b. Motion to compel

If written objections are tendered pursuant to Fed. R. Civ. P. 45(c)(2)(B) the party seeking the information may file a motion to compel compliance with the subpoena. See Federal Rules of Civil Procedure Rule 37(a).

In Castleberry v. Camden County, 331 F.R.D. 559 (M.D. Ga. 2019), the district court denied as moot a motion to compel unused raw footage because, as explained in a declaration by the reporter, that to the extent that any raw footage ever existed it was destroyed under the station’s retention policies before service of the subpoena.

A motion to compel is the method by which a subpoenaing party may compel production, if the reporter refuses to comply with the demands of the subpoena. Once the reporter files his objection under Fed. R. Civ. P. 45(c)(2)(B), the party issuing the subpoena may move to compel production of the requested documents.  When subpoenaed, the reporter may but need not wait for the party that issued the subpoena to file a motion to compel before filing a motion to quash.

The recipient of a subpoena seeking privileged information always has the option -- some would say the obligation -- of filing a motion to quash rather than objecting and/or awaiting a motion to compel. If one simply does not comply with a subpoena, one runs the risk of being held in contempt. Filing a motion to quash requires paying the associated fees and committing to litigation of an issue that might otherwise be avoided, if, for example, the party seeking information ultimately decides not to pursue disclosure.

If the recipient of a subpoena serves a written objection to a subpoena issued in the name of a federal court in a civil action, see Fed. R. Civ. P. 45(d)(2)(B), the party that issued the subpoena cannot obtain the materials sought without filing a motion to compel compliance with the subpoena. While it is often tempting to place the burden of filing a motion on the party who issued the subpoena by serving such an objection, rather than affirmatively moving to quash the subpoena, in some cases there may be a strategic advantage for the recipient of the subpoena to be the moving party. For example, the movant may control the timing and, to some extent, the briefing schedule on such a motion, and the movant may be able to frame the issues in the most helpful way. Whether waiting for the other side to move to compel or affirmatively moving to quash will be more advantageous generally will depend on the facts of the particular case.

Motions to compel may be filed against a media party if it fails to produce documents by the deadline in the subpoena or if it serves an objection and refuses to produce responsive documents.  Federal Rule of Civil Procedure 45(d)(2)(B).  Motions to compel testimony are less common because the onus is on the subpoenaed party to file a motion to quash before the date when attendance is required, otherwise the party can be held in contempt for failing to appear.

Once a party sends its written objection to the subpoenaing party, the subpoenaed testimony or material may only be obtained through an order to compel. Fed. R. Civ. P. 45(d)(2)(B).

Where a subpoena commands a person to produce documents for inspection or copying, the subpoenaed person may object to it. The objection must be in writing, and delivered to the person or attorney designated in the subpoena as being responsible for issuing it. The objection must be made within 14 days after receiving the subpoena. However, if the subpoena gives fewer than 14 days for compliance, then at any time before the time set by the subpoena for compliance. Fed. R. Civ. P. 45(c)(2)(B).

If the objection is made in writing, delivered to the appropriate person, and delivered on time, then the person on whose behalf the subpoena was issued and served has no right to inspect or copy the subpoenaed documents without a court order. The person responsible for issuing and serving the subpoena may file a motion with the court to compel compliance with the subpoena. Fed. R. Civ. P. 45(c)(2)(B).

The person served with a subpoena need not go through the objection/motion to compel procedure. That person can move to quash or to modify the subpoena. Fed. R. Civ. P. 45(c)(3)(A). Although the Federal Rules of Civil Procedure do not specify a time deadline for moving to quash or to modify a subpoena, a good practice would be to file the motion within 14 days of receiving the subpoena, or if the deadline for compliance with the subpoena is fewer than 14 days, before the deadline.

In a reporters' privilege situation, do not wait for a motion to compel. The best practice is to deliver the written objection, and follow that with a motion to quash or modify [fitting at least one attempted negotiation in between].

