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1. Contact other party first

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  • 10th Circuit

    It is always advisable to first notify the party serving a subpoena of your intent to quash it. In many cases, the attorney serving the subpoena is ignorant of the reporter's privilege and will decide not to pursue the matter once an objection is raised. Such contact also permits you to certify good faith consultation prior to filing a motion to quash (which several courts' local rules require), and to inform the court what information the party is seeking and for what purpose.

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  • 1st Circuit

    As a general practice, it can be helpful to contact the attorney who has served the subpoena. This can serve as an opportunity to narrow issues and to confirm or clarify the testimony or documents sought.

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  • 2nd Circuit

    The law does not require notifying the subpoenaing party prior to moving to quash.

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  • 3rd Circuit

    Although there is no requirement that a person subject to a subpoena issued in the name of a federal court do so, in general, it usually is preferable to contact the attorney who issued the subpoena prior to taking formal steps to quash it. Often, the attorney who issued the subpoena will be unfamiliar with the reporter's privilege and, upon being educated, will voluntarily withdraw the subpoena or substantially narrow it. Careful attention must be paid to the return date on the subpoena (that is, the date by which the recipient must appear or otherwise comply), however, and if the dispute cannot be resolved through informal negotiation, the recipient of the subpoena should be certain to serve an objection or file a motion to quash in a timely manner, as discussed more fully below, because in certain circumstances a response might be due before the return date specified on the subpoena.

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  • 4th Circuit

    Some jurisdictions require that a motion must contain an affirmation that prior to filing, the moving party attempted to confer with opposing counsel and attempted in good faith to resolve the matter. See, e.g., D.S.C. Civ. R. 7.02; W.D.N.C. Local R. 7.1(b). Consult the local rules in your jurisdiction.

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  • 5th Circuit

    Rule 45 requires that a party objecting to a subpoena for documents give notice in writing to the subpoenaing party within 14 days of receipt of the subpoena. Fed. R. Civ. P. 45(d)(2)(B). If a party objects to a subpoena on the grounds that the material requested is privileged, it must expressly state this in the objection and include a description of the privileged documents, which could be used by the subpoenaing party to contest the privilege. Once a party objects to a subpoena, the subpoenaed materials may only be obtained through a court order to compel production. Id.

    Most local rules require a party moving to quash or to compel to submit a certificate of conference with the motion, indicating that the attorney for the moving party conferred "with an attorney for each party affected by the requested relief to determine whether the motion is opposed." N.D. Tex. L.R. 7.1(a). Similarly, the Federal Rules require a party moving to compel to "include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action." Fed. R. Civ. P. 37(1).

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  • 6th Circuit

    When attempting to avoid compliance with a subpoena, it is good practice to converse with the attorney responsible for issuing it to see if you can negotiate a limitation on the subpoena or be relieved of having to comply with the subpoena altogether.

    Where a subpoena commands a person to produce documents for inspection or copying, that person may object to it. The objection must be in writing, and delivered to the person or attorney designated in the subpoena as being responsible for issuing it. The objection must be made within 14 days after receiving the subpoena. However, if the subpoena gives fewer than 14 days for compliance, then at any time before the time set by the subpoena for compliance. Fed. R. Civ. P. 45(c)(2)(B).

    If the objection is made in writing, delivered to the appropriate person, and delivered on time, then the person on whose behalf the subpoena was issued and served has no right to inspect or copy the subpoenaed documents without a court order. Failure to follow the rules for the written objections gives the person responsible for the subpoena the right to move to compel compliance and to seek to hold the person to whom the subpoena is directed in contempt of court. Fed. R. Civ. P. 45(c)(2)(B), (e).

    The safest course is to deliver a written objection in accordance with the provisions of Rule 45 even if negotiations with the person responsible for the subpoena are going well. The written objection has the legal effect of suspending the duty to comply with the subpoena until a court decides the matter.

