8.01-407.1 - Identity of persons communicating anonymously over the Internet.
§ 8.01-407.1. Identity of persons communicating anonymously over the Internet.
A. In civil proceedings where it is alleged that an anonymous individual hasengaged in Internet communications that are tortious, any subpoena seekinginformation held by a nongovernmental person or entity that would identifythe tortfeasor shall be governed by the following procedure unless moreexpedited scheduling directions have been ordered by the court uponconsideration of the interests of each person affected thereby:
1. At least thirty days prior to the date on which disclosure is sought, aparty seeking information identifying an anonymous communicator shall filewith the appropriate circuit court a complete copy of the subpoena and allitems annexed or incorporated therein, along with supporting material showing:
a. That one or more communications that are or may be tortious or illegalhave been made by the anonymous communicator, or that the party requestingthe subpoena has a legitimate, good faith basis to contend that such party isthe victim of conduct actionable in the jurisdiction where the suit wasfiled. A copy of the communications that are the subject of the action orsubpoena shall be submitted.
b. That other reasonable efforts to identify the anonymous communicator haveproven fruitless.
c. That the identity of the anonymous communicator is important, is centrallyneeded to advance the claim, relates to a core claim or defense, or isdirectly and materially relevant to that claim or defense.
d. That no motion to dismiss, motion for judgment on the pleadings, orjudgment as a matter of law, demurrer or summary judgment-type motionchallenging the viability of the lawsuit of the underlying plaintiff ispending. The pendency of such a motion may be considered by the court indetermining whether to enforce, suspend or strike the proposed disclosureobligation under the subpoena.
e. That the individuals or entities to whom the subpoena is addressed arelikely to have responsive information.
f. If the subpoena sought relates to an action pending in anotherjurisdiction, the application shall contain a copy of the pleadings in suchaction, along with the mandate, writ or commission of the court where theaction is pending that authorizes the discovery of the information sought inthe Commonwealth.
2. Two copies of the subpoena and supporting materials set forth insubdivision A. 1. a. through f. shall be served upon the person to whom it isaddressed along with payment sufficient to cover postage for mailing one copyof the application within the United States by registered mail, returnreceipt requested.
3. Except where the anonymous communicator has consented to disclosure inadvance, within five business days after receipt of a subpoena and supportingmaterials calling for disclosure of identifying information concerning ananonymous communicator, the individual or entity to whom the subpoena isaddressed shall (i) send an electronic mail notification to the anonymouscommunicator reporting that the subpoena has been received if an e-mailaddress is available and (ii) dispatch one copy thereof, by registered mailor commercial delivery service, return receipt requested, to the anonymouscommunicator at his last known address, if any is on file with the person towhom the subpoena is addressed.
4. At least seven business days prior to the date on which disclosure issought under the subpoena, any interested person may file a detailed writtenobjection, motion to quash, or motion for protective order. Any such papersfiled by the anonymous communicator shall be served on or before the date offiling upon the party seeking the subpoena and the party to whom the subpoenais addressed. Any such papers filed by the party to whom the subpoena isaddressed shall be served on or before the date of filing upon the partyseeking the subpoena and the anonymous communicator whose identifyinginformation is sought. Service is effective when it has been mailed,dispatched by commercial delivery service, transmitted by facsimile, ordelivered to counsel of record and to parties having no counsel.
5. Any written objection, motion to quash, or motion for protective ordershall set forth all grounds relied upon for denying the disclosure sought inthe subpoena and shall also address to the extent feasible (i) whether theidentity of the anonymous communicator has been disclosed in any way beyondits recordation in the account records of the party to whom the subpoena isaddressed, (ii) whether the subpoena fails to allow a reasonable time forcompliance, (iii) whether it requires disclosure of privileged or otherprotected matter and no exception or waiver applies, or (iv) whether itsubjects a person to undue burden.
6. The party to whom the subpoena is addressed shall not comply with thesubpoena earlier than three business days before the date on which disclosureis due, to allow the anonymous communicator the opportunity to object. If anyperson files a written objection, motion to quash, or motion for protectiveorder, compliance with the subpoena shall be deferred until the appropriatecourt rules on the obligation to comply. If an objection or motion is made,the party serving the subpoena shall not be entitled to inspect or copy thematerials except pursuant to an order of the court on behalf of which thesubpoena was issued. If an objection or motion has been filed, any interestedperson may notice the matter for a hearing. Two copies of any such noticeshall be served upon the subpoenaed party, who shall mail one copy thereof,by registered mail or commercial delivery service, return receipt requested,to the anonymous communicator whose identifying information is the subject ofthe subpoena at that person's last known address.
B. The party requesting or issuing a subpoena for information identifying ananonymous Internet communicator shall serve along with each copy of suchsubpoena notices in boldface capital letters in substantially this form:
NOTICE TO INTERNET SERVICE PROVIDER
WITHIN FIVE BUSINESS DAYS AFTER RECEIPT OF THIS SUBPOENA CALLING FORIDENTIFYING INFORMATION CONCERNING YOUR CLIENT, SUBSCRIBER OR CUSTOMER,EXCEPT WHERE CONSENT TO DISCLOSURE HAS BEEN GIVEN IN ADVANCE, YOU AREREQUIRED BY § 8.01-407.1 OF THE CODE OF VIRGINIA TO MAIL ONE COPY THEREOF, BYREGISTERED MAIL OR COMMERCIAL DELIVERY SERVICE, RETURN RECEIPT REQUESTED, TOTHE CLIENT, SUBSCRIBER OR CUSTOMER WHOSE IDENTIFYING INFORMATION IS THESUBJECT OF THE SUBPOENA. AT LEAST SEVEN BUSINESS DAYS PRIOR TO THE DATE ONWHICH DISCLOSURE IS SOUGHT YOU MAY, BUT ARE NOT REQUIRED TO, FILE A DETAILEDWRITTEN OBJECTION, MOTION TO QUASH OR MOTION FOR PROTECTIVE ORDER. ANY SUCHOBJECTION OR MOTION SHALL BE SERVED UPON THE PARTY INITIATING THE SUBPOENAAND UPON THE CLIENT, SUBSCRIBER OR CUSTOMER WHOSE IDENTIFYING INFORMATION ISSOUGHT.
