained 

by electronic communications service providers in Virginia, 

particularly the legal procedure for [the] subpoena of such 

information and the application of that procedure in cases 

where litigation pending outside the Commonwealth of Virginia 

results in an application to the Virginia courts for orders 

compelling disclosure of information." Executive Secretary of 

the Supreme Court of Virginia, Report to the Governor and 

General Assembly of Virginia: Discovery of Electronic Data, 

Senate Doc. No. 9, at 1 (2002), available at 

http://leg2.state.va.us/dls/h&sdocs.nsf/By+Year/SD92002/$file/ 

SD9_2002.pdf (last visited April 10, 2015). 
4

subpoena duces tecum. The circuit court issued an order 

enforcing the subpoena duces tecum and subsequently holding 

Yelp in civil contempt when it refused to comply.3 The Court of 

Appeals affirmed the circuit court's decision. Yelp, Inc. v. 

Hadeed Carpet Cleaning, Inc., 62 Va. App. 678, 752 S.E.2d 554 

(2014). 

 With specific regard to the exercise of subpoena power 

over Yelp, the circuit court and Court of Appeals ruled that 

service of the subpoena on Yelp's registered agent in Virginia 

provided the circuit court with jurisdiction to enforce the 

subpoena duces tecum.4

 Id. at 709-10, 752 S.E.2d at 569. 

II. ANALYSIS 

 Yelp contends that the Court of Appeals erred in holding 

that "a Virginia trial court may assert subpoena jurisdiction 

over a non-party California company, to produce documents 

 

3

 Following the circuit court's order enforcing the 

subpoena duces tecum, Yelp informed Hadeed that in order to 

appeal the order and protect its users' rights, it would not 

comply with the Order. Hadeed then moved to have Yelp held in 

contempt. 62 Va. App. at 687-88, 752 S.E.2d 558. 

4

 Both the circuit court and Court of Appeals relied upon 

Code § 13.1-766(A), which states that "[t]he registered agent 

of a foreign corporation authorized to transact business in 

this Commonwealth shall be an agent of such corporation upon 

whom any process, notice, order or demand required or permitted 

by law to be served upon the corporation may be served," and 

Code § 8.01-301(1), which provides for service of process "on 

the registered agent of a foreign corporation which is 

authorized to do business in the Commonwealth." 
5

located in California, just because the company has a 

registered agent in Virginia."5

 In determining whether the circuit court was empowered to 

enforce the subpoena duces tecum against Yelp, we first observe 

that while the General Assembly has expressly provided for the 

exercise of personal jurisdiction over nonresident defendants 

under certain circumstances, it has not expressly provided for 

the exercise of subpoena power over nonresident non-parties. 

In particular, the General Assembly has provided for the 

exercise of personal jurisdiction over nonresident defendants, 

including foreign corporations, through enactment of the longarm statute, Code § 8.01-328.1, and has provided a range of 

options for the manner in which nonresident defendants may be 

served when "exercise of personal jurisdiction is authorized by 

this chapter." Code § 8.01-329(A).6

 When personal jurisdiction 

is based upon the long-arm statute, "only a cause of action 

arising from acts enumerated in this section may be asserted 

 

5

 Yelp asserts additional assignments of error in 

connection with its contention that enforcement of the subpoena 

was inconsistent with the First Amendment to the Constitution. 

In light of our holding that the circuit court lacked the 

authority to enforce the subpoena duces tecum, we need not 

reach these assignments of error. 

6

 The General Assembly has also recognized that "[a] court 

of this State may exercise jurisdiction on any other basis 

authorized by law." Code § 8.01-330. 
6

against [the defendant]." Code § 8.01-328.1(C).7 In contrast 

to the express provisions authorizing the exercise of personal 

jurisdiction over nonresident defendants and the manner of 

service of process on such nonresident defendants, the General 

Assembly has not expressly authorized the exercise of subpoena 

power over non-parties who do not reside in Virginia.8

Similarly, our Rules do not recognize the existence of 

subpoena power over nonresident non-parties. Rule 4:9A sets 

forth the procedure for issuing a subpoena duces tecum to a 

non-party. The subpoena duces tecum may be issued by the clerk 

 

7

 The long-arm statute further provides that "nothing 

contained in this chapter shall limit, restrict or otherwise 

affect the jurisdiction of any court of this Commonwealth over 

foreign corporations which are subject to service of process 

pursuant to the provisions of any other statute." Code § 8.01-

328.1(C). In this regard, Code § 8.01-301 sets forth the most 

common modes of service upon a foreign corporation depending on 

whether the foreign corporation is authorized to transact 

business in Virginia and the basis for exercising jurisdiction 

over such corporation. 

8

 The dissent contends that Code § 8.01-301 confers upon 

the circuit courts a general subpoena power extending beyond 

Virginia because the statute lists how process may be served on 

a foreign corporation. However, there is a fundamental 

difference between the issuance of an enforceable subpoena and 

the manner by which a subpoena may be served. See Bellis v. 

Commonwealth, 241 Va. 257, 261-62, 402 S.E.2d 211, 214 (1991). 

Service by one of the modes prescribed by law does not make the 

subpoena served enforceable. Service of process "cannot cure 

defects in the 'process' itself." Lifestar Response of Md., 

Inc. v. Vegosen, 267 Va. 720, 725, 594 S.E.2d 589, 591 (2004). 

