B. How to Quash

See Fed. R. Civ. P. 45(d)(3):

(A) On timely motion, the court for the district where compliance is required must quash or modify a subpoena that:

(i) fails to allow a reasonable time to comply;

. . .

(iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies, or

(iv) subjects a person to undue burden.

See also Fed. R. Crim P. 17(c).

In seeking to nullify a subpoena, the reporter must file a motion to quash or modify. Fed. R. Civ. P. 45(d) outlines the protections available to individuals who receive subpoenas in civil matters. The Rule provides that, “A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” Fed. R. Civ. P. 45(d)(1). The Rules do not specifically define the term “undue burden” and leave the interpretation of this term to the court’s discretion; ultimately, the question of burden is a balance between the interests of the party seeking information and the party being subpoenaed. See Heidelberg Ams., Inc. v. Tokyo Kikai Seisakusho, Ltd., 333 F.3d 38, 40 (1st Cir. 2003). A Massachusetts district court held that a “broad, sweeping order” for the production of “any and all” books of a corporation would be overly broad and unduly burdensome. United Shoe Mach. Corp., 6 F.R.D. 347 (D. Mass. 1947). In Cusumano v. Microsoft Corp., 162 F.3d 708, 717 (1st Cir. 1998), the court recognized that, “the unwanted burden thrust upon nonparties is a factor entitled to special weight in evaluating the balance of competing needs.”

As to requests for the production of documents, Rule 45(d)(2)(B) states that an individual subject to a subpoena has fourteen days after service (or until the time specified for compliance, if such time is less than fourteen days after service of the subpoena) to serve a written objection on the opposing party. If the subpoenaed party serves a written objection, the party serving the subpoena will not have access to the information requested except by an order from the court where the subpoena was issued. If a written objection is made, the serving party may respond by moving for an order to compel the production of the information, upon notice to the subpoenaed individual.

Rule 45(d)(3) sets forth guidelines related to the court’s modifying or quashing a subpoena. The court must quash or modify a subpoena if it: (1) fails to allow reasonable time for compliance; (2) requires another individual to travel more than one hundred miles from his or her residence or place of employment; (3) requires the disclosure of privileged or other protected matter; or (4) subjects the individual to an undue burden. If a subpoena requires a person who is not a party to incur substantial expense to travel more than 100 miles to attend trial, the court may protect the person subject to the subpoena by quashing or modifying the subpoena. However, if the subpoenaing party can show a substantial need for the information and can demonstrate that it cannot otherwise obtain this information without undue hardship, and the subpoenaing party agrees to reasonably compensate the subpoenaed party for his time and travel expenses, then the court may order appearance or production.

Like other motions, motions to quash are subject to Fed. R. Civ. P. 7, which sets forth the form of motions.  Under Rule 7, an application to the court for an order shall be by motion which, unless made during a hearing or trial, must be in writing, and must state with particularity the grounds for the motion, as well as the relief or order sought. Pursuant to Fed. R. Civ. P. 45(e)(2), when a party withholds information subject to a subpoena on the grounds that it is privileged, this claim must be made expressly, and must be supported by a description of the nature of the documents or information not produced, sufficient to enable the subpoenaing party to contest the claim.

In criminal cases, Fed. R. Crim. P. 17 governs subpoenas and provides, as to the production of documentary evidence, that the court “on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive.” Fed. R. Crim. P. 17(c)(2).

Although Rule 17 does not provide a procedure for motions to quash subpoenas seeking testimony, the courts will still consider and rule upon such motions.

The local district court rules address the filing of motions. The links to the local rules are below:

Eastern District of Arkansas: See Local Rule 7.2 at https://www.are.uscourts.gov/sites/are/files/local_rules/7.2.pdf.

Western District of Arkansas: See Local Rule 7.2 at https://www.arwd.uscourts.gov/sites/arwd/files/7.2.pdf.

