d. Language

Typical language in a motion to quash a subpoena (in a civil case) asks the court, pursuant to Fed. R. Civ. P. 45(d)(3)(A), to quash the subpoena that has been served by the [plaintiff/defendant] upon the third-party witness __[name]__, on grounds that the subpoena requires disclosure of privileged or other protected matter and no exception or waiver applies. The motion to quash should also set forth applicable Tenth Circuit case law and should seek a protective order under Fed. R. Civ. P. 26, so that the reporter may be relieved from having to appear at the deposition, hearing, or trial, until the motion to quash is decided.

In a civil case for violation of patent rights where the plaintiff subpoenaed a non-party newspaper, the Middle District of Florida quashed the subpoena because the subpoena's requests broadly sought all “[d]ocuments and [c]ommunications,” including internal communications that were “untethered to any particular custodian and regarding subject matters that appear to be of little relevance to this action.”  EDST, LLC v. Iapartments, Inc. 2022 WL 14022414, Case No. 8:22-cv-272-CEH-JSS (M.D. Fla. Oct. 24, 2022).

Although there is no stock language to include in a motion to quash, the motion should expressly identify the area of testimony or the documents which the reporter objects to providing and the basis for asserting a qualified privilege.

While there is no "stock language" that is required, motions to quash are often predicated on one of the following grounds: the request for information is overly broad, insufficient time has been permitted for compliance, the request is unduly burdensome, and/or the material requested is privileged.

In the Third Circuit, there do not appear to be any "magic words" that a person challenging a subpoena must include. Clearly, however, an objection or motion to quash should demonstrate that the recipient of the subpoena qualifies to invoke the reporter's privilege, and that the party issuing the subpoena cannot meet the three-part test for overcoming the privilege.

The federal rules and local rules for the district courts in the Fourth Circuit do not specify any stock language or preferred text that should be included in the motion. However, Federal Rule of Civil Procedure 45(e)(2), provides that a person withholding subpoenaed information must: “(i) expressly make the claims; and (ii) describe the nature of the withheld documents, communications, or tangible things in a manner that … will enable the parties to assess the claim.”

No reported decision of the Fifth Circuit requires the movant to recite any specific language in a motion to quash. However, a certificate of conference and proposed order may be required under the applicable local rules. See, e.g., N.D. Tex. L.R. 7.1 (requiring a brief, certificate of conference, and proposed order to accompany any motion to compel or to quash).

A motion to quash a subpoena issued under the authority of a federal court should show the name of the court to which the motion is directed, the name of the case, the case no. assigned to the case, and a title for the motion. For example:

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO

Parson Brown, Plaintiff,

v.

Barn Door Co., Defendant.

Case No. CV 007 Motion of nonparty Paul Utzer to quash subpoena

The motion should state in a few sentences what the movant nonparty wants [to quash the subpoena], the Rule of Civil Procedure being invoked [usually Rule 45], when the subpoena was served, the deadline stated on the subpoena for compliance, that the movant nonparty is a journalist, and the essential reason for quashing the subpoena [First Amendment, reporter's privilege]. For example:

"Nonparty Paul Utzer, a journalist, hereby moves pursuant to Rule 45 of the Federal Rules of Civil Procedure to quash a subpoena served upon him on June 1, 2002, commanding compliance on July 1, 2002. The grounds for this motion are that the subpoena seeks movant to produce unpublished information gathered during the course of his duties as a journalist which, if produced, would disclose the name of a news source to whom movant has promised confidentiality. As explained more fully in the attached memorandum, which movant incorporates here, the First Amendment bars compelled disclosure of the confidential sources of the press."

The bottom of the motion should show the signature of the attorney for the movant, or if the movant is not represented by an attorney, the movant should sign the motion.

Typically, a motion would be accompanied by an attached memorandum that sets forth case law and argument that supports the ground for the motion.

There is no statutory or case law addressing this issue.

The district court in Continental Cablevision held, "If Movant does claim the privilege . . . Movant shall state with particularity the manner in which the answer to the question is alleged to be privileged and the factual basis, to the extent possible without revealing the allegedly privileged information, for the claim of privilege." Continental Cablevision, Inc. v. Storer Broad. Co., 583 F. Supp. 427, 438 (E.D. Mo. 1984).

There is no statutory or case law addressing this issue.