Thus, the General Assembly's authorization of a method of 

service does not make all process served by such a method 

lawful. 
7

pursuant to Rule 4:9A(a)(1) or by an attorney pursuant to Rule 

4:9A(a)(2). Rule 4:9A does not address the issuance of a 

subpoena duces tecum to persons who reside or have a principal 

place of business outside of Virginia. Likewise, Rule 4:9A 

does not address the issuance of a subpoena duces tecum for 

documents located outside of Virginia. Rule 4:9A also does not 

address service on the non-party of the subpoena duces tecum or 

service upon a nonresident or foreign corporation.9

The General Assembly's authorization of the exercise of 

personal jurisdiction over nonresident defendants does not 

confer upon Virginia courts subpoena power over nonresident 

non-parties. It is axiomatic that "[t]he underlying concepts 

of personal jurisdiction and subpoena power are entirely 

different." In re National Contract Poultry Growers' Ass'n, 

 

9

 The Rule does provide that copies of the subpoena duces 

tecum must be served pursuant to Rule 1:12 upon counsel of 

record and parties having no counsel. Rule 4:9A(a)(1) and (2). 

In addition, Rule 4:1(f) provides, in pertinent part, "that any 

notice or document required or permitted to be served under 

this Part Four shall be served as provided in Rule 1:12." Rule 

1:12 governs service of process after the initial process of 

"[a]ll pleadings, motions and other papers not required to be 

served otherwise and requests for subpoenas duces tecum" and 

provides for service "by delivering, dispatching by commercial 

delivery service, transmitting by facsimile, delivering by 

electronic mail when Rule 1:17 so provides or when consented to 

in writing signed by the person to be served, or by mailing, a 

copy to each counsel of record on or before the day of filing." 

(Emphasis added.) 

 
8

771 So.2d 466, 469 (Ala. 2000). "Personal jurisdiction is 

based on conduct that subjects the nonresident to the power of 

the [state] courts to adjudicate its rights and obligations in 

a legal dispute." Id. "By contrast, the subpoena power of [a 

state] court over an individual or a corporation that is not a 

party to a lawsuit is based on the power and authority of 

the court to compel the attendance of a person at a deposition, 

or the production of documents by a person or entity." Id.; 

Phillips Petroleum Co. v. OKC Ltd. Partnership, 634 So.2d 1186, 

1187 (La. 1994) ("The concepts, and/or underlying purposes, of 

personal jurisdiction and subpoena power are simply 

different."). 

Therefore, the power to compel a nonresident non-party to 

produce documents in Virginia or appear and give testimony in 

Virginia is not based on consideration of whether the 

nonresident non-party would be subject to the personal 

jurisdiction of a Virginia court if named as a defendant in a 

hypothetical lawsuit.10 See, e.g., In re National Contract 

Poultry Growers' Ass'n, 771 So.2d at 469 ("The fact that NCPGA 

may have sufficient contacts with the State of Alabama to 

 

10 While the exercise of subpoena power over nonresident 

non-parties may certainly raise Due Process considerations, the 

issue before us on appeal is whether the circuit court had 

authority to exercise subpoena power in the first instance. 
9

subject it to the jurisdiction of the Alabama courts under the 

Alabama long-arm personal-jurisdiction provisions is irrelevant 

to the question [of whether it is required to respond to a 

subpoena in a lawsuit in which it is not a party]."); Colorado 

Mills, LLC v. SunOpta Grains & Foods Inc., 269 P.3d 731, 734 

(Colo. 2012) (There is no "authority applying our long-arm 

statute, or the long-arm statute of any other state for that 

matter, to enforce a civil subpoena against an out-of-state 

nonparty."); Ulloa v. CMI, Inc., 133 So.3d 914, 920 (Fla. 2013) 

("The long-arm statute does not extend the subpoena power of a 

Florida court to command the in-state attendance of a nonresident, non-party person or entity, or compel that person or 

entity to produce documents."); Phillips Petroleum Co., 634 

So.2d at 1188 ("Whereas the long-arm statute extends 

Louisiana's personal jurisdiction over persons or legal 

entities beyond Louisiana's borders, there is no similar 

authority for extending the subpoena power of a Louisiana court 

beyond state lines to command in-state attendance of 

nonresident nonparty witnesses."); Syngenta Crop Prot., Inc. v. 

Monsanto Co., 908 So.2d 121 (Miss. 2005) ("[A] Mississippi 

court cannot subpoena a nonresident nonparty to appear and/or 

produce in Mississippi documents which are located outside the 

State of Mississippi, even if that nonresident nonparty is 

subject in another context to the personal jurisdiction of the 
10

court."); Craft v. Chopra, 907 P.2d 1109, 1111 (Okla. Ct. App. 

