Legal 145b FINAL EXAMINATION. Prepare a Motion to Quash Subpoena.

A. Motion to Quash Assignment Legal 145b FINAL EXAMINATION Prepare a Motion to Quash Subpoena. Recently you prepared a subpoena. Look at the front of the subpoena where it tells you how to oppose a subpoena. Remember that there is a duty for both sides to meet and confer under CCP 2016.040 before one of them files a motion of any kind. This means that the attorneys have to talk to each other and try to reach an agreement about the subpoena, for example requesting that the propounding party limit the scope of the subpoena to relevant documents or the attorney may ask the subpoenaing party withdraw their discovery request altogether. B. Reasons a subpoena may be quashed. Look at the code section on the front of the subpoena that refers to a motion to quash. Other reasons could be: The documents are the subject of some privilege, such as attorney-client, doctor-patient, etc. The request may violate constitutional rights of privacy, may be irrelevant, harassing, outside the scope of the case, etc. C. What you need for a Motion to Quash a Subpoena You need four things for a motion to quash. 1. Notice of Motion; 2. At least one declaration in support of the motion and exhibits supporting the declaration; 3. Memorandum of Points and Authorities (the law supporting your request; and 4. A Proposed Order (we are not doing this) D. Proper Format. The notice of motion and motion can either be produced on a Judicial Counsel form or in a pleading format. We are using the pleading format. The notice of motion and motion give the other side notice of the hearing date and why they are bringing the motion. In this case, to request the court limit or quash the motion completely on what ever legal grounds are appropriate, ie. Privacy, relevance, the documents are privileged, etc. Whenever you create a motion you have to use pleading paper 28 lines and double space. I have single spaced in my example in order to save trees. After the initial statement on the declaration, every statement that you make should be accompanied by a piece of evidence to back up your statement.

SAMPLE FORMS BELOW. A. SAMPLE NOTICE OF MOTION FOR Order Quashing, Modifying, or Directing Compliance With Subpoena or Subpoena Duces Tecum and for Expenses of Motion [Code Civ. Proc. 1987.1, 1987.2] Notice of Motion for Order Quashing, Modifying, or Directing Compliance With Subpoena or Subpoena Duces Tecum and for Expenses of Motion [Code Civ. Proc. 1987.1, 1987.2] (hint) SUPERIOR COURT OF CALIFORNIA, COUNTY OF [name], Plaintiff, vs. [name], Defendant. ) CASE NO. MOTION AND NOTICE OF MOTION FOR ORDER [QUASHING or MODIFYING or DIRECTING COMPLIANCE WITH] SUBPOENA [DUCES TECUM] [AND FOR EXPENSES OF THE MOTION] Date: Time: Dept: Judge: Date Action Filed: Trial Date: To [specify party, e.g., defendant] [name] and to [name], his/her attorney of record: NOTICE IS HEREBY GIVEN that, on [date], at [time], or as soon thereafter as the matter may be heard, in [ (Department or Division) of] this court located at [street address], [city], [name], the [witness or consumer or employee or specify party, e.g., plaintiff] will, and hereby does, move for an order [quashing or modifying or enforcing compliance with] the subpoena [duces tecum] issued and served on [name], the witness, requiring his/her attendance at [the trial of the above-entitled matter or the hearing of the above-entitled matter or a deposition] on [date] [, and the production of certain records]. [If reasonable expenses sought, add: (name of moving person) will also move for an order requiring (specify party who sought subpoena, e.g., defendant) (name) to pay him/her the reasonable expenses of making the motion, including reasonable attorney's fees.] The motionwill be made

