15 Sep 23

Motions to Stay Compliance With Federal Subpoenas During Appeals

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Last Updated on: 2nd October 2023, 05:52 pm

Motions to Stay Compliance With Federal Subpoenas During Appeals

When a party receives a federal subpoena requesting documents or testimony, they may wish to fight the subpoena for various reasons. However, simply objecting to the subpoena does not automatically stay the duty to comply. So what happens if you want to appeal the subpoena or file a motion to quash, but the return date arrives before the appeal concludes? Can you get a stay of the subpoena while your appeal proceeds? Let’s break it down.

What is a Motion to Stay?

A motion to stay asks the court to temporarily halt or suspend a proceeding or order. In the subpoena context, it asks the court to pause the duty to comply with the subpoena until a related issue is resolved – like an appeal of the subpoena or a motion to quash. This prevents the party from having to produce documents or testify before their appeal concludes.

Requirements for a Stay

Courts typically consider four factors when deciding motions to stay a subpoena pending appeal:

  1. Whether the stay applicant has made a strong showing that he is likely to succeed on the merits.
  2. Whether the applicant will be irreparably injured absent a stay.
  3. Whether issuance of the stay will substantially injure the other parties interested in the proceeding.
  4. Where the public interest lies.

The court will balance these factors to determine whether to grant the stay. The first two factors are the most critical. Let’s explore them more closely.

Likelihood of Success

To show a likelihood of success, the applicant must demonstrate a substantial case on the merits and show that the appeal raises serious legal questions. It’s not enough to simply assert the appeal will succeed – they must provide support for these assertions. The stronger the merits of the appeal or motion to quash appear, the more likely the court will grant a stay.

Irreparable Harm

The applicant must also show they will suffer irreparable injury if the stay is not granted. For example, being forced to produce privileged or confidential information before an appeal concludes could cause irreparable harm. Courts have also found compliance costs alone may constitute irreparable harm in some cases. The applicant should explain exactly what injuries they will suffer if the subpoena is not stayed.

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Where to File the Motion to Stay

Under Rule 45, a motion to stay a subpoena must first be filed in the court where compliance is required – the “compliance court.” This is generally the court located in the district where production or testimony is required. The compliance court will decide whether to stay the subpoena pending any appeals.[1]

If the motion is denied by the compliance court, the party can seek emergency relief from the appellate court where the appeal is pending. They may request the appellate court stay the subpoena until it decides the appeal. Parties should act quickly in this scenario since the subpoena may have a short response time.

Appealing from the Compliance Court

If the compliance court denies the stay, the party can appeal this ruling to the appellate court. But an appeal alone does not automatically stay the subpoena – the party must still file a motion to stay with the appellate court.

The appellate court will consider similar factors as the compliance court when deciding whether to grant a stay pending appeal. It will evaluate things like irreparable harm, likelihood of success, and the balance of interests. The appellate court may also consider whether the compliance court properly analyzed these factors in denying the stay.

Stays in Administrative Appeals

Administrative subpoenas issued by federal agencies are also subject to motions to stay. If a party wants to appeal the agency’s denial of a motion to quash, they can seek a stay of the subpoena from the agency while the appeal proceeds. The agency will consider the likelihood of success on appeal and irreparable harm factors when deciding the stay motion.[6]

If the agency denies the stay, the party can seek emergency relief from the appellate court – just like with judicial subpoenas. The process works similarly to appeals from compliance courts.

Strategic Considerations

Seeking a stay of a subpoena pending appeal requires strategic planning. Parties should consider:

  • Filing the appeal and stay motion quickly to maximize the chance of success.
  • Thoroughly showing irreparable harm and likelihood of success on appeal.
  • Asking the compliance court to rule quickly on the stay if the subpoena return date is imminent.
  • Promptly seeking emergency relief from the appellate court if necessary.

Parties should also discuss their situation with counsel to develop the right strategy for their unique case.

Subpoena Stays in Civil vs. Criminal Cases

While subpoena stays in civil and criminal cases follow similar procedures, there are some key differences:

  • In criminal cases, subpoena stays are governed by Rule 17 rather than Rule 45.
  • Courts tend to grant stays more readily in criminal cases.
  • Showing irreparable harm is easier in criminal cases since constitutional rights are involved.
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Defense attorneys in criminal cases should highlight any constitutional issues when seeking a subpoena stay to maximize their chances. Prosecutors face a higher bar when trying to defeat a stay motion in criminal cases.


Here are some key takeaways about motions to stay subpoenas pending appeal:

  • File the stay motion in the compliance court first.
  • Show a strong likelihood of success on the merits.
  • Demonstrate irreparable harm if the stay is denied.
  • Act quickly and seek emergency relief if necessary.
  • Stays may be easier to obtain in criminal cases.

Understanding the process for stays and acting rapidly are critical for parties seeking to halt subpoenas during appeals. With the proper strategy, parties can avoid burdensome compliance obligations while their case proceeds.