1995) (rejecting the assertion that "discovery of documents 

from non-resident non-parties by subpoena issued in the State 

of Oklahoma" is permitted "so long as the non-resident has 

sufficient due process 'minimum contacts' with the State of 

Oklahoma").11

Thus, enforcement of a subpoena seeking out-of-state 

discovery is generally governed by the courts and the law of 

the state in which the witness resides or where the documents 

are located. See, e.g., In re National Contract Poultry 

Growers' Ass'n, 771 So.2d at 469 (where documents located in 

foreign jurisdiction are sought from non-party foreign 

corporation, subpoena must issue from foreign jurisdiction and 

be served in accordance with law of foreign jurisdiction); 

Colorado Mills, LLC, 269 P.3d at 734 ("enforcing civil 

subpoenas against out-of-state nonparties is left to the state 

 

11 This principle holds true even in states where the 

designation by a foreign corporation of a registered agent for 

service of process is deemed to confer personal jurisdiction 

upon the state court. See, e.g., Ulloa v. CMI, Inc., 133 So.3d 

at 920 ("[d]esignating an agent for service of process subjects 

a foreign corporation to the jurisdiction of the Florida court 

to adjudicate its rights and obligations in a legal dispute," 

but it does not confer subpoena power beyond state lines); 

Phillips Petroleum Co., 634 So.2d at 1188 (although "[a] 

principal consequence of designating an agent for service of 

process is to subject the foreign corporation to jurisdiction 

in a Louisiana court," it does not subject the corporation to 

the subpoena power of the court). 
11

in which the discovery is sought"). In recognition of the 

territorial limits of subpoena power, most states have adopted 

some form of the Uniform Interstate Depositions and Discovery 

Act ("UIDDA"), which sets forth procedures for litigants to 

pursue out-of-state discovery.12

The Virginia General Assembly enacted the UIDDA, Code §§ 

8.01-412.8 et seq., in 2009. The Act provides reciprocal 

mechanisms by which discovery of persons and documents in 

Virginia may be obtained in connection with actions pending in 

a foreign jurisdiction through presentment of a subpoena issued 

by the foreign jurisdiction.13 "In applying and construing this 

uniform act, consideration shall be given to the need to 

promote uniformity of the law with respect to its subject 

matter among states that enact it." Code § 8.01-412.14. Thus, 

 

12 See Uniform Law Commission, Uniform Interstate 

Depositions and Discovery Act, Legislative Enactment Map, 

http://www.uniformlaws.org/Act.aspx?title=Interstate 

Depositions and Discovery Act (last visited March 9, 2015). 

13 Pursuant to Code § 8.01-412.10, a party seeking to 

conduct discovery in Virginia in aid of a lawsuit pending in 

another jurisdiction "shall submit to the clerk of court in the 

circuit in which discovery is sought to be conducted in the 

Commonwealth (i) a foreign subpoena and (ii) a written 

statement that the law of the foreign jurisdiction grants 

reciprocal privileges to citizens of the Commonwealth for 

taking discovery in the jurisdiction that issued the foreign 

subpoena." 
12

[t]he privilege extended to persons in other 

states for discovery under this article shall 

only apply if the jurisdiction where the action 

is pending has extended a similar privilege to 

persons in the Commonwealth, by that 

jurisdiction's enactment of the Uniform 

Interstate Depositions and Discovery Act, a 

predecessor uniform act, or another comparable 

law or rule of court providing substantially 

similar mechanisms for use by out-of-state 

parties. 

Id. 

The UIDDA, as enacted in Virginia, is the successor to the 

Uniform Foreign Depositions Act ("UFDA"), "rooted in principles 

of comity and provides a mechanism for discovery of evidence in 

aid of actions pending in foreign jurisdictions." America 

Online, Inc. v. Anonymous Pub. Traded Co., 261 Va. 350, 360, 

542 S.E.2d 377, 382 (2001) (applying UFDA). Comity "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 done 

in return." Id. at 361, 542 S.E.2d at 383; see also America 

Online, Inc. v. Nam Tai Elec., Inc., 264 Va. 583, 591, 571 

S.E.2d 128, 132 (2002) (applying UFDA). 

In determining the scope of subpoena power over 

nonresident non-parties, it is important to consider the policy 

underlying the General Assembly's enactment of the UIDDA. The 

UIDDA provides a reciprocal and fair process that assists out-
13

of-state litigants seeking discovery from non-parties and seeks 

to "promote uniformity of the law with respect to its subject 

matter among the states that enact it." Code § 8.01-412.14. 

The UIDDA affords protection to Virginia citizens subject to a 

subpoena from another state by providing for enforcement of the 

subpoena in Virginia. In turn, the UIDDA contemplates that 

Virginia courts will respect the territorial limitations of 

their own subpoena power. Such respect furthers the 

preservation of comity and uniformity among the states, which 

ultimately benefits Virginia citizens.14

The language of the statute also manifests the intent of 

the General Assembly to respect the territorial limitations of 

out-of-state discovery. Under the UIDDA, the place where 

"discovery is sought to be conducted" determines which circuit 

court issues and enforces a subpoena. See Code §§ 8.01-412.10 

and -412.13. The location of discovery also determines which 

jurisdiction's law governs a non-party's discovery obligations. 