Northern District of Iowa: See Local Rule 7 at https://www.iand.uscourts.gov/sites/iand/files/Revised%20Local%20Rules%202018.pdf.

Southern District of Iowa: See Local Rule 7 at https://www.iand.uscourts.gov/sites/iand/files/Revised%20Local%20Rules%202018.pdf.

District of Minnesota: See Local Rule 7.1 at https://www.mnd.uscourts.gov/sites/mnd/files/LR-7-1.pdf.

Eastern District of Missouri: See Local Rule 4.1 at https://www.moed.uscourts.gov/sites/moed/files/CMECF_localrule.pdf.

Western District of Missouri: See Local Rule 7.0 at https://www.mow.uscourts.gov/sites/mow/files/LR%207.0.pdf.

District of Nebraska: See Local Rule 7.1 at https://www.ned.uscourts.gov/internetDocs/localrules/NECivR.2019.pdf.

District of North Dakota: See Local Rule 7.1 at https://www.ndd.uscourts.gov/lci/Local_Rules.pdf.

District of South Dakota: See Local Rule 7.1 at https://www.sdd.uscourts.gov/sites/sdd/files/local_rules/CIVIL%20RULES%20%202015.pdf.

To the extent that district courts in the Eighth Circuit have said addressed these issues as they relate to the reporter's privilege, they are discussed below.

In general, a person subpoenaed may move 1) to quash or modify the subpoena if it is unreasonable or oppressive, or 2) to require that the person on whose behalf the subpoena is issued pay the reasonable cost of production of documents or other materials. The motion must be made promptly and, in any event, before the time specified in the subpoena for compliance. Ark. R. Civ. P. 45(b).

California law allows persons subject to a subpoena to either move to quash the subpoena, pursuant to California Code of Civil Procedure § 1987.1, or for a protective order, pursuant to California Code of Civil Procedure § 2025.420. Motions typically ask for both forms of relief. In addition, one California court held that serving objections to a “records only” subpoena sufficed to preserve the deponent’s objections to the subpoena and placed the onus on the subpoenaing party to move to compel. See Monarch Healthcare v. Superior Court, 78 Cal. App. 4th 1282, 1290, 93 Cal. Rptr. 2d 619 (2000).

Rule 45 provides guidance regarding the ways to quash a subpoena. Colorado Rule 45 differs from Federal Rule 45 in that there are only two mechanisms a deponent or witness can used to attempt to avoid having to comply with a subpoena duces tecum. Rule 45(b) states that "upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, [a deponent or witness] may (1) Quash or modify the subpoena if it is unreasonable or oppressive, or (2) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents or tangible things."

Rule 45(d)(1) allows any person to whom a deposition subpoena is directed to move for a protective order under Rule 26. Under the requirements of Rule 26, a protective order may be issued where "for good cause shown . . to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Under Rule 26, a court has the power to prohibit a deposition from being taken or limit disclosure of the testimony taken during the exam. Rule 26(c)(1). To determine good cause, the court will balance the competing interests that would be served by granting or denying the discovery. Those interests include: Whether the party seeking to prevent disclosure has a legitimate expectation that the information will not be disclosed; the state’s interest in facilitating the truth-seeking process through litigation; and whether disclosure can occur in a less intrusive manner. Williams v. District Court, 866 P.2d 908 (Colo. 1993). The party opposing the discovery must prove "good cause." Cameron v. District Court, 565 P.2d 925 (Colo. 1977).

Under Fed. R. Civ. P. 45(d)(3), a court must “quash or modify” any subpoena that does not permit a reasonable time for compliance, requires the recipient to travel further than is permitted by the rules, requires the disclosure of privileged information, or unduly burdens the recipient.

Fed. R. Crim. P. 17(c)(2) provides that the court may “quash or modify the subpoena if compliance would be unreasonable or oppressive.”  Fed. R. Civ. P. 17(g) further provides that any person who fails “without adequate excuse” to obey a properly served subpoena may be found in contempt of the court.

