Sample Motion to Quash Deposition

If you are looking for a sample motion to quash a subpoena in federal court, below is a short motion and a supporting memorandum that address one of the most common subpoena fights in civil litigation: a defendant trying to subpoena a plaintiff lawyer’s investigator.

This kind of dispute comes up more often than it should. A party serves a subpoena on a nonparty investigator, consultant, records custodian, or other litigation agent and tries to get around the work product doctrine by going through the back door. Usually, the fight centers on a handful of familiar issues: timeliness, relevance, undue burden, proper court for compliance, the 100-mile rule, standing, and whether the subpoena seeks attorney work product or privileged information.

In the example below, the defendant served a subpoena on our law firm’s private investigator. The motion and memorandum argue that the subpoena should be quashed because it is procedurally defective, seeks protected work product, and commands compliance in a manner that does not satisfy Rule 45.

Sample Motion to Quash Subpoena in Federal Court

This example includes both a short motion to quash and a separate memorandum in support. That used to be standard practice in federal court, and many lawyers still file it that way. But the trend is moving toward a single motion with the factual and legal support built into the filing itself. Still, if you want a traditional federal format, this is a good model.

• Motion for protective order for medical records
• Motion to Quash Videotaped Deposition
• Sample deposition notice
• More sample discovery motions

Why This Motion to Quash Matters

A subpoena served on a private investigator hired by counsel is not ordinary third-party discovery. If the investigator was retained in anticipation of litigation, the file usually reflects counsel’s mental impressions, litigation strategy, witness development, factual selection, and case preparation. That is exactly the type of material Rule 26 and Rule 45 are meant to protect, unless the party seeking discovery can make a very strong showing.

That strong showing is usually missing. In most cases, the opposing party can interview witnesses on its own, retain its own investigator, review the same public records, and build its own defense without invading the plaintiff lawyer’s litigation file.

8 Common Grounds for a Motion to Quash a Subpoena

Most federal motions to quash a subpoena focus on one or more of these arguments:

1. the subpoena was issued from or requires compliance in the wrong court
2. the subpoena violates the 100 mile limit in Rule 45
3. the subpoena is vague, overbroad, or seeks irrelevant material
4. the subpoena imposes an undue burden on a nonparty
5. the subpoena seeks attorney client privileged material
6. the subpoena seeks attorney work product
7. the subpoena is procedurally defective on its face
8. the request covers an unreasonable time span or seeks material available from other sources

This sample focuses primarily on three issues: improper compliance location, a defective subpoena form, and attorney work product.

Sample Motion to Quash Subpoena

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 undersigned counsel, moves to quash the subpoena served by Defendant Jane Smith on ABC Investigative Solutions, LLC, and states as follows:

Grounds for the Motion

1. The subpoena commands ABC, a nonparty located in Florida, to produce documents in Baltimore, Maryland, even though ABC is located more than 100 miles from the place of compliance identified in the subpoena. Rule 45 does not permit a subpoena to require compliance beyond the geographic limits imposed by the Rule.
2. The subpoena is facially defective because it fails to clearly identify the attorney who issued and signed it.
3. The subpoena seeks documents and materials prepared by Plaintiff’s investigator in anticipation of litigation and therefore invades protected attorney work product. Defendant has made no showing of substantial need, undue hardship, or inability to obtain the substantial equivalent by other means.

For these reasons, and for those set forth more fully in Plaintiff’s Memorandum in Support of this Motion, Plaintiff respectfully requests that this Court quash the subpoena served on ABC Investigative Solutions, LLC and grant such other relief as the Court deems just and proper.

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

Sample Memorandum in Support of Motion to Quash

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 undersigned counsel, submits this memorandum in support of his Motion to Quash the subpoena served on ABC Investigative Solutions, LLC.