See § 8.01-412.12. This language indicates the General 

 

14 Consistent with this policy, Rule 4:5(a1)(iii), which 

governs depositions taken in another state, requires 

enforcement matters to be pursued "by process issued and served 

in accordance with the law of the jurisdiction where the 

deposition is taken." 
14

Assembly has not created two mechanisms for obtaining discovery 

from a non-party residing outside of Virginia.15

 In sum, we conclude that the circuit court was not 

empowered to enforce the non-party subpoena duces tecum 

directing Yelp to produce documents located in California in 

connection with Hadeed's underlying defamation action against 

the John Doe defendants in the Virginia circuit court. The 

information sought by Hadeed is stored by Yelp in the usual 

course of its business on administrative databases within the 

custody or control of only specified Yelp employees located in 

San Francisco, and thus, beyond the reach of the circuit 

court.16 Our holding is consistent with the traditional limits 

 

15 If the UIDDA provided additional authority for Virginia 

courts to exercise subpoena power over nonresidents, this could 

subject non-parties to greater discovery than litigants. A 

Virginia subpoena that was quashed or limited could be "relitigated" under another jurisdiction's law by resorting to the 

UIDDA. See, e.g. Cal. Civ. Pro. Code 2029.600(a). 

16 The dissent argues that Yelp has not proved that user 

operations team members are the only Yelp employees with access 

to the database, or that all other employees with access, if 

any, are only in San Francisco. This argument misses the 

point. Regardless of the number of employees who have access 

to the data comprising information that would identify Yelp 

users, such data is maintained in the regular course of Yelp's 

business by employees in California. For this reason, we 

cannot accept the dissent's position that the concept of outof-state discovery is outdated in this "digital era" in which 

data is more easily accessed and disseminated in electronic 

form. Even data that is maintained in a tangible form can be, 

and has long been, subject to reproduction and dissemination. 

Yet, corporate data, in any form, is necessarily created and 
15

on subpoena power of state courts and the public policy 

established by the General Assembly through enactment of the 

UIDDA.17 Although the General Assembly has expressly authorized 

Virginia courts to exercise personal jurisdiction over 

nonresident parties, it has not expressly authorized Virginia 

courts to compel nonresident non-parties to produce documents 

located outside of Virginia. Because the underlying concepts 

of personal jurisdiction and subpoena power are not the same, 

the question of whether Yelp would be subject to personal 

jurisdiction by Virginia courts as a party defendant is 

irrelevant.18 Therefore, subpoena power was not conferred upon 

 

maintained in the regular course of a corporation's business by 

designated corporate employees who are located at a place that 

is either within Virginia or out-of-state. 

17 Thus, our holding does not mean that a Virginia court 

could not compel in-state discovery from a non-party foreign 

corporation that maintains an office in Virginia. This case 

presents the issue of a Virginia court's power to compel outof-state discovery from a non-party foreign corporation. 

18 The dissent proposes to subject nonresidents to the 

jurisdiction of Virginia courts even though they have not been 

sued in our courts by extending subpoena power to the limits of 

personal jurisdiction using the minimum contacts analysis. 

However, the minimum contacts analysis is premised upon the 

existence of actual litigation against a nonresident defendant. 

"Where a forum seeks to assert specific jurisdiction over an 

out-of-state defendant who has not consented to suit there, 

this fair warning requirement is satisfied if the defendant has 

purposefully directed his activities at residents of the forum, 

and the litigation results from alleged injuries that arise out 

of or relate to those activities." Burger King Corp. v. 

Rudzewicz, 471 U.S. 462, 472 (1985)(emphasis added) (internal 

quotation marks and citations omitted). 
16

the circuit court by Yelp's act in registering to conduct 

business in Virginia or designating a registered agent for 

service of process in the Commonwealth. 

III. CONCLUSION 

 For the foregoing reasons, we will vacate the judgment of 

the Court of Appeals, vacate the contempt order of the circuit 

court, and remand for further proceedings consistent with this 

opinion.19

Reversed and remanded. 

JUSTICE MIMS, with whom JUSTICE MILLETTE joins, concurring in 

part and dissenting in part. 

 The majority opinion holds that the General Assembly has 

not provided for the exercise of “subpoena power” over non- 

 

 The dissent also assumes an "out-of-state bank" with a 

"pervasive presence" in Virginia would be subject to general 

personal jurisdiction in our courts. However, general personal 

jurisdiction over a foreign corporation exists only if it is at 

"home" in the forum state. Daimler AG v. Bauman, 134 S.Ct. 

746, 760-62 (2014). A corporation is not "at home" in "every 

state in which [it] 'engages in a substantial, continuous, and 

systematic course of business.'" Id. at 760-61. It would be an 

"exceptional case" that "a corporation's operations in a forum 

other than its formal place of incorporation or principal place 

of business [are] so substantial and of such a nature as to 

render the corporation at home in that State." Id. at 761 

n.19. 

19 We will not quash the subpoena duces tecum since Hadeed 

may choose to seek enforcement of the subpoena duces tecum 

through the versions of the UIDDA enacted in California, Cal. 

Civ. Proc. Code §§ 2029.100 et seq. See also, Delaware, Del. 

Code Ann. Tit. 10, § 4311. 
17

resident non-parties. Because the relevant statutory text is 

clear, I disagree. 

The General Assembly has said that a subpoena duces tecum 

is “process.” Code § 1-237 (defining “process” to include a 

subpoena); Code § 8.01-2(8) (defining “subpoena” to include a 

subpoena duces tecum for the purposes of Title 8.01). It has 

said that “[u]pon commencement of an action, process shall be 

served in the manner set forth in” Chapter 8 of Title 8.01. 