The best practice is to begin the process of quashing the subpoena immediately after its service. After contacting the other party to gain information, the usual practice is to file the motion as soon as practicable. While the timing may vary depending on the circumstances and the parties, quick and comprehensive action typically serves the moving party well. Along with the motion to quash, include a notice of the motion, certification of service, a brief, affidavits both from the reporter (asserting the privilege) and the editor (describing the chilling effect of compelled testimony on freedom of the press), and a copy of the subpoena. Judges have been particularly amenable to hearing motions quickly.

Under SCR-Civ. 45(c)(3), a court may quash or modify a civil subpoena that does not permit a reasonable time for compliance, requires a deponent to travel further than is permitted by the rules, requires the disclosure of privileged information absent waiver or an exception, or unduly burdens the witness.  When ruling on a motion to quash or modify a subpoena, the court generally considers: (1) the relevance of the evidence sought; (2) the need for the party seeking the evidence; (3) any likely hardship faced by the witness in responding to the subpoena; and (4) whether the witness is a party to the action.  In re Herndon, 596 A.2d 592, 596 (D.C. 1991).

SCR-Crim. 17 does not specify procedures for quashing or otherwise objecting to a subpoena that commands appearance to give testimony.  However, the rule implies that a party opposing a subpoena to produce documents should file a motion to quash.  See SCR-Crim. 17(c)(2).  The rule also provides that any person who fails “without adequate excuse” to obey a properly served subpoena may be found in contempt of the court.  SCR-Crim. 17(g).

The most important step in challenging a subpoena is to assert the privilege via a Motion to Quash or for Protective Order. Florida Rules of Civil Procedure 1.280 and 1.410 govern subpoenas in civil cases. These rules, in conjunction with Rule of Criminal Procedure 3.220(h), should be used as the basis for challenging subpoenas in criminal cases.

In the interest of responding quickly, the motion may be very short. The motion may contain a supporting memorandum of law or a memorandum may be filed at a later time but before the hearing on the motion. As judges are not often familiar with the contours of the privilege, a memorandum of law often is helpful in educating the judge about the privilege.

A reporter faced with a subpoena may file a motion with the court to quash that subpoena. The burden to defeat a motion to quash lies with the party seeking to divest the reporter of the privilege. If the party seeking divestiture cannot establish 1) the relevance of the information to the proceeding, 2) the public interest supported by disclosing the information, and 3) exhaustion of all other available sources of the information, the court may quash the subpoena. Illinois v. Fort, 15 Media L. Rep. 2251, 2253-54 (Ill. Cir. Ct. 1988). Conversely, the court may deny the reporter’s motion to quash if the party seeking divestiture meets the three requirements above. See, e.g., People v. Pawlaczyk, 189 Ill. 2d 177, 196, 724 N.E.2d 901, 913 (2000) (denying reporter’s motion to quash and upholding an order divesting the reporter of the privilege when the reporter’s testimony was relevant to a fact of consequence in the proceedings and the public interest favored disclosure).

The Illinois Supreme Court has reviewed the propriety of quashing a subpoena under the  “manifest weight of the evidence” standard. Pawlaczyk, 189 Ill.2d at 188, 724 N.E.2d at 908; see also United States v. Lloyd, 71 F.3d 1256, 1268 (7th Cir. 1995); United States v. McCollom, 815 F.2d 1087, 1089 (7th Cir. 1987) (applying abuse of discretion standard). As a general rule, appellate courts afford the trial judge “great deference” with respect to evidentiary rulings because of his “first-hand exposure to the witnesses and evidence as a whole, and because of his familiarity with the case and ability to gauge the likely impact of the evidence in the context of the entire proceeding.” United States v. Torres, 977 F.2d 321, 329 (7th Cir. 1992); see also Lloyd, 71 F.3d at 1269 (trial court did not abuse its discretion in quashing subpoena to reporter “because the substance of her proposed testimony was of speculative value at best, and was only being offered for the possible purpose of attempting to impeach witnesses as to matters collateral to [the defendant’s] possession of the firearm”).