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  • 7th Circuit

    A motion to quash will probably be treated as any other discovery dispute. Often parties are required to first attempt to solve discovery disputes prior to filing motions. The Federal Rules of Civil Procedure (Rule 37) and local rules (Local Rule 37.2 of the Northern District of Illinois, for example) require each discovery motion to include a statement that the parties made good faith attempts reach an agreement. See also Deitchman v. E.R. Squibb & Sons, Inc. 740 F.2d 556, 560 (7th Cir. 1984) (discovery request constitutes "opening of discussion" between party seeking information and party with information).  As a result, we recommend contacting the subpoenaing party before moving to quash.

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  • 8th Circuit

    No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

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  • 9th Circuit

    There is no statutory or case law addressing this issue.

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  • Alabama

    There is no requirement under Alabama law that a person moving to quash a subpoena contact the subpoenaing party prior to filing the motion to quash. Almost invariably, however, unless time does not permit, such contact would be recommended.

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  • Alaska

    There is no legal requirement that the subpoenaing party be contacted prior to a motion to quash. It is good practice to do so, however, for several reasons. In most instances, the subpoenaing party will be unaware of the reporter's privilege your client will assert, and especially of tests to be met for overcoming a qualified privilege. Most subpoena issues will "go away" in the ordinary course without need for a motion to quash. If it knows it will have to fight on this issue that is collateral to its case, the subpoenaing party is often willing to defer the matter initially. Then, most often, it becomes moot because almost all cases, civil or criminal, are resolved without actually coming to trial. Even if the subpoena will not "go away," you will want to know more about the subpoenaing party's case, since by definition you will be less familiar than the parties with their litigation, and the reasons why the subpoenaed information might be sought. It is generally not a good idea for the subpoenaed reporter to communicate with counsel issuing the subpoena, since such communications may produce legal and/or factual waiver issues.

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  • Arizona

    The Arizona Rules of Civil Procedure require good-faith consultation before filing a discovery motion. See Ariz. R. Civ. P. 26(g):   (“Any discovery or disclosure motion must attach a good faith consultation certificate complying with Rule 7.1(h).”).

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  • Arkansas

    There is no law or court rule in Arkansas that requires a party moving to quash a subpoena first notify the party issuing the subpoena of the intent to move to quash. However, in Arkansas, a spirit of professional courtesy exists within much of the legal community, and common practice is to confer with counsel who served the subpoena.

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  • California

    A motion for a protective order requires the movant to provide “a declaration stating facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” Cal. Code Civ. Proc. § 2016.040; see also Cal. Code Civ. Proc. § 2025.420. There is no such requirement for a motion to quash, except in limited circumstances (which generally do not apply to reporters). Because California cases have interpreted the reporter’s privilege to provide absolute protection under most circumstances, and because California judges generally expect parties to attempt informal resolution before filing a motion, it is almost always a good idea to contact opposing counsel and attempt to negotiate withdrawal of the subpoena. The party issuing the subpoena often is not familiar with the privilege, and may voluntarily withdraw the subpoena.

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  • Colorado

    Rule 121, § 1-15(8) provides for a duty to confer with opposing counsel where appropriate before filing a motion. It seems that in most, if not all, instances, it would be appropriate to contact counsel serving the subpoena. In addition to this requirement, experience indicates that a dialog between the party and the witness can quickly and cost effectively address many of the issues raised by the subpoena. In Colorado, where the Shield Law provides broad protection for newspersons, a letter or telephone call outlining the privilege can be helpful in narrowing or resolving issues raised by the subpoena.

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  • Connecticut

    The Shield Law requires a party seeking information from the news media to pursue negotiations with the news media prior to issuing a subpoena. However, in the event a subpoena is issued without such an effort it is wise to contact the party issuing the subpoena before moving to quash it. Inevitably, the judge hearing the motion to quash will ask if this contact was made; and experience indicates that discussion may either dissuade the issuer from pursuing the subpoena or both parties will come to realize that what the issuer really seeks is something the subpoenaed party either does not have or will not know, or else will willingly disclose informally without jeopardy to the privilege.

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  • D.C. Cir.

