How to Quash a Subpoena
People and companies often want to avoid disclosing information that is demanded by subpoenas. The subpoenaed information could be sensitive, embarrassing, or bad for business.
Naturally, many subpoenaed people and companies argue in court that they shouldn’t have to comply with the subpoena. This process is known as “quashing” a subpoena.
This guide discusses the ways that subpoenas can be quashed. If you are subpoenaed and interested in ways to quash it, contact us for a free consultation.
What is a Subpoena?
A subpoena is a legal document that, with the power and authority of the court, directs a person or business to appear in court or provide documents.
If a person disregards a subpoena, they can be held in contempt of court and face fines or even incarceration.
Ways to Quash a Subpoena
Subpoenas can be quashed for a variety of reasons, so if you are attempting to quash a subpoena, it’s important to contact a lawyer who can assess all the ways that you may be able to get a subpoena quashed.
In New York, before you can even be heard by the court in effort to quash a subpoena, you must allege that you have standing to challenge the subpoena. In other words, you must demonstrate that you have a proprietary, privacy or possessory interest in the sought records.
The issue of standing can sometimes be tricky to establish, and a major roadblock is how courts apply the “Third-Party Doctrine.” The Third-Party Doctrine says that a person who provides information to a third-party does not have a possessory or privacy interest in those records.
For instance, if the prosecution is subpoenaing your phone records because they want to determine who you called on a certain day and time, most courts will says that you do not control or have a privacy interest in those records, since you freely give that data to a third-party—your phone service provider.
However, a skilled lawyer may be able to find ways in which you do have a privacy interest in the sought records. For instance, cell phone records that reveal your location implicate your 4th amendment privacy rights to a greater degree, and consequently courts may allow you quash a subpoena that requests your location data.
Quashing a Subpoena for Records
You may be able to quash a subpoena for records if you have standing and can establish that the subpoena is improperly issued. Some common reasons that a subpoena is quashed include:
A subpoena is overbroad when it requests records that are not relevant to the instant case. For instance, say you are charged with a domestic violence offense for sending harassing texts over the course of several months. If the prosecution subpoenas years and years of your phone records, that subpoena would arguably be overbroad, since the only relevant information would be your records during the months when you allegedly sent the threatening messages. In that scenario, the court could quash the subpoena for being overbroad.
Overly Burdensome Subpoena
If a subpoena requests things that would be overly burdensome for the subpoena recipient to produce, the court may quash the subpoena. Overly burdensome can include excessive time or costs. Oftentimes, the court will consider the nature of the case and the possible importance of the sought records when determining whether a subpoena is too burdensome.
Out of State Process Errors
If a party seeks to subpoena someone who is in a different state, they typically must follow a very specific procedure. If the procedure was not properly followed, then the procedural error could be a basis for a subpoena to be quashed.
Quashing a Subpoena for Testimony
When a subpoena requests that a person appear in court to testify, the subpoena may possibly be quashed if the witness can assert a privilege that would allow him to not testify.
For instance, in states where communications between spouses are privileged, a spouse could try to quash a subpoena that requests for the spouse to testify about communications between the spouses.
If a person is subpoenaed to testify about a subject, and such testimony could be self-incriminating, the person could have a 5th Amendment argument that he does not need to appear to provide testimony.
If you have a pending criminal case and know that the prosecution has subpoenaed sensitive records that you don’t want disclosed, you may have options. Contact NYC criminal lawyer Cody Warner for a free consultation to discuss your options.