Criminal Defense Lawyers

Federal Rule Of Civil Procedure Defense Strategies

Federal Rule of Civil Procedure 45: Subpoena Defense Strategies

What is a Rule 45 Subpoena?

First, some basics. A subpoena is a court order requiring you to provide information or testimony for a legal proceeding. It carries the authority of the court, so ignoring it is not an option.Federal Rule of Civil Procedure 45 governs subpoenas issued in federal civil cases. Similar to other discovery tools, Rule 45 subpoenas allow parties to obtain evidence from non-parties to support their case. The key things a Rule 45 subpoena can require you to do are:

1. Appear and give testimony at a trial, hearing, or deposition
2. Produce documents, electronically stored information, or tangible items for inspection and copying
3. Permit inspection of premises under your control

Types of Rule 45 Subpoenas

There are two main types of subpoenas under Rule 45:

1. Subpoena ad testificandum – requires you to appear and give oral testimony, usually at a deposition or trial
2. Subpoena duces tecum – requires you to produce documents or other tangible evidence, or permit inspection of premises

A single subpoena can also combine both of these commands. For example, it may require you to show up at a deposition and bring certain documents with you.

Your Obligations When Served With a Subpoena

Okay, so a process server just handed you a subpoena. What now? When you’re served with a Rule 45 subpoena, you generally have three options:

1. Comply with the subpoena by providing the requested testimony or materials
2. Object to some or all of the requests in the subpoena
3. File a motion asking the court to quash or modify the subpoena

We’ll get into the details of each of these options shortly. But first, let’s talk about the mechanics of being served.

Proper Service

For a subpoena to be enforceable, it must be properly served on you. Under Rule 45(b), the subpoena can be served by:

• Hand delivery to you personally
• Hand delivery to your home and leaving it with someone of suitable age and discretion who resides there
• Delivery to your registered agent for service of process (if you’re an entity)
• Delivery by any method allowed under the law of the state where the federal court is located or service will be made

If service was improper, that may be grounds to quash the subpoena entirely. But don’t just assume a technicality gets you off the hook. Courts tend to overlook minor service defects if you had actual notice of the subpoena.

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Geographic Limits

Rule 45(c) sets geographic limits on where you can be required to comply with a subpoena:

• For a subpoena seeking testimony, you generally can’t be forced to travel more than 100 miles from where you live, work, or regularly do business in person. If you’re a party or a party’s officer, you can be required to travel anywhere within the state where you reside or work.
• For a documents-only subpoena, you can’t be required to travel more than 100 miles from where you work or regularly do business in person, even if you’re a party.

There are some exceptions to these limits, like if you’d incur substantial expense to travel that distance. But in general, the subpoena can’t force you to go too far out of your way geographically.

Deadline to Respond

The subpoena will specify when and where you’re required to show up or produce documents. For a deposition or trial subpoena, it’s pretty straightforward – either be there at the stated time and place, or face consequences. For a documents-only subpoena, Rule 45(d)(2)(B) says you must serve any objections “before the earlier of the time specified for compliance or 14 days after the subpoena is served.” If you don’t object by then, you’ve waived your right to object.But even if you do timely object, you still have to show up at the designated time and place with the requested materials. The only exception is if you file a motion to quash and the court grants it before the compliance date.

Grounds for Objecting to or Quashing a Subpoena

Receiving a subpoena doesn’t mean you have to just roll over and give them whatever they want. Rule 45 provides several grounds for challenging a subpoena:

Undue Burden

You can object that the subpoena subjects you to “undue burden.” Essentially, this means the subpoena is overbroad, seeks irrelevant information, or is otherwise unduly burdensome to comply with.Factors courts consider for undue burden include:

• The breadth of the request
• The time period covered
• The particularity with which the documents are described
• The burden imposed in terms of time and expense to comply

If a request seems like too much of a fishing expedition, it may impose an undue burden. You’re not required to go to herculean efforts to track down every scrap of paper that might conceivably be relevant.

Privileged or Protected Material

The subpoena can’t force you to disclose privileged information, like attorney-client communications, attorney work product, or trade secrets. If the subpoena seeks that kind of material, you can object on privilege grounds.Rule 45(e)(2) lays out the procedure for claiming privilege:

1. Expressly make the claim
2. Describe the nature of the withheld material in a way that won’t reveal the privileged info
3. Do this by the time specified for compliance or 14 days, whichever is earlier

One wrinkle – if you inadvertently produce privileged material, you can try to claw it back under Rule 45(e)(2)(B). Notify the other side right away, and they’re required to promptly return or destroy it.

Confidential or Proprietary Info

You may also be able to object if the subpoena seeks confidential business information, like customer lists, financial data, or other sensitive commercial info. Courts can quash or modify subpoenas seeking that kind of material. At a minimum, they can order that confidential info be revealed only in a certain way, like:

• Restricting who can see it
• Requiring it to be filed under seal
• Allowing you to redact sensitive portions

So if the subpoena seems to go overboard in the confidential info department, don’t be afraid to push back.

Requires Disclosing Expert Opinion

A subpoena generally can’t be used to get an unretained expert’s opinion. If you’re not being paid for your expert services in the case, you may be able to get out of a subpoena seeking your expert opinion on something.

Issued from the Wrong Court

As we mentioned, Rule 45 has geographic limits on how far away you can be forced to comply. If the subpoena was issued by a court in the wrong place, you can object on that basis. For example, say you live and work in New York, but you’re subpoenaed to testify at a deposition in California. That’s way more than 100 miles, so unless you regularly do business in person in California, that subpoena is probably invalid.

