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Objecting to a Subpoena Duces Tecum in the District Court of New Jersey

GR Cell Phone 2013 693Assume your organization or an individual in your company has been served with a federal court subpoena demanding the production of documents in connection with pending litigation in the United States District Court for the District of New Jersey.   Further assume that your company president maintains that the document demands specified in the subpoena are oppressive and that certain information requested is either confidential or proprietary, and thus is concerned that this information might fall into the wrong hands.

In this post I provide a brief overview of the standards that the District Court of New Jersey applies to motions to quash a subpoena duces tecum and/or for the issuance of a protective order placing limitations on the discovery.

Fed R. Civ. P. 45(c)(3)(A) sets forth the circumstances under which the Court must quash a subpoena. In relevant part, it provides:

(c) Protecting a Person Subject to a Subpoena.
(3) Quashing or Modifying a Subpoena.
(A) When Required. On timely motion, the issuing court must quash or modify a subpoena that:
(i) fails to allow a reasonable time to comply;
(ii) requires excessive travel by a non-party;
(iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or
(iv) subjects a person to undue burden.


Burden on Party Seeking to Quash Subpoena

“The party seeking to quash the subpoena bears the burden of demonstrating that the requirements of [Fed R. Civ. P. 45] are satisfied.” Malibu Media, LLC v. John Does 1-15, 2012 WL 3089383, at *5 (E.D. Pa. Jul. 30, 2012) (citing City of St. Petersburg v. Total Containment, Inc., 2008 WL 1995298, at *2 (E.D. Pa. May 5, 2008)). This has been described as “a heavy burden.” Id. (citing Dexter v. Cosan Chem. Corp., 2000 U.S. Dist. LEXIS 22134, at *7-8 (D.N.J. Oct. 24, 2000)).   In evaluating a motion to quash a subpoena, courts examine whether the moving party has standing to bring the motion, the relevancy of the production sought, whether any privilege or protection applies to the production, and whether the subpoena unduly burdens the party sought to be deposed. See, e.g., Schmulovich v. 1161 Rt. 9, LLC, 2007 WL 236598, at *2 (D.N.J. Aug. 15, 2007).

An undue burden exists when “the subpoena is ‘unreasonable or oppressive.’” In re Lazaridis, 2011 WL 3859919, at *2 (D.N.J. Sept. 1, 2011) (Schmulovich v. 1161 Rt. 9 LLC, 2007 WL 2362598, at *4 (D.N.J. Aug. 15, 2007)). In evaluating whether a subpoena is unreasonable or oppressive, “the district court must balance the relevance of the discovery sought, the requesting party’s needs, and the potential hardship to the party subject to the subpoena.”  Pepsi-Cola Metro. Bottling Co., Inc. v. Ins. Co. of N. Am., Inc., 2011 WL 239655, at *3 (E.D. Pa. Jan. 25, 2011); see also Schmulovich, 2007 WL 2362598, at *4 (D.N.J. Aug. 15, 2007).

Subpoena Must Fall Within Scope of Proper Discovery

“A Rule 45 subpoena served in conjunction with discovery must fall within the scope of proper discovery under Fed. R. Civ. P. 26(b)(1).” Schmulovich, 2007 WL 2362598, at *2.  If a subpoena falls outside the scope of permissible discovery, the Court has authority to quash or modify it upon timely motion by the party served.  Id.  Of course, the scope of discovery in federal litigation is broad. Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense, and information sought by the parties need not be admissible at trial if it is reasonably calculated to lead to discoverable information. Fed. R. Civ. P. 26(b)(1). While undoubtedly broad, the scope of discovery, however, “is not boundless.”  Unicasa Mktg. Group, LLC v. Spinelli, 2007 WL 2363158, at *2 (D.N.J. Aug. 15, 2007).

To be discoverable, evidence must be “reasonably calculated to lead to the discovery of admissible evidence.”  Caver v. City of Trenton, 192 F.R.D. 154, 159 (D.N.J. 2000). Whether certain documents are relevant is “viewed in light of the allegations of the complaint, not as to evidentiary admissibility.” Scouler v. Craig, 116 F.R.D. 494, 496 (D.N.J. 1987).

Protective Orders

In the alternative to moving to quash a subpoena, the recipient of the subpoena or other party in the case may move for a protective under pursuant to Fed. R. Civ. P. 26.

Fed. R. Civ. P. 26(c).

(1) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending—or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(A) forbidding the disclosure or discovery;

(B) specifying terms, including time and place, for the disclosure or discovery;

(C) prescribing a discovery method other than the one selected by the party seeking discovery;

(D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;

(E) designating the persons who may be present while the discovery is conducted;

(F) requiring that a deposition be sealed and opened only on court order;

(G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and

(H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs….

Admitted to NJ Bar in 1990, NY Bar in 1991. Former Judicial Law Clerk to Honorable Peter Ciolino, Assignment Judge, Superior Court of New Jersey, Bergen County. Member & Barrister: Daniel J. Moore Bankruptcy Inn of Court Member & Barrister: Morris Pashman Inn of Court Member: Bergen County Bar Association NJ Superlawyer - 2008, 2009, 2010, 2011, 2012, 2013 Nominated for inclusion in Best Lawyers of America Member: Litigation Counsel of America, Trial Lawyer Honorary Society
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