IF YOU CHOOSE NOT TO OBJECT TO THE SUBPOENA, YOU MUST ALLOW TIME FOR YOURCLIENT, SUBSCRIBER OR CUSTOMER TO FILE HIS OWN OBJECTION, THEREFORE YOU MUSTNOT RESPOND TO THE SUBPOENA ANY EARLIER THAN THREE BUSINESS DAYS BEFORE THEDISCLOSURE IS DUE.
IF YOU RECEIVE NOTICE THAT YOUR CLIENT, SUBSCRIBER OR CUSTOMER HAS FILED AWRITTEN OBJECTION, MOTION TO QUASH OR MOTION FOR PROTECTIVE ORDER REGARDINGTHIS SUBPOENA, OR IF YOU FILE A MOTION TO QUASH THIS SUBPOENA, NO DISCLOSUREPURSUANT TO THE SUBPOENA SHALL BE MADE EXCEPT PURSUANT TO AN ORDER OF THECOURT ON BEHALF OF WHICH THE SUBPOENA WAS ISSUED.
NOTICE TO INTERNET USER
THE ATTACHED PAPERS MEAN THAT
(INSERT NAME OF PARTY REQUESTING OR CAUSING ISSUANCE OF THE SUBPOENA) HASEITHER ASKED THE COURT TO ISSUE A SUBPOENA, OR A SUBPOENA HAS BEEN ISSUED, TOYOUR INTERNET SERVICE PROVIDER
(INSERT NAME OF INTERNET SERVICE PROVIDER) REQUIRING PRODUCTION OFINFORMATION REGARDING YOUR IDENTITY. UNLESS A DETAILED WRITTEN OBJECTION ISFILED WITH THE COURT, THE SERVICE PROVIDER WILL BE REQUIRED BY LAW TO RESPONDBY PROVIDING THE REQUIRED INFORMATION. IF YOU BELIEVE YOUR IDENTIFYINGINFORMATION SHOULD NOT BE DISCLOSED AND OBJECT TO SUCH DISCLOSURE, YOU HAVETHE RIGHT TO FILE WITH THE CLERK OF COURT A DETAILED WRITTEN OBJECTION,MOTION TO QUASH THE SUBPOENA OR MOTION TO OBTAIN A PROTECTIVE ORDER. YOU MAYELECT TO CONTACT AN ATTORNEY TO REPRESENT YOUR INTERESTS. IF YOU ELECT TOFILE A WRITTEN OBJECTION, MOTION TO QUASH, OR MOTION FOR PROTECTIVE ORDER, ITSHOULD BE FILED AS SOON AS POSSIBLE, AND MUST IN ALL INSTANCES BE FILED NOLESS THAN SEVEN BUSINESS DAYS BEFORE THE DATE ON WHICH DISCLOSURE IS DUE(LISTED IN THE SUBPOENA). IF YOU ELECT TO FILE A WRITTEN OBJECTION OR MOTIONAGAINST THIS SUBPOENA, YOU MUST AT THE SAME TIME SEND A COPY OF THATOBJECTION OR MOTION TO BOTH YOUR INTERNET SERVICE PROVIDER AND THE PARTY WHOREQUESTED THE SUBPOENA. IF YOU WISH TO OPPOSE THE ATTACHED SUBPOENA, IN WHOLEOR IN PART, YOU OR YOUR ATTORNEY MAY FILE A WRITTEN OBJECTION, A MOTION TOQUASH THE SUBPOENA, OR A MOTION FOR A PROTECTIVE ORDER OR YOU MAY USE THEFORM BELOW, WHICH MUST BE FILED WITH THE COURT AND SERVED UPON THE PARTYREQUESTING THE SUBPOENA AND THE INTERNET SERVICE PROVIDER BY MAILING AT LEASTSEVEN BUSINESS DAYS PRIOR TO THE DATE SET IN THE SUBPOENA FOR DISCLOSURE:
Name of Court Listed on Subpoena
Name of Party Seeking Information
Case No. __________________
OBJECTION TO SUBPOENA DUCES TECUM
I object to the Subpoena Duces Tecum addressed to
for the following reasons:
[Name of Internet Service Provider to Whom the Subpoena is Addressed]
(Please PRINT. Set forth, in detail, all reasons why the subpoena should notbe complied with, and in addition, state (i) whether the identity of theanonymous communicator has been disclosed in any fashion, (ii) whether thesubpoena fails to allow a reasonable time for compliance, (iii) whether itrequires disclosure of privileged or other protected matter and no exceptionor waiver applies, or (iv) whether it subjects a person to undue burden.)
(attach additional sheets if needed)
Respectfully Submitted,
John Doe
Enter e-mail nickname or other
alias used in communicating via
the Internet service provider to
whom the subpoena is addressed.
CERTIFICATE
I hereby certify that a true copy of the above Objection to Subpoena DucesTecum was mailed this ____ day of ____________, (month, year), to
(Name and address of party seeking information) and
(Name and address of Internet Service Provider)
John Doe
Enter e-mail nickname or other
alias used in communicating via
the Internet service provider to
whom the subpoena is addressed.
(2002, c. 875.)