A media party should consider the likelihood of a motion to compel in deciding when to move to quash. Under Fed. R. Civ. P. 37(a)(4)(A) costs, attorneys' fees and sanctions can be awarded against the losing party on a motion to compel. See also Rickels v. City of South Bend, 33 F.3d 785, 786-88 (7th Cir. 1994) (losers in discovery disputes pay for costs and fees as a matter of course). The lack of clear precedent on the privilege in the Seventh Circuit must also be considered. Warzon v. Drew, 155 F.R.D. 183, 187 (E.D. Wis. 1994) (refusing to award costs to media party despite the fact that subpoena was quashed).

Under the rules and the general approach of the federal courts in the Seventh Circuit, the motion to quash should be filed as promptly as possible. NLFC, Inc. v. DevCom Mid-America, Inc., No. 93 C 0609, 1994 WL 188478 (N.D. Ill. May 11, 1994) (pointing out that motion must be brought before time of compliance).

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

Whether a subpoena recipient should file a motion to quash before the subpoenaing party files a motion to compel is largely a tactical matter, and the appropriate action often depends upon whether the subpoenaing party is seeking testimony or documents. If the subpoena calls for testimony, it is appropriate to file a motion to quash before the subpoenaing party files a motion to compel. If the subpoena seeks only documents, the subpoena recipient should serve objections pursuant to Rule 45 (c)(2)(B) of the Alabama Rules of Civil Procedure and assess the likelihood of the subpoenaing party filing a motion to compel. If after serving the objections, it appears that the subpoenaing party is going to file a motion to compel, the subpoena recipient should file a motion to quash.

Because so few cases, criminal or civil, ever actually come to trial, the time and expense of filing a motion to quash can be avoided in most cases by letting the case run its course without dealing prematurely with the subpoena issue. It is generally more productive and cost-effective to hold off on a motion to quash and let the subpoenaing party know that the reporter will not provide testimony or notes voluntarily.  In most cases, making clear that a motion to compel will be necessary, and that the subpoenaing party will have to formally address the relevant legal and factual issues in order to obtain the desired information, will enable the press to defer the issue until it becomes moot. The subpoenaing party most often does not wish to "do battle with the press," and may even profess support for the First Amendment values being asserted, but in any event will generally not want the distraction and cost of dealing with this collateral issue at a time when efforts are more productively focused on other aspects of the party's case, or other cases. The reporter or media organization gets the benefit of avoiding legal fees, which it always wants and often appreciates.

A media party can shift the burden of seeking judicial intervention onto the discovering party by serving written objections within the time specified in Ariz. R. Civ. P. 45(c)(5)(A)(ii).

A person served with a subpoena who objects to the subpoena should promptly move to quash it and should not wait for a motion to compel. Failure to obey a subpoena can lead to a contempt citation and possibly an arrest warrant. Ark. R. Civ. P. 45(g).

The party subpoenaed should move to quash or for a protective order before the scheduled appearance date, or it will risk being held in contempt for failing to appear.

Although the newsperson may be content to wait for a motion to compel, it is generally believed that it is more effective to take a proactive stance and file a motion to quash. There are several reasons for this. First, some courts may view a newsperson's inaction as disrespect for the court system. Second, by filing the motion, the newsperson can go on the offensive, thus having more control over the arguments.

The media party should not wait for the subpoenaing party to file a motion to compel before filing a motion to quash. A motion to compel would only be filed after passage of the date and time specified in the subpoena; and if no motion to quash has been filed prior to that date, the subpoenaed party will be deemed to have waived the right to do so.

Rule 45(d)(2)(B)(i) provides that “[a]t any time, on notice to the commanded person, the serving party may move the court for the district where compliance is required for an order compelling production or inspection.”  When challenging a subpoena, it generally is advisable to move to quash or otherwise object rather than wait for such a motion to compel.