Code § 8.01-287. Chapter 8 of Title 8.01 includes Code § 8.01-

301. In Code § 8.01-301(1), the General Assembly provides that 

a foreign corporation may be served with process through its 

Virginia registered agent. Nothing in the Code restricts 

service of process if the foreign corporation is a non-party or 

redefines process to exclude subpoenas or subpoenas duces tecum 

if the foreign corporation is a non-party. Finally, the 

General Assembly has said that Virginia courts may use their 

contempt power to punish any person who disobeys lawful 

process. Code § 18.2-456(5). 

Thus, the General Assembly has provided for the exercise 

of subpoena power over a non-resident non-party, where that 

non-resident non-party is a foreign corporation with a Virginia 

resident agent (as Yelp is in this case). The majority opinion 
18

overlooks the clear statutory language.1 As far as the General 

Assembly is concerned, if a foreign corporation can be lawfully 

served with process in Virginia, Virginia courts can compel it 

to respond to discovery here. However, for reasons I discuss 

below, state statutes are not the last word on this subject. 

Rather, the Due Process Clause of the Fourteenth Amendment 

narrows the broad authority the General Assembly has given 

Virginia courts. 

But before undertaking the constitutional analysis, some 

important observations are in order. First, in its statement 

of facts, the majority opinion says that Yelp stores IP 

addresses in administrative databases accessible only by 

specified Yelp employees located in San Francisco. No evidence 

supports this statement. Rather, through an affidavit by its 

Associate Director of User Operations, Yelp says only that the 

 

1

 In footnote 8, the majority opinion correctly observes 

that valid service cannot make unlawful process lawful. 

However, the majority opinion does not explain why the process 

at issue in this case is unlawful. Cf. Lifestar Response of 

Md., Inc. v. Vegosen, 267 Va. 720, 724, 594 S.E.2d 589, 591 

(2004) (holding that the amended motion for judgment validly 

served on the defendant was not lawful process because it did 

not include the notice required by Rule 3:3(c)). 

 Hadeed’s subpoena duces tecum is authorized by Code § 

8.01-407.1. Nothing in that statute, or any other, says that 

it does not apply to non-resident non-parties. Accordingly, it 

appears that under the majority opinion, the “lawfulness” of 

process appears to turn not on whether its form and substance 

is authorized by law but on the status of the entity upon whom 

it is served. 
19

user operations team has access to the database, and the user 

operations team is in San Francisco. This does not establish 

that user operations team members are the only Yelp employees 

with access to the database, or that all other employees with 

access, if any, are only in San Francisco.2

This misstatement of the evidence is compounded by 

footnote 17, in which the majority opinion states that the 

Court’s holding does not mean that Virginia courts cannot 

compel production in Virginia by a non-party foreign 

corporation that (unlike Yelp) has an office in Virginia. The 

implication of this footnote is that if the record at issue is 

located in Virginia, Virginia courts can compel the non-party 

foreign corporation to produce it here. Yet the majority 

opinion’s conclusion makes that impossible. If the General 

Assembly has not provided for the exercise of subpoena power 

over a non-resident non-party (as the majority opinion says), 

how can Virginia courts acquire this authority based solely on 

 

2

 In footnote 1, the majority opinion correctly notes that, 

according to the affidavit, user operations team members have 

specialized access to the database and only they respond to 

subpoenas seeking that information. However, this statement 

does not support the majority opinion’s extrapolation that only 

those employees have access to the database. 

 Despite the majority opinion’s characterization in 

footnote 16, the issue is not whether Yelp proved that only 

employees in California have access to the database. Rather, 

the issue is that the majority opinion states as a fact that 

only employees in California do, when that proposition is not 

supported by the record. 
20

the location of the record being sought? The majority opinion, 

which is based solely upon an interpretation of what the 

General Assembly has authorized, cites no statute for this 

proposition. 

Further, to base the courts’ power to compel production on 

the geographic location of a record is simply incompatible with 

the digital era. The majority opinion appears to presume that 

records are still printed on paper as documents and stored in 

filing cabinets in a file room, where they can be seen and 

touched. This practice is waning in modern interstate commerce 

and soon only nostalgic vestiges will remain, the lingering 

artifacts of an earlier age. Now, records are more commonly 

intangible and incorporeal, stored electronically in binary 

form. Where are such records located? Only on the device 

where the information is created? On any device where a copy 

can be found? On any device that can access it remotely? 

Under the majority opinion, the answers to these questions will 

determine whether the General Assembly has authorized Virginia 

courts to exercise subpoena power. And the questions cannot be 

answered in the abstract. Circuit courts throughout the 

Commonwealth will be forced to grapple with them often. 

To illustrate the practical difficulty the majority 

opinion needlessly creates, one can consider a hypothetical 

case where an employer sues a former employee to recover funds 
21

he embezzled by falsely endorsing a customer’s check and 

depositing it in his personal account. The check is both drawn 

on and deposited into accounts at a national bank incorporated 

in Delaware with its principal place of business in North 

Carolina. The bank has a registered agent, hundreds of 

branches, and thousands of employees in Virginia. The employer 

serves a subpoena duces tecum on the bank’s Virginia registered 

agent, seeking production of the check. The bank routinely 

scans all paid and deposited checks, stores the images 

electronically on a server located at its principal office in 

North Carolina, and destroys the physical check. 

