In business litigation and in all other types of civil litigation, lawyers for parties to the litigation have the ability to issue requests for documents and information through the process of sending subpoenas. A subpoena is a written document containing various information about the civil case that is sent to a person or business demanding documents that might be legally useful in the case. Subpoenas generally go to third parties who are not involved in the pending litigation. Examples include:

• A subpoena to a cell phone service provider requesting copies of text messages
• A subpoena to a medical provider seeking copies of medical records
• A subpoena to an architect seeking copies of blueprints, contracts and construction documents

Note that, as between the parties actually involved in the litigation, other types of legal papers are exchanged seeking information and documents in the possession and control of the parties.

Note also that Motions To Quash are also used in criminal law proceedings and can be directed to subpoenas and also to legal documents called “warrants.”

One method of responding to a subpoena is to file what is known as a “Motion to Quash.” A “motion” is a written document directed to the judge in the case asking the judge to take some action for the reasons stated in the motion. “Quash” is a legal term meaning to terminate, reject or void. So, with respect to a subpoena, a Motion to Quash is a request that the judge terminate or void the subpoena (in whole or part) for the reasons given.

A Motion to Quash should be filed when the recipient of the subpoena does not want to comply with the request to provide documents or information.

In most states and under federal law, there are rules of procedure for how a Motion to Quash must be submitted. For example, Louisiana Code of Criminal Procedure, section 536, requires that a motion to quash must be

• In writing
• Signed by the relevant person or their attorney
• Filed in open court or in the office of the clerk of court and
• Specify “distinctly the grounds on which it is based” — the section specifically states that the court “… shall hear no objection based on grounds not stated in the motion”

These are generally the requirements and methods of filing a Motion to Quash in every state and jurisdiction. Experienced business lawyers can assist in preparing a Motion to Quash and know the procedures for filing with the clerk of court or appearing before the judge to file the Motion in open court.

There are many legal reasons that can be asserted for success with a Motion to Quash. This is where a court-room tested business law firm will be needed. As just one example, a subpoena might be successful in quashing a subpoena on the grounds of privilege including attorney-client and doctor-patient privilege.

If you have questions or need help with filing a Motion to Quash, contact the business lawyers at Revision Legal. You can contact us through the form on this page or call (855) 473-8474.

Grounds for Filing a Motion to Quash

Not every subpoena is legally valid, and courts will grant a Motion to Quash when a subpoena fails to meet legal standards. The most common grounds for a successful Motion to Quash are:

• Improper service — the subpoena was not served in the legally required manner or on the legally required person
• Undue burden — the subpoena demands production of an enormous volume of documents or requires compliance within an unreasonably short time frame, creating a burden disproportionate to the likely value of the information to the case
• Privilege — the demanded documents or testimony are protected by attorney-client privilege, attorney work product doctrine, the Fifth Amendment privilege against self-incrimination, physician-patient privilege, or another recognized privilege
• Irrelevance — the demanded information is not reasonably calculated to lead to the discovery of admissible evidence in the case
• Geographical limitations — under Federal Rule of Civil Procedure 45 and analogous state rules, a subpoena cannot command a witness to travel more than 100 miles from where they reside, work, or regularly transact business, unless they are a party or a party’s officer
• Trade secrets and confidential information — if the subpoena seeks confidential business information, research, or trade secrets, a Motion to Quash or a motion for a protective order limiting disclosure may be appropriate

The Motion to Quash in Internet Defamation and Online Anonymity Cases

Motions to Quash play a particularly important role in internet defamation cases involving anonymous speakers. When a defamation plaintiff subpoenas a platform or internet service provider to identify an anonymous poster, the anonymous speaker — through their attorney — may file a Motion to Quash, arguing that compelling disclosure would violate their First Amendment right to speak anonymously. Courts have developed various standards for evaluating these competing interests. The most widely cited tests require the plaintiff to make a threshold showing that the defamation claim is legally viable before the court will permit identification of the anonymous speaker.

Under the Dendrite test (widely adopted in the Northeast), the plaintiff must: make good-faith attempts to notify the anonymous poster of the pending subpoena; identify the exact statements that are alleged to be actionable; set forth the legal claims and their elements; and provide sufficient evidence for each element of the claim to survive the defendant’s potential motion to dismiss. Under the somewhat less demanding Cahill test (adopted by some courts), the plaintiff must make a showing that the defamation claim could survive a motion for summary judgment. Whether a Motion to Quash is filed in response to an anonymity-seeking subpoena — and whether it succeeds — can determine whether the entire defamation case can proceed.

Timing and Procedure for Filing a Motion to Quash

Timing is critical. Under Federal Rule of Civil Procedure 45(d)(3), a Motion to Quash must be filed before the compliance date specified in the subpoena. Most subpoenas provide a minimum of 14 days for compliance, but this time can pass quickly. If you receive a subpoena and have reason to believe it should be challenged — because the information sought is privileged, irrelevant, overly broad, or implicates privacy or anonymity rights — contact experienced litigation attorneys immediately. Filing late will generally result in a waiver of the right to challenge the subpoena, leaving you with no recourse but to comply.

Revision Legal’s litigation attorneys handle Motions to Quash in business litigation, internet defamation cases, and other civil proceedings. Whether you have received a subpoena you believe should be challenged, or you are a plaintiff whose subpoena has been contested, we have the experience to represent you effectively. Contact us today.