Sample Motion to Quash Deposition

Below are a sample motion and memorandum to quash a subpoena in federal court.  Most motions to quash a subpoena involve timeliness, relevancy, improper court, undue burden, the time span covered, standing, and invasion of the attorney-client privilege or work product.  In this case, the defendant seeks to subpoena our law firm’s private investigator.

There is a short motion to quash and then a memorandum in support.  We filed this way because it is federal court and this is how we have always done it. But even in federal court, this practice of filing a motion and then the support for the motion is going out of style.

• Motion for protective order for medical records
• Sample deposition notice
• More sample discovery motions

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

JOHN DOE
Plaintiff,

v.

JANE SMITH
Defendant.

CIVIL ACTION NO. AAA-00-0000
Judge Andrew A. Andrews

PLAINTIFF’S MOTION TO QUASH DEFENDANT JANE SMITH’S SUBPOENA TO PRODUCE DOCUMENTS SERVED ON ABC INVESTIGATIVE SOLUTIONS, LLC

Plaintiff John Doe, by and through his undersigned counsel, requests this Honorable Court quash the subpoena served on ABC Investigative Solutions, LLC (ABC) because:

1. 1. The subpoena directs the Custodian of Records for ABC to produce the requested documents in two different locations: Washington and Lincoln, 2 N. North Street, Baltimore, Maryland 21201 and Washington and Lincoln,  10 South Drive, Tampa, Florida 33610. Defendant Smith issued the subpoena out of the United States District Court for the District of Maryland, where the action is pending and directed ABC to produce documents in Baltimore, Maryland. That makes this Court both the issuing court and compliance court. ABC, a non-party, is located more than 100 miles from the issuing Court.
   2. The subpoena is defective as it fails to identify the attorney issuing the subpoena.
   3. The subpoena also seeks documents which are attorney work product, and there has been no showing of substantial need, undue hardship, and inability to obtain the information from another source.

For the reasons set forth herein and in Plaintiff’s Memorandum in Support of his Motion to Quash attached hereto and incorporated herein by reference, Plaintiff respectfully requests this Honorable Court to quash the subpoena served on ABC Investigative Solutions, LLC.

Respectfully Submitted,
Miller & Zois, LLC

____________/s/____________
Ronald V. Miller #00000
1 South Street, Suite 2450
Baltimore, Maryland 21202
T: (410) 553-6000
F: (844) 712-5151

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

JOHN DOE
Plaintiff,

v.

JANE SMITH
Defendant.

CIVIL ACTION NO. AAA-00-0000
Judge Andrew A. Andrews

PLAINTIFF’S MEMORANDUM IN SUPPORT OF HIS MOTION TO QUASH DEFENDANT JANE SMITH’S SUBPOENA TO PRODUCE DOCUMENTS SERVED ON ABC INVESTIGATIVE SOLUTIONS, LLC

Plaintiff John Doe, by and through his undersigned counsel, requests this Honorable Court quash the subpoena served on ABC Investigative Solutions, LLC (ABC).

I. INTRODUCTION

1. This case arose out of a truck/automobile crash which occurred on January 8, 2020, in Baltimore County, Maryland.
2. As a result of the crash, the Plaintiff was seriously injured and spent months in the hospital and rehabilitation facilities.
3. In anticipation of litigation, Counsel for Plaintiff employed investigators to locate and interview witnesses, to perform background checks, interview first responders, including state troopers and EMTs, as well as performing other investigative services regarding the crash.
4. On or about January 17, 2020, Counsel hired ABC to perform investigative services regarding the crash.
5. ABC and the other investigator hired to investigate the crash performed their services and continue to perform services as needed.
6. ABC and the other investigator prepared their reports and other documents and submitted the documents to Plaintiff’s Counsel.
7. There can be no dispute the documents and information gathered by ABC and the other investigator was in anticipation of litigation and is attorney work product.
8. Plaintiff, through Counsel during discovery, disclosed each person who gave a statement and witnesses who have knowledge regarding any aspect of this matter.
9. Defendant Smith, if she so chooses, can hire her own investigators and depose any witness with knowledge of the facts.
10. Plaintiff’s Counsel developed a litigation and trial plan which included the assistance of investigators. Disclosing the attorney work product under the circumstances of this case would be unfair and prejudice the Plaintiff as Defendant Smith cannot demonstrate any of the required elements under Federal Rules of Civil Procedure, Rules 26 and 45.

