If the recipient does not intend to comply with a subpoena commanding attendance at a deposition, hearing, or trial, he or she may file a motion to quash or modify the subpoena (FRCP Rule 45(c)(3)). The recipient may file a motion to quash instead of serving written objections. Prior to filing the motion, though, the movant must assess the local rules and orders of the subjective court to ensure that all necessary procedures have been followed.
- Immediate Effect of motion to Quash or Modify
The subpoena recipient bears the burden of proof on a motion to quash. Once moved to quash or modify a subpoena, the movant may decline to comply with the subpoena until the motion is decided– that said, the recipient must still preserve all responsive evidence until the motion to quash is granted or the parties reach an agreement.
- Place of Filing
A motion to quash or modify has to be filed in the same court that issued the subpoena (FRCP Rule 45(c)(3)(A)). Note that this may not always be the same court where the action is pending. When the court where the underlying action is pending and the issuing court are not the same, courts have held that a motion to quash made in the issuing court may be relocated to the court where the action is pending. See United States v. Star Scientific, Inc., 205 F. Supp. 2d 482, 484-88 (D. Md. 2002). However, some courts have held that the issuing court may not move a motion to quash to another court. See In re Sealed Case, 141 F.3d 337, 340-43 (D.C. Cir. 1998).
- Time of Filing
In general, a motion to quash or modify a subpoena must be made before its return date. See Estate of Ungar v. Palestinian Authority, 451 F. Supp. 2d 607, 610 (S.D.N.Y. 2006). Courts may excuse delay for the same circumstances that justify the delay in serving written objections, including instances where the parties engaged in communications that may have otherwise avoided the need for a motion to quash or modify. See Hartz Mountain Corp. v. Chanelle Pharm. Veterinary Products Mfg. Ltd., 235 F.R.D. 535, 536 (D. Me. 2006). Delay may also be excused where the time between the subpoena’s service and return date is very short, which reasonably prevents the moving party from filing its motion in time. See U.S. ex rel. Pogue v. Diabetes Treatment Centers of America, Inc., 238 F. Supp. 2d 270, 278 & n. 6 (D.D.C. 2002).
- Documents Required
The documents necessary to file a motion to quash include memorandum of law, supporting affidavits or declarations, a proposed order, and proof of service. If the recipient is a corporation or other organization, it may also need to file a FRCP Rule 7.1 corporate disclosure statement and a notice of appearance. A motion to quash or modify a subpoena must be served on all of the parties to the case (FRCP Rule 5(a)(1)(D)).
- Mandatory Grounds for Quashing or Modifying
On a timely motion, the issuing court must quash or modify a subpoena that:
- Fails to allow a reasonable amount of time to comply.
- Requires a person who is neither a party nor a party’s officer to travel more than 100 miles from where that person resides, is employed, or regular transacts business in person.
- Requires disclosure of privileged or other protected matter, if no exception or waiver applies.
- Subjects the recipient to undue burden (FRCP Rule 45(c)(3)(A)).
- Permissive grounds for Quashing or Modifying
In addition to the above points, FRCP Rule 45 also establishes additional grounds under which the court may quash or modify a subpoena that requires:
- The recipient to disclose a trade secret or other confidential research, development or commercial information.
- The recipient to disclose an untainted expert’s opinion or information that does not describe specific occurrences in dispute and results from said expert’s study not requested by a party.
- A person who is neither a party nor a party’s officer to incur substantial expense to travel more than 100 miles to attend trial (FRCP Rule 45(c)(3)(B)).
- Relief issued by Court
If the recipient of a subpoena triumphs on a motion to quash, the court can either quash the subpoena entirely or modify the objectionable portions– the decision is left to the discretion of the court. If the court does quash the subpoena, the issuing party may serve another on the recipient that corrects the original subpoena’s defects if there is no court order to the contrary. Until then, though, remember to review the ins and outs of the subjective court in question so that your motion to quash or modify has been filed correctly and efficiently.