There is no statutorily required language that must be included in a motion to quash, but as a general matter, the motion to quash should set forth the moving party's claim that the subpoenaed documents or testimony are privileged and the basis for the assertion of the privilege - Alabama's shield statute, the First Amendment to the United States Constitution, or both. When asserting that the subpoenaed testimony or materials are privileged under the First Amendment, the motion should set forth the three elements that the subpoenaing party must prove to obtain the subpoenaed materials, which are: 1) The reporter has information highly relevant to a claim or a defense; 2) There is a compelling need for disclosure sufficient to override the First Amendment privilege; and 3) The party seeking the information has unsuccessfully attempted to obtain it from other sources less chilling of First Amendment freedoms. Norandal USA, Inc. v. Local Union No. 7468, No.: CV-86-136, 13 Med. L. Rptr. 2167 (Jackson County, Ala. Cir. Ct., Sept. 11, 1986). When applicable, the motion should include the assertion that the subpoena is overbroad, oppressive, and burdensome, in violation of the Alabama Rules of Civil Procedure.

There is no stock or preferred language that should be included in a motion to quash, but it is best to refer to the motion being brought pursuant to article I, section 5, of the state constitution, and AS 09.25.300-390, as well as the First Amendment, both to preserve these issues in the event of an appeal, and because the statute may prove useful procedurally even though it is of relatively little value substantively.

The language of a motion to quash or for protective order will necessarily vary from case to case. Nevertheless, if the subpoenaing party has not made any of the six averments required by the Arizona Media Subpoena Law, the motion should explain the affidavit's deficiencies.

There is no stock language or preferred text for a motion to quash.

There is no stock language or preferred text to be included in the motion. However, because California law requires specific findings from trial courts before compelling disclosure of unpublished information, the motion should advise the trial court of this requirement. Cal. Code Civ. Proc. § 1986.1(c) (any order holding a journalist in contempt must state, “at a minimum, why the information will be of material assistance to the party seeking the evidence, and why alternate sources of the information are not sufficient”).

Because the outcome of a motion to quash is dependent largely on the specific facts in the case, there is no specific language required in order to get a motion granted. However, at a minimum, the motion should cite to the Shield Law and apply the specific facts to the three-part test. See Section VI, infra.

There is no stock language or preferred text that should be included in a motion to quash. The following is a sample of a motion to quash:

MOTION TO QUASH SUBPOENA

[Reporter's name], a journalist with [news organization] (“Movant”), hereby moves that the subpoena attached hereto, made a part hereof, and marked “Exhibit A,” commanding the presence of [name] at a hearing before this Court on [date] at [time] be quashed pursuant to Section 52-146t of the Connecticut General Statutes (the “Shield Law”).

In support hereof, Movant represents as follows:

1. [Name] is a journalist employed by [news organization], and meets the Shield Law’s definition of “News Media.” [He/She] is therefore protected by the reporter’s privilege as set forth in the Shield Law.
2. Neither [Name] or [news organization] is a party to this case.
3. Upon information and belief, this suit deals with [description of case].
4. The Shield Law provides that a party in a [civil/criminal] action cannot overcome the reporter’s privilege and compel a member of the News Media to testify, produce information or identify confidential or non-confidential sources without first establishing by clear and convincing evidencethe following:

(a) That there are reasonable grounds to [sustain the cause of action / defense / etc.];

(b) That the information sought from the news media is “critical or necessary” to the maintenance of the claim;

(c) That the information is “not obtainable from any alternative source”; and

(d) That there is “an overriding public interest in disclosure.”

5. Plaintiff has not and cannot, under the circumstances of this case, met the weighty burden of proof set forth in the Shield Law. [He/She] has not shown by clear and convincing evidence that there are reasonable grounds to [sustain the cause of action / defense / etc.], that the information sought is “critical or necessary,” that there is no alternative source for the information, or that there is an overriding public interest in disclosure, especially when balanced against traditional constitutional and common law rights.

Therefore, pursuant to the Shield Law, as well as the rights accorded [Name] under the First Amendment to the United States Constitution, Article First, Section Five of the Connecticut Constitution, and federal and state common law applicable to these sorts of inquiries, plaintiff has not demonstrated the existence of the conditions precedent requisite to compelling the presence of [name] or [her/his] testimony.

Accordingly, the subpoena was improvidently issued and should be quashed.

No stock language needs to be included in a motion to quash.  However, the court must quash or modify a civil subpoena if the recipient establishes that it 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 imposes an undue burden.  Fed. R. Civ. P. 45(d)(3)(A).

The motion should make clear reference to at least one of the statutory reasons for quashing or modifying a subpoena: failure to allow reasonable time for compliance, privileged or protected materials, or undue burden, among others. See Super. Ct. Civ. R. 45 (c)(3)(A).

