Home

Search the Reporter's Privilege Compendium

c. Timing

The motion must be "timely" filed, Fed. R. Civ. P. 45(c)(3)(A), or "made promptly," Fed R. Crim. P. 17(c). The motion to quash should be filed in advance of the return date on the subpoena, to permit the Court an opportunity to adjudicate the motion before the subpoena is to be enforced.

10th Cir.
d. Language

Typical language in a motion to quash a subpoena (in a civil case) asks the court, pursuant to Fed. R. Civ. P. 45(c)(3)(A), to quash the subpoena that has been served by the [plaintiff/defendant] upon the third-party witness __[name]__, on grounds that the subpoena requires disclosure of privileged or other protected matter and no exception or waiver applies. The motion to quash should also set forth applicable Tenth Circuit case law and should seek a protective order under Fed. R. Civ. P. 26, so that the reporter may be relieved from having to appear at the deposition, hearing, or trial, until the motion to quash is decided.

10th Cir.
e. Additional material

It is helpful to append to the motion all articles and/or photographs that were published about the topic of the testimony sought, in order to convince the court that the material sought is not needed, does not go to the heart of the matter being litigated and can be obtained from other readily identifiable alternative sources.

10th Cir.
4. In camera review

There is no case law addressing this issue.

10th Cir.
5. Briefing schedule

The schedule is set by the court.

10th Cir.
6. Amicus briefs

Amicus briefs are permitted on appeal.

10th Cir.
VI. Substantive law on contesting subpoenas
10th Cir.
A. Burden, standard of proof

The standard for the motion to quash requires the court to balance several factors including: (1) the relevance of the evidence; (2) the necessity of the information sought; (3) whether the information is available from other sources; and, (4) the nature of the proceeding. See Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977); see also Grandbouche v. Clancy, 825 F.2d 1463, 1466 (10th Cir. 1987).

10th Cir.
B. Elements
10th Cir.
1. Relevance of material to case at bar

The party seeking the information must show a substantial need of information that goes "to the heart of the matter" being litigated. See Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977).

10th Cir.