According to the majority opinion, whether the General 

Assembly has authorized Virginia courts to compel this out-ofstate bank, a non-party foreign corporation but with pervasive 

presence in and contacts with Virginia, to produce its 

electronic record depends on where the record is located. That 

cannot be the case, but it is the effect of the majority 

opinion’s analysis.3, 4

 

3

 Incidentally, if an attorney wants to issue a subpoena to 

such a foreign corporation, how can he or she do so without 

first knowing where the record is located? Issuing such a 

subpoena without sufficient knowledge that it is located in 

Virginia would be sanctionable under Code § 8.01-271.1. 

4

 Contrary to the majority opinion’s assertion in footnote 

18, this dissent does not assume that Virginia would have 

personal jurisdiction over the hypothetical bank. Rather, 

whether a Virginia court can compel the bank to produce the 

record depends on whether the bank has constitutionally 
22

Second, the majority opinion states that the General 

Assembly has not authorized courts to exercise subpoena power 

over a non-resident non-party in the long-arm statute, Code § 

8.01-328.1. However, the long-arm statute is irrelevant. It 

neither confers nor constrains the power at issue here. As 

noted above, the authority is provided by Code §§ 1-237, 8.01-

2(8), 8.01-287, 8.01-301, and 18.2-456(5). 

To the contrary, the long-arm statute expressly provides 

that “nothing contained in this chapter shall limit, restrict 

or otherwise affect the jurisdiction of any court of this 

Commonwealth over foreign corporations which are subject to 

service of process pursuant to the provisions of any other 

statute.” Code § 8.01-328.1(C). Foreign corporations with 

Virginia registered agents are subject to service of process 

under Code § 8.01-301(1). The long-arm statute therefore does 

not deny Virginia courts jurisdiction over them, whether they 

are parties or not. This is consistent with our previous 

holdings that by enacting the long-arm statute, the General 

Assembly intended to confer as much jurisdiction upon Virginia 

courts as constitutional due process allows. E.g., Peninsula 

Cruise, Inc. v. New River Yacht Sales, Inc., 257 Va. 315, 319, 

 

sufficient contacts with Virginia, not whether the record is 

located here. 
23

512 S.E.2d 560, 562 (1999); John G. Kolbe, Inc. v. Chromodern 

Chair Co., 211 Va. 736, 740, 180 S.E.2d 664, 667 (1971). 

Third, the majority opinion refers to the legislature’s 

enactment of the Uniform Interstate Depositions and Discovery 

Act, Code §§ 8.01-412.8 to -412.15, as further support for its 

conclusion that the General Assembly has not authorized 

Virginia courts to exercise subpoena power over non-resident 

non-parties. However, that Act only provides Virginia courts 

with additional authority.5

 Nothing in it subtracts from the 

statutory authority the General Assembly has already provided 

Virginia courts in Code §§ 1-237, 8.01-2(8), 8.01-287, 8.01-

301, and 18.2-456(5). Consequently, Virginia courts had 

authority to compel production by a non-party foreign 

corporation prior to the Act’s enactment, and that authority 

remains. 

Fourth, the majority opinion cites several decisions by 

appellate courts in other states finding that trial courts in 

those states could not enforce a subpoena against a nonresident non-party. However, those decisions are not relevant 

in this case because they are interpretations holding that the 

applicable state law did not provide those states’ courts with 

 

5

 Specifically, the Act supplies Virginia courts the 

statutory authority to compel a Virginia resident to produce 

information relevant to litigation pending in another state’s 

courts. The Act has no effect on Virginia courts’ authority 

over non-residents. 
24

the broad authority the General Assembly has provided Virginia 

courts in Code §§ 1-237, 8.01-2(8), 8.01-287, 8.01-301, and 

18.2-456(5). 

The majority opinion relies principally on In re National 

Contract Poultry Growers’ Ass’n, 771 So.2d 466 (Ala. 2000). 

That Alabama case involved a non-party corporation incorporated 

in Arkansas. Its principal place of business was in Louisiana 

and it did not have an Alabama registered agent. A party 

obtained a subpoena against the corporation and served it by 

certified mail at its Louisiana office. The corporation did 

not respond to the subpoena and the trial court thereafter 

found it in contempt. Id. at 466-67. On appeal, the Supreme 

Court of Alabama reversed. Id. at 470. It determined that an 

Alabama statute and the Alabama Rules of Civil Procedure 

permitted a subpoena to be “served at any place within the 

state.” 771 So.2d at 468-69 (quoting Ala. R. Civ. P. 

45(b)(2)). Because the subpoena was served by certified mail 

in Louisiana, the subpoena was not served on the corporation 

within the state as Alabama law required. Id. at 469-70. 

Similarly, Craft v. Chopra, 907 P.2d 1109 (Okla. Civ. App. 

1995), involved a plaintiff suing a doctor in Oklahoma, 

alleging that he sexually abused her while she was under 

anesthesia. She obtained a subpoena against a Texas hospital 

for letters of recommendation pertaining to the doctor’s 
25

privileges there. There is no indication of whether the 

hospital had a registered agent in Oklahoma. Rather, the 

subpoena was served on it by certified mail in Texas. When the 

hospital resisted the subpoena, the trial court refused to 

enforce it and awarded the hospital damages. Id. at 1110-11. 

