Tag Archive | "motion to quash"

California Code of Civil Procedure 1005

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California civil procedure code 1005 concerns what pleadings require written notice when filed in the court.

These motions include Notice of Application and Hearing from Writ of Attachment under Section 484.040, Motion to Quash Summons and any other under the code requiring notice, and a judge or court does not require an additional method for notice.

The code also contains requirements for supporting papers of the motion, and when and how they shall be served and filed.

The procedures for filing an opposition to the notice and its supporting papers are outlined by the code, as well as the time window for filing said pleading, unless otherwise required by the court or judge. The same guidelines are applicable to the reply to the opposition filed.

California civil procedure code 1005 contains the acceptable methods by which a party may be served said pleadings, such as by personal delivery, facsimile, and express mail.

This code is used by the court clerks and judges to mandate the procedures for pleadings.

Motion to Quash in New York Supreme Court-At A Glance

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Use this “At A Glance Guide” to learn the statewide rules of civil procedure applicable to bringing a motion to quash in New York Supreme Court. For more detailed information, including local rules, please see the New York Supreme Court SmartRules Guides: Motion to Quash, Opposition to Motion to Quash, Reply in Support of Motion to Quash.

Deadline:

A Motion to Quash a subpoena should be made promptly in the Court in which the subpoena is returnable. CPLR 2304.

 Motion to Quash Rules: 

New York caselaw holds that a Motion to Quash a subpoena can be made to challenge the validity of the subpoena or the jurisdiction of the issuing authority. New York courts broadly interpret this power of the courts to quash or modify a subpoena or impose conditions the court finds just.

Reasonable conditions may be imposed upon the granting or denial of a motions to quash or modify a subpoena. CPLR 2304.

Counsel must confer in good faith to resolve the issues raised by the motion before brining any “motion related to disclosure.” Uniform R. 202.07(a).

A Motion to Quash, fix conditions or modify a subpoena must be made promptly in the court in which the subpoena is returnable. CPLR 2304.

If the subpoena at issue is related to arbitration, the Motion to Quash should be filed in the venue set for other court applications related to the arbitration. CPLR 7502(a).

If a subpoena is issued but not made returnable to a court, the party objecting to the subpoena must first make a request to withdraw or modify the subpoena to the person who issued it. If this request is not granted, a Motion to Quash, fix conditions to or modify the subpoena may then be made in the Supreme Court. CPLR 2304. Special filing procedures exist for motions to quash in child support cases.

The authorities cited in this At A Glance Guide are current as of the publication date. For authorities updated in real time, please see the SmartRules Guide for the litigation document you are drafting.

Motion to Quash in California Superior Court–At A Glance

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Use this “At A Glance Guide” to learn the statewide rules of civil procedure applicable to bringing a motion to quash in California Superior Court. For more detailed information, including local rules, please see the California Superior Court SmartRules Guides:  Motion to Quash, Opposition to Motion to Quash, Reply in Support of Motion to Quash.

Deadline:

Notice of a motion to quash or modify a subpoena duces tecum must be served on the witness and the deposition officer at least five (5) days before the date set for production of the subpoenaed records. CCP § 1985.3(g); CCP § 1985.6(f).

Motion to Quash Rules:

A motion to quash production of documents at a deposition must be accompanied by a separate statement setting forth the particular documents or demands at issue, the responses received, and the reasons why production should be compelled. CRC 335(a)(5). CRC 3.1020(a)(5) (renumbered eff 1/1/07).

Filing a motion to quash automatically excuses the custodian and deposition officer from producing the subpoenaed records until the court orders their production or the parties stipulate thereto. CCP § 1985.3(g); CCP § 1985.6(f).

The court must impose a monetary sanction against the losing party on the motion to quash unless it expressly finds that that party acted with substantial justification. CCP § 2025.410(d).

