Options When Federal Subpoenas Conflict With State Laws

Getting subpoenaed can be scary and confusing. You may get a subpoena from the federal government telling you to turn over documents or testify, but your state has laws protecting that information. What should you do? This article will walk through your options so you can make the best decision.

What is a Subpoena?

A subpoena is a legal order for you to provide documents, testify in a deposition, or appear in court as a witness. There are a few types of subpoenas:

• A subpoena ad testificandum orders you to testify at a trial, hearing, or deposition.
• A subpoena duces tecum orders you to produce documents or other evidence.
• A federal subpoena comes from a federal court, agency, grand jury, or congressional committee.
• A state subpoena comes from a state court or agency.

If you don’t comply with a subpoena, you could face civil or criminal contempt charges. But if the subpoena conflicts with state law, you may be able to challenge it.

Federal Rules on Subpoena Power

Federal courts can issue subpoenas nationwide under the Federal Rules of Civil Procedure, Rule 45^[1]. Attorneys can also issue subpoenas from any federal court for depositions anywhere in the U.S.^[1]. This expanded geographic reach is meant to make discovery easier for parties.

Federal agencies like the FTC and SEC have subpoena power for investigations^[2]. Some federal subpoenas apply anywhere in the U.S., while others are limited to a geographic area.

State Laws on Subpoenas

Many states don’t limit the geographic reach of subpoenas from their courts. But others restrict subpoena power:

• Some states limit how far a witness has to travel for a deposition or hearing.
• Some protect medical or financial records.
• Some prohibit “fishing expeditions” by requiring specific requests.

These laws are meant to protect resident privacy and prevent harassment.^[3]

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What To Do If You Get a Federal Subpoena

If you get a federal subpoena requesting information protected by state law, consider these options:

1. Comply if allowed. Review the subpoena carefully and comply if state law permits it. For example, provide non-protected information.
2. Contact the issuing party. Explain the conflict and ask to modify the subpoena request. They may agree to narrow the scope.
3. File a motion to quash. You can file a motion to quash with the federal court arguing the subpoena violates state law. The judge may quash or modify the subpoena.^[4]
4. Get a protective order. File a motion for a protective order to block or limit the subpoena. You must show good cause.^[5]

If you don’t comply with the subpoena, the other party may file a motion to compel you to comply. Be prepared to explain how the subpoena violates state law.^[5]

Federal Subpoenas Often Win Over State Law

When federal and state law conflict, federal law often prevails. The Supremacy Clause of the Constitution establishes federal law as “the supreme law of the land.”^[6] But it depends on the specific circumstances of the case.

For example, in Facebook v. Superior Court, Facebook challenged a subpoena under California privacy law. But the court ruled that federal law allowed the subpoena in a criminal case.^[4]

However, state laws are sometimes upheld. It depends on factors like:

• Whether the state law completely blocks or just limits the subpoena
• Whether the federal interest outweighs the state’s interest
• Whether compliance would be overly burdensome

When possible, federal courts try to avoid direct conflicts with state law.

Get Legal Help If You Receive a Federal Subpoena

Receiving a federal subpoena conflicting with state law can be intimidating. Get help from an attorney experienced with subpoena litigation.

An attorney can advise you on the enforceability of the subpoena and represent you in filing motions. They can also negotiate modifications or alternatives to full compliance. Don’t ignore a federal subpoena – get legal help to resolve the conflict properly.