On appeal, the Oklahoma Court of Civil Appeals affirmed. It 

determined that under the Oklahoma statute, subpoenas could be 

served only within the state. Id. (construing former Okla. 

Stat. tit. 12, § 2004.1(A)(1)(c)). 

These cases are irrelevant here because Yelp was served in 

Virginia according to Virginia law. Code § 8.01-301(1). 

Another case cited in the majority opinion, Syngenta Crop 

Prot., Inc. v. Monsanto Co., 908 So.2d 121 (Miss. 2005), 

involved three non-party corporations. All three were 

incorporated in Delaware. One had its principal place of 

business in North Carolina, another in Minnesota, and the last 

in Indiana. All had Mississippi registered agents. Id. at 

124. The Supreme Court of Mississippi ruled that a state 

statute permitted service of process on foreign corporations by 

registered or certified mail but that a rule of court required 

subpoenas to be served personally. Id. at 127-28 (construing 

Miss. Code Ann. § 79-4-15.10 and Miss. R. Civ. P. 45(c)(1)). 

Reconciling these conflicting provisions of Mississippi law, 

the court determined that subpoenas were not process and 
26

therefore could not be served on a foreign corporation through 

its registered agent. Id. 

This case is not relevant here because a subpoena is 

process under Virginia law and can be served on a foreign 

corporation through its Virginia registered agent. Code §§ 1-

237 and 8.01-301(1). 

Other cases cited in the majority opinion are also 

irrelevant. Ulloa v. CMI, Inc., 133 So.3d 914 (Fla. 2013) 

involved criminal defendants charged with driving under the 

influence who sought technical data from the corporation that 

manufactured breathalyzer equipment. The corporation was 

incorporated in Kentucky. There is no indication of where it 

had its principal place of business, but it had a Florida 

registered agent. Id. at 915. The Supreme Court of Florida 

determined that the applicable Florida statute provided that 

subpoenas in criminal cases ran only within the state. Id. at 

920-21 (construing Fla. Stat. § 914.001(1)). 

Similarly, Phillips Petroleum Co. v. OKC Ltd. P’ship, 634 

So.2d 1186 (La. 1994), involved a non-party corporation 

incorporated in Texas. Its principal place of business was in 

Texas, but it had a Louisiana registered agent. Id. at 1187. 

The Supreme Court of Louisiana determined that the applicable 

Louisiana statute simply did not “provide for the subpoena of a 
27

nonresident witness.” Id. at 1188 n.3 (construing La. Code 

Civ. Proc. Ann. art. 1352). 

These cases are not relevant here because Virginia law 

does provide for the subpoena of a non-resident non-party, if 

that non-party is a foreign corporation with a Virginia 

registered agent that can be served with process. 

Each of these opinions also includes language (recited in 

the majority opinion in this case) rejecting the claims made by 

the parties seeking discovery that the subpoenas should be 

enforced because the courts could exercise personal 

jurisdiction over the foreign corporations. I agree with the 

majority opinion and these out-of-state cases that having 

personal jurisdiction over a non-resident non-party is not 

enough to allow a court to enforce a subpoena; there must also 

be statutory authority enabling a court to exercise that 

jurisdiction by enforcing a subpoena. Where I part with the 

majority opinion is its conclusion that the General Assembly 

has not provided that authority here, under Virginia law. 

These flaws in the majority opinion are significant and 

problematic. Nevertheless, it reaches the correct conclusion 

that the circuit court cannot enforce Hadeed’s subpoena duces 

tecum in this case. However, the reasons are constitutional 

rather than statutory. Specifically, a state court’s coercive 

judicial power is limited by the Due Process Clause of the 
28

Fourteenth Amendment. J. McIntyre Mach., Ltd. v. Nicastro, 564 

U.S., ___, ___, 131 S.Ct. 2780, 2786-87 (2011). This extends 

to enforcement of subpoenas and subpoenas duces tecum. Eli 

Lilly & Co. v. Gottstein, 617 F.3d 186, 192 & n.4 (2d Cir. 

2010) (collecting cases); see also United States Catholic 

Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 

76 (1988) (“[T]he subpoena power of a court cannot be more 

extensive than its jurisdiction.”). 

Hadeed argues that Virginia courts may constitutionally 

exercise personal jurisdiction over Yelp because it has a 

Virginia registered agent and therefore has consented to being 

subject to jurisdiction here. There is historical authority 

supporting the proposition that a foreign corporation consents 

to be sued in a state when it appoints an agent for the receipt 

of process there. E.g., Railroad Co. v. Harris, 79 U.S. 65, 81 

(1871); Pennoyer v. Neff, 95 U.S. 714, 735 (1878); Ex parte 

Schollenberger, 96 U.S. 369 (1878); Pennsylvania Fire Ins. Co. 

v. Gold Issue Mining & Milling Co., 243 U.S. 93, 95-96 (1917). 

However, to the extent that these cases are applicable to 

a non-party foreign corporation at all, I believe they have 

been supplanted by the contacts-based theory of personal 

jurisdiction articulated in International Shoe Co. v. 

