When you or your client receives a Federal Rule 45 Subpoena to testify and/or to produce documents, a motion to quash may be a viable option, however there are other options to consider. When you or your client is involved in a lawsuit and a subpoena has been served on a non-party requesting information about or belonging to you or your client, you have multiple options under Rule 45. With that said, it may surprise you how powerful the federal subpoena actually is – it certainly never fails to surprise us.
First of all, in our experience, the subpoenaed witness is in the best position to fight the Rule 45 subpoena as they can argue undue burden, expense and production beyond the geographic limits – and the Federal courts tend to give great weight to undue burden on a non-party witness. When your client’s / your business’s information is sought from a non-party witness, reliance on a witness to protect your interests is not always easy or practical. While each situation is different, often the subpoenaed witness will not be thrilled with the prospect of either taking time to comply with the subpoena or paying an attorney to object and fight the Rule 45 subpoena.
Top options in fighting a Rule 45 Subpoena:
Federal Rule of Civil Procedure 45(d)(3) governs motions to quash or modify a subpoena. More specifically, Rule 45(d)(3)(A) identifies circumstances in which a court is required to quash or modify a subpoena. Rule 45(d)(3)(B)and (C) identify circumstances in which a court may grant a motion to quash or modify the subpoena unless the party serving the subpoena shows a substantial need and the court can devise an appropriate accommodation to protect the interests of the witness.
FRCP 45(d) (3) Quashing or Modifying a Subpoena.
(A) When Required. On timely motion, the court for the district where compliance is required must quash or modify a subpoena that:
(i) fails to allow a reasonable time to comply;
(ii) requires a person to comply beyond the geographical limits specified in Rule 45(c);
(iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or
(iv) subjects a person to undue burden.
(B) When Permitted. To protect a person subject to or affected by a subpoena, the court for the district where compliance is required may, on motion, quash or modify the subpoena if it requires:
(i) disclosing a trade secret or other confidential research, development, or commercial information; or
(ii) disclosing 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.
(C) Specifying Conditions as an Alternative. In the circumstances described in Rule 45(d)(3)(B), the court may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party:
(i) shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and
(ii) ensures that the subpoenaed person will be reasonably compensated.
A party has standing to file a motion to quash when the person is the witness and when the person/company is “affected” by the subpoena – most often when the subpoena calls for disclosing a trade secret or other confidential research, development, or commercial information. FRCP 45(d)(3)(B)(i). Yet, merely alleging the existence of such information will not carry the day. The party seeking to quash the non-party subpoena will need to offer much more to establish it is entitled to such protection from disclosure. In our experience, including exhibits and affidavits supporting the claim of confidentiality is necessary.
A party seeking to quash a subpoena must satisfy the threshold requirement of filing a “timely motion” before a court can quash a subpoena under the mandatory provisions of Rule 45 (d) (3). See Fed. R. Civ. P. 45 (d) (3) (A). Rule 45 rule does not explain what makes a motion to quash timely, so Federal District Courts have developed two approaches to decide the timeliness of a motion to quash.
First (older) approach: a motion to quash the subpoena must be filed within the 14-day deadline for serving objections set by Rule 45(d) (2) (B). See, e.g., Tutor-Saliba Corp. v. United States , 30 Fed. Cl. 155, 156 (1993).
Second (newer) approach: a motion to quash is timely if it is filed before the return date of the subpoena. See, e.g., Flynn v. Square One Distribution, Inc. , No. 6:16-MC-25-ORL-37TBS, 2016 WL 2997673, at *1 (M.D. Fla. May 25, 2016); Carter v. Archdale Police Dep’t , No. 1:13CV613, 2014 WL 1774471, at *3 (M.D.N.C. May 2, 2014); WM High Yield , 460 F. Supp. 2d at 894-95; Nova Biomedical Corp. v. i-STAT Corp. , 182 F.R.D. 419, 422 (S.D.N.Y. 1998). S ee also Lula Williams, et al., v. Big Picture Loans, LLC, et al., No. CV 3:18-MC-1, 2018 WL 1368271, at *5 (E.D. Va. Mar. 16, 2018).
Applying the “return date test”, courts have found motions to quash untimely not only “when filed months after the date of a subpoena’s service or its deadline for compliance,” but also when they were filed mere days after the return date. Joplin Sch. v. Pl Grp., Inc. , No. 3:15-CV-05026-DGK, 2016 WL 3512262, at *1 (W.D. Mo. June 22, 2016) (movant knew about noticed deposition for two weeks, but did not file motion to quash until three days before deposition).
