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:
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:
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:
Common Mistakes Pro Se Filers Make
People who represent themselves, known as pro se filers, often make mistakes that hurt their motions:
Further Reading
- Quash Subpoena Meaning & Myths: What It Can and Cannot Do
- Motion to Quash in Copyright Cases
- ISP Subpoena Letter: What It Means
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.