Motion to Quash or Modify Bankruptcy Subpoena
(Third Party)

Summary

This template motion is for use by an attorney representing a third party who is not the subpoena recipient but who wishes to quash or modify a bankruptcy subpoena pursuant to Bankruptcy Rule 9016, which incorporates Rule 45 of the Federal Rules of Civil Procedure (Federal Rules). This template includes practical guidance, drafting notes, and alternate and optional clauses. Federal Rule 45(d)(3) outlines the procedure to move to quash or modify a subpoena, including on the grounds that it subjects a person to undue burden. The rule contemplates both mandatory and permissive quashing or modification of a subpoena. Under Federal Rule 45(d)(3)(A), a court must quash or modify a subpoena that: • Fails to allow a reasonable time to comply • Requires the recipient to comply beyond the 100-mile limit set forth in Federal Rule 45(c) • Requires disclosure of privileged or protected material, without applicable exception or waiver – or – • Subjects the recipient to an undue burden Fed. R. Civ. P. 45(d)(3)(A). When the facts support one of these four scenarios, mandatory quashing or modification is required. Under Federal Rule 45(d)(3)(B), a court may (permissive) quash or modify a subpoena that: • Requires disclosing a trade secret or other confidential research, development, or commercial information – or – • Requires disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party Fed. R. Civ. P. 45(d)(3)(B). If the facts support one of these two prongs, permissive quashing or modification is available, in the court's discretion. Where permissive grounds exist to quash or modify the subpoena, the court may instead order an appearance or production under specified conditions if the requesting party demonstrates: • A substantial need for the testimony or material • That it cannot otherwise meet this need without undue hardship –and– • That the subpoena recipient will be reasonably compensated See Fed. R. Civ. P. 45(d)(3)(C). A motion to quash must be "timely." See Fed. R. Civ. P. 45(d)(3)(A). Courts have interpreted the word "timely" to mean before the time specified in the subpoena for compliance (i.e., before the return date). See Ht S.R.L. v. Velasco, 125 F. Supp. 3d 211, 229 (D.D.C. 2015). Federal Rule 45 also specifies that objections to subpoenas are due on the earlier of 14 days after service of the subpoena, or the time set for production, and motions to quash or modify subpoenas are due on the same timetable, subject to the parties' agreement to a different schedule. Once a motion to quash or modify a subpoena is filed, compliance with the subpoena is stayed until the court decides the motion. This motion is drafted for use by a third party who wishes to quash a bankruptcy subpoena directed to someone else when the subpoena seeks confidential or privileged information about the third party. For more information, see Responding to Discovery Subpoenas (Federal). For a subpoena recipient's template motion and proposed order, see Motion to Quash or Modify Bankruptcy Subpoena and Order Granting Motion to Quash or Modify Subpoena. For a full listing of key content when litigating disputes in bankruptcy cases, see Bankruptcy Litigation Resource Kit.