Step-by-Step Guide to Responding to a Subpoena

Alright, now that we’ve covered the basics, let’s get into the nitty gritty of actually responding to the subpoena.

Step 1: Don’t Ignore It

When you get a subpoena, your first instinct may be to toss it in a drawer and hope it goes away. Resist that urge. Failing to respond to a subpoena can lead to some serious consequences, which we’ll get to later.

Step 2: Review It Carefully

Read the subpoena from top to bottom. Note exactly what it’s asking you to do – show up and testify, produce documents, or both.Make sure you understand:

• Who is requesting the subpoena
• What information they’re seeking
• When and where you’re supposed to comply
• How much time you have to respond

If anything is unclear, don’t be afraid to reach out to the lawyer who issued it for clarification. Better to ask now than risk making a mistake later.

Step 3: Preserve Responsive Documents

If the subpoena seeks documents, you’re required to preserve anything that might be responsive. That means hitting pause on any automatic deletion processes and instructing employees not to get rid of potentially relevant material. Failure to preserve subpoenaed documents can lead to sanctions from the court. So even if you plan to object, make sure nothing slips through the cracks in the meantime.

Step 4: Decide If You’ll Comply, Object, or File a Motion to Quash

This is the big decision point. Based on your review of the subpoena, you have to decide whether you’ll:

1. Fully comply by providing the requested testimony and/or documents
2. Comply in part and object to the rest
3. Object to the entire subpoena
4. File a motion asking the court to quash or modify the subpoena

Factors to consider:

• How burdensome would it be to comply?
• Does the subpoena seek privileged or confidential info?
• Is it clear what they’re asking for?
• Was it issued from the right court?
• Do you have any other legal basis to object?

Unless the subpoena is really off base, full-on defiance is usually not the way to go. Courts don’t look kindly on people who just flat-out refuse to comply. In most cases, you’re better off complying with the parts you can, and then objecting to or filing a motion on the rest. That shows the court you’re trying to cooperate, even if you have legitimate beef with parts of the subpoena.

Step 5: Serve Your Response

Once you’ve decided how you’ll respond, you need to let the other side know. If you’re going to comply in full, great – just show up at the specified time and place with the requested materials. But if you’re objecting or filing a motion, you need to serve your response on the party or lawyer who issued the subpoena. Do this by the deadline to respond, which is usually the compliance date or 14 days from service of the subpoena, whichever is earlier.Your response should lay out, in writing:

• The specific parts of the subpoena you’re objecting to
• The legal basis for each objection (e.g., privilege, undue burden, etc.)
• For any documents withheld due to privilege, a description of the nature of the documents that doesn’t reveal the privileged info itself

If you’re filing a motion to quash, you’ll also need to set that for hearing with the court and serve it on the other side.

Step 6: Meet and Confer

In most cases, your objections won’t be the end of the story. The party who issued the subpoena will likely reach out to try to resolve the dispute without going to court.Rule 45(d)(2)(B) requires the subpoenaing party to take reasonable steps to avoid imposing undue burden or expense on you. So if you’ve objected on those grounds, they have to at least try to work it out with you before running to the judge. This is typically done through a “meet and confer” process, where the lawyers get on the phone or exchange emails to see if they can reach an agreement. For example:

• If you objected to the scope of the document requests, you might agree to produce a narrower set of materials.
• If you objected due to the timing or location of a deposition, you might be able to reschedule it for a time and place that works better for you.
• If you objected to certain topics of testimony or document requests on privilege grounds, you might agree to provide a privilege log describing what you’re withholding and why.

The goal is to resolve as many issues as possible without the court having to get involved. Courts appreciate parties who make a good-faith effort to work things out before filing motions.

Step 7: Go to Court If Necessary

If you can’t resolve all your objections through the meet and confer process, the dispute may end up in front of a judge. This is usually done through a motion to compel filed by the subpoenaing party, asking the court to order you to comply with the subpoena. You’ll have a chance to oppose the motion and argue your objections. The court will then decide whether to:

• Deny the motion and sustain your objections
• Grant the motion and order you to comply with the subpoena as issued
• Grant the motion in part and modify the subpoena to address your objections

Once the court rules, you’ll have to comply with whatever it orders. If you disagree with the ruling, you may be able to appeal, but that’s a whole other can of worms.

Consequences of Failing to Comply With a Subpoena

Okay, so what happens if you just ignore a subpoena or refuse to comply? Nothing good.Under Rule 45(g), failure to obey a subpoena without an adequate excuse can be deemed a contempt of court. And contempt can lead to some serious penalties, like:

• Monetary sanctions (i.e., fines)
• Payment of the other side’s attorneys’ fees and costs related to enforcing the subpoena
• In extreme cases, even arrest and imprisonment

So if you’re thinking about ghosting on a subpoena, think again. The risks are just too high. Better to face it head-on and deal with it through the proper channels.

When to Get a Lawyer Involved

If you’re served with a Rule 45 subpoena, it’s always a good idea to at least consult with a lawyer. A knowledgeable attorney can help you:

• Understand your obligations under the subpoena
• Identify any potential grounds for objection
• Craft an appropriate response and serve it on the other side
• Represent you in any meet and confer discussions or court proceedings

You may not need to hire a lawyer for a simple, straightforward subpoena. But if the requests are complex, burdensome, or sensitive, or if you anticipate a fight over compliance, it’s worth getting some professional help. Many lawyers offer free initial consultations, so it doesn’t hurt to at least get some preliminary advice before deciding whether to go it alone.