The person seeking to quash the subpoena must provide language establishing that the privilege applies.  Prentice v. McPhilemy, 27 Med. L. Rptr. 2377, 2383 (D.C. Super. Ct. 1999) (noting burden on person seeking to invoke the privilege to establish that he falls within the scope of the D.C. shield law).  Accordingly, the movant must establish that he or she obtained the information or source in the course of pursuing professional activities, while employed by the news media (as the D.C. shield law defines that term).  D.C. Code §§ 16-4701, 16-4702.  If unpublished information is involved, the movant also should show that the information was not published.

Additionally, to successfully quash the subpoena, the movant may want to show that the subpoena does not permit a reasonable time for compliance, requires travel further than is permitted by the rules, or imposes an undue burden. SCR-Civ. 45(c)(3); SCR-Crim. 17(c)(2).

The motion should be relatively short. It should state that the reporter has received a subpoena. It should track that statutory language by stating that the reporter is a “professional journalist” and that any information the reporter has was obtained while “actively gathering news.” In some cases, where the application of the privilege is unclear, an affidavit from the recipient of the subpoena may be helpful in establishing the privilege.

The motion should state that the objection to the subpoena is based on constitutional, common law, and statutory grounds. This way, if the shield law is held not to apply for some reason, then the reporter may seek the protection of the constitutional and statutory privileges. The shield law itself expressly retains the protections of the common law and constitutional privileges. § 90.5015(5), Fla. Stat. (2023).

After establishing that the recipient of the subpoena is a professional journalist and asserting the privilege, the motion should state the three-part test for overcoming the privilege. Because most subpoenas are received before any evidentiary showing by the subpoenaing party, the motion should also clearly state that the subpoenaing party has the burden of overcoming the three-part test by a clear and specific showing as required by the statute. § 90.5015(2), Fla. Stat. (2023). The motion should conclude by stating that the requisite showing has not been made and should request that the court quash the subpoena, or in the alternative, issue a protective order.

There is no preferred language that should be included in a motion to quash.

There are no recommendations for boilerplate language.

There is no particular language required for the motion to quash. It should, however, clearly set out the relief sought by the motion, particularly if the motion seeks to preclude some portion of the requested testimony, or requested documents, rather than the entirety of what may be sought in the subpoena or subpoena duces tecum. See generally Rule 45 of the Idaho Rules of Civil Procedure and Rule 17 of the Idaho Criminal Rules.

There is no Illinois statutory or case law addressing this issue.

You will need to cite the applicable provisions of Ind. R. Tr. P. 45 and/or Ind. R. Tr. P. 34(C) and explain how these provisions apply to your situation.

No uniform rules or forms exist for making an objection or filing a motion to quash.

There is no preferred text or stock language that is required in connection with a motion to quash a subpoena.

There is no specific language that must be included in a motion to quash.

There is no "stock language" or "preferred text" for a motion to quash.

If a confidential source or information is involved, a motion to quash should cite the shield law. 16 M.R.S.A. § 61. If non-confidential sources or information are at stake, a motion to quash should cite the balancing test in In re Letellier, 578 A.2d 722, 17 Media L. Rep. 2169 (Me. 1990).  A motion need not be overly formal, and the Court will consider a letter objecting to a subpoena as the equivalent to a motion to quash.  See State v. Peck, 2014 ME 74, ¶ 7 n.5, 93 A.3d 256, 259 n.5 (treating a witness’s letter as the equivalent of a motion to quash).

The rules do not specify a requirement for the use of stock language or preferred text in a motion. However, the general provisions of the Maryland Rules provide guidance as to the proper form of court papers, which apply to all motions (i.e., caption and titling, designation of parties and attorneys, size of papers, legibility and durability, existing documents, verification and corporate seal unnecessary). See Md. R. Civ. Proc. 1-301(a) - (f).

Statement of grounds and authorities -- Md. R. Civ. Proc. 2-311 (c) -- "A written motion and a response to a motion shall state with particularity the grounds and the authorities in support of each ground."

Statement of grounds; exhibits -- Md. R. Civ. Proc. 3-311(b) -- "A written motion and a response to a motion shall state with particularity the grounds. A party shall attach as an exhibit to a written motion or response any document that the party wishes the court to consider in ruling on the motion or response unless the document is adopted by reference as permitted by Rule 3-303(d) or set forth as permitted by Rule 3-421(g)."

There is no stock language or preferred text that should be included in a motion to quash.

There is no special language; however, it is a good idea to have a reporter’s affidavit or an editor’s affidavit as to how the subpoena will interfere with news gathering activities.

