Arkansas Motion to Quash a Subpoena

Introduction

Key Things to Know

1. 1

   A subpoena must be obeyed unless it is objected to or quashed or modified as Ark. R. Civ. P. 45 allows. Never simply ignore it. Rule 45 has no express sanctions provision for improper subpoenas, but courts have inherent authority to sanction attorneys who abuse the subpoena power.

2. 2

   Arkansas has its own subpoena rule. The Reporter's Notes say Rule 45 deliberately differs from FRCP 45, so federal practice should not be assumed to apply.

3. 3

   A motion to quash or modify must be made promptly and in any event at or before the time specified in the subpoena for compliance (Rule 45(b)(2)). The court may quash or modify the subpoena if it is unreasonable or oppressive.

4. 4

   For a deposition subpoena that asks for inspection or copying, the recipient may serve written objection on the attorney causing the subpoena to issue within 10 days after service, or on or before the compliance time if that is less than 10 days after service (Rule 45(e)). If there is an objection, the requester needs a court order and must move on notice to the deponent. A written objection and a motion to quash are separate steps.

5. 5

   A document-only subpoena must be served on all parties by e-mail, fax or hand delivery at least 3 business days before it is served on the recipient, and the issuing party must promptly give all parties copies of what is produced (Rule 45(b)(1)). A deposition witness must be served 5 business days before the deposition (Rule 45(e)).

6. 6

   A protective order motion under Rule 26(c) can rest on annoyance, embarrassment, oppression, or undue burden or expense. It must state that the movant has in good faith conferred or attempted to confer with other affected parties to resolve the dispute without court action. If the motion is denied, Rule 37(a)(4) expenses apply.

7. 7

   The motion is heard in the court where the action is pending. For a subpoena from another state, Rule 45.1 (Arkansas's UIDDA-based rule) has the party submit it to the circuit clerk of the county where discovery is sought, and motions to quash, modify or for a protective order are filed and heard in that county with no additional fee (Rule 45.1(f)).

Arkansas Requirements for Motion to Quash

• Do Not Ignore the Subpoena

  A subpoena must be obeyed unless objected to or quashed or modified as Ark. R. Civ. P. 45 allows; courts have inherent authority to sanction attorneys who abuse the subpoena power.

• Prompt Motion Before Compliance Time

  A motion to quash or modify must be made promptly and in any event at or before the time specified in the subpoena for compliance (Ark. R. Civ. P. 45(b)(2)).

• 10-Day Written Objection

  A deposition subpoena recipient may serve written objection to inspection or copying within 10 days after service, or by the compliance time if that is less than 10 days after service (Ark. R. Civ. P. 45(e)).

• Objection Is Not a Motion

  With a Rule 45(e) objection the requester needs a court order and must move on notice to the deponent; a Rule 45(b)(2) motion to quash or modify is a separate filing.

• Unreasonable or Oppressive Ground

  The motion states its grounds in the alternative: the subpoena is unreasonable or oppressive (Rule 45(b)(2)), and, if sought, annoyance, embarrassment, oppression, or undue burden or expense (Rule 26(c)).

• Good-Faith Conferral Statement

  A Rule 26(c) protective order motion must state that the movant has in good faith conferred or attempted to confer with other affected parties to resolve the dispute without court action.

• Pending Court and UIDDA Venue

  The motion goes to the court where the action is pending; for a foreign subpoena, to the court in the county where discovery is to be conducted (Ark. R. Civ. P. 26(c)(2), 45.1(f)).

• 3-Business-Day Notice to Parties

  A document-only subpoena must be served on all parties by e-mail, fax or hand delivery at least 3 business days before service on the recipient (Ark. R. Civ. P. 45(b)(1)).