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21 Jan 24

How to Challenge an Improper Federal Subpoena

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Last Updated on: 21st January 2024, 10:45 pm

How to Challenge an Improper Federal Subpoena

Getting served with a federal subpoena can be intimidating. You may feel compelled to comply, even if you believe the subpoena is improper or overly broad. However, you have the right to challenge a federal subpoena if you believe it is defective, unreasonable, or oppressive. Here is an overview of how to challenge an improper federal subpoena:

Understand the Different Types of Federal Subpoenas

There are three main types of federal subpoenas:

  • Grand Jury Subpoena: Issued on behalf of federal grand juries to help them investigate potential crimes. These are broad in scope as grand juries have wide latitude to investigate.
  • Trial Subpoena: Issued by federal courts to compel witness testimony or document production for an upcoming federal trial.
  • IRS Summons: Issued by the IRS to examine tax records and financial information as part of an audit or investigation.

The process for challenging each type of subpoena differs slightly.

Carefully Review the Subpoena

Before taking any action, carefully review the subpoena. Identify exactly what information or testimony it demands and the deadline for compliance. Also check:

  • Who issued it (a grand jury, federal court, IRS, etc.)
  • The scope – is it overly broad or burdensome?
  • Whether sensitive information is being requested
  • If the records can be obtained from other sources

Thoroughly reviewing the subpoena helps build your challenge.

Negotiate with the Issuing Agency

Reach out respectfully to the issuing agency (e.g. US Attorney’s Office for a grand jury subpoena). Explain precisely why you believe the subpoena is improper or overly intrusive. Often agencies will negotiate the scope or terms of a subpoena.However, sometimes agencies refuse to narrow subpoenas. Still try to negotiate first before litigating in court. It shows a judge you made a good faith effort.

File a Motion to Quash

If negotiations fail, you can file a “motion to quash” which asks the court to cancel or modify the subpoena. Grounds for quashing include:

  • Overly broad or burdensome: The subpoena requests materials irrelevant to the investigation or imposes an unreasonable compliance burden. Courts will balance the subpoena’s intrusiveness against law enforcement needs.
  • Privileged information: Such as documents protected by attorney-client privilege or private medical information. Privileges should be explicitly asserted.
  • Fourth Amendment violation: The subpoena violates your reasonable expectation of privacy under the 4th Amendment, such as overly intrusive demands for personal communications or data.
  • First Amendment violation: The subpoena chills your First Amendment rights, such as demanding identities of anonymous internet commenters.
  • Procedural defects: Such as failure to follow proper service procedures or allowing unreasonable time for compliance.

The motion to quash must clearly explain the defects in the subpoena and your precise legal objections. Supporting affidavits or exhibits can help evidence your arguments.

File in the Proper Court

Where you file the motion depends on the type of subpoena:

  • Grand jury subpoena – File in the federal district court in the jurisdiction where the grand jury is convened. Often this is the same jurisdiction where the subpoena was issued.
  • Federal trial subpoena – File in the same federal district court hosting the trial.
  • IRS summons – Some federal district courts have published procedures for IRS summons challenges. Follow those rules or file in the district where the IRS office issuing the summons is located.

Timing is critical, so consult the court’s local rules on proper filing deadlines. Missing a deadline could result in waiver of your challenge.

Request a Protective Order

Additionally or alternatively, you can seek a “protective order” which allows you to comply with the subpoena in a limited way or under certain confidentiality rules. For example, a protective order may:

  • Allow redaction of sensitive personal information
  • Restrict access to documents to certain parties
  • Require non-disclosure agreements for access
  • Set guidelines for data security

Protective orders allow courts flexibility to impose reasonable limitations, rather than quashing the subpoena entirely.

Be Prepared to Litigate

The party issuing the subpoena may oppose your motion to quash or protective order. Be prepared to litigate and argue your case through hearings and legal briefs. Having an experienced federal litigator helps navigate this process.The court will ultimately rule to either uphold, modify, or quash the subpoena. This decision can be appealed to higher courts.Throughout the litigation, continue negotiating for reasonable compromise. Courts prefer parties work out disputes rather than issue binding orders. Demonstrating flexibility helps your negotiating position.

Seek Experienced Counsel

Federal subpoena litigation is complex. Seeking qualified legal counsel from attorneys experienced with federal courts, grand jury procedures, and subpoena laws is highly advisable. An attorney can advise you on the merits of potential challenges, your odds of prevailing, and handle filings and court appearances.

Conclusion

Challenging federal subpoenas is daunting but viable if you have reasonable arguments why the subpoena is defective or intrusive. Thoroughly review the subpoena, attempt negotiations, identify proper filing venues and procedures, raise legitimate objections, and request reasonable modifications or protective measures. Experience counsel significantly helps navigating this complex process. Asserting your legal rights against unreasonable subpoenas preserves civil liberties for all.