Motions to compel are rare. In the event that one is necessary, it should be filed in the court where the case is pending. If the privilege was not asserted in a court proceeding, the motion to compel must be filed in the Superior Court. 10 Del. C. § 4324.

No statutory or case law exists on this issue.  When challenging a subpoena, it generally is advisable to move to quash or otherwise object rather than wait for a motion to compel.

A person under subpoena should not wait for the subpoenaing party to file a motion to compel before filing a motion to quash. Failure to obey a subpoena may result in a contempt citation. If the subpoenaing party will not voluntarily extend the time for compliance until the privilege issue is heard, an emergency hearing may be the safest course.

Subpoenas may be enforced by attachment for contempt and by a fine of not more than $300- or 20-days’ imprisonment or both. O.C.G.A. § 24-13-26.

For the sake of expedience, a motion to quash should be filed without waiting for the subpoenaing party to file a motion to compel. If written objections are to be made to a request for inspection or copying of documents, those should be made within 10 days of service, or before the time specified in the subpoena for compliance if the time specified is less than 10 days.

The best practice is to raise the issue by way of motion to quash, rather than wait for the opposing party to seek to compel the testimony after an initial refusal to do so, or a non-appearance. By raising the issue in the context of a motion to quash, the risk of being found in contempt and suffering the resulting monetary or imprisonment penalties prior to a judicial ruling on the substantive issues is greatly reduced.

Illinois Supreme Court Rule 219 sets forth the consequences for refusing to comply with court orders, including subpoenas.

The media party need not wait for the subpoenaing party to file a motion to compel before filing a motion to quash. See Ind. R. Tr. P. 45(B) (stating that a motion to quash must be made “promptly . . . at or before the time specified in the subpoena . . . .”).

A journalist need not wait until a motion to compel is filed before filing a motion to quash but if he/she has objected to the subpoena duces tecum, he/she may elect to do so. Once the subpoenaing party is served with written objection, it may move to compel production at any time. Iowa R. Civ. P. 1.1701(4)(b).

A media party should not wait for the party issuing the subpoena to file a motion to compel before filing a motion to quash.

Kentucky law does not permit the recipient of a subpoena to disregard the subpoena and await a motion to compel. Ky. R. Civ. P. 45; Ky. R. Crim. P. 7.02. In a civil case involving a subpoena for records, Kentucky law permits service of a written objection to the subpoenaing party or counsel within ten days of service of the subpoena, which then places the burden on the subpoenaing party to seek an appropriate court order to obtain the requested materials. See Ky. R. Civ. P. 45.04(2). The rule, however, does not preclude the recipient of the subpoena from first proceeding to file a motion to quash.

Once an objection is made, the party serving the subpoena is not entitled to compliance except by an order of the court from which the subpoena was issued. The party serving the subpoena may, after objection is made, move for an order compelling compliance with the subpoena. La. R.S. 45:1459(C).

In order for the court to compel compliance with the subpoena, the court must find that the party seeking the information has made a "clear and specific showing that the news is highly material and relevant; is critical and necessary to the maintenance of a party's claim; and is not obtainable from any alternative source." La. R.S. 45:1459(B).

Decided one year before Section 1459 of the shield law was codified, Ridenhour outlined the process for compelling compliance with a subpoena. Once the reporter moves to quash a subpoena, the party seeking information regarding a source must show that the disclosure is essential to the public interest. Ridenhour, 520 So.2d at 374. If the subpoena seeks other unpublished information, the party seeking the information must show that the disclosure is necessary to the protection of the public interest and that the subpoena was issued in good faith and not to harass. Id. at 376. After this showing is made, the judge must balance the public interest in having the testimony with the potential "chilling effect" that disclosure will have on the freedom of the press and the ability to gather news. Special attention should be paid to ensure that the information is not a "mere fishing expedition" and more weight should be given to the reporter's interest when the information relates to an investigation or criticism of the government. Id.