However, when the issue on appeal concerns interpretation of the statute, that legal issue is reviewed de novo. People v. McKee, 2014 IL App (3d) 130696 ¶ 10, 24 N.E.3d 75, 43 Media L. Rep. 1123 (2014) (citing People v. Slover, 323 Ill.App.3d 620, 623, 753 N.E.2d 554, 557 (2001); Pawlaczyk, 189 Ill.2d at 192-95, 724 N.E.2d at 911-12 (interpreting statutory language)).

Miss. R. Civ. P. 45(d)(1)(A) states that "[o]n timely motion, the court from which a subpoena was issued shall quash or modify the subpoena if it (i) fails to allow reasonable time for compliance; (ii) requires disclosure of privileged or other protected matter and no exception or waiver applies, (iii) designates an improper place for examination, or (iv) subjects a person to undue burden or expense."

Also, several Mississippi courts have held that journalists enjoy a "qualified privilege." The criteria necessary to overcome such a qualified privilege, and the burden of proof one must meet, is to show (1) that the testimony of the reporter is highly relevant to the seeking parties case; (2) there is a compelling need for the testimony sufficient to override the reporter's first amendment privilege; and (3) the seeking party has unsuccessfully attempted to obtain the information possessed by the reporter from other sources. See Charles R. Pope v. The Village Apartments, Ltd., and other Unknown Persons, Hinds County Circuit Court No. 92-71-436 CV, January 3, 1995; Mary Doe v. Maurin-Ogden Management Corp., Hinds County Circuit Court No. 90-64-502, February 8, 1991; State of Mississippi v. Ralph Hand III, Circuit Court of Tallahatchie County, No. CR89-49-C (T-2), July 31, 1990; In re Grand Jury Subpoena, Hinds County Circuit Court, No. 38664, October 4, 1989.

A subpoena must be quashed by applying to the court. In the case of administrative subpoenas, redress through the administrative body should first be sought. In the case of criminal investigative subpoenas, the applicable statutes are §§ 46-4-301 through 46-4-303, MCA.

Since Nebraska's shield law does not provide a privilege for information actually published or broadcast, it may not be possible to wholly quash a given subpoena, depending on the information sought.

Under § 2304 of the CPLR, the subject of a subpoena can move to quash, condition or modify the subpoena. Such a motion "shall be made promptly in the court in which the subpoena is returnable." CPLR § 2304. "If the subpoena is not returnable in a court, a request to withdraw or modify the subpoena shall first be made to the person who issued it and a motion to quash, fix conditions or modify may thereafter be made in the Supreme Court". Id.

CPLR 2304 does not specify the time within which a motion to quash, condition, or modify has to be made, but such a motion should be made at least before the time specified in the subpoena for compliance therewith. CPLR § 2304, McKinney's Practice Commentary C2304:3. In addition, the target of a subpoena may also move for a protective order pursuant to CPLR § 3103. Motions typically ask for both forms of relief. If time is of the essence, the motion to quash can be made by order to show cause, which serves to abbreviate the notice time.

Frequently, litigants in foreign proceedings will petition the ex parte part of the New York Supreme Court for subpoenas seeking production from a New York resident or domiciliary. See, e.g., CPLR § 3102. When this occurs, a motion to quash and/or for a protective order, which must be on notice and therefore is no longer ex parte, should be filed in the Supreme Court and not the ex parte part.

