Hadeed Carpet Cleaning filed suit in Virginia state court against the authors of seven reviews on Yelp that confirmed what many other reviewers were saying – that Hadeed advertises very low prices to lure consumers but always finds a way to charge more. Hadeed asserted that the seven defendants were actually a Hadeed competitor, not customers, and demanded their identifying information. A trial judge in Alexandria rejected Yelp’s objections to the subpoena and held Yelp in contempt. On appeal, we argue for Yelp that Yelp need not respond to a Virginia state court subpoena, but that Hadeed must get a subpoena from the California courts before Yelp, headquartered in San Francisco, can be ordered to comply, and that Hadeed has not come close to meeting the well-accepted First Amendment test for identifying anonymous speakers. The Virginia Court of Appeals affirmed the order enforcing the subpoena, reasoning that the statutory standard in Virginia Code Section 8.01-407.1 allows discovery based merely on the plaintiffs’ representation that it has conducted an investigation and has not reason to believe that the anonymous statements about it are true.
The Virginia Supreme Court granted leave to appeal raising many questions about the Court of Appeals opinion on the First Amendment, statutory and subpoena jurisdictional issues, and after oral argument was held it called for additional briefing on jurisdiction. In the end, the court ruled that Virginia law does not authorize a subpoena to out-of-state residents, including corporations, and that Virginia lawyers seeking to identify anonymous users whose information is in the hands of out-of-state commenting forums must seek to enforce those subpoenas in the states where the records are located.