The media party should file a motion to quash rather than await a motion to compel in order to obtain a timely ruling in advance of trial.

There is no requirement that one wait until the adverse party files a motion to compel before filing a motion to quash.

The media party need not wait for the subpoenaing party to file a motion to compel before filing a motion to quash.

Because parties have the option to send in a written statement explaining why they should not have to appear, it is highly advisable that they respond to the subpoena rather than waiting for a motion to compel, especially if the subpoena seeks their appearance at a court hearing. See MCR 2.506(A)(3) (allowing a response to a subpoena explaining that the information sought is not reasonably accessible). There is no requirement that a party file a motion to quash first, but judges seem to respond better when parties send a letter of explanation or file the motion to quash rather than waiting until the motion to compel is filed.

If a party objects to a subpoena, the party seeking discovery may move to compel production of the documents at any time before or during the taking of the deposition.

Although there is no statutory or case law addressing this issue, the media party, in order to protect its rights, would be best served to file a motion to quash upon receiving the subpoena and not wait for a motion to compel.

Technically, the proper response to the subpoena is for the reporter to assert the privilege and then the subpoenaing party must file a motion to compel.  However, the journalist may also file a motion to quash the subpoena.

A motion to quash may be a better way to go rather than waiting for a motion to compel, though in a civil case an objection made within fourteen days of the subpoena is also an option.

If party issuing the subpoena files a motion to compel, file a motion to quash and alternatively seek a protective order.

A reporter should not wait for a motion to compel before filing a motion to quash in a criminal case. In civil cases, it is generally acceptable to assert objections and await a motion to compel if the subpoenaing party intends to pursue this matter. This is a strategic decision as it is acceptable to affirmatively file a motion to quash or motion for protective order prior to the filing of a motion to compel.

Before filing a motion to compel in Superior Court as permitted by Rule 29(e), a party is required to make a good faith effort with the opposing party to settle the dispute by agreement.

The rules of court require that the motion to quash come from the subpoenaed party. Some attorneys will await the motion to compel rather than moving to quash, but sanctions could still be imposed for failing to obey the subpoena.

The relationship between motions to compel and motions to quash is discussed above. See supra pt. V(B)(2).

The target of a judicial subpoena should move to quash and/or for a protective order before the return date of the subpoena or risk a finding of contempt for failure to appear. See CPLR § 2308 (a). For non-judicial subpoenas, such as those issued in an out-of-court proceeding such as an arbitration or in an administrative hearing, the reporter "cannot be held in contempt for failure to comply unless and until a court has issued an order compelling compliance, which order has been disobeyed.” Reuters Ltd. v. Dow Jones Telerate, Inc., 231 A.D.2d 337, 341, 662 N.Y.S.2d 450, 453 (1st Dep't 1997).

When a reporter is a party to a civil case, for example if a reporter and her newspaper or station are defendants in a libel action, the reporter's testimony may be compelled by the issuance of a notice of deposition and a subpoena. During the course of the deposition, the reporter may assert her privilege not to disclose certain information. The reporter would assert the privilege, decline to answer, and the attorney for the other side could file a motion to compel the reporter to respond. A judge would then decide the reporter's claim of privilege. N.C. R. Civ. P. 37.

The media party should not wait for the party serving the subpoena to file a motion to compel before it files an objection to a subpoena. Any objection to a subpoena must be served on the party designated in the subpoena within 10 days or, at the time specified for compliance is less than 10 days, at least 24 hours before the time specified for compliance.

Rule 45(C)(2)(b) of the Ohio Rules of Civil Procedure allows the subpoenaing party to file a motion to compel. The Criminal Rules do not have a similar provision, but provide that “[f]ailure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court or officer issuing the subpoena.”  Crim.R. 17(G).  The media party should not wait for the subpoenaing party to file a motion to compel before filing a motion to quash.

