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What to Do If You’re Subpoena’d Under Rule 45

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    Tax Law Subpoena

    Your Guide to Quashing a Rule 45 Subpoena

    Have you been served a subpoena under Rule 45 ?

    Specifically a subpoena for the production of evidence (duces tecum)?

    In this article, we are assuming that you, the federally subpoenaed party, do not wish to comply with the subpoena. We aim to help you better understand a legal strategy for quashing or modifying your subpoena.

    Tax Law Subpoena

    What You Need to Know Up Front

    You are going to need legal counsel. No getting around it. Time to find a good attorney.

    You should also be aware that even if you file a motion to quash on time and you do everything right, there is still a chance that the filing court will devise an “appropriate accommodation” that forces you to comply, though perhaps in a modified way.

    Tax Law Subpoena

    Best Strategy Option

    In Federal courts, your best bet is to file a motion to quash, arguing that the subpoena is an undue burden and expense.

    No matter what you do, we recommend that you claim multiple reasons from the list at the bottom of the page as to why you should not have to fulfill the subpoena.

    When it comes to testifying, expense and undue burden are usually relatively simple to establish — and yes, no matter how you file your motion, you will need affidavits and exhibits (demonstrable and legally airtight proof) of your claims.

    It might appear that you have two options: file to quash or file to modify. What really happens, however, is your attorney files a motion to quash and the court decides whether or not to approve the motion, deny it, or modify it in some way.

    You may still file for a modification right off the bat if that is what you wish, of course. It is up to you and your attorney to come up with a course of action that works best for you.

    In Federal courts, the best strategy for quashing a federal subpoena is arguing undue burden, expense, and production beyond geographic limits, but we recommend adding more.

    The burden of proof is now on you and your attorney to prove what you are claiming, meaning you need to demonstrate precisely how this subpoena is causing an undue burden on you. This is the primary strategy you and your attorney will work on together.

    We recommend filing to quash your subpoena on relevance and other substantive arguments (see bottom section).

    Tax Law Subpoena

    Mandatory Quashing or Modifying

    Basically, after receiving a timely motion, the court that issued the subpoena in question is required to quash or modify it IF:

    1. It fails to allow a reasonable amount of time to comply

    2. It requires you to travel 100 miles from where you reside, are employed, or regularly transact.

    3. Requires you to disclose the privileged or protected matter.

    4. Subjects you to an undue burden.

    Tax Law Subpoena

    What Documents are Needed?

    Your attorney will file these specific documents as part of your motion to quash your subpoena (don’t worry, they will know what all of these are):

    • Memorandum of law
    • Supporting affidavits or declarations
    • A proposed order
    • Proof of service

    If you are filing a motion to quash or modify on behalf of a corporation or organization that has been subpoenaed then you may need to, in addition to those listed above, file an FRCP Rule 7.1 corporate disclosure statement and a notice of appearance.

    Tax Law Subpoena

    File in a Timely Manner

    These documents must be sent to ALL parties involved in the case (FRCP Rule 5 (a)(1)(D)).

    Your motion to quash must be filed before the return date indicated on the subpoena document itself.

    If the courts did not give you a reasonable amount of time to file then they may make an exception, and special circumstances are forgivable, but you are better off filing your motion as soon as possible.

    If the court does not recognize your excuse for filing late, then your motion to quash will likely be denied…or at least you are less likely to get the outcome you want.

    Tax Law Subpoena

    Don’t Forget Rule 26!

    Rule 45 is subject to the scope of Federal Rule of Civil Procedure 26, which defines the permissible scope of discovery:

    Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. FRCP 26(b)(1).

    But what does this mean?

    It means that the party who has claimed your documentation or testimony is relevant to their case needs to prove that their need for “discovery” outweighs your interest in non-disclosure. Rule 26 allows you to put the ball back in their court.

    Rule 26 also makes it clear that the information being sought from you shouldn’t be “unnecessarily cumulative or duplicative,” meaning that if the discovery has already been proven or obtained by another source (or if it can be obtained easily by another source), you should be let off the hook.

    Ask your attorney if they plan to use Rule 26 as part of their legal strategy for you.

    Tax Law Subpoena

    The Transfer Option

    Federal Rule 45 also permits for your attorney (called the nonparty attorney in this case) to file for a transfer of the subpoena, essentially moving it to the court where the case is being handled, and allowing them (your attorney) to better represent you in that particular court.

    Ask your attorney if this is relevant to your case and if they plan to file for a transfer as part of their strategy.  

    Tax Law Subpoena

    Full List of the Motions to Quash a Federal Subpoena:

    FRCP 45(d) (3) Quashing or Modifying a Subpoena.

    (A) When Required. On timely motion, the court for the district where compliance is required must quash or modify a subpoena that:

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

    (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c);

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

    (iv) subjects a person to undue burden.

    (B) When Permitted. To protect a person subject to or affected by a subpoena, the court for the district where compliance is required may, on motion, quash or modify the subpoena if it requires:

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

    (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.

    (C) Specifying Conditions as an Alternative. In the circumstances described in Rule 45(d)(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

    Tax Law Subpoena

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