I. Introduction

1. This case arises from a truck and automobile crash that occurred on January 8, 2025, in Baltimore County, Maryland.
2. As a result of the crash, Plaintiff suffered serious injuries and spent months in hospitals and rehabilitation facilities.
3. In anticipation of litigation, Plaintiff’s counsel retained investigators to locate and interview witnesses, gather factual information, conduct background checks, and interview first responders, including state troopers and emergency personnel.
4. On or about January 17, 2025, Plaintiff’s counsel retained ABC Investigative Solutions, LLC to perform investigative services relating to the crash.
5. ABC performed investigative work at the direction of counsel and continues to provide services as needed in connection with the case.
6. ABC prepared reports, notes, and other materials and submitted those materials to Plaintiff’s counsel.
7. There is no legitimate dispute that the documents and information gathered by ABC were prepared in anticipation of litigation and constitute attorney work product.
8. Plaintiff has already disclosed during discovery the individuals who gave statements and the witnesses known to have relevant knowledge concerning the events at issue.
9. Defendant remains free to retain her own investigator, interview witnesses, and depose any witness with knowledge of the facts.
10. Plaintiff’s counsel developed a litigation and trial strategy that included the use of investigators. Requiring disclosure of this material would unfairly reveal protected case preparation and would prejudice Plaintiff without any showing that Rules 26 and 45 require.

II. The Subpoena Must Be Quashed Because It Violates Rule 45’s Geographic Limits

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

Defendant issued the subpoena from the United States District Court for the District of Maryland and directed compliance in Baltimore, Maryland. As framed, the subpoena attempts to require a Florida nonparty to produce documents at a location more than 100 miles from where it resides, is employed, or regularly transacts business in person.

That is not allowed under Rule 45.

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

Schedule A to the subpoena directs ABC to produce documents in Baltimore, Maryland, even though ABC’s place of business is in Florida. A copy of the subpoena and its attachments is attached as Exhibit 1.

Because the subpoena exceeds the geographic limits set by Rule 45, it must be quashed.

III. The Subpoena Is Defective on Its Face

The subpoena is also defective because it does not clearly identify the attorney who issued and signed it.

Federal Rule of Civil Procedure 45(a)(3) permits an attorney to issue and sign a subpoena only if the attorney is authorized to practice in the issuing court. Here, the signature is illegible and the subpoena form is not properly completed. There is no clear identification of the attorney who issued the subpoena.

That is not a technicality. A subpoena is a compulsory court command. If the issuing attorney cannot be identified from the face of the document, the subpoena is defective and unenforceable.

IV. The Subpoena Improperly Seeks Attorney Work Product

The subpoena seeks documents prepared by Plaintiff’s investigator in anticipation of litigation. Those materials are attorney work product. Defendant has not shown substantial need, undue hardship, or inability to obtain the substantial equivalent by other means.

Federal Rule of Civil Procedure 26(b)(1) defines the general scope of discovery as nonprivileged matter relevant to any party’s claim or defense. But that broad standard does not swallow work product protection.

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.

Rule 26(b)(3)(A) then provides protection for documents and tangible things prepared in anticipation of litigation:

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 those materials may be discovered only if they are otherwise discoverable under Rule 26(b)(1) and 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.

That standard applies here. ABC was retained by counsel as an investigator. Its file was created for litigation. It reflects counsel-driven case development. It is protected work product.

Defendant has made no showing of substantial need. Defendant has made no showing of undue hardship. Defendant has made no showing that she cannot obtain the substantial equivalent by interviewing the same witnesses, hiring her own investigator, reviewing public information, or using ordinary discovery tools.

V. Federal Courts Routinely Protect Investigator Files as Work Product

Federal courts have long recognized that materials prepared by investigators working for counsel are protected under the work product doctrine.

In In re Crazy Eddie Securities Litigation, 131 F.R.D. 374, 378 to 379 (E.D.N.Y. 1990), the court explained that if documents or tangible things were prepared in anticipation of litigation, they are discoverable only upon a showing of substantial need and undue hardship under Rule 26(b)(3).

Likewise, in Chen-Nuclear Systems, Inc. v. Arivec Chemicals, Inc., 978 F. Supp. 1105, 1107 (N.D. Ga. 1997), the court held that materials prepared in anticipation of litigation remain protected unless the requesting party can satisfy the demanding Rule 26(b)(3) standard. The court further recognized that this protection applies even when the material was not prepared directly by an attorney.