The party issuing the subpoena may file a motion to compel, but an order compelling production must protect the person from significant expense in complying with the order.  The response to a motion to compel may, of course, include the assertion of privilege.  Okla. Stat. tit. 12, § 2004.1 also allows a party asserting a privilege (e.g., if the subpoena is for the testimony of the journalist) to file a motion to quash without waiting for a motion to compel to be filed.

The party subpoenaed should move to quash before the appearance date and not await a motion to compel.

Because a subpoena is a court order, it is not advised that the news media disregard the subpoena’s return date and simply register an objection with the subpoenaing party. If the news media is unable to get the subpoenaing party to withdraw the subpoena, the news media should promptly file a motion to quash.

The Rhode Island Shield Law allows the following:

In any case where a person claims a privilege conferred by this statute, the person seeking the information or the source of the information may apply to the superior court for an order divesting the privilege. If the court, after hearing the parties, shall find that there is substantial evidence that disclosure of the information or of the source of the information is necessary to permit a criminal prosecution for the commission of a specific felony, or to prevent a threat to human life, and that the information or the source of the information is not available from other prospective witnesses, the court may make such order as may be proper under the circumstance. Any such order shall be appealable under the provisions of chapter 24 of title 9.

R.I. Gen. Laws § 9-19.1-3(c).

However, in most instances, when a subpoena is issued, a Motion to Quash or a Motion for a Protective Order should be filed prior to the subpoenaing party's Motion to Compel.

Operating on the principle that the party who files the motion sets the agenda, I would always recommend moving to quash a subpoena. If you are convinced that the attorney serving the subpoena will fail to act in response to a letter of objection in those circumstances where the subpoena seeks the production of documents or things only, you may choose not to move to quash.

Media should file without waiting for a motion to compel.

The media party may file a motion to quash the subpoena or may wait for the subpoenaing party to apply to the court for an order divesting the media party of the privilege. Tenn. Code Ann. § 24-1-208(c).

If the subpoena otherwise complies with the Texas Rules of Civil Procedure, the journalist should not wait for the subpoenaing party to file a motion to compel but should serve objections or file a Motion for Protection and to Quash prior to the time of compliance.  This is especially true given the potential for waiver of objections due to the failure to respond to a request for written discovery.  Tex. R. Civ. P. 193.2(e)

The media party does not have to wait for the subpoenaing party to file a motion to compel before filing a motion to quash a subpoena. See Utah R. Civ. P. 7; Utah R. Civ. P. 45. Even if the media party serves a written objection to a subpoena duces tecum, the media party may, as a strategic matter, want to file a motion to quash rather than wait for the requesting party to file a motion to compel.

If the subpoena is commanding attendance at deposition or trial, the reporter or publisher being subpoenaed should not wait for the subpoenaing party to file a motion to compel. The person being subpoenaed should file a motion to quash under V.R.C.P. 45(c)(3). If the subpoena requires the production or inspection of written records or other materials, the person being subpoenaed need only serve written objection on the subpoenaing party, which then triggers the subpoenaing party’s duty to file a motion to compel. See V.R.C.P. 45(c)(2)(B).

The media party should not wait for the subpoenaing party to file a motion to compel before filing a motion to quash.

The party issuing the subpoena may -- and indeed, if he or she is seeking documents and the witness has timely objected under CR 45(c)(2), must -- file a motion to compel.

In West Virginia, it is advisable that a member of the press who resists or intends to resist a subpoena should not wait for the subpoenaing party to file a motion to compel before filing a motion to quash. Such a tactic could turn the court against the reporter, and could result in sanctions, such as costs and attorney fees. The better strategy is to move to quash the subpoena as soon as practicable after the subpoena is served if conferring with the attorney does not lead to an agreement for its withdrawal.

A party filing a motion to quash should not wait for a motion to compel.

A person who receives a subpoena must comply or file a motion to quash unless the person files an objection as allowed under the rules for subpoenas that seek the inspection or copying of documents.