How to Petition to Modify or Set Aside a Federal Subpoena

How to Petition to Modify or Set Aside a Federal Subpoena

Getting served with a federal subpoena can be intimidating. You may feel anxious about having to turn over personal information or testify in court. But don’t panic! You have options. This article will walk you through how to petition to modify or set aside a federal subpoena.

What is a Subpoena?

A subpoena is a writ or legal document that commands you to appear at a trial, hearing, or deposition to give testimony or produce documents. There are two main types of subpoenas:

• Subpoena ad testificandum – requires you to testify at a proceeding
• Subpoena duces tecum – requires you to produce documents or other tangible items

Subpoenas are issued by the court or attorneys in a case. If you don’t comply, you could face contempt of court charges.

Grounds for Modifying or Quashing a Subpoena

Luckily, the law provides protections if a subpoena seems unreasonable or oppressive. Under Federal Rule of Civil Procedure 45, a court must quash or modify a subpoena that:

• Fails to allow reasonable time to comply
• Requires traveling beyond geographical limits
• Requires disclosing privileged or protected information
• Subjects a person to undue burden

You can also argue the subpoena requires disclosure of trade secrets or confidential information. The court will balance the subpoena’s relevance against the burden on you.

How to Petition to Modify or Quash

You must act quickly – you only have 14 days after being served to file a petition. Follow these steps:

1. File a Motion to Quash or Modify with the court that issued the subpoena. You’ll also file a Memorandum in Support explaining why it should be quashed or modified.
2. Serve copies on all parties in the case. If it’s a grand jury subpoena, serve the U.S. Attorney’s office.
3. In your motion, specifically identify the parts of the subpoena you object to and explain the grounds for each objection.
4. If you’re seeking to modify rather than quash, propose specific modifications that would ease the burden on you.
5. Provide copies of the subpoena and other supporting documents as exhibits.
6. File a Proposed Order for the judge to sign if they grant your motion.

What Happens Next

The attorneys who issued the subpoena will likely oppose your motion to quash or modify. They may argue you didn’t demonstrate undue burden or properly object. The court will then decide how to rule on your petition.

If your motion is denied, you’ll have to comply with the subpoena as issued. If it’s granted, the subpoena will either be quashed (cancelled) or modified as you proposed. The court could also order the subpoena be partially quashed or impose other restrictions.

Strategies for Your Petition

Here are some tips to help your petition succeed:

• Act quickly – don’t let the 14 day deadline pass!
• Be specific in explaining your objections. Vague assertions of burden won’t suffice.
• If asking to modify, propose reasonable modifications that allow you to produce some information.
• Offer to produce documents in stages or allow access to inspect records on your premises.
• Get an attorney’s help if you need it. Petitioning pro se is allowed but can be challenging.

What If I Was Served Improperly?

Another defense is arguing you weren’t properly served under the rules. For example, you must be personally served with a subpoena under Rule 45. If the server just left it on your doorstep, that wouldn’t count. Procedural defects like improper service can nullify the subpoena.

Can I Get in Trouble for Not Complying?

It’s risky to just ignore a federal subpoena. You could face contempt of court charges and fines or jail time. Your safest bet is to file a petition to modify or quash, even if you think there are problems with how you were served. Don’t be afraid to assert your rights, but go through proper legal channels.

Subpoena Alternatives

Instead of subpoenas, the parties might agree to alternatives like:

• Depositions – Giving testimony under oath outside court
• Interrogatories – Answering written questions under oath
• Requests for production – Providing access to documents for inspection and copying

This can be less burdensome than complying with a subpoena. If you receive a subpoena, ask if they’d consider using an alternative instead.

Conclusion

Receiving a federal subpoena can be scary. But you have options like filing a petition to modify or quash. Be sure to act fast and explain your objections clearly. With the right legal strategy, you can get relief from unreasonable or burdensome subpoena demands.

References

Here are the references cited in this article:

• Motion to Quash or Modify a Subpoena (Federal): Motion or Notice of Motion
• Rule 45. Subpoena
• Motion to Quash or Modify a Subpoena (Federal): Proposed Order
• 5.6 – Subpoenas
• Rule 17. Subpoena
• Objections to a Third-Party Subpoena Under the Federal Rules