Motion to Quash or Modify Bankruptcy Subpoena

Summary

This template motion is for use by an attorney representing a subpoena recipient who is seeking to quash or modify a 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 discretion of the court. 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). For example, if the subpoena at issue commands the production of your client's confidential or proprietary information, the court may condition your client's production on the entry of an appropriate protective order. If the court grants the motion, it can quash the subpoena in its entirety or modify certain portions of the subpoena. Note, if the court quashes the subpoena, the issuing party generally may serve a new subpoena correcting the prior defects. 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). Thus, if you identify any of the grounds described above in your initial subpoena review, immediately move to quash or modify the subpoena. This puts the burden on the moving party to correct the issues before proceeding. Motions to quash may be filed in an adversary proceeding or the main bankruptcy case. In the main case, if the debtor (or other non-subpoenaed) examinee believes a Bankruptcy Rule 2004 examination seeks discovery beyond what is allowed, he or she may move to quash the examination. Motions to quash a Bankruptcy Rule 2004 examination can be made for several reasons including that the matter is prohibited from examination. For more information, see Bankruptcy Rule 2004 Examinations. Parties often move to quash or modify a subpoena on the grounds that it subjects a person to undue burden or the subpoena seeks privileged or confidential information, trade secrets, or other confidential commercial information. For more information, see Responding to Discovery Subpoenas (Federal). This template contains arguments and hypothetical facts that assume that the subpoena is objectionable based on the undue burden and confidential information grounds described above. Note that you may also move to quash on the other grounds listed in Federal Rule 45 or on the grounds that the subpoena does not meet the requirements set forth in Fed. R. Civ. Proc. 45, such as improper service, failure to include the necessary language required under the rule, and so on. For a template order to attach to the motion, see Order Granting Motion to Quash or Modify Subpoena. For a full listing of key content that provides an overview of important topics when litigating disputes in bankruptcy cases, see Bankruptcy Litigation Resource Kit.