Appealing Federal Subpoenas to the Courts

Appealing Federal Subpoenas to the Courts

Getting served with a subpoena can be scary. You may feel anxious about having to testify or turn over personal records in court. But don’t panic – you have options! Let’s walk through the process of appealing a federal subpoena step-by-step, so you can understand your rights and hopefully get some relief.

What is a Subpoena?

A subpoena is a legal order requiring you to appear and testify or produce documents. There are two main types:

• Subpoena ad testificandum – requires you to testify at a trial, hearing, or deposition
• Subpoena duces tecum – requires you to produce documents or records

Subpoenas are issued by attorneys or government agencies (like the SEC or FBI). They can also come from federal courts directly. You are legally required to comply unless you get the subpoena quashed (more on that below!).

Grounds for Appealing a Subpoena

There are several reasons you may want to fight a subpoena. Common grounds for appeal include:

• Privilege – you have a legal privilege not to testify or turn over documents (e.g. doctor-patient confidentiality)
• Burdensomeness – complying would be unreasonably burdensome or expensive
• Irrelevance – the testimony or documents sought are not relevant to the case
• Privacy – the subpoena seeks confidential or invasive personal information

You can also argue the subpoena does not follow proper procedures, like giving you enough advance notice. Timing is important, so don’t delay in filing your appeal!

How to Appeal a Federal Subpoena

The process for appealing depends on who issued the subpoena:

Subpoenas from Attorneys

If an attorney issued the subpoena, file a motion to quash with the court overseeing the case. Your motion should explain the legal and factual reasons the subpoena should be quashed or modified. Be sure to follow all deadlines and rules of the court.

The attorney can file an opposition brief arguing why your motion should be denied. You can then file a reply brief to counter their arguments. The judge will review the papers and make a decision.

Subpoenas from Federal Agencies

If an agency like the SEC issued the subpoena, contact the agency first to see if you can resolve the issue informally. Explain why you believe the subpoena is improper or overly broad. The agency may agree to withdraw or modify the subpoena.

If that fails, you can petition the agency directly. Follow their procedures for filing petitions to revoke or limit subpoenas. Be sure to meet all deadlines. The agency will review and make a decision.

Subpoenas from Federal Courts

For subpoenas issued by a federal court, file a motion to quash with the court that issued the subpoena. Explain your reasons for appealing. Follow all local court rules closely.

You can also try contacting the party who requested the subpoena (or the court clerk) to see if they will withdraw it voluntarily before filing a formal motion.

What Happens If You Lose Your Appeal?

If your motion to quash is denied, you may have to comply with the subpoena. Failure to comply can lead to civil or criminal contempt sanctions. You could be fined or even jailed!

For subpoenas from federal agencies, you may be able to appeal the agency’s decision to a federal court. This must be done very quickly. For subpoenas from federal courts, you may be able to appeal to a higher court like the Court of Appeals.

Before appealing, seriously consider whether continuing to fight is worth the time and legal costs. Often it’s better to negotiate the scope of the subpoena rather than appeal. You can limit the testimony or documents required to make compliance less burdensome.

Tips for Appealing a Subpoena

Here are some useful tips when appealing a federal subpoena:

• Act quickly – there are strict deadlines for filing motions and petitions
• Be specific – explain exactly what is objectionable about the subpoena
• Offer alternatives – suggest ways to modify the subpoena to address your concerns
• Cite legal authority – use statutes, regulations, and case law to support your arguments
• Hire a lawyer – appeals can be complex, so get legal help from a pro

Subpoena Alternatives

Instead of appealing, you may be able to avoid complying with a subpoena by:

• Filing a motion for a protective order to block having to testify or turn over documents
• Asserting a privilege like attorney-client privilege or doctor-patient confidentiality
• Objecting during a deposition to limit questioning
• Negotiating with the party to limit the subpoena’s scope

You can also file a motion to quash the subpoena after complying. This prevents the records or testimony from being used. But it’s better to appeal up front if possible.

Subpoenas for Medical Records

Getting your medical records subpoenaed brings up special privacy concerns. You may need to comply but can ask for restrictions, like:

• Omitting certain sensitive diagnoses or information
• Limiting access to attorneys and experts only
• Requiring records be returned or destroyed after the case

Talk to your doctor about your options. Many states have special procedures for subpoenas of medical records to protect patient privacy.

In Summary

Dealing with a federal subpoena can be intimidating. But you have options like filing motions to quash, asserting privileges, and appealing agency decisions. Consider hiring an attorney to help ensure your rights are protected. And don’t be afraid to push back on subpoenas that seem overly broad or burdensome. With the right strategy, you can limit the impact on your privacy and interests.