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Fighting Federal Subpoenas as a Third-Party or Material Witness
|Last Updated on: 2nd October 2023, 05:52 pm
Fighting Federal Subpoenas as a Third-Party or Material Witness
Getting a subpoena can be scary. You may feel anxious about having to testify or turn over personal records. But there are ways to fight back, even if you aren’t directly involved in the case. This article will explain what subpoenas are, your rights as a third-party or witness, and how to challenge the subpoena.
What is a Subpoena?
A subpoena is a legal order requiring you to testify, produce documents, or both[1]. There are a few types of federal subpoenas:
- Grand jury subpoena – requires you to testify or provide evidence to a grand jury
- Trial subpoena – requires you to testify at a trial
- Document subpoena – requires you to provide documents, records, or other evidence
Subpoenas are used by federal prosecutors or defense lawyers to obtain evidence for an investigation or trial. Even if you aren’t being charged with a crime, you can still be subpoenaed.
Third-Party vs. Target
If you are the target of an investigation, getting a subpoena means prosecutors are building a case against you. But sometimes completely innocent third-parties get caught up in legal matters that have nothing to do with them. Their only involvement is having information one side finds useful.
For example, imagine federal prosecutors are charging someone with bank fraud. To prove their case, they subpoena bank records from the defendant’s accountant, who is just an innocent third-party. The accountant did nothing wrong, but they still have to deal with the subpoena.
Your Rights as a Third-Party
Even though you aren’t being prosecuted, you still have rights when dealing with a subpoena. Some important rights include:
- Not having to endure an “undue burden” in responding to the subpoena
- Being compensated for reasonable costs of complying with the subpoena
- Objecting to requests that are overly broad or vague
- Withholding privileged information
You may also have a right to receive notice of the subpoena in advance, allowing you time to object.
How to Fight a Federal Subpoena
If you’ve been served with a subpoena as a third-party or witness, all hope is not lost. Here are some ways to fight back:
File a motion to quash
One option is to file a motion to quash, which asks the court to cancel the subpoena. Grounds for quashing include:
- The subpoena seeks privileged information
- Complying would be an undue burden
- The subpoena is overly broad or vague
- It fails to allow reasonable time to comply
If the subpoena comes from a state court, look at your state’s rules of civil procedure for requirements. For federal subpoenas, requirements can be found in Rule 45 of the Federal Rules of Civil Procedure[2].
Claim privilege
Certain relationships come with legal protections. For example, conversations between a doctor and patient, or attorney and client, are considered privileged. If the subpoena asks for privileged information, you can refuse to disclose it. Common privileges include:
- Doctor-patient privilege
- Attorney-client privilege
- Marital privilege
- Clergy-penitent privilege
Keep in mind privileges vary by state, so check local laws.
Object during the deposition
If the subpoena orders you to testify at a deposition, you can object to specific questions while under oath. If the question seeks privileged information or is irrelevant to the case, state your objection on the record. Answering could waive your rights.
You may also be able to place limits, like refusing to testify about certain topics or time periods. This protects sensitive information while still cooperating.
Petition for a protective order
If responding to the subpoena would be an undue burden, ask the court for a protective order[3]. This is more likely to succeed if you aren’t a party to the case. For example, compiling and turning over thousands of records could interfere with your work. Ask the judge to limit the scope of the subpoena.
Request legal fees
Complying with a subpoena takes time and money. Under Federal Rule of Civil Procedure 45, you can request the court order the issuing party to pay your reasonable costs[5]. This includes legal fees and the costs of finding and compiling documents.
When is a Subpoena Invalid?
Not all subpoenas are enforceable. Here are some circumstances that could invalidate a subpoena:
- The subpoena was not personally served to you
- It requires you to travel unreasonably far
- You didn’t receive proper notice
- It falls outside the geographic limits of the court’s jurisdiction
- It seeks information irrelevant to the case
If a subpoena is invalid for any reason, you can file a motion to quash.
When Federal Agencies Get Subpoenas
Things get tricky when the third-party is a federal agency or employee. Federal regulations, called Touhy regulations, give agencies procedures for responding to subpoenas[6]. This can make it harder for private litigants to obtain federal documents and testimony.
But agencies still have to comply with valid subpoenas. If your subpoena is improperly refused, you may need to negotiate with the agency or ask the court to enforce compliance. Get help from an attorney experienced with federal subpoenas.
Get Legal Help Fighting a Subpoena
Dealing with a federal subpoena is tricky, even for innocent third-parties. Consider hiring a lawyer to protect your rights. An attorney can file motions, negotiate the scope of the subpoena, and assert any privileges on your behalf. It’s much easier than going it alone!