    No statutory or case law addressing this issue exists.  However, it may be beneficial for those who intend to assert the privilege to raise the issue informally prior to filing a motion to quash, as counsel often are not aware of the privilege issues implicated by subpoenaing a journalist.

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  • Delaware

    The party objecting to subpoenas for the inspection and copying documents must serve its objection upon the issuing party or attorney designated in the subpoena within 14 days of the service of the subpoena. Super. Ct. Civ. R. 45 (c)(2)(B). Claims that documents are privileged or subject to protection must be stated "expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim." Rule 45 (d)(2).

    Although the statute does not require contacting the other party prior to filing a motion to quash a subpoena for testimony, prudence and timing considerations strongly warrant doing so. By contacting the other party prior to filing the motion, one may gain access to information regarding the purpose for which the testimony is being sought. Including such information in the motion often strengthens the quality of the motion. Contacting the other party also speeds the process.

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  • District of Columbia

    Under the District’s civil procedure rules, nearly all motions filed in the Superior Court’s Civil Division are subject to the consent requirement in SCR-Civ. 12-I(a), which provides that a movant in a civil case must attempt to obtain consent for the relief requested in a motion from any party affected by such request prior to filing a motion.

    Although criminal rules require the motion to be served on the other party, there is no similar provision requiring the movant to contact the opposing party in advance.  SCR-Crim. 49(a).

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  • Florida

    The law does not require that the subpoenaing party be contacted prior to filing a motion to quash or for a protective order. Local court discovery rules concerning disputes, however, may require such a conference. Moreover, as a practical matter, contacting the subpoenaing party may bring about resolution without the necessity of filing a motion to quash. For example, the subpoenaing party may request a copy only of what was broadcast or a copy of the published article. Many news organizations routinely make those items available to the public for a small fee and have no objection to making them available under the same terms to parties in litigation.

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  • Georgia

    It is generally advisable to contact the subpoenaing party prior to moving to quash a subpoena both because Georgia courts encourage voluntary efforts to resolve disputed matters and because it is helpful in the motion to quash to identify the alleged purpose for which the subpoenaing party seeks the information.

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  • Hawaii

    Hawai'i law does not require that the subpoenaing party be contacted prior to moving to quash, however, in practice many judges strongly encourage (and some require) that the parties first attempt to amicably resolve disputes involving subpoenas before seeking the court's assistance.

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  • Idaho

    Because of the unstable footing of the reporter's privilege in Idaho resulting from its uneven treatment in Idaho appellate decisions, it is generally recommended that the party issuing the subpoena be contacted prior to filing of a motion to quash. Often, the party serving the subpoena is unaware of possible limitations upon the party's ability to compel the testimony of a media witness. As a result, after “educating” the opposing party, it is sometimes possible to convince the opposing party to withdraw the subpoena, or to narrow the scope of the subpoena. Such contact with the other party is not required by statute or the court rules, or the case law, but is often the most effective means of obtaining a result that might not be possible to obtain from the court. Indeed, to the extent that members of the media receive subpoenas, this appears to be the manner in which most are handled – possibly explaining the limited number of reported decisions in the area.

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  • Illinois

    There is no Illinois statutory or case law addressing this issue. However, Illinois Supreme Court Rule 201(k) provides that, during discovery in a civil proceeding, the parties shall “facilitate discovery under these rules and shall make reasonable attempts to resolve differences” during the discovery period. Ill. Sup. Ct. R. 204(k).

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  • Indiana

    The law does not require that the subpoenaing party be contacted prior to moving to quash, see Ind. Tr. Rule 45(B), but such contact is generally recommended. Parties may agree to limit or withdraw subpoenas once they are made aware of the contours of the reporter’s privilege or other basis for objection such as lack of following the terms of Ind. Tr. Rule 34(c).

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  • Iowa

    A letter or phone call to the subpoenaing attorney is often enough to dissuade the request, provided the reporter or news organization is not a party to the suit. Such contact is not required by law.

