Receiving a subpoena can be stressful, especially if the recipient believes it is invalid for some reason or asks too much of them. In New York, the person who receives a subpoena may challenge a subpoena in court by filing a motion to quash. A motion to quash asks a court to either declare the subpoena to be invalid and unenforceable or modify its requirements.
A subpoena is an order that requires a person to appear at a specific time and place to testify or to provide physical evidence for a court case. Subpoenas are usually served on a person in order to compel them to provide evidence or testimony at depositions, trials, or hearings. For example, in a criminal case in federal court, subpoenas are used to order witnesses to appear at a trial and testify on a specified day at a specified time.
There are two primary ways a subpoena can be used to gather information. The first is sometimes referred to formally as a subpoena ad testificandum. This kind of subpoena orders an individual to provide testimony on a specified day at a specified time. The testimony may be given in a deposition in a lawyer’s office as part of the civil discovery process in a personal injury or other type of lawsuit. Or the testimony may be provided in a trial or hearing in court.
The second type is known as a subpoena duces tecum, which simply means that a person must appear and bring documents or some other type of physical evidence with them. Today, this may include information that is stored on an electronic device of some kind, e.g., a tablet.
New York law recognizes judicial subpoenas which a court issues and non-judicial subpoenas issued by attorneys for parties to lawsuits. Judicial subpoenas carry the authority of the court, however non-judicial subpoenas may be reviewed by a court to ensure that they comply with its procedural rules.
To be enforceable, a subpoena must be delivered to the person to whom it is addressed. Per the New York rules of civil procedure, this means hand delivering a copy of it into the hands of the person named in the subpoena. The person who effects the delivery must be 18 or older and cannot be a party to the lawsuit in which the subpoena is issued.
Who Can File a Motion To Quash in New York?
Any individual who receives a subpoena of any kind may file a motion to quash in New York. They may be a potential witness in a lawsuit or someone who holds documents or other items of evidence that one of the parties needs to prove their case or their defense in a case.
How Do I File a Motion To Quash a Subpoena in New York?
A motion to quash is a technical legal move, and it would be advisable to consult a New York lawyer for advice as to whether to file one and, if so, how to go about it.
A motion to quash is most likely to succeed if it shows that the subpoena challenged is:
- Overly broad, seeking information that is not relevant to the issues in a lawsuit
- Burdensome in its demands
- Seeks information that is privileged, e.g., under the doctor-patient privilege.
The motion must present the grounds for the challenge with citations to legal authority. It must also present the facts from the subpoena which support the grounds for the challenge.
The motion should be filed before the date and time when compliance with the subpoena is demanded. If the subpoena is issued by an attorney for a party to a lawsuit, the motion must be filed in the court in which the lawsuit is pending.
Of course, it is critically important to hand deliver a complete copy of the motion and any supporting documentation to all of the other parties to the lawsuit. Of course, they have a right to oppose the motion. If the parties cannot resolve the issues involved through negotiation, the court holds a court hearing. The parties must appear and present their respective arguments for and against the motion. The court then grants the motion or denies it.
If the motion is granted, the party that issued the subpoena would have to revise it and serve it again. Or the court might modify and then the recipient would have to comply with the subpoena as modified.
What Do You Do If You Receive a Subpoena in New York?
An individual may, of course, read the subpoena and comply with its directions. Of course, a New York lawyer consultation would help an individual understand what the subpoena requires of them. A lawyer could also assess whether a motion to quash would be a good move.
It is always possible for the person who receives a subpoena to contact the party who served them with it and attempt to negotiate any change they think is necessary. For example, if the subpoena demands the recipient’s appearance, the recipient might negotiate a different day or time that is more convenient for them.
One thing the recipient of a subpoena should not do is simply ignore the subpoena. A person may encounter serious negative legal consequences if they fail to comply with a valid subpoena. Under some circumstances, a person might be held in contempt of court if they disobey a subpoena without a legitimate excuse.
Contempt of court, or disobeying a court order, could be considered a criminal act in some situations with possible punishment including payment of a fine and even imprisonment for up to 6 months.
What If a Motion To Quash Is Not Granted in New York?
If an individual’s motion to quash a subpoena they have received fails, then they must comply with the subpoena. They must appear at the time and place directed or produce the documents demanded.
As noted above, the only other alternative is to contact the person who served the subpoena and try to negotiate a different resolution, e.g., rescheduling the appearance or the date for production of the documents.
What Procedural Rules That May Be Involved With a Motion To Quash in New York?
As noted above, a motion to quash must state the grounds for the challenge with citations to legal authority. It must also present the facts from the subpoena which support the grounds for the challenge.
The motion should be filed in the court that issued the subpoena. Or, again, if issued by an attorney for a party to a lawsuit, in the court in which the lawsuit is pending. It is usually a pre-trial motion, because the parties seek all the relevant evidence before a trial begins.
However, in rare circumstances, a party might serve a subpoena on a witness while a trial is in progress, in which case it would have to be filed during the trial. The party who files the motion would want to consult local court rules of procedure and ensure that they comply with them.
Of course, it is critical to serve the motion and all supporting documentation on the other parties to the lawsuit. The opposing party would have a period of time, usually 30 days, to file their opposition to the motion if they wish.
Of course, another option is always to negotiate a resolution of any issues raised by the motion. If the parties negotiate a resolution, then the motion would become moot.
If the motion goes forward, the court schedules a hearing where the parties would present their respective arguments for and against the motion. The court would then grant or deny the motion.
Do I Need a New York Lawyer for Help With Procedural Rules?
If you have received a subpoena that you think is too demanding, you want to talk to a New York personal injury lawyer. Your lawyer will review the subpoena and advise you as to whether or not you have grounds for a motion to quash. Your lawyer would also be able to try to negotiate a resolution of any problems the subpoena creates for you. You will be sure to get the best outcome if you have a New York personal injury lawyer helping you deal with your subpoena.
