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A motion to quash asks a federal court to cancel a subpoena under Rule 45 of the Federal Rules of Civil Procedure. You must file your motion in the federal district where your subpoena requires you to provide records or testify.

Check your deadline before you do anything. A judge may deny your motion if you file too late, without even considering your arguments. Many people miss the deadline because they have trouble finding it in a letter from their ISP.

Estimated Read Time: 5 minutes

In This Article, You Will Learn

  • When a federal court must cancel a subpoena
  • How to file a motion to quash, step by step
  • What an ISP subpoena means for subscribers
  • Which filing mistakes can lead a judge to deny an otherwise valid motion

When a Federal Court Must Quash a Subpoena

Under Rule 45(d)(3)(A) of the Federal Rules of Civil Procedure, a judge must quash or modify a subpoena if you file a timely motion and establish one of four legal grounds:

GroundWhat the Rule SaysWhat to Show the Court
Unreasonable time to complyThe subpoena gives you too little time to comply.How much time you have to comply and how much work it takes.
Geographic limit exceededThe subpoena requires compliance outside the geographic limits in Rule 45(c).How far you must travel from home, work, or a place where you regularly do business in person.
Privileged materialThe subpoena asks for information that privilege rules protect, and no exception or waiver applies.A privilege log that identifies each withheld item and explains your claim.
Undue burdenThe subpoena places an undue burden on you.An estimate of what compliance would cost you.

Under Rule 45(d)(3)(B), a judge may also quash or modify a subpoena that seeks trade secrets or other confidential commercial information.

How to File a Motion to Quash in Federal Court

Many federal judges decide these motions by reviewing the written filings, so yours needs to explain your reasons clearly.

Step 1: Confirm Which Court to File In

Rule 45(d)(3) requires you to file your motion in the federal district where the subpoena requires compliance. That court may differ from the court handling the lawsuit. For example, if a party in a New York lawsuit subpoenas you for a deposition in San Diego, where you live, you must file your motion in the Southern District of California.

If the court where you must comply differs from the court that issued the subpoena, the clerk opens a separate case for your motion. The court may also charge a filing fee.

Step 2: Check Your Deadline

File your motion before the subpoena’s compliance date. A judge may deny a late motion without considering your arguments.

If the subpoena asks for records, Rule 45(d)(2)(B) also lets you serve written objections by the earlier of these two deadlines: the compliance date or 14 days after service. Once you object, you do not have to produce the records unless the court orders you to do so. A deposition subpoena still requires a motion to quash.

Use the table below to check when to act and what to file for each type of subpoena:

Subpoena TypeWhen to ActWhat to File
Records onlyServe objections by the earlier of the compliance date or 14 days after service.Written objections, followed by a motion to quash if needed
Deposition testimonyBefore the scheduled depositionMotion to quash
ISP subpoena for subscriber identityBefore the date in the ISP’s letterMotion to quash

Step 3: Explain Why the Court Should Quash the Subpoena

Use the caption and civil action number from the original case, and title your filing “Motion to Quash Subpoena.” Cite the specific part of Rule 45(d)(3) that applies to your situation, then explain the facts that support your argument.

A general claim that compliance would burden you may not convince the judge. Explain what makes compliance difficult and estimate the time, cost, or effort involved.

Step 4: Serve Every Party and File Your Motion

Attach the subpoena to your motion. If you claim undue burden, include a sworn declaration that explains your situation. Check the court docket to identify every party, then send each one a copy as Rule 5 requires and file a certificate of service.

Attorneys file through CM/ECF, the court’s electronic filing system. Self-represented filers usually submit paper filings to the court clerk.

How an ISP Subpoena Changes the Process

In a BitTorrent copyright case, the plaintiff subpoenas your internet service provider (ISP) to identify the person behind an IP address. Your ISP then sends you a letter warning that it will release your identity unless someone files a motion to quash by the deadline. You typically have several weeks to respond, so check the dates in the letter carefully.

Filing on your own creates a privacy risk. Rule 11(a) requires you to sign your motion and provide your contact information, which puts your identity in the court file unless the judge allows you to file anonymously. An attorney can file the motion without listing your name.

Here is what may happen if you file a motion to quash an ISP subpoena or let the deadline pass:

OutcomeWhat Happens Next
Motion deniedThe ISP releases your subscriber information to the plaintiff.
Motion granted on curable defectsThe judge decides whether the plaintiff may file an amended complaint.
Motion granted with no amendment allowedThe case may end there unless the plaintiff appeals.
No motion filedThe ISP releases your subscriber information after the deadline in its letter.

Common Mistakes Pro Se Filers Make

People who represent themselves, known as pro se filers, often make mistakes that hurt their motions:

MistakeWhat HappensHow to Avoid It
Missing the deadlineThe judge may deny your motion as late.Mark the compliance date on your calendar as soon as you receive the subpoena.
Filing in the wrong courtThe court may refuse to rule on your motion.File in the federal district where the subpoena requires compliance.
Serving only the issuing attorneyThe court may strike your motion for improper service.Serve every party listed on the court docket.
Filing pro se in an ISP caseYour contact details may appear in the court file.Ask an attorney to file the motion on your behalf.

Further Reading

Get Help With Your Motion Before the Deadline

At Antonelli Law®, we represent clients nationwide and file motions electronically in any federal district. When we file a motion to quash for you, your name does not need to appear in it. Your consultation remains confidential, and attorney-client privilege protects what you tell us even if you decide not to hire us.