Who May Bring A Motion To Quash
1. Any consumer whose personal records are sought by a subpoena duces tecum and who is a party to the action (CCP § 1985.3(g)) may bring a motion to quash. It is not clear, pursuant to the relevant statutes, whether this right is limited to party consumers. A California Court of Appeals decision provides that a consumer may move to quash or modify a subpoena and does not limit that right to party consumers. Lantz v. Superior Court, 28 Cal. App. 4th 1831, 1849 (1994). Note that non-party consumers may object to a subpoena by serving written objections. CCP § 1985.3(g). See Los Angeles SmartRulesTM procedural guide: RESPONSE TO SUBPOENA.

2. Any employee whose employment records are sought by a subpoena duces tecum (CCP § 1985.6(f)) may bring a motion to quash. Note that non-party employees may object to a subpoena by serving written objections. CCP § 1985.6(f). See Los Angeles SmartRulesTM procedural guide: RESPONSE TO SUBPOENA.

3. Any non-party who has been served with a business records subpoena may bring a motion to quash. CCP § 1987.1. Note, however, that some case law holds that a non-party may simply serve written objections and is not required to bring a motion to quash. “The discovery rules do not discriminate against nonparty deponents. They need not scramble to retain a lawyer to file a motion to quash in order to challenge ‘records only’ discovery requests that seek privileged information. It is sufficient to simply object.” Monarch Healthcare v. Superior Court, 78 Cal. App. 4th 1282 (2000).

Who Must Be Served
Notice of a motion to quash a subpoena duces tecum that seeks consumer records or employment records must be served on the witness and the deposition officer at least five (5) days prior to the date set for production. Failure to serve the deposition officer shall not invalidate the motion but may be raised by the deposition officer as an affirmative defense in any action for liability for improper release of records. CCP § 1985.3(g); CCP § 1985.6(f).

No witness or deposition officer is required to produce testimony or records after notice of a motion to quash a subpoena until the court orders or the parties agree to a specific production. CCP § 1985.3(g); CCP § 1985.6(f).

The authorities cited in this At A Glance Guide are current as of the publication date. For authorities updated in real time, please see the SmartRules Guide for the litigation document you are drafting.

United States District Court Motion to Quash–Cheat Sheet

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Use this “Cheat Sheet” to learn the Federal Rules of Civil Procedure related to a motion to quash or modify subpoena in the United States District Courts. For a more detailed treatment, including local rules, on bringing a motion to quash or modify subpoena in a specific United States District Court, please see the SmartRules United States District Court Subpoena Guide for the court where your action is pending.

On timely motion, the issuing court must quash or modify a subpoena that:

(i) fails to allow a reasonable time to comply;

(ii) requires a person who is neither a party nor a party’s officer to travel more than 100 miles from where that person resides, is employed, or regularly transacts business in person- except that, subject to Rule 45(c)(3)(B)(iii), the person may be commanded to attend a trial by traveling from any such place within the state where the trial is held;

(iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or

(iv) subjects a person to undue burden. FRCP 45(c)(3)(A).

To protect a person subject to or affected by a subpoena, the issuing court may, on motion, quash or modify the subpoena if it requires:

(i) disclosing a trade secret or other confidential research, development, or commercial information;

(ii) disclosing an unretained expert’s opinion or information that does not describe specific occurrences in dispute and results from the expert’s study that was not requested by a party; or

(iii) a person who is neither a party nor a party’s officer to incur substantial expense to travel more than 100 miles to attend trial. FRCP 45(c)(3)(B).

In the circumstances described in Rule 45(c)(3)(B), the court may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party:

(i) shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and

(ii) ensures that the subpoenaed person will be reasonably compensated. FRCP 45(c)(3)(C)(eff 12/01/07).

Pending Change to New York Rules of Civil Procedure Re Subpoenas

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Legislation currently referred to the Codes Committee of the New York state legislature would amend New York civil procedure regarding subpoenas, specifically Civil Practice Law and Rules (“CPLR”) Section 3101 (a) (4).  

