Hawaii 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 the rule allows. Failure to obey without adequate excuse may be deemed contempt (HRCP 45(f)). Never simply ignore a subpoena.

2. 2

   Hawaii has its own Rule 45 and does not simply copy FRCP 45. HRCP 45(b) has no separate list of quash grounds like FRCP 45(d)(3); it uses the older 'unreasonable and oppressive' standard.

3. 3

   A motion to quash must be made 'promptly and in any event at or before the time specified in the subpoena for compliance' (HRCP 45(b)). Waiting until the compliance date is not safe if the motion could have been made sooner.

4. 4

   For a deposition subpoena for documents, a written objection may be served on the attorney designated in the subpoena within 10 days after service, or on or before the compliance time if that time is less than 10 days after service (HRCP 45(d)(1)).

5. 5

   A written objection and a motion to quash are different steps. If objection is made, the materials are produced only by order of the court from which the subpoena was issued (HRCP 45(d)(1)). A motion under HRCP 45(b) is a separate filing.

6. 6

   The court may quash or modify a subpoena that is unreasonable and oppressive, or may condition denial of the motion on the advancement of the reasonable cost of producing the materials (HRCP 45(b)). Related grounds appear in HRCP 26(c) (annoyance, embarrassment, oppression, undue burden or expense) and HRCP 45(e).

7. 7

   A protective-order motion under HRCP 26(c) must be accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties to resolve the dispute without court action. For a deposition subpoena, a resident witness may be required to attend only in the county of residence, employment or business (HRCP 45(d)(2)).

Hawaii Requirements for Motion to Quash

• Do Not Ignore the Subpoena

  A subpoena must be obeyed unless objected to or quashed or modified as the rule allows; failure to obey without adequate excuse may be deemed contempt (HRCP 45(f)).

• Prompt Motion Before Compliance Time

  The motion must be made promptly and in any event at or before the time specified in the subpoena for compliance (HRCP 45(b)).

• 10-Day Written Objection Window

  For a deposition document subpoena, written objection to the designated attorney within 10 days after service, or on or before the compliance time if less than 10 days after service (HRCP 45(d)(1)).

• Objection Is Not a Motion

  If a written objection is made, materials are produced only by order of the court from which the subpoena was issued; a motion under HRCP 45(b) is a separate filing.

• Unreasonable and Oppressive Standard

  The motion states its grounds in the alternative, led by the HRCP 45(b) standard that the subpoena is unreasonable and oppressive, with HRCP 26(c) and 45(e) grounds as applicable.

• Good-Faith Conferral Certification

  A protective-order motion must be accompanied by a certification of good-faith conferral or attempted conferral with affected parties (HRCP 26(c)).

• Express Privilege Claim

  A privilege claim must be made expressly with a description of the materials withheld (HRCP 45(e)(2)).

• County Limit for Deposition Attendance

  For a deposition subpoena, a resident witness may be required to attend only in the county of residence, employment or business (HRCP 45(d)(2)).