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Qui Tam Practice in Virginia: Filing Under Seal in Virginia Circuit Courts

    One issue specific to qui tam practice in Virginia state courts is the structure of the Circuit Courts and the implications of that structure for filing the complaint under seal.  Unlike in states such as Maryland, Virginia has no uniform case management system in use in every Circuit Court.  

    The Clerk of the Court in Virginia is a Constitutional Office.  The Clerk is elected every eight years in a county-wide election, and is free to implement whatever case management system he or she feels appropriate, with virtually no oversight from the Virginia Supreme Court.  Given the disparities in size and wealth between the various counties in the Commonwealth, it is no surprise that the system that works quite well in Craig County might not work as well in Fairfax County, and vice versa.  Given the sparsity of the statute’s use, those preparing to file a case under the Virginia Fraud Against Taxpayers Act should be aware that there almost certainly will not be a mechanism in place for filing a qui tam case under seal. 

    This is not a problem that should be taken lightly.  The case absolutely must be filed under seal in order to comply with the statute, and that automatically makes things like generating a case number (while not publicly disclosing the name of the parties) and generating a receipt for the filing fee (again, without publicly disclosing the names of the parties) fairly complicated.  Again, the answer to these problems will be different in each Circuit Court, further complicating the issue.  
    On the other hand, because the Clerk is an elected officer, they do tend to be more responsive and helpful than a non-elected official might be.  When I filed the first Virginia Fraud Against Taxpayers Act case in Fairfax County, I found John Frey and his staff to be extremely professional and helpful.  My advice is the following: 

    (1) Be sure you call the Clerk personally and give him or her a heads up about a week in advance.  This gives them time to read the statute and think it over, and consult with Judges, members of their staff, and so forth.  

    (2) You must file the case with the Clerk in person, and make an appointment in advance to do so.  Walk the Clerk’s Office through the whole procedure, and make certain that they understand that the normal procedures for sealing cases are not relevant to this case, because even the names of the parties cannot be made public.  

    (3)    Politely request that the Clerk of Court either become the point of contact, or designate one specific person to be the point of contact.  This is crucial, because after the complaint leaves your hands, if one specific contact person is not assigned you may find yourself unable to get any information about the case.  Remember that whatever case management system the Clerk’s Office has in place works very well for them, but it is not designed to handle complaints filed under seal.     
    (4)  When the Court order unsealing the case is issued, go back and read direction number (3) above.  The standard processes the Clerk’s Office has in place to enter orders signed by Judges will not catch the order unsealing the case, and again, extra follow-up is important.  You need to double check that the case is actually unsealed, and I again recommend going there in person and asking to see the file (or searching the information on-line if your Circuit Court is one that is available on-line). I have heard antidotal evidence of a case or two in Circuit Courts being served on the defendants and actively litigated without having been formally unsealed.  Don’t let this happen to you.    

    (5)  Once the case is unsealed, make sure the summons are issued.  The rules of the Virginia Supreme Court call for summonses to be issued upon request by the plaintiff; the VFATA, on the other hand, calls for summonses to be issued upon a court order.  Thus, without follow-up, the summonses may not issue automatically.

    Once you have cleared these hurdles, litigation should, in theory, proceed just like any other case in Circuit Court. 

Zachary A. Kitts
Cook & Kitts, PLLC

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