1. What Is a Subpoena, and What Information or Documents Can Be Requested Via a Subpoena?
In a federal litigation, a subpoena, governed by Rule 45, is an order to compel an individual or entity to “attend and testify; produce designated documents, electronically stored information, or tangible things in that person's possession, custody, or control; or permit the inspection of premises” at a specified time and place. Subpoenas are a unique part of the federal litigation process, as they generally seek to compel discovery from nonparties rather than parties to the litigation or their employees. While often signed by an attorney for one of the parties, an individual or entity receiving a subpoena can be held in contempt of court if they fail to comply.
There are two general categories of subpoenas: (1) subpoenas ad testificandum and (2) subpoenas dues tecum. Subpoenas ad testificandum require a witness to appear in court or at a deposition on a specified date and testify under oath. Subpoenas deus tecum compel the recipient to produce specified documents or records. This type of subpoena can also request inspection of a premises at a particular time and location.
While nonparty subpoenas are governed primarily by Rule 45, the discovery that can be sought via subpoena largely mirrors the scope of discovery permissible under Federal Rule of Civil Procedure 26. The subpoena can request any information or testimony relevant to the action so long as that information is not privileged and the subpoena does not unduly burden the individual or entity it seeks to compel.
2. What Is a Motion to Quash?
Rule 45 allows the subpoena recipient, and occasionally a party to the action, to make a formal request, known as a motion to quash, to the court to limit the scope of a subpoena or declare a subpoena invalid entirely. A motion to quash must be granted when a subpoena:
i. Fails to allow reasonable time for the party to comply;
ii. Requires a person to comply beyond certain geographical limits delineated by Rule 45;
iii. Requires a person to reveal privileged or otherwise protected information; or
iv. Subjects a person to undue burden.
Courts can also grant a motion to quash (although they are not required to) when the subpoena:
i. Seeks trade secrets or other confidential commercial information; or
ii. Requires the disclosure of an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party.
Motions to quash pursuant to Rule 45 are often filed alongside motions for a protective order, as governed by Federal Rule of Civil Procedure 26. This rule allows courts to protect a party from annoyance, embarrassment, oppression, or undue burden or expense.
3. Can a Party Move to Quash a Subpoena?
Generally, the subpoena recipient should move to quash a subpoena in the event the subpoena is unduly burdensome by either requiring inordinate time to comply, requesting onerous documents or materials, or requiring the recipient to produce documents or appear to testify outside of the geographical limits delineated by Rule 45. However, in limited circumstances, courts may allow a party to the action, rather than the subpoena recipient, to move to quash when the subpoena commands the nonparty to reveal privileged information relating to the party or information that otherwise threatens an applicable privacy interest of the party.
4. How Long After Receiving a Subpoena Should a Party or Nonparty Move to Quash or Move for a Protective Order?
A party or nonparty should move to quash or move for a protective order as soon as possible upon receiving the subpoena, as Rule 45 does not set forth a specific deadline for said motion. Courts have generally held that a motion to quash a nonparty subpoena is timely when made before the date of compliance specified in the subpoena. Even if a date of compliance is more than 14 days after service, to be safe, it is good practice to move to quash within 14 days after receipt of the subpoena, given subpoena recipients must serve any applicable written objections within 14 days pursuant to Rule 45.
5. Where Should a Motion to Quash a Subpoena Be Filed?
Pursuant to Rule 45, a motion to quash must be filed with a court where compliance with the subpoena is required—which may not be the same place as where the action is pending. Typically, subpoenas can only compel recipients to attend a deposition or produce documents within 100 miles of where the recipient resides, is employed, or regularly transacts business in person. Most courts define the place of compliance as the location commanded on the face of the subpoena. When the place of compliance is not the same location where the underlying action is pending, a party or nonparty may need to open a miscellaneous action in a federal district court near the place of compliance to file a motion to quash the subpoena properly.
With this guide, new lawyers should have a starting point for tackling issues concerning nonparty discovery and motions to quash in their federal litigation practice.