Objecting to a Subpoena Aimed at You

A subpoena can be answered in three ways: comply, object in writing, or ask the court to cancel it. Objecting is the cheap first move and it works on a short clock. Under Federal Rule of Civil Procedure 45 a written objection to producing documents must be served before the earlier of the compliance date or fourteen days after the subpoena was served.

The objection is not a motion and does not need a filing fee. It is a letter to the party or attorney named on the subpoena, stating which items are objected to and why. Once served, the duty to produce is suspended until the requesting side obtains a court order compelling production.

The grounds that work

Federal Rule 45 lists four situations in which a court must quash or modify a subpoena. It allows no reasonable time to comply. It requires a person to travel beyond the geographic limits the rule sets. It demands privileged or otherwise protected material with no exception applying. Or it subjects a person to undue burden. State rules track the same list closely.

Undue burden is the ground raised most often and the one that needs the most support. A court weighs how much the material matters against what it costs to produce. An assertion that the request is burdensome persuades nobody; an estimate that the search covers eleven years of records held in three formats, and would take a named number of hours, tends to.

Privilege is narrower but stronger. Communications with a lawyer, certain medical and mental health records, clergy communications and the privilege against self-incrimination each have their own rules. Claiming privilege usually requires describing the withheld material well enough for the other side to test the claim, without revealing what is protected.

Two further grounds sit outside that list. A subpoena served without the attendance fee where one was required may be resisted. And a subpoena aimed at records about a third person, issued without the notice that person is owed, is often defective on its face.

Relevance is a weaker ground than people expect. A non-party rarely knows enough about the case to argue that material has no bearing on it, and courts are reluctant to decide relevance on a stranger's say-so. The exception is a subpoena that plainly reaches into an unrelated part of someone's life, such as a demand for years of personal financial records in a dispute about a fence.

Timing shapes every ground. A subpoena delivered on a Friday demanding production on the following Monday can be resisted on reasonable-time grounds alone, without reaching burden or privilege at all. Note the date of service and the date of compliance in the first line of any objection, because that comparison often does the work by itself.

Objection or motion

The written objection is the right tool for a document demand. It is quick, costs nothing, and puts the expense of going further onto the party that wants the material. Many disputes end there, because the requesting side would rather narrow the request than litigate over a non-party's filing cabinet.

A motion to quash is the right tool when the subpoena commands attendance, when the objection has been served and ignored, or when the harm is immediate. It is filed in the court that issued the subpoena, or in some circumstances where compliance is required, and it asks the court to cancel the subpoena or to modify it.

The two are not exclusive. Serving an objection first and filing a motion later is normal practice, and the objection strengthens the motion by showing the recipient tried to resolve it.

Before either, try the telephone. Most subpoenas are drafted broadly because the drafter does not know what exists, not because they want everything. A short conversation that offers the three documents actually needed, in exchange for withdrawing the rest, resolves a large share of these disputes without a filing. Confirm whatever is agreed in writing the same day.

The four responses compared

Protecting someone who is not a party

Rule 45 puts an affirmative duty on the party issuing a subpoena to take reasonable steps to avoid imposing undue burden or expense on a person subject to it, and courts may impose sanctions for a failure to do so. Where compliance is ordered anyway, the court may protect a non-party from significant expense.

That protection has to be asked for, with numbers. A records custodian who says the retrieval will take a stated number of staff hours at a stated rate, and asks for that to be paid as a condition of compliance, is frequently accommodated. One who produces first and asks afterward almost never is.

Judges also ask whether the material could come from a party instead. Discovery aimed at an opponent is cheaper for everyone and is governed by tools such as written questions under Federal Rule of Civil Procedure 33. A subpoena to a stranger that duplicates what a party already holds is vulnerable for that reason alone, and the alternatives are set out in written questions instead of a deposition.

If the court orders compliance

An order compelling production sets a deadline and often narrows the request. Comply with what remains rather than reopening the argument, because a second refusal after a ruling is where contempt findings actually happen.

Where the subpoena commands attendance and the objection fails, the witness must appear. The attendance fee and mileage are still owed, and a witness who was never paid should say so in the courtroom before testifying, following the mechanics in making a witness or a document appear. If the appearance is for a deposition rather than a hearing, the record made that day can be used later, which is explained in taking testimony before trial.

Court staff will confirm which form the local rules use and where a motion is filed, but they cannot say whether a particular ground is likely to succeed. That distinction is set out in what a court clerk may and may not tell you.