“[T]he appropriate means of objecting to a subpoena is by timely written objection or by timely motion to quash or modify the subpoena.” Judicial Watch, Inc. v. Dep’t of Commerce, 34 F. Supp. 2d 47, 56 (D.D.C. 1998).
The motion to quash is the only certain means of seeking protection against a subpoena. See Idaho Rule of Civil Procedure 45(d); Idaho Criminal Rule 17(b). Some parties will wait until the time of the compelled appearance, whether it be in a deposition or in a court appearance, and assert the privilege in response to questions posed at that time. Doing so, however, at least in Idaho state court, runs the risk (but not necessarily the certainty) of having the court rule that the privilege has been waived.
The shield law should limit the need to file a motion to quash when confidential sources or information are involved. The burden is on the party seeking the identity of the source or the information to meet the multi-factor test set forth in the law before obtaining the identity of the source or the information. 16 M.R.S.A. § 61(2). The burden is likewise on the party seeking discovery in cases concerning non-confidential information. Levesque v. Doocy, 247 F.R.D. 55, 57 (D. Me. 2007) (placing the burden not on the reporter to show First Amendment harm, but on the party seeking discovery).
The procedure for objection to subpoenas in criminal cases is Me. R. Crim. P. 17(d) (witness subpoenas) and Me. R. Crim. P. 17A(f) (document subpoenas). A motion to quash a subpoena for documents in a criminal case may be filed in accordance with Me. R. Civ. P. 17A(d). In State v. Watson, 1999 ME 41, ¶ 6, 726 A.2d 214, 216, the Maine Supreme Court adopted a four factor “Watson test” for screening motions to quash: (1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general fishing expedition. See alsoState v. Dube, 2014 ME 43, ¶ 10, 87 A.3d 1219, 1223 (affirming order quashing subpoena for victim’s medical records); State v. Marroquin-Aldana, 2014 ME 47, ¶ 38, 89 A.3d 519, 530 (affirming order quashing subpoena for documents related to immigration status of victim’s mother).
Absent a timely ruling on a motion to compel witness testimony, the witness should appear and claim any privilege or immunity he may have or raise an objection to particular questions put to him. SeeState v. Willoughby, 507 A.2d 1060 (Me. 1986) (holding that Me. R. Crim. P. 17 provides "no procedure for quashing a subpoena ad testificandum on the grounds that the testimony would be inadmissible”).
The procedure for motions to quash subpoenas in civil cases is Me. R. Civ. P. 45(c), (e). The Maine Supreme Court has noted that “[d]espite the absence of Maine case law or a rule explicitly authorizing a nonparty witness to move to quash a subpoena ad testificandum, the Advisory Committee Note to Me. R. Civ. P. 45 recognizes motions to quash as ‘the remedy for nonparties[.]’” State v. Peck, 2014 ME 74, ¶ 7, 93 A.3d 256, 259 (citations omitted).
Any person served with a subpoena to produce documents may move to quash or modify the subpoena on the grounds that it is "unreasonable or oppressive." N.C. R. Civ. P. 45(c)(5); Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982). In addition, a reporter may make a motion to quash a request to produce documents on the grounds that the documents are privileged. SeeWhisenhunt v. Zammit, 86 N.C. App. 425, 358 S.E.2d 114, 116 (N.C. App. 1987) (holding that a subpoena may be quashed if the documents in question are privileged); Chappell v. Brunswick Bd. of Educ., 9 Media L. Rep. 1753 (N.C. Superior Ct. 1983) (quashing plaintiff's subpoena demanding that reporter testify about her investigation and produce her notes).
Rule 45(c) applies to both subpoenas duces tecum (i.e., subpoenas seeking the production of documents or things) and witness subpoenas. If a journalist is invoking the reporter's privilege to refuse to testify at a legal proceeding, he may do so through a motion to quash under the same procedure as a subpoena to produce documents. See, e.g., Shinn v. Price, 27 Media L. Rep. 2341 (N.C. Superior Ct. 1999); State v. McKillop, 24 Media L. Rep. 1638 (N.C. Superior Ct. 1995); State v. Demery, 23 Media L. Rep. 1958 (N.C. Superior Ct. 1995); State v. Smith, 13 Media L. Rep. 1942 (N.C. Superior Ct. 1987); Locklear v. Waccamaw Siouan Dev. Ass'n, 12 Media L. Rep. 2391 (N.C. Superior Ct. 1986).
Motions to quash are not required. A party served with a subpoena merely has to serve the party designated in the subpoena with an objection within 10 days after receipt of the subpoena or, if the time specified in the subpoena for compliance is less than 10 days, then at least 24 hours before the time specified for compliance. If an objection is made, the party serving the subpoena is not entitled to compliance except by order of the court. The party serving the subpoena must file a motion to require compliance, with notice given to the party served with the subpoena.
On timely motion, the court from which the subpoena was issued shall quash or modify the subpoena, or order appearance or production only under specified conditions, if the subpoena does any of the following:
(a) Fails to allow reasonable time to comply;
(b) Requires disclosure of privileged or otherwise protected matter and no exception or waiver applies;
(c) Requires disclosure of a fact known or opinion held by an expert not retained or specially employed by any party in anticipation of litigation or preparation for trial as described by Civ.R. 26(B)(5), if the fact or opinion does not describe specific events or occurrences in dispute and results from study by that expert that was not made at the request of any party;
(d) Subjects a person to undue burden.
Rule 45(C)(4) of the Ohio Rules of Civil Procedure:
Before filing a motion pursuant to division (C)(3)(d) of this rule, a person resisting discovery under this rule shall attempt to resolve any claim of undue burden through discussions with the issuing attorney. A motion filed pursuant to division (C)(3)(d) of this rule shall be supported by an affidavit of the subpoenaed person or a certificate of that person's attorney of the efforts made to resolve any claim of undue burden.
Rule 45(C)(5) of the Ohio Rules of Civil Procedure:
If a motion is made under division (C)(3)(c) or (C)(3)(d) of this rule, the court shall quash or modify the subpoena unless the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated.
Rule 17(C), Ohio Rules of Criminal Procedure:
A subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein; but the court, upon motion made promptly and in any event made at or before the time specified in the subpoena for compliance therewith, may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that the books, papers, documents or other objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time they are offered in evidence, and may, upon their production, permit them or portions thereof to be inspected by the parties or their attorneys.
There are no specific statutory provisions for quashing civil subpoenas that are not duces tecum subpoenas. However, the courts have been receptive to generic quash motions on First Amendment grounds. A motion to quash is probably a better option than raising the privilege only after a member of the media is called as a witness. It allows some control of the timing, gives more opportunity to present argument and doesn't unnecessarily surprise the court.