Washington, 326 U.S. 310 (1945). Shaffer v. Heitner, 433 U.S. 

186, 212 (1977) (“[A]ll assertions of state-court jurisdiction 
29

must be evaluated according to the standards set forth in 

International Shoe and its progeny.”) Contacts-based 

jurisdiction comes in two forms, general and specific. Burger 

King Corp. v. Rudzewicz, 471 U.S. 462, 472 n.15 (1985). The 

party claiming that a court may exercise jurisdiction bears the 

burden of showing a prima facie case for that claim. ESAB 

Group, Inc. v. Zurich Ins. PLC, 685 F.3d 376, 391 (4th Cir. 

2012). 

To be subject to general jurisdiction, a foreign 

corporation must have “‘continuous corporate operations within 

a state . . . so substantial and of such a nature as to justify 

suit on causes of action arising from dealings entirely 

distinct from’” the activities it purposefully directs there. 

Daimler AG v. Bauman, 571 U.S. ___, ___, 134 S.Ct. 746, 761 

(2014) (quoting International Shoe, 326 U.S. at 318) 

(alteration and emphasis omitted). A corporation has such 

operations in the states where it is incorporated and where it 

has its principal place of business. Id. at 760. A 

corporation may also be subject to general jurisdiction in 

other states, provided that the corporation’s operations there 

are “‘so continuous and systematic as to render [it] 

essentially at home’” there. Id. at 761 & n.19 (quoting 

Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. ___, 
30

___, 131 S.Ct. 2846, 2851 (2011) (internal quotation marks 

omitted)). 

Yelp is incorporated in Delaware. Its principal place of 

business is in California. Hadeed has neither alleged nor 

shown that Yelp has any corporate operations within the 

Commonwealth, much less operations that are sufficiently 

“continuous and systematic,” for the purposes of the Goodyear 

Dunlop test. Accordingly, I cannot conclude on this record 

that Virginia courts may exercise general jurisdiction over 

Yelp. 

Specific jurisdiction assesses whether a foreign 

corporation has sufficient contacts with a state for its courts 

to constitutionally exercise jurisdiction over the corporation 

based on its activity there. Burger King, 471 U.S. at 472. 

Further, the foreign corporation’s activities must be 

“purposefully directed” at that state. Id. Activity is 

purposefully directed at a state if it is “such that [the 

corporation] should reasonably anticipate being haled into 

court there.” Id. at 474. “[R]andom, fortuitous, or 

attenuated” activity or “the unilateral activity of another 

party or a third person” is insufficient. Id. at 475 (internal 

quotation marks and citations omitted). 

The limited record in this case does not establish that 

Yelp has sufficient contacts with the Commonwealth or that it 
31

has purposefully directed activities here such that Virginia 

courts may exercise specific jurisdiction over it. Neither the 

complaint nor the materials Hadeed submitted in support of the 

subpoena duces tecum alleges any such contacts or purposeful 

direction; rather, each merely states that Yelp operates a 

website with approximately 54 million unique visitors per year. 

Hadeed has not shown whether Yelp has paid subscribers or 

how many of them reside in Virginia. It has not shown how many 

Virginians view or contribute to Yelp’s website, or that merely 

viewing or contributing to the website would amount to more 

than “the unilateral activity of . . . a third person,” which 

is insufficient to confer specific jurisdiction. Burger King, 

471 U.S. at 475. It has not shown whether Yelp solicits 

advertising from Virginia businesses or that it has any 

contracts with Virginia residents. Accordingly, the record 

does not include evidence from which I can conclude that Yelp 

has sufficient contacts with or has purposefully directed 

activity into Virginia so that courts here may constitutionally 

exercise specific jurisdiction over it.6

 

6

 Hadeed also argues that under Code § 8.01-277.1, Yelp 

waived any objection to jurisdiction because it failed to make 

a special appearance. Hadeed contends that Yelp’s written 

objections to the subpoena duces tecum are not a motion to 

quash, so they did not preserve a jurisdictional argument under 

Code § 8.01-277(A). I disagree. 

 Yelp has done none of the things listed as examples of 

“conduct related to adjudicating the merits of the case” in 
32

For these reasons, I must respectfully dissent from the 

majority opinion’s determination that the circuit court lacked 

statutory authority to enforce the subpoena duces tecum against 

Yelp. However, I conclude that the evidence was insufficient 

to establish that the court could exercise personal 

jurisdiction over Yelp within the limits of Fourteenth 

Amendment due process. I therefore concur in the judgment 

vacating both the judgment of the Court of Appeals and the 

contempt order of the circuit court. 

 

Code § 8.01-277.1(A). The merits of this case involve whether 

the defendants defamed Hadeed and conspired against it in 

violation of Code § 18.2-500, as alleged in the complaint. 

Yelp’s participation in the proceedings is not related to the 

adjudication of those claims. All Yelp has done is resist the 

enforcement of Hadeed’s subpoena duces tecum in the manner 

expressly provided by Code § 8.01-407.1(A)(4), which includes 

the filing of written objections. Unlike conducting discovery, 

resisting discovery is not one of the means by which 

jurisdictional objections may be waived under Code § 8.01-

277.1.