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  • Kansas

    The law does not require a journalist to contact the party issuing the subpoena prior to filing a motion to quash. It is nevertheless a good idea to do so, as this may permit a reporter to learn the reason for the issuance of the subpoena, i.e., the nature of the information in which the litigant is interested, which will be useful in preparing a well-targeted motion.

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  • Kentucky

    Kentucky law does not require the subpoenaing party or counsel be contacted prior to objecting or moving to quash. Ky. R. Civ. P. 45; Ky. R. Crim. P. 7.02.

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  • Louisiana

    If the subpoenaed party wishes to quash the subpoena, he must serve written objection specifying the grounds for his objection upon the attorney designated in the subpoena within ten days after service, or on or before the time directed in the subpoena, if compliance is required within fewer than ten days. La. R.S. 45:1459(C). Other than the service of written objection, there is no requirement that the other party be contacted.

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  • Maine

    In civil cases, motions or objections concerning subpoenas are subject to good-faith meet and confer requirements.  See M.R.Civ.P. 45(e).  No similar rule applies in criminal cases.

    Because subpoenas on reporters are a rare occurrence in Maine, many attorneys are unaware of the shield law or the Letellier balancing test applicable to subpoenas on reporters. Once educated about the shield law and Letellier, some attorneys will withdraw or narrow the scope of a subpoena.

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  • Maryland

    There is no requirement to contact the other party first.

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  • Massachusetts

    The law does not appear to require that the subpoenaing party be contacted prior to moving to quash.

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  • Michigan

    Although there is no requirement that you contact the other party, it is advisable to contact the party issuing the subpoena to try to limit the subpoena and to learn the purpose of the subpoena. It will aid you in defending against the subpoena. For example, if they just want a copy of the article for authentication purposes, you can provide that information and avoid the subpoena. Michigan Rules of Evidence 902(6) makes newspapers self authenticating. You can also suggest other avenues for investigation that do not involve the reporter.

    The most annoying subpoenas are those seeking "all articles published about the controversy that is the subject of the lawsuit." Most smaller newspapers have no method of accomplishing that other than sitting with the old issues and going through them one by one. Therefore a call to the issuer of the subpoena offering a seat in the morgue or suggesting that they go to the public library which usually has copies of back issues of the local newspapers is in order.

    Again, talking with the issuer may avoid a costly legal battle.

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  • Minnesota

    In practice, a telephone call or letter to the attorney who has requested information from a reporter often will be enough to persuade the attorney to drop the request, at least when the reporter or news organization is not a party to the litigation in which the information is sought.

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  • Mississippi

    There is no statutory or case law addressing this issue.

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  • Missouri

    While Missouri Court Rules do not require the attorney for the reporter to contact the other party before filing a motion to quash, general practice has suggested to this attorney that it is always a good idea to make contact and attempt to determine what is being sought. Often there are ways to work around the issue that generated the subpoena that will satisfy the party serving the discovery request while protecting the reporter from having to engage in a court battle to quash the subpoena, such as the providing of an affidavit (i.e., a business records affidavit).

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  • Montana

    The law does not require that the subpoenaing party first be contacted before moving to quash a subpoena. As a matter of effective practice in this state, it may however be a good idea to do so.

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  • Nebraska

    No prohibition from contacting issuing party and asking them to withdraw or rescind subpoena, however, a party need not contact the issuing party before they file a motion to quash or seek a protective order. Any communications should be conducted through counsel. A party resisting a subpoena may also have their attorney contact the other party(ies) to the lawsuit to determine whether they have already filed a motion to quash the subpoena or will file one on the reporter's behalf.

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  • New Hampshire

    The rules governing proceedings in the trial courts of New Hampshire require that an effort be made to obtain the concurrence of the other party or their counsel prior to the filing of any motion seeking relief from the court. See, e.g., Superior Court Rules 11(c) & 29(e).

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  • New Jersey

    There is no requirement that the other party be contacted prior to a motion to quash. However, because the privilege in New Jersey is almost absolute, a letter or telephone call requesting withdrawal of the subpoena will usually be effective.