The same principle appears in Federal Trade Commission v. Grolier Inc., 462 U.S. 19, 25 (1983), which confirms the continuing protection afforded to work product prepared in anticipation of litigation.

More recently, courts continue to apply the same principle. In Tingey v. Midwest Office, Inc., the court reaffirmed that the work-product doctrine protects “documents, things, and mental impressions of a party or its representative” prepared in anticipation of litigation. The court emphasized that Rule 26(b)(3) protects materials prepared not only by attorneys but also by their representatives assisting in the litigation process, including investigators and other litigation agents.

This is not close. An investigator retained by trial counsel is the kind of representative Rule 26 was specifically written to protect.

VI. Rule 45 Requires the Court to Quash a Subpoena Seeking Protected Matter

Federal Rule of Civil Procedure 45 requires the court to quash or modify a subpoena that requires disclosure of privileged or other protected matter where no exception or waiver applies. On timely motion, the court for the district where compliance is required must quash or modify a subpoena that requires disclosure of privileged or other protected matter, if no exception or waiver applies.

No exception applies here. No waiver applies here. And no factual basis has been offered to overcome work product protection.

The subpoena should therefore be quashed.

VII. Conclusion

Defendant’s subpoena to ABC Investigative Solutions, LLC is defective, exceeds Rule 45’s geographic limits, and improperly seeks protected attorney work product. Defendant has not met the burden required to invade litigation materials prepared by Plaintiff’s investigator.

For all of these reasons, Plaintiff respectfully requests that this Court 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

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What Lawyers Want to Know Before Filing a Motion to Quash

Most lawyers who land on a page like this are trying to answer a handful of practical questions before drafting the motion.

How do I quash a subpoena in federal court?

You generally move to quash or modify a subpoena under Federal Rule of Civil Procedure 45(d)(3).

In most cases, the motion must be filed in the court where compliance is required. So you need to identify the right procedural ground quickly, whether it is undue burden, improper place of compliance, insufficient time to comply, overbreadth, or invasion of privileged or protected material.

Can a party subpoena my investigator?

A party can try, but that does not mean the subpoena will be enforced. If the investigator was retained by counsel in anticipation of litigation, the investigator’s file should be protected by the work product doctrine. That is especially true where the subpoena seeks reports, witness statements, mental impressions, or materials that reveal counsel’s litigation strategy.

What is the Rule 45 100-mile rule?

Rule 45 limits where a person can be required to comply with a subpoena. In general, a subpoena cannot require compliance more than 100 miles from where the person resides, is employed, or regularly transacts business in person. That issue comes up often with nonparty witnesses, records custodians, and out-of-state entities.

Does a motion to quash have to be filed in the same court where the lawsuit is pending?

Not always. Under Rule 45, the subpoena is issued from the court where the action is pending, but a motion to quash is generally filed in the court where compliance is required. In some cases, those courts are the same. In others, they are not. That distinction matters.

Can attorney work product be obtained through a third-party subpoena?

Usually not absent a strong showing. Even when documents are sought from a third party, work product protection still applies to materials prepared in anticipation of litigation. The party seeking the material typically must show substantial need and an inability to obtain the substantial equivalent without undue hardship. You want to monitor subpoenas to third parties closely and intervene quickly to protect your work product. Don’t assume the third party will do it for you.

What makes a subpoena facially defective?

A subpoena may be facially defective if it fails to comply with Rule 45 on its face. Common problems include failure to identify the issuing attorney, failure to allow a reasonable time to comply, or a command for compliance outside the Rule’s geographic limits. Sometimes, a bad subpoena can be defeated without reaching the deeper discovery issues.

Practice Note

A sample motion to quash is only useful if it matches your facts, so be careful with the cut-and-paste.   Rule 45 fights are very fact-dependent. The right argument in one case may be weak in another. Timing, standing, place of compliance, local rules, and waiver issues can all matter. So use this as a framework, not as something to file without thinking.