Virginia Lawyers Weekly VA Lawyers Weekly
A bond company under state investigation for consumer-protection violations has no basis to demand a confidentiality agreement before turning over its client information to the Commonwealth. Although the company said some disclosures might reveal clients’ immigration information and other personal information to federal officials, no legal basis existed to support a confidentiality requirement.
Background
In December 2017, the Attorney General of Virginia filed a Civil Investigative Demand pursuant to the Virginia Consumer Protection Act. The investigation relates to potential misrepresentations and deceptive conduct by Nexus Services in connection with immigration bond services, criminal bail bond services, landlord-tenant conduct, sales and financing of residential property, and offers for prizes and gifts.
In response, Nexus has complied with the Demand to some extent, but it seeks an order “to protect the confidentiality of highly sensitive information that relates to immigrants, many of whom fear deportation efforts and/or violence from drug gangs.” Because Nexus claims that the Demand requires disclosure of highly confidential third-party information about Nexus’s clients and their family and friends, the proposed order would require the Attorney General to enter into a confidentiality agreement. The Attorney General responds that there is no legal basis to require such an agreement.
Confidentiality agreement
Under Code § 59.1-9.10(N), the Attorney General has a duty to maintain the secrecy of all evidence obtained, but he also has discretion to share any such information with federal or state law-enforcement authorities that have similar confidentiality restrictions.
Unlike the circumstances in RLI Ins. Co. v. Nexus Services Inc., No. 5:18cv66 (W.D. Va. July 2, 2018), in which a surety had a contractual right to records sought, this case involves a government entity seeking information pursuant to its statutory authority. The Attorney General needs the information in order to investigate potential consumer-protection violations. Thus, personal information about bond holders, along with the names and contact information of other individuals who have dealt with Nexus and/or are connected to the bond holders, is pertinent to the investigation.
Nothing in Virginia Supreme Court Rule 4:1(c) requires the court to impose restrictions on the Demand. This case involves a fraud investigation by the Attorney General, not a private civil dispute between two litigants. As such, Rule 4:1(c) would not be a typical or appropriate basis to require the parties to enter into a confidentiality agreement. And nothing in the Rule would require the court to impose the extensive obligations and restrictions requested by Nexus.
Standing
Further, the court has concerns about whether Nexus even has standing to seek a protective order on its clients’ behalf. Nexus enjoys no attorney-client, doctor-patient, or priest-penitent privilege. It is a private business that makes money by providing services to immigrants. While it has represented that its main concern is the protection of its clients from deportation and/or prosecution, only individuals who are here illegally would face such risks, and neither Rule 4:1(c) nor any other provisions of law cited by Nexus provides a basis for the court to allow the shielding of these individuals. In fact, Code § 59.1-9.10(N) specifically permits the Attorney General to forward the collected information “in his discretion.”
This court has no authority to override or limit that statute. Nexus’s request of the court is more in the nature of a political request, not a legal one. The court takes no position on the current politics of deportation, and the law clearly provides the Attorney General the right to seek the information sought in the Demand.
Petition for protective order denied.
Commonwealth v. Nexus Servs., Case Nos. CL18-2037 & -2038, Aug. 7, 2018. VLW No. 018-8-071, 6 pp.