II. ARGUMENT

The subpoena directs the Custodian of Records for ABC to produce the requested documents in two different locations: Washington and Lincoln, 2 N. North Street, Baltimore, Maryland 21201 and Washington and Lincoln, 1 S. South Drive, Tampa, Florida 33610.

Defendant Smith issued the subpoena out of the United States District Court for the District of Maryland and directed ABC to produced documents in Baltimore, Maryland. This court is both the issuing court and compliance court.

ABC, a non-party, is located more than 100 miles from the issuing and compliance court. A copy of the subpoena and attachments thereto are attached hereto as Exhibit 1.

Federal Rules of Civil Procedure, Rule 45(c)(2)(A) provides that a subpoena may only command a person to produce documents “within a 100 miles of where the person resides, is employed or regularly transacts business.”

Schedule A, attached to the subpoena, directs ABC to produce documents in Baltimore, Maryland which is more than 100 miles from its place of business in Florida. See Exhibit 1, page 2 of Schedule A.

The subpoena is also defective in that it fails to identify the attorney issuing the subpoena.

Federal Rules of Civil Procedure, Rule 45(a)(3) provides that an “attorney also may issue and sign a subpoena if the attorney is authorized to practice in the issuing court.” The subpoena has an illegible signature, and the subpoena form is not properly filled out. There is absolutely no indication on the subpoena as to which attorney, if any, issued and signed the subpoena; therefore, the subpoena is defective and unenforceable.

The subpoena seeks documents which are attorney work product. There has been no showing by Defendant Smith of a substantial need, undue hardship, and inability to obtain the information from another source.

Federal Rules of Civil Procedure Rule 26(b)(1) provides:

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense – including the existence, description,
nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter.

Attorney work product is privileged and non-discoverable. Federal Rules of Civil Procedure, Rule 26(b)(3)(A) provides that:

Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if:

1. they are otherwise discoverable under Rule 26(b)(1); and
2. the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.

Here, the documents to be produced by ABC are attorney work product. No showing has been made by Smith of a substantial need, undue hardship, and inability to obtain the information from another source.

In re Crazy Eddie Securities Litigation, 131 F.R.D. 374, 378-379, (E.D.N. Y. 1990) the court stated:

If “documents” or other “tangible things” are relevant and “prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative” the material is discoverable only if the party seeking discovery has a “substantial need” for the materials to prepare its case and is unable without “undue hardship to obtain the substantial equivalent by other means. Fed. R. Civ. P. 26(b)(3).

See also Chen-Nuclear Systems, Inc. v. Arivec Chemicals, Inc., 978 F. Supp. 1105, 1107, (N.D. Ga. 1997) wherein the court stated:

A party can discover “documents and tangible things” that “were prepared in anticipation of litigation” only by showing a substantial need for the materials and the inability to obtain the material from another source without “undue hardship.” Fed. R. Civ. Pro. 26(b)(3). This standard applies even if an attorney did not prepare the material, and even if the material was prepared in anticipation of previous litigation. Federal Trade Comm’n v. Grolier, Inc., 462 U.S. 19, 25, 103 S. Ct. 2209, 2213, 76 L.Ed.2d 387 (1983).

In this case, the reports are protected under the work-product doctrine. Although Lockheed arguably possesses a “substantial need” for these reports, Lockheed has not demonstrated the inability to obtain this information from another source. Therefore, Plaintiff is not required to produce these documents.

Federal Rules of Civil Procedure Rule 45(c)(3)(A)(iii) provides:

On timely motion, the court for the district where compliance is required must quash or modify a subpoena that:

3. requires disclosure of privileged or other protected matter, if no exception or waiver applies.

There are no exceptions or waivers that apply, and Defendant has not shown a substantial need, undue hardship, or inability to obtain this information from another source.

This court is the issuing court and the compliance court, and as Plaintiff’s Motion is timely this court must quash the subpoena served on ABC.

III. CONCLUSION

For the reasons set forth herein, this court must quash the subpoena served on ABC.

Respectfully Submitted,
Miller & Zois, LLC

____________/s/____________
Ronald V. Miller #00000
1 South Street, Suite 2450
Baltimore, Maryland 21202
T: (410) 553-6000
F: (844) 712-5151
ronmiller@millerandzois.com