Being aware of the test used in your jurisdiction is critical so that you do not lose the opportunity to quash the subpoena due to a procedural error.
Federal Rule of Civil Procedure 26 is also relevant in the analysis because it defines the permissible scope of discovery, and a Rule 45 subpoena is subject to that same scope. In considering a motion to quash a subpoena duces tecum, the court must also consider whether the subpoena is overly broad or seeking irrelevant information under the same standards set forth in Rule 26(b). FRCP 26(b)(1) provides for a proportional scope of discovery:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. FRCP 26(b)(1).
To obtain discovery from a nonparty, a party must demonstrate that its need for discovery outweighs the nonparty’s interest in nondisclosure. Furthermore, Rule 26(b)(2)(C) also requires courts to limit discovery where “the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive” and where “the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or the proposed discovery is outside the scope permitted by Rule 26(b)(1)” FRCP 26(b)(2)(C)(i)-(iii). Take caution here however – a Rule 45 subpoena is powerful and reliance on relevance alone to quash a subpoena may not be a winning argument. Consider making the relevance argument along with other substantive arguments such as confidential information and information easily obtained by a party to the lawsuit.
(f) Transferring a Subpoena-Related Motion. When the court where compliance is required did not issue the subpoena, it may transfer a motion under this rule to the issuing court if the person subject to the subpoena consents or if the court finds exceptional circumstances. Then, if the attorney for a person subject to a subpoena is authorized to practice in the court where the motion was made, the attorney may file papers and appear on the motion as an officer of the issuing court. To enforce its order, the issuing court may transfer the order to the court where the motion was made.
Convincing a witness to consent to transfer of a subpoena may not be realistic if it will require travel and expense – each situation is different. Indeed, The Advisory Committee explained that “prime concern” underlying the 2013 amendments to Rule 45(f) is “avoiding burdens on local nonparties subject to subpoenas.” Fed. R. Civ. P. 45(f) Advisory Comm. Note (2013):
“Subpoenas are essential to obtain discovery from nonparties. To protect local nonparties, local resolution of disputes about subpoenas is assured by the limitations of Rule 45(c) and the requirements in Rules 45(d) and (e) that motions be made in the court in which compliance is required under Rule 45(c). But transfer to the court where the action is pending is sometimes warranted. If the person subject to the subpoena consents to transfer, Rule 45(f) provides that the court where compliance is required may do so.”
“In the absence of consent, the court may transfer in exceptional circumstances, and the proponent of transfer bears the burden of showing that such circumstances are present.” Fed. R. Civ. P. 45(f) Advisory Comm. Note (2013). “The prime concern should be avoiding burdens on local nonparties subject to subpoenas, and it should not be assumed that the issuing court is in a superior position to resolve subpoena-related motions. Id.
“Exceptional circumstances” may be met where the nature of the underlying litigation is complex and the issuing court’s judge’s familiarity with the full scope of issues involved would provide a better chance for consistency in discovery rulings. Wultz v. Bank of China, Ltd, 304 F.R.D. 38, 46 (D.D.C. 2014). “In some circumstances, however, transfer may be warranted in order to avoid disrupting the issuing court’s management of the underlying litigation, as when that court has already ruled on issues presented by the motion or the same issues are likely to arise in discovery in many districts.” Fed. R. Civ. P. 45(f) Advisory Comm. Note (2013).
Keep in mind that it is the compliance court, not the issuing court that has discretion over whether to transfer a subpoena-related motion to the issuing court. Youtoo Techs., LLC v. Twitter, Inc., No. 17- mc-80006-JSC, 2017 WL 431751, at *1 (N.D. Cal. Feb. 1, 2017).
As you can see, there are many details, rules and procedures to consider when faced with a Rule 45 subpoena. Given the generally short timelines involved with responding to a subpoena, swift and experienced action is very necessary to protect your’s or your client’s rights.
If you need assistance with a Rule 45 Subpoena and/or are involved in a lawsuit and need Colorado local counsel, our Boulder litigation lawyers will help you. Contact our Boulder civil litigation attorneys today. LaszloLaw is a Boulder law firm that provides counsel on a wide range of legal needs including litigation. Contact our Boulder lawyers online or at 303-926-0410 to discuss filing a motion to quash Federal Rule 45 Subpoena.
Originally Published March 27, 2017; Updated March 19, 2018.