The justification for the proposed amendment is set forth as follows:  Until 1984, CPLR 3101(a) (4) required disclosure by “any person where the court on motion determines that there are adequate special circumstances.” Courts interpreted that requirement very liberally. In Kenford Co. v. County of Erie, 41 AD.2d 586, 340 N.Y.S.2d 300 (4th Dep’t 1973), a seminal case repeatedly cited with approval by the other Departments, the Court said: “A mere showing by the lawyer that he needs such [nonparty] witness’s pretrial deposition in order to prepare fully for the trial should suffice as a ‘special circumstance’.”

By chapter 294 of the Laws of 1984, the statute was amended to its current form, eliminating both the need for a motion and any reference to “special circumstances.” The amendment was made effective September 1, 1984. In support of the amendment, its sponsor stated that, “The proposed amendment would…allow for the discovery of any person who possesses material and necessary evidence. All of the necessary protections to avoid abuses of non-party witnesses presently exist under CPLR 3103 and 3104.” 1984 Legislative Annual, pp. 122-123.

In two notable cases soon thereafter, the First Department, seemingly faced with the question of whether the old or the new statute applied to appeals pending in existing actions, found it unnecessary to decide the point, since even under the old statute, the liberal interpretation in Kenford would permit nonparty disclosure under the circumstances, and there was certainly no suggestion that the Legislature intended by the new statute “to depart from the liberal interpretation heretofore accorded to the ‘special circumstances’ standard in the former legislation.” Slabakis v. Drizin, 107 A.D.2d 45, 48, 485 N.Y.S.2d 270 (l”1
Dep’t 1985); see New England Mut. Life Ins. Co. v. Kelly, 113 AD.2d 285, 496 N.Y.S.2d 8 (151 Dep’t 1985).

In Dioguardi v. St. John’s Riverside Hosp., 144 AD.2d 333,334,533 N.Y.S.2d 915 (2nd Dep’t 1988), the Court, affirming denial of a nonparty deposition, said: “It is proper to direct disclosure against a nonparty witness only in the presence of adequate special circumstances [citing a pre-1984 decision]. This requirement survived the1984 amendment to CPLR 3101 (a) (4) (L 1984, ch 294; see, New England Mut. Life Ins. Co. (supra); Slabakis [supra})."

We did not intend for the survival of "special circumstances" after the amendment of 1984. That holding in Dioguardi represents a misreading of the holdings in New England Mut. and Slabakis, and it is directly contrary to the legislative intent of the amendment as reflected in its sponsor's memorandum. While panels of the First and Fourth Departments of the Appellate Division have openly rejected Dioguardi (Schroder v. Consolidated Edison Co. ofN.Y., Inc., 249 AD.2d 69,670 N.Y.S.2d 856 [151 Dep't 1998]; Catalano v. Moreland, 299 AD.2d 881, 750 N.Y.S.2d 209 [4th Dep't 2002]), the Second Department has repeatedly followed its approach (see, e.g., Moran v. McCarthy, Safrath & Carbone, P.c., _ AD.3d_, 2006 N. Y. App. Div. LEXIS 9715; 2006 N.Y. Slip Op. 05926 [2nd Dep't 2006]; Tannenbaum v. Tannenbaum, 8 AD.3d 360,777 N.Y.S.2d 769 [2nd Dep't 2004]; Lanzello v. Lakritz, 287 AD.2d 601, 731 N.Y.S.2d 763 [2nd Dep't 2001];
Bostrom v. William Penn Life Ins. Co., 285 AD.2d 482,727 N.Y.S.2d 160 [2nd Dep't 2001]).

The conflict among departments of the Appellate Division and the need to clarify the intent of the 1984 amendment warrants this bill. Of course, non-party witnesses, like all of those from whom discovery may be sought, are protected from abusive discovery under CPLR 3103 and 3 I 04. There is no intent by this amendment to change statutory or case law concerning discovery of physicians or experts.

For more information regarding subpoenas, please see the New York SmartRules Response to Motion to Quash Subpoena Guides for Bronx, Nassau, New York, Kings, Queens, Richmond and Suffolk Counties.