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  • New Mexico

    As an initial matter, contacting the subpoenaing party is almost always advisable, because some attorneys are both unfamiliar with the reporter’s privilege and amenable to reason. But if the subpoena is defective on its face – because, for example, it was issued by a private party but is unaccompanied by a witness fee, see supra pt. V(A)(2) – tactical considerations may dictate silence until it is too late for the issuing party to remedy the problem.

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  • North Carolina

    Under North Carolina law, a party receiving a subpoena does not have to contact the requesting party (or any other party) before moving the court to quash or modify a subpoena. See N.C. R. Civ. P. 45(c).

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  • North Dakota

    North Dakota law does not require that the party serving the subpoena be contacted prior to moving to quash. An objection to a subpoena must be submitted within ten days of receiving the subpoena or twenty-four hours prior to the time specified in the subpoena.

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  • Ohio

    Neither case law, the Civil Rules, nor the Criminal Rules requires the reporter to contact the subpoenaing party before filing a motion to quash. However, contacting the subpoenaing party's attorney may be worthwhile. The party issuing the subpoena may be unaware of the Shield Law and the reporter's privilege and may voluntarily withdraw rather than face a motion to quash.

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  • Oklahoma

    The law does not require that a party intending to assert a privilege contact the party seeking disclosure, but we recommend it.  In many instances in which parties to litigation, especially civil cases, have issued subpoenas to media organizations or journalists, the information they seek is either not available or a copy of what was published is enough to satisfy the need of the litigants.  For example, for our television station clients, a telephone call to the attorney issuing the subpoena to inform her that “unpublished information” (such as raw video) no longer exists and an agreement to produce a dub of what was broadcast (for a reasonable charge) are often adequate to avoid the subpoena altogether.  In our experience, many of the attorneys issuing subpoenas to the media have no experience with newsgathering, and they have little understanding of how a publication or broadcast is prepared, or what documentation of it exists afterwards.  A telephone call, perhaps followed with a letter of explanation, can sometimes avoid having to file a motion to quash.

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  • Oregon

    See UTCR 5.010 regarding conferral on motions.

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  • Pennsylvania

    Although neither the Shield Law nor the First Amendment privilege requires that the subpoenaing party be contacted prior to filing a motion to quash, it is a good idea. Many subpoenas are withdrawn or modified as a result of such calls.

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  • Rhode Island

    Although there is no specific requirement, it is always recommended that attempts be made to contact the party issuing the subpoena prior to filing a Motion to Quash. Often times, the request can be narrowed and courts appreciate all good faith efforts to confer with opposing counsel prior to filing motions.

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  • South Carolina

    The law does not require that the party serving the subpoena be contacted as a first step, but in hopes that the issue can be resolved by a little education, that is a good place to begin the process. If a subpoena is served in a civil case to compel the production of things, the first step may be to write to the party serving the subpoena to object to the subpoena. If a written protest has been made, the party serving the subpoena may then bring a motion to compel.

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  • South Dakota

    This is generally the recommended first step to ascertain whether the party really wants something more than previously published material. If they do, media counsel has an opportunity to "educate" them on the law of forced disclosure and to let them know the media has a responsibility to protect its newsgathering and editorial processes. In short, it might give them pause whether the information is worth the battle.

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  • Tennessee

    As in most other states, it is advisable that a media party who is subpoenaed first attempt to contact the subpoenaing party before trying to quash the subpoena by formal motion. Counsel for the subpoenaing party may not be aware of the shield law and the requirements for enforcing compliance or may be willing to withdraw the subpoena voluntarily, upon learning that a subpoena will be opposed. As a practical matter, subpoenaing counsel are frequently convinced to withdraw or abandon a subpoena upon understanding the breadth of the coverage of the statute and the provision of the statute providing for a stay of enforcement of a trial court order for a reporter to testify merely upon the filing of a notice of appeal. See Tenn. Code Ann. § 24-1-208(c)(3)(B).

