Motion to Quash Subpoena

A subpoena is a legal document instructing a party that they must go to court and provide evidence as a witness. A motion to quash a subpoena occurs when one court makes a specific request: to render the decision that a lower court has made invalid. To quash something is to void or reject it, typically through legal procedure.

When an individual in authority or the court quashes the judgment, they officially reject the decision. For example, if one party reported improper service of process, they could file a motion to quash.

A motion to quash usually occurs at a trial’s start or happens as an appeal to a motion during pretrial, and motions to quash often occur in civil proceedings such as personal injury cases.

A motion to quash requests that the court nullifies a previous ruling is a piece of a larger set of civil procedure rules that differ at the federal and state level. These rules also commonly differ among different states.

This article will further explain what a motion to quash a subpoena entails and outline how a party can challenge a subpoena.

What is a subpoena for the production of business records?

A subpoena for producing business records is typically used to procure documents from third parties and assist in revealing evidence that either supports or devaluates a claim.

A deposition subpoena for producing business records is vital for gathering evidence. This type of subpoena can be served to any natural individual or agent authorized to accept the service, and the California Code of Civil Procedure empowers the subpoena.

What are reasons to say no to a subpoena?

Below are some of the parties’ main justifications when motioning to quash a subpoena.

Medical Records that are Too Widely Applicable

In terms of medical records, plaintiffs have:

• Legal physician-patient privilege
• An inalienable right to privacy through the California Constitution

In many personal injury cases, the opposing attorneys attempt to procure the entirety of the plaintiff’s medical records. Opposing counsel often asks for records from over a decade before the incident, and refers to all body parts, as opposed to only the parts of the body reflected body in the current legal action.

The contents of these subpoenas violated the plaintiff’s right to privacy; however, the opposing counsel has no right to these records. Often, these records provide opposing attorneys with ideas for what they can blame the plaintiff’s alleged personal injuries on.

To correspond with the correct legal practices, the subpoena’s language must be limited to one decade (10 years) before the incident occurred. In addition, the subpoena cannot reference medical records that refer to body parts not referenced in the lawsuit. Lastly, even if a portion of a medical condition is included in the issue, this does not mean the plaintiff relinquished their privilege to protect their medical history. Also, if the plaintiff suffered an unrelated ailment at the time of the incident that is up for legal review, that ailment should not factor into the case or subpoena.

Unrelated Medical Records

When a plaintiff sues for personal injuries, the private relationship between the patient and his or her doctor is waived for the body’s parts included in the lawsuit.

However, the right to privacy still exists for the plaintiff for physical and psychological conditions that do not relate to the injury and do not relate to the claim.

Therefore, the party seeking the protected medical information faces the burden of proof, for they must establish to the court that the information they seek is relevant. Speculation about the relevance of medical records is not sufficient. All individuals’ right to privacy protects psychiatric medical records, and these records cannot be counted as admissible evidence.

Prior insurance records

In California, the Insurance Information and Privacy Protection Act restricts disclosures and information-gathering by insurance companies. Agents and companies cannot reveal privileged or personal information about client transactions unless the insured party authorizes that action.

Sometimes, subpoenas ask for insurance materials such as:

• Interviews
• Recordings of statements
• Investigations carried out before litigation began

This insurance information is protected, and upon receipt of such a request, the insurance company has a responsibility to assert its privilege and deny the request.

Premature Reports from Experts

When parties can agree on a settlement without the court’s interference, they are encouraged to do so by public policy. Often, when a demand letter is issued to opposing counsel, the letter is accompanied by a draft report by an expert.

While the expert’s account is protected on the basis that it was provided during the negotiation of a settlement, the opposing counsel might be able to subpoena the expert themselves for a copy of the report, a declaration by the record keeper, or other information.