In addition, where New York subpoenas are issued to aid in discovery in an action pending in another jurisdiction, such as through commissions (see, e.g., CPLR § 3102 (e)), it is advisable to review both the other state’s shield law (if one exists) and the procedural requirements for issuing commissions in the jurisdiction in which the action is pending. Courts frequently rubber stamp requests for commissions to take out-of-state discovery, and such commissions occasionally do not even comply with the issuing court’s procedural requirements. For instance, the shield law in the jurisdiction in which the action is pending may require that the petition for commissions pertaining to a reporter's materials or testimony be on notice or that the commissions be reviewed and signed by a judge, rather than a clerk. Failure to comply with these requirements may provide alternative bases for a motion to quash.

Ordinarily, when a foreign state issues a demand for the attendance of a New York witness under CPL 640.10(2), the New York court will not evaluate the reporter’s privilege under the New York Shield Law, and instead will leave the issue of journalist privilege to the demanding state. See, e.g., Codey ex rel. N.J. v. Capital Cities, Am. Broad. Corp., 626 N.E.2d 636 (N.Y. 1993) (finding subpoena by New Jersey prosecutors for ABC’s non-confidential outtakes and notes was properly issued).  However, the New York Court of Appeals has recognized an exception to this rule:  New York courts are permitted to quash subpoenas seeking a journalist’s testimony in another state where this would be “inconsistent with the core protection of [New York’s] Shield Law.”  Holmes v. Winter, 3 N.E.3d 694 (N.Y. 2013).  In Holmes, the Court of Appeals granted a journalist’s motion to quash a subpoena that sought to compel her to reveal her confidential sources in a Colorado criminal proceeding, where she could not avail herself of New York’s absolute privilege.  The court found that requiring a New York journalist to comply with such a subpoena would violate New York public policy.

Since New York's Shield Law frequently provides broader protection than those of other states, it may be desirable to move to quash a subpoena under New York's Shield Law, rather than under a potentially weaker statute of another state.  To obtain relief under Holmes, a party seeking to quash a subpoena under New York law will have to establish that a strong public policy is implicated and that there is a substantial likelihood that an order compelling the witness's appearance and testimony in the other jurisdiction would directly offend that policy.  Id. In addition, before the exception may be invoked, the record must indicate that the prospective witness reasonably relied on the protections afforded under New York law when engaged in the conduct that gave rise to the subpoena request. Id. at 707.

Quashing a subpoena issued in civil cases is governed by Rhode Island Superior Court Rules of Civil Procedure, Rule 45(c)(3)(A). It provides that:

on timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it:

(i) Fails to allow reasonable time for compliance;

(ii) Requires disclosure of privileged or other protected matter and no exception or waiver applies, or

(iii) Subjects a person to undue burden.

Rhode Island Rules of Civil Procedure, Rule 45(3)(A).

In criminal cases, the Rhode Island Supreme Court articulated the standard for evaluating the issuance of subpoenas under Rule 17(c) in State v. DiPrete, 698 A.2d 223, 225 (R.I. 1997) ("Because the need for a subpoena often turns on the determination of issues of fact, enforcement of a pretrial subpoena is left within the discretion of the trial court.").

Pursuant to Rule 17(c), the court upon motions made may quash or modify the subpoena. Rule 17(c), R.I. Superior Court Rules of Criminal Procedure.

As a preliminary matter, and especially because the Texas shield law is still relatively new, the media party receiving the subpoena should make the subpoenaing party aware of the new Texas shield law and the requirements they must meet in order to obtain the requested information (if at all). This is especially true when the requested information is simply to authenticate a broadcast, which is self-authenticating under the Texas shield law and, therefore, should not be the subject of a subpoena. In addition, if the subpoenaing party does not withdraw the subpoena, the journalist should file a Motion for Protection and to Quash as soon as possible, but in any event, prior to the time provided for compliance with the subpoena.

Washington practice generally determines issues of privilege by a motion to quash (or, as they may also be styled, by a motion for protective order). A motion to quash may also be appropriate with regard to a subpoena duces tecum, but it is not necessary. This is because CR 45(c)(2)(b) allows the recipient of a subpoena may, “within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued." See also Section II.A (Shield law statute) above.