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B. Whose privilege is it?

The Sixth Circuit has found that Ohio shield law protection does not belong to the source of the information. Ventura v. Cincinnati Enquirer, 396 F.3d 784 (6th Cir. 2005).

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e. Additional material

Attached to a motion to quash should be (1) a memorandum arguing the law and (2) a copy of the subpoena with its attachments. Attaching other materials is not recommended.

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4. Subpoena not overbroad or unduly burdensome

The court is required by the Fed. R. Civ. P. 45(c)(1) in civil proceedings to determine whether the party issuing a subpoena is imposing an undue burden or expense on the person or entity subject to the subpoena. Similarly, Fed. R. Crim. P. 17(c) allows the court in a criminal proceeding to quash a subpoena duces tecum that it determines to be unreasonable or oppressive.

Where information requested in a subpoena is unduly burdensome, disclosure of the information may be denied. In re Daimler Chrysler, 216 F.R.D. 395 (E.D. Mich. 2003).

C. Testimony vs. affidavits

Where the accuracy of the substance of a publication is at issue, an affidavit attesting to its accuracy is not admissible as evidence. However, as a practical matter, the attorney issuing the subpoena often will accept an affidavit rather than engage in a protracted legal battle over an asserted First Amendment privilege or some other form of litigated resistance.