You can file a motion to quash a subpoena if you believe there's something invalid about it. Once a judge grants your motion, you do not have to respond to that subpoena in full or in part, depending on the court's decision. It's best to consult with an attorney when filing a motion to quash a subpoena because understanding subpoenas and how to respond to them will benefit you greatly and up your odds of success in court.
Two Types of Subpoenas
A subpoena is a request for documents or for testimony in court or in other legal proceedings. When you get served with one, you must comply with what it is requesting. If you ignore it, you may be subject to legal penalties including fines, incarceration or both. You may receive a subpoena in one of four ways: by hand, by email, by certified mail or by hearing it read out loud to you.
There are two types of subpoenas: a subpoena ad testificandum asks that you testify in court or in front of another legal authority; a subpoena duces tecum asks that you produce materials, such as documents or additional physical evidence, before the court or another legal proceeding. These materials can include blood tests or DNA samples; computer files and downloads; tax returns; photos, graphs and charts; and employee, medical or insurance records. You can be subpoenaed for nearly any kind of legal matter.
After you receive a subpoena, make sure to read it through as it will be specific to what you need to do. It will tell you who's making the request and why. If there's anything you don't understand about it, consult an attorney to advise you what to do next, including filing a motion to quash.
How to Respond to a Subpoena
How you respond to a subpoena depends on the circumstances of the case in question and what the request is. You can answer the requests of the issuing party in one of many ways.
- Complying by providing the requested materials or testimony to the court.
- Serving a written objection.
- Motioning for a protective order.
- Informally resolving the issue by contacting the party who served the subpoena.
- Talking with an adverse party in opposition to the issuant of your subpoena in an attempt to have that party exercise its rights against them.
- Filing a motion to quash.
What Is a Motion to Quash?
The definition of a motion in law is to request something from a judge. To quash something is to make it invalid. If you're filing a motion to quash a subpoena, you're saying that the court's request for materials or testimony from you is invalid. A subpoena can't go forward in whole or in part if a judge grants your motion to quash. You can ask an attorney to file a motion to quash on your behalf or you can do it yourself.
Read More: How to File a Motion to Quash
Reasons for Quashing a Subpoena
You must have valid reasons for making a motion to quash a subpoena, for example: You don't have a fair amount of time to respond; the place to produce documents or to testify is over 100 miles away; the subpoena causes you too much time, effort or hardship in responding; you're asked to produce confidential information; or the subpoena is part of a lawsuit outside the court's jurisdiction. Additionally, if the subpoena has technical defects in its creation or you received it in an improper manner, a judge may grant your motion to quash under such circumstances.
Moving to Quash a Subpoena
To quash a subpoena, make sure you file the motion before the date noted on the subpoena for you to appear or produce materials. You may need to meet with whoever served you with the subpoena before filing a motion. There may be additional procedural requirements to address as well. Consult an attorney to help you understand the rules regarding filing a motion to quash and make sure to look at these elements before submitting the motion:
- Federal Rule of Civil Procedure 45 (FRCP 45).
- The formatting, timing, motion practices, service and filing issues of the court.
- Case management/electronic case file rules of the court.
- Any standing orders relevant to the court.
- The independent practice rules of the judge, if they are applicable.
- Possible additional standing rules of the court or judge in the case.
If you must meet with or otherwise confer with the issuing party per the judge, your lawyer will likely note that both sides met in good faith to resolve the dispute. If you request to confer, but the issuing party refuses to do so, this will thwart your intentions for quashing. You may also want to declare to the litigant your good faith efforts in resolving the dispute.
If you fail to take these steps, the court may deny your motion on procedural grounds. Attempting to confer with the issuing party beforehand may save you money and may lead to quick resolution of the dispute. Even if the court does not require a pre-motion meeting, you and your attorney should try to reach out to the litigants to resolve the conflict before it reaches the courtroom. If you can't settle the dispute beforehand, you will likely have to show the following documents to the court to file a motion to quash.
- A written notice of the motion to quash.
- An attorney-prepared memorandum of law.
- Any supporting affidavits or declarations.
- A proposed order prepared with the motion for the court to review.
- Proof of service.
- If a corporation is filing a motion to quash, it must submit a corporate disclosure statement.
- If counsel already practices before this court, you'll need to show a notice of the appearance. If counsel does not, submit a pro hac vice motion for this single appearance.
- If you file a motion in a miscellaneous action, you'll need to show a civil cover sheet and any additional documents the court may require.
What to do when filing a motion to quash a subpoena may differ depending upon the court's location, where the underlying action is and if it is pending. If you live in the jurisdiction of the issuing court, the compliance court will be the same. If you don't, you must file your motion to quash in the court where you live.
After Filing a Motion to Quash
The court will render its decision on your motion to quash after you file all the necessary paperwork. If it denies your request, you may have to give the court what the subpoena demands. If the court approves your motion, it can quash your subpoena wholly or in part. However, if you're successful in your motion to quash, the court can still order your appearance or the production of documents. This may occur if the issuant claims a significant need for the materials requested, shows the court that not having them will cause undue hardship, and can ensure you will receive reasonable compensation for fulfilling the request.
If the issuing party does not have a court order to the contrary, it may serve you with a subpoena a second time. The next subpoena you receive from the issuing party must be free of the errors that allowed you to quash the first one. Consult with an attorney upon getting a subpoena or if you have questions on how to approach filing a motion against it.
Michelle Nati is an associate editor and writer who has reported on legal, criminal and government news for PasadenaNow.com and Complex Media. She holds a B.A. in Communications and English from Niagara University.