If this subpoena is not opposed and rejected, it can create the revealment of privileged information from experts, including:

• Case Strategies
• Attorney impressions

The expert’s observations and initial reports are protected by the lawyer work product doctrine and therefore considered confidential. Additionally, the Code of Civil Procedure (section 2034.210) establishes the correct timeframe and process pertaining to:

• Concurrent exchanges of expert information
• Discoverable writing and reports
• Timing of demands
• Necessary language in demands

Therefore, when a party tries to obtain an expert’s report before the court allows it, the action violates statutory legal procedures.

Tax Documents such as W2s

Attorneys often request employment records, such as pay stubs and attendance details. For example, if a plaintiff claims lost pay, the opposing attorney will often request to view the party’s employment reports.

Documents used for tax purposes are considered privileged, however. These include:

• Tax returns
• W-2s
• Partnership documents for tax purposes
• W-4s
• Employment tax records
• Corporate tax documents

The opposing counsel can request access when the plaintiff claims lost earnings, attendance records, and payroll documents are discoverable. However, W-2 forms are a vital part of an individual’s tax returns and are protected under taxpayer privilege.

Taxpayer privilege is meant to help with tax enforcement by encouraging individuals to be honest in their returns and make truthful statements without being afraid that what they say could be used against them in a court of law.

Opposing attorneys have some options, however: they can use payroll records to check on lost wages, for example, or consider an agreement requiring the private tax documents to be destroyed when the lawsuit ends.

Personnel Records

These records involve employees:

• Termination
• Reports about character
• Work evaluations
• Disciplinary history
• Firings
• Promotions and raises
• Overall eligibility for employment

A request from counsel for “personnel records” is overly broad and violates the individual’s privacy rights. If the opposing counsel seeks to procure information about the individual’s work history, less invasive ways exist during the deposition process. In addition, opposing attorneys cannot access personnel information that individuals trust their employers, as this breaches the worker’s constitutional right to confidentiality.

Fishing Trips

In California, opposing counsel cannot fumble through a host of unique employees, consumers, and other witnesses and experts to procure evidence. When the opposing counsel uses several different subpoenas that are not meant for a medical provider, for example, who is mentioned at the deposition or in the plaintiff’s discovery responses, then the attorneys are probably on a “fishing trip.”

Fishing trips in court sacrifice the plaintiff’s privacy, and opposing lawyers cannot use the power of the subpoena to rifle through every detail of the plaintiff’s personal life, especially when the plaintiff’s private affairs are not related to the lawsuit at hand.

What are some ways to respond to subpoenas?

To quash a subpoena, the motion must be served to opposing counsel a minimum of 5 days before the production date of the documents.

The start time for going over subpoenas and sending the relevant documents should not reflect the projected date for the motion to quash.

At the earliest, witnesses can provide documents 20 days after the deposition subpoena is issued or 15 days after the service, depending on the later date.

The meet-and-conferring process must be finished 20 days after the deposition subpoena is delivered, and the attorney should file the motion before the production date if it is necessary.

The plaintiff should issue the meet-and-confer letter first, and the letter for the opposing counsel should include the following:

• All subpoenas at issue
• The entirety of the related legal argument

A copy of the letter should also be sent to the deposition officer so that the officer avoids dealing with opposing counsel trying to procure documents before the date of production.

An objection must be sent to the witness on pleading paper to prevent them from releasing documents before the production date.

Next, opposing counsel should pick a date to reserve the hearing.

If the opposing counsel does not agree to specify the language, disregard some documents, rescind the subpoena, or agree to destroy specific documents at the lawsuit’s termination, keep communicating by phone or through writing.

If the parties cannot agree, choose a date for the hearing and provide notice to the opposing attorneys regarding a motion to quash. At the same time, get in touch with the witness and request document copies. Then, be ready to let the records be used or challenge the subpoena itself.

Although this process can become contentious, all parties must continue interacting with manners and civility and take responsibility for their actions. Sometimes, a polite phone call is a better option than an email and helps parties establish productive professional relationships, which can prove very valuable.