on the ground that [specify, e.g., there is no good cause for production of the documents sought, or, if motion to comply, the documents are not otherwise available]. [If expenses of motionare sought, add: The motion for expenses is made on the ground that one or more of the requirements of the subpoena is oppressive.] The motion will be based on this notice of motion, on the declaration of [name] and the memorandum of points and authorities served and filed herewith, on the papers and records on file herein, and on such oral and documentary evidence as may be presented on the hearing of the motion. Dated:. [firm name, if any] By: [signature] [typed name] Attorney for [party's status and name] [2] Use of Form [a] Generally The form of notice of motion for an order to quash, modify, or enforce a subpoena or subpoena duces tecum in [1], above, is for use by a party, the witness, any consumer described in Code Civ. Proc. 1985.3 whose personal records are being sought from a witness, or any employee described in Code Civ. Proc. 1985.6 whose employment records are being sought. The motion may be made with regard to proceedings before a court, at trial, or at the taking of a deposition [Code Civ. Proc. 1987.1; see also Code Civ. Proc. 1985.3(g), 1985.6(f)]. The court may make an order quashing, modifying, or directing compliance with the subpoena on such terms or conditions as it declares, including protective orders. In addition, the court may make any other order as may be appropriate to protect the parties, witnesses, consumer, or employee from unreasonable or oppressive demands including unreasonable violations of a witness's, consumer's, or employee's right of privacy [Code Civ. Proc. 1987.1]. This form can be adapted for use as a notice of motion for a protective order. The court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney's fees, if it finds that the motion was made or opposed in bad faith or without substantial justification or that one of the requirements of the subpoena was oppressive [Code Civ. Proc. 1987.2]. [b] By a Party Consumer or Employee Whose Records Are Sought A consumer who is a party to the action and whose personal records are being sought by a subpoena duces tecum, or an employee whose employment records are being similarly sought, may use this form to bring a motion under Code Civ. Proc. 1987.1 to quash or modify the

subpoena duces tecum. A motion to quash is the procedurally appropriate method of testing the validity of a subpoena duces tecum, attacking an order made for discovery of documents without showing of good cause, or attacking a request for documents which is not particularized [see People ex rel. Dept. of Public Works v. Younger (1970) 5 Cal. App. 3d 575, 579, 86 Cal. Rptr. 237 (prior to adoption of Code Civ. Proc. 1987.1); Pacific Auto. Ins. Co. v. Superior Court (1969) 273 Cal. App. 2d 61, 67-68, 77 Cal. Rptr. 836 ; Flora Crane Serv., Inc. v. Superior Court (1965) 234 Cal. App. 2d 767, 787, 45 Cal. Rptr. 79]. The motion must be brought prior to the date for production. Notice of the bringing of the motion must be given to the witness and deposition officer at least five days prior to production. No witness or deposition officer is required to produce the records after receipt of a notice that such a motion has been brought, except on order of the court in which the action is pending or by agreement of the parties, witnesses, consumers, and employees affected [Code Civ. Proc. 1985.3(g), 1985.6(f)]. The time limit specified in Code Civ. Proc. 1985.3(g) is designed to guide witnesses concerning when to honor or not honor the subpoena safely, but it does not restrict the jurisdiction of the court [see Slagle v. Superior Court (1989) 211 Cal. App. 3d 1309, 1312, 260 Cal. Rptr. 122]. 2. SAMPLE DECLARATION Below is a sample Declaration Under Penalty of Perjury in Support of Motion for Order Quashing, Modifying, or Enforcing Subpoena or Subpoena Duces Tecum and for Expenses of Motion. This is to be centered at the top of the page. DECLARATION OF [name] I, [name], declare: 1. I am [identify declarant, e.g., an attorney at law duly admitted to practice before all the courts of the State of California and the attorney of record herein for (moving party) or other statement as appropriate]. 2. On [date], a subpoena [duces tecum], issued in the above-entitled cause, was served on [name], as a witness on behalf of [specify, e.g., defendant] at [the trial of the above-entitled matter or the hearing of the above-entitled matter or a deposition], on [date]. A true and correct copy is attached hereto as Exhibit 3. On [date] I wrote a letter to opposing counsel [name] seeking to resolve our differences on this discovery issue informally so that we would not have to resort to court intervention. A true and correct copy of the letter dated, [date] and the facsimile transmission page are attached hereto as Exhibit 4. On [date] Mr./Ms. [opposing counsel] responded to my letter stating. We were unable to resolve our differences on