Typical language for an objection: "Pursuant to Rule 45.04(b) of the Minnesota Rules of Civil Procedure, [objecting witness] hereby objects to the production, inspection, or copying of any and all of the materials designated in Exhibit A to the subpoena duces tecum dated ____, and signed by [attorney for subpoenaing party]. [Objecting witness] objects to the subpoena on the grounds, inter alia, that [grounds]."

Typical language for Notice of Motion and Motion to Quash: "To [attorney for the party serving the subpoena]: PLEASE TAKE NOTICE that [reporter or news organization] by the undersigned, will move this Court for an Order pursuant to Rules 26, 37, and 45 of the Minnesota Rules of Civil Procedure, providing: 1. That the subpoenas duces tecum served on [moving party] by [subpoenaing party] be quashed; and 2. That the notices of deposition of [moving party or witness] be quashed."

There is no stock language or preferred text that should be included in a motion other than what is provided for in Miss. R. Civ. P. 45(e)(2), which states that "[w]hen information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim." One should also include the criteria necessary to trigger the journalist's qualified privilege: (1) the testimony of the reporter is not highly relevant to the seeking parties case; (2) there is no compelling need for the testimony sufficient to override the reporter's First Amendment privilege; and (3) the seeking party has not attempted and failed to obtain the information possessed by the reporter from other sources.

No special requirements.

There is no stock language for a motion to quash.

In resisting the subpoena cite to the Free Flow of information Act and Section 6-326 of the Nebraska Discovery Rules for all Civil Cases.

Reference should be made to the news shield statute and the First Amendment. NRS 49.275;  Aspen Fin. Servs., Inc. v. Eighth Judicial Dist. Court, 129 Nev. 878, 313 P.3d 875, 878 (2013); Diaz v. Eighth Judicial Dist. Court, 116 Nev. 88, 94, 99, 993 P.2d 50, 54, 57 (2000).

There is no preferred text or mandatory language that should be included in such a motion.

The motion to quash must include a certification or affidavit from the reporter invoking the Shield Law and attesting to the fact that he or she qualifies for the protections of the Shield Law.

There is no stock language or preferred text for motions to quash. But the reporter’s privilege must be claimed “expressly,” and the motion must be “supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.” Rule 1-045(D)(2)(a) NMRA; Rule 5-511(D)(2) NMRA.

While there is no "stock language" or preferred text to be included in a motion to quash or for a protective order, a uniform notice of motion can be found within the text of Uniform Rule 202.7.

The North Carolina General Statutes do not prescribe any recommended language for a motion to quash a subpoena. Typically, such motions need only describe the circumstances giving rise to the subpoena, identify the interests of the moving party, and state grounds for grant of the motion. N.C. R. Civ. P. 45(c)(5).

North Dakota law does not require any stock language or preferred text that should be included in an objection to a subpoena. It is recommended, however, that the basis of the objection be stated.

There is no stock language or preferred text that should be included in a motion, although citation to the Civil Rules or Criminal Rules is advisable.

We usually quote the pertinent parts of the statute in a motion in case the court has not had significant experience with the privilege statute.  We also usually combine both statutory and constitutional grounds for quashing the subpoena.

Motions to quash are made pursuant to the shield law, ORS 44.510 et. seq.

See the UTCRs and local court rules for specific formatting requirements of the motion.  Motions must state whether oral argument is requested -- and it should be --- and whether argument is requested by telephone, which may be permitted if counsel for the person subpoenaed has his or her office located more than 25 miles from the courthouse. The motion should then state the name and telephone numbers of the attorneys for all parties, whether court reporting services are requested, and the length of the requested hearing.  The motion must be accompanied by a statement of points and authorities or a memorandum of law.

Although this largely depends on the applicable local court rules, the motion should briefly give the background of the issue, state the argument and relief requested, and include a proposed order and, depending on local practice, a memorandum of law. Because trial court judges are usually unfamiliar with the First Amendment reporter’s privilege and Shield Law, it is important to educate the court as to their nature, scope, and underlying public policies.

While there is no specific language requirement for a Motion to Quash, the party so filing should be prepared to submit a legal memoranda detailing both legal and factual grounds for the Motion.

In civil cases a motion to quash or for a protective order made on grounds of the privilege must describe the privileged material in sufficient detail to allow the responding side to contest the issue. There is no similar requirement in responding to a criminal court subpoena, but a description phrased in your language helps set the agenda.