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  • Texas

    The law does not require that the subpoenaing party be contacted prior to moving to quash. However, some courts do require a certificate of conference before considering any motion or setting a hearing. Check the local rules for the court where you are filing. Furthermore, as a practical matter, because many subpoenaing parties may be unaware of the shield law, the journalist or their attorney should contact the subpoenaing party first and provide a copy of the shield law (or relevant portions) and explain why the subpoena is not allowed. In some instances, the subpoenaing party will withdraw the subpoena. If they do not, a journalist will likely have to file a motion to quash.

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  • Utah

    Utah law does not require that the party being subpoenaed contact the subpoenaing party before filing a motion to quash. See Utah R. Civ. P. 7; Utah R. Civ. P. 45. However, some subpoenas directed to news reporters can be resolved informally without the need to file a motion to quash, and it is generally a good idea to attempt such a resolution initially.

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  • Vermont

    Under Vermont law, “[c]ounsel have the obligation to make good faith efforts among themselves to resolve or reduce all differences relating to discovery procedures and to avoid filing unnecessary motions.” V.R.C.P. 26(h). While it is not clear that this obligation applies to subpoenas issued to nonparties under Rule 45, it is good practice for counsel for the reporter or publisher to contact counsel for the subpoenaing party to attempt to eliminate or reduce areas of controversy in the contents of the subpoena. If the issues cannot be resolved, the motion to quash should be accompanied by an affidavit of the filing party’s attorney documenting the date of the consultation and the participants.

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  • Virginia

    Making contact with the subpoenaing party, through its counsel where possible, is recommended but not required.

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  • Washington

    Washington courts will not entertain a motion to compel or a motion for protective order in a civil action unless "counsel have conferred with respect to the motion or objection." CR 26(i). The burden of setting the conference of counsel is on the moving or objecting party.

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  • West Virginia

    If a subpoena is issued during the discovery phase of a civil case, it is governed by Rule 26(c) of the West Virginia Rules of Civil Procedure. That Rule requires a party seeking a protective order, i.e., an order that the discovery sought by the subpoenaing party not be allowed, to "confer with other affected parties in an effort to resolve the dispute without court action[.]" Before a motion is filed to stop or quash a discovery subpoena, the party seeking to stop the subpoena must certify to the court that a good faith effort to confer has been made.

    Pragmatically, it is a good idea to contact the lawyer for the subpoenaing party prior to filing a motion for a number of reasons. First, it is not unusual for the subpoenaing party to accept a short affidavit simply authenticating a specific published news story in lieu of compliance with the subpoena. It also allows for an opportunity to educate the subpoenaing party's lawyer on the broad parameters of the protections of West Virginia's reporters' privilege, of which they may be unaware. Finally, even if the subpoenaing party's lawyer refuses to withdraw the subpoena, it is helpful to try to learn exactly what the lawyer is seeking from the reporter. It is not uncommon for the opposing lawyer to give you as much information as you ask for in an effort to persuade the press target to comply with the subpoena. Then, if a motion to quash is necessary, it can be more easily explained to the court why it should be quashed. It is not unusual to discern from such discussions that counsel for the subpoenaing party is attempting to use the reporter to do his discovery for him or is undertaking an impermissible "fishing expedition."

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  • Wisconsin

    Wisconsin does not require a party to contact or provide notice to the subpoenaing party before moving to quash, but the practice is recommended. Many attorneys are not aware of the shield law and are willing to voluntarily withdraw a subpoena after they learn of it. Before moving to quash, the reporter's attorney should provide the subpoenaing party a copy of section 885.14 and explain the reporter's privilege in Wisconsin.

     

    Given the shield law’s requirement that a subpoena to a “news person” be issued only by a court following notice and an opportunity to be heard, a news person should have an opportunity to object to a subpoena before it is issued.  However, attorneys may attempt to subpoena a “news person” without complying with the shield law’s procedural requirements. Under those circumstances, a motion to quash may be the most effective means of asking the court to rule that the subpoena is invalid.

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  • Wyoming

    Wyoming does not require that a person served with a subpoena contact the issuing party before filing a motion to quash.

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