Motions for Protective Orders Against Federal Subpoenas

Motions for Protective Orders Against Federal Subpoenas

Getting served with a subpoena can be intimidating. You may feel anxious about having to produce personal information or records to strangers. Fortunately, the law provides protections for folks in this situation. You can fight back against improper or overly broad subpoenas by filing a motion for a protective order. This article will walk through the basics so you can protect your rights.

What is a Subpoena?

A subpoena is a request for you to produce documents, or testify at a deposition or hearing. There are a few types:

• A subpoena for records – this demands you turn over documents or electronically stored information.
• A subpoena to testify at a deposition – you have to answer questions under oath outside of court.
• A subpoena to testify at a hearing or trial – you have to answer questions under oath in court.

Subpoenas are issued by the court clerk or an attorney in a pending case. They are served by delivering a copy to the subpoenaed person. You are legally required to comply unless you get the subpoena quashed or modified.

When Can You File for a Protective Order?

If a subpoena seems improper or overly broad, you can ask the court for a protective order. This is basically asking the judge to limit or prohibit the subpoena. For example, the court could order that you don’t have to produce certain records, or narrow the scope of questions you have to answer.

You should file for a protective order if the subpoena:

• Seeks privileged information like doctor-patient communications or attorney-client discussions.
• Demands trade secrets or other confidential business information.
• Would disclose private information that would embarrass or harass you.
• Imposes an undue burden by demanding too many documents or requiring you to travel unreasonably far.
• Requests information that is irrelevant to the underlying case.

In other words, if compliance with the subpoena would be unreasonable, oppressive, or force disclosure of protected matters – request a protective order.

The Process for Getting a Protective Order

The rules for requesting protective orders against federal subpoenas are found in Rule 45 of the Federal Rules of Civil Procedure. Here is the basic process:

1. First, communicate with the attorney who issued the subpoena to see if you can resolve the issue informally. Explain what your concerns are and try to work out a compromise.
2. If that fails, file a motion for a protective order in the court where you are supposed to comply with the subpoena. This motion should explain what relief you are requesting and your reasons why. Make sure to follow all the local court rules.
3. Serve the motion on the attorney who issued the subpoena. They will have a chance to file a response explaining why they think the subpoena is proper.
4. The court will hold a hearing to listen to both sides’ arguments. You must convince the judge that compliance with the subpoena would be unreasonable or force disclosure of confidential information.
5. If the judge agrees with you, the court will issue a protective order limiting or prohibiting the subpoena as requested. This means you may not have to comply at all, or the subpoena’s demands will be narrowed.

This process allows the court to balance the right to subpoena relevant information against protecting people from improper subpoenas. Be aware that the party who issued the subpoena may appeal a protective order, so the fight could continue.

What Should the Motion for Protective Order Include?

The motion asking the court for a protective order needs to clearly explain the facts and law justifying the relief requested. It should include:

• An introduction summarizing why the subpoena should be quashed or modified.
• A section with the factual background – who issued the subpoena, what it demands, and why it is improper or unduly burdensome.
• The legal argument explaining specifically how the subpoena violates the Federal Rules, or demands privileged or confidential information.
• A request for a specific type of relief, such as prohibiting disclosure of trade secrets, or limiting the date range for documents.
• An explanation of how you were harmed or will suffer undue burden if the court does not grant the protective order.

Cite any applicable Federal Rules of Civil Procedure or case law to support your arguments. The key is showing the balance of interests weighs in favor of a protective order limiting the subpoena.

What Are Your Options for Fighting a Subpoena?

In addition to filing for a protective order, here are some other ways you can resist an improper subpoena:

• Move to quash – this asks the court to completely quash or invalidate the subpoena, so you don’t have to comply at all.
• File objections – you can serve written objections on the attorney explaining flaws with the subpoena.
• Motion to modify – ask the court to narrow the scope of the subpoena and your obligations.
• Motion for more time – if you just need more time to gather responsive documents or prepare for testimony.

The court has power to tailor relief to the circumstances. For example, the judge could quash part of the subpoena but otherwise modify and require compliance with the remainder.

Can You Recover Attorneys’ Fees?

If you win a motion for a protective order, the court may order the attorney who issued the improper subpoena to pay your reasonable attorneys’ fees and costs. This helps deter parties from using subpoenas to harass people or force them to incur expenses complying with ridiculous requests.

Under Federal Rule of Civil Procedure 45(d)(1), the court must impose sanctions on the issuing attorney if their subpoena clearly failed to allow a reasonable time to comply, exceeded the geographic limits, required disclosure of privileged info, or imposed undue burden. Sanctions may include lost earnings, reasonable attorney’s fees, and other expenses.

Special Rules for Non-Parties

Special rules protect non-parties who get dragged into litigation through a subpoena. For example, Rule 45(d)(1) requires attorneys to take reasonable steps to avoid imposing undue burden or expense on the non-party.

Also, a court order on a motion to compel compliance or for a protective order must protect non-parties from significant expense resulting from compliance. For example, the court could order the requesting party to cover the costs of gathering and producing documents.

Hire a Lawyer for Help

Consider hiring an attorney to help you file a motion for a protective order or quash a subpoena. An experienced lawyer who regularly handles subpoena issues can increase your odds of success. Having counsel makes it more likely the party who issued the subpoena will back down or compromise.

An attorney can also represent you if you have to testify at a deposition or hearing. They will ensure the questions stay within the proper scope and object to improper ones. Hiring counsel provides peace of mind and may allow you to recover attorneys’ fees if you win.

Conclusion

If you get an improper subpoena, don’t panic. You have legal options like filing for a protective order. Consider hiring a lawyer to help craft the strongest arguments and increase your chances of success. Courts are often receptive to limiting subpoenas that seek irrelevant or confidential information, or which impose undue burden. With the right approach, you can resist subpoenas seeking to take advantage of non-parties.

References

[1] Federal Rules of Civil Procedure, Rule 45 – Subpoena

[2] Federal Courts Study of Discovery Protective Order

[3] Using Motions to Compel and Protective Orders

[4] How to Challenge or Quash a Third-Party Subpoena in California

[5] Tips for Representing a Non-Party Served with a Subpoena

[6] Case Law on Protective Orders and Standing