A customary response to a subpoena to a reporter seeking to compel the production of notes or testimony might state: "Movant is a reporter for the Daily Planet, and the information or documents sought by the attached subpoena was obtained in the process of gathering or dissemination of news and is privileged under S.C. Code Ann. §19-11-100 (Supp. 2001)."

There is no special language that is necessary.

The motion to quash the subpoena should cite and use the language of the shield law. Generally, the best practice would be to support the motion to quash with a simple affidavit of the subpoenaed journalist that invokes the provisions of the statute or affirms that the facts stated in the motion to quash are true.

The motion to quash should recite the statutory privilege and the purpose of the law. See Tex. Civ. Prac. & Rem. Code §§22.021-22.025 and Tex. Code Crim. Proc. art. 38.11. It should also make it clear that the subpoenaing party has the burden and the burden is a heightened standard of clear and specific evidence. See Tex. Civ. Prac. & Rem. Code §22.024; Tex. Code Crim. Proc. art. 38.11, §§4 and 5; see also Texas R. Civ. Proc. 176.6. When filing a Motion to Quash, it is helpful to cite to the language in the privilege which presumes the privilege applies when asserted “except as otherwise provided by this article, a judicial, legislative, administrative, or other body with the authority to issue a subpoena or other compulsory process may not compel a journalist to testify regarding or to produce or disclose.” See Tex. Civ. Prac. & Rem. Code §22.023 and Tex. Code Crim. Proc. art. 38.11, §3.

There is no stock language or preferred text that needs to be included in a motion to quash a subpoena. Aside from discussing the substantive elements of the reporter's privilege, the party should discuss generally the grounds for quashing a subpoena set forth in the applicable Rules of Criminal and Civil Procedure. See Utah R. Civ. P. 45(e); Utah R. Civ. P. 26(b) and 26(c); Utah R. Crim. P. 14.

A motion to quash should include a memorandum of law that references the rights a reporter has under the Vermont Shield Law.  See 12 V.S.A. § 1615.  The motion should reference the statute’s broad definitions of “journalist” and “journalism” and identify whether the information sought was received in confidence.  To the extent the information was received in confidence, the motion should rely on the Shield Law’s absolute privilege.  To the extent the information sought was not received in confidence, the motion should point out that the statute requires the party seeking the information to establish by clear and convincing evidence that the information is: (1) highly material to a significant legal issue before the court; (2) the news or information could not, with due diligence, be obtained by alternative means; and (3) there is a compelling need for disclosure. 12 V.S.A. § 1615(b)(2). As the Vermont Supreme Court has explained, “[c]lear and convincing evidence is a ‘very demanding’ standard, requiring somewhat less than evidence beyond a reasonable doubt, but more than a preponderance of the evidence” and is a “heightened burden of proof.”  In re E.T., 2004 VT 111, ¶ 12, 865 A.2d 416 (Vt. 2004) (citation omitted).

There is no stock language or preferred text that should be included in a motion.

There is no particular language necessary; Washington has notice pleading. See CR 1.

West Virginia Rule of Civil Procedure 45(d)(3)(A) governs motions to quash or modify a subpoena.  Pursuant to that Rule, a subpoena may be modified or quashed if it (i) fails to allow a reasonable time for compliance; (ii) requires a person to travel for a deposition to a place other than a county in which that person resides or is employed or transacts business in person; (iii) requires disclosure of privileged or other protected matter and no exception or waiver applies; or (iv) subjects a person to “undue burden.”  For the purposes of filing the motion to quash, there is no stock language necessary. Indeed, the motion itself can be quite brief, although it is often preferable to file a memorandum going into some detail about the contours of the privilege. It should be remembered that in West Virginia, trial judges are not accustomed to regularly addressing issues concerning the reporters' privilege and its First Amendment implication, and often a detailed but concise explanation of the application of the privilege will be helpful to the success of the motion.

A motion to quash should set forth the basis for the motion, addressing section 885.14’s procedural and substantive requirements for issuing a subpoena to a “news person.”  Specifically, the motion should explain whether the information sought is confidential and hence subject to the shield law’s absolute privilege, in which case a subpoena cannot be issued under any circumstance.  If the qualified privilege applies, the motion should argue that the subpoena is invalid if not issued by the court following notice and an opportunity to be heard.  Furthermore, the motion should address the elements the court must consider before issuing such a subpoena, which appear at Wis. Stat. § 885.14(2)(b)–(c).

There is no stock language that should be included in the motion to quash. However, the movant ought to cite to the specific provision in Rule 45 of the Wyoming Rules of Civil Procedure upon which the motion to quash is based, such as privilege or an undue burden.