On July 1, 2025, a new Virginia law takes effect that aims to make it easier for law enforcement and civil litigants in Virginia to obtain records from providers doing business in the Commonwealth – even if those records are stored elsewhere. Through a series of amendments, this new law is intended to overturn the Virginia Supreme Court’s Yelp v. Hadeed Carpet Cleaning ruling, which held that the subpoena power of Virginia courts did not extend beyond the Commonwealth’s borders, even where a non-party provider is registered to do business, and served via its registered agent, in Virginia.
The legislation, which applies to both civil litigants and law enforcement, updates Virginia law regarding service of process on foreign corporations to clarify that “a foreign corporation transacting business in the Commonwealth that has a registered agent in the Commonwealth shall be deemed to have consented to service.” (emphasis added). The change seems largely superfluous, as companies were already subject to proper service via their registered agents. But proper service has no bearing on the issues of subpoena power and jurisdiction – the distinct legal concepts at the heart of the Yelp v. Hadeed Carpet Cleaning ruling. Indeed, this amendment is unlike the Pennsylvania statute at issue in Mallory v. Norfolk Southern Railroad Co., in which the U.S. Supreme Court held that a state could, consistent with Due Process, condition registering to do business within the state on consenting to general jurisdiction.
The law also makes several changes to Virginia’s search warrant statute to augment the ability of Virginia law enforcement to obtain records from foreign corporations. For instance, it amends the list of things that may be seized pursuant to a search warrant to include “electronic records stored within or outside the Commonwealth of a commercial enterprise, whether a domestic corporation or a foreign corporation, that is transacting or has transacted any business in the Commonwealth.” In an effort to sidestep extraterritoriality issues, the law also clarifies that the search of a foreign corporation pursuant to a Virginia search warrant shall be deemed to have occurred “in the same place where the search warrant was issued.” But other states have rejected a similar argument that a search occurs where the search warrant is served.
However, even if for the sake of argument it is agreed that the search occurs in the place where the search warrant was issued, that is not the end of the inquiry regarding whether a search warrant is enforceable against a foreign corporation. Rather, as we have argued (and prevailed) here, the issuing court must also be able to exercise personal jurisdiction over the provider in a manner consistent with due process protections – which this new Virginia law does not (and cannot) override.
As this new law takes effect, providers should be cognizant of whether they are registered to do business in Virginia and keep an eye out for requests attempting to inappropriately leverage these new authorities.
