Fighting Back Against Overly Broad Federal Subpoenas
Fighting Back Against Overly Broad Federal Subpoenas
Getting a subpoena can be scary. You may feel anxious about having to turn over personal information or testify in court. But don’t panic! There are ways to fight back against subpoenas that ask for too much. This article will give you some practical tips for dealing with overly broad federal subpoenas.
What is a subpoena?
A subpoena is a legal order requiring you to provide documents, testify, or both. There are two main types of subpoenas:
- Subpoena duces tecum – requires you to turn over documents or other evidence
- Subpoena ad testificandum – requires you to testify at a deposition or hearing
Subpoenas are commonly used during the discovery process in civil lawsuits and criminal investigations. They are issued by the court or an attorney involved in the case.
What makes a subpoena “overly broad”?
A subpoena can be considered overly broad if it asks for more information than is reasonably necessary or relevant to the case. Some signs of an overly broad subpoena include:
- Asking for “any and all documents” related to a broad topic
- Requiring you to testify about topics unrelated to the case
- Setting an unreasonable timeframe for compliance (like 24 hours)
- Seeking information from an excessively long time period
Overly broad subpoenas can be burdensome and feel like fishing expeditions. Fortunately, there are ways to fight back.
Review the subpoena carefully
Don’t ignore a subpoena. Take time to review it carefully. Make sure you understand what information and documents you’re being asked to provide. Also check:
- Who issued the subpoena?
- What court is it coming from?
- When is the deadline for compliance?
- Where are you supposed to deliver the response?
It’s important to understand all the details so you can determine if the subpoena is valid and enforceable.
Negotiate with the issuing attorney
If a subpoena seems overly broad, the first step is to contact the attorney who issued it. Explain which parts seem unreasonable, and ask if they’re willing to narrow the scope. Oftentimes, attorneys don’t realize how burdensome their requests are. If asked politely, many will work with you to modify the subpoena.
You can ask the attorney to limit the:
- Timeframe covered
- Topics and subject matter requested
- Types of documents requested
- Deadline for responding
Don’t be afraid to negotiate – most attorneys will try to accommodate reasonable requests. Getting the subpoena modified up front saves everyone time and expense.
File a motion to quash
If the issuing attorney won’t narrow the scope, your next step is to challenge the subpoena in court. This involves filing legal papers called a “motion to quash” or “motion for protective order.” Your motion argues that the subpoena should be quashed (cancelled) or modified because it is overly broad.
Grounds for quashing or modifying a subpoena include:
- The information sought is irrelevant to the case
- Compliance would be unduly burdensome/expensive
- The subpoena asks for privileged or confidential information
- The subpoena fails to allow reasonable time for compliance
- The subpoena is vague, ambiguous, or lacks specificity
File your motion in the same court that issued the subpoena. Be sure to follow all the procedural rules and deadlines. The court will review your motion and determine whether to quash, modify, or uphold the subpoena.
Get help from an attorney
Challenging a subpoena takes knowledge of civil procedure rules and persuasive legal writing. An experienced attorney can help craft a compelling motion to quash or modify the subpoena. Consider hiring counsel if the subpoena seeks sensitive information or has high stakes.
An attorney can also represent you in negotiations with the issuing party. Having a lawyer “in your corner” sends the message that you’re taking the subpoena seriously. Attorneys are also better positioned to negotiate firmly and hammer out a compromise.
Stall for time
If you need more time to prepare your challenge, consider filing a motion asking the court to extend your deadline to comply. Courts will usually allow reasonable requests for extra time, which gives you breathing room. Use the extra time to find an attorney and get your ducks in a row.
Comply partially
If your challenge is unsuccessful, you may have to comply – but courts may allow you to comply partially. Provide the unobjectionable material while withholding anything privileged, irrelevant, or unduly burdensome. Get legal advice to determine what you must disclose.
Appeal if necessary
If the court orders full compliance, you can appeal that order to a higher court. This continues the fight. Though rare, some subpoena challenges make their way all the way up to state supreme courts or the U.S. Supreme Court. Don’t give up if you believe strongly in your case.
In summary…
Dealing with an overly broad subpoena takes strategy and perseverance. With a measured response, you can often reach an acceptable compromise. Get legal help when necessary, but also extend courtesy to the other side. With patience and principles, you can protect your rights and avoid an undue burden.
References:
[1] Fighting Back Against Overly Broad Federal Subpoenas
[2] Fighting Federal Subpoenas as a Third-Party or Material Witness
[3] Rule 45 Subpoena Tips & Defense Strategies
[5] Legal Questions and Answers Relating to Subpoenas
[6] Five Tips for Representing a Non-Party Served with a Document Subpoena: Welcome to the Party?