this matter. A true and correct copy of the facsimile by [name], dated, is attached hereto as Exhibit 5. On [date] in a further attempt to meet and confer I spoke with Mr. /Ms. On the telephone, we were able to resolve (issue A but not issue B) making the filing of this motion necessary. A facsimile transmission memorializing our partial resolution is attached hereto as Exhibit. 6. [State reasons why subpoena should be quashed, modified, enforced, e.g., Good cause does not exist for the production of the subpoenaed records because they are otherwise available to the plaintiff or The subpoenaed records may not be introduced because they are privileged pursuant to (specify appropriate authority) or, to enforce subpoena, The subpoenaed records are not available from any other source]. 7. If expenses are requested pursuant to Code Civ. Proc. 1987.2, state reasons why reasonable expenses of making motion, including reasonable attorney's fees, should be awarded, e.g., The requirements of the subpoena were oppressive in that (specify), and reasonable expenses of this motion, including attorney's fees, should therefore be awarded to plaintiff (name).] I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated:. [signature] [typed name] [2] Use of Form The form of declaration under penalty of perjury in [1], above, is for use in support of a motion to quash, modify, or enforce a subpoena or a subpoena duces tecum [see Code Civ. Proc. 1987.1]. [3] Showing Required for Subpoena Duces Tecum The motion to quash may point out the deficiencies of the affidavit or declaration supporting issuance of the subpoena duces tecum. The party at whose instance the subpoena was issued must show good cause for the production of the items and their materiality to the issues in the action [see Code Civ. Proc. 1985(b)]. The declarant in support of issuance of the subpoena cannot rely merely on the legal conclusion, stated in general terms, that the desired documentary evidence is relevant and material [ People ex rel. Dept. of Public Works v. Younger (1970) 5 Cal. App. 3d 575, 580, 86 Cal. Rptr. 237].

3. SAMPLE MEMORANDUM OF POINTS AND AUTHORITIES A supporting memorandum is required to be served and filed with this notice of motion [Cal. Rules of Ct., Rule 3.1113(a); see Code Civ. Proc. 1005(b), (c), 1010; see also you will need a declaration in support of the motion to quash. USE PLEADING PAPER, BUT DO NOT PUT ON CAPTIONED PAGE SEE SAMPLE BELOW. This is to be centered at the top of the page MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF S MOTION TO QUASH BANK OF AMERICA SUBPOENA I. INTRODUCTION On or about November 29, 2007, Respondent served the Bank of America subpoena on Petitioner while he was yet self represented. Because of his lack of training, Mr. Smith did not know the procedure to stop or limit production of his bank records. On December 21, 2007 Respondent was also served with a Chase CitiCorp subpoena, just prior to his retaining Jones Law and Mediation Offices to represent him in this case. Ms. Jones office contacted Petitioner, Elena Smith s attorney Mr. Berenji alerting him to the fact that both this Bank of America subpoena and a subsequent Chase CitiCorp subpoena were overly broad. See Declaration of Tonya Jones and Petitioner s Separate Statement. II. THE COURT MAY MAKE AN ORDER TO QUASH OR MODIFY A SUBPOENA IS A PROPER MEANS BY WHICH A PARTY S RIGHT OF PRIVACY MAY BE PROTECTED The court may, as set forth in pertinent part, of California Code of Civil Procedure 1987.1 make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon such terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the parties, the witness, the consumer, or the employee from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the consumer. In this case, state your argument.. III. PLAINTIFF SEEKS DOCUMENTS THAT ARE IRRELEVANT OR ARE PRIVILEGED, OR WHATEVER YOUR ARGUMENT IS.

California Code of Civil Procedure 1985.3(g) THIS IS WHERE YOU PUT THE LAW PUT A QUOTATION OF THE LAW (AS BELOW) Any consumer whose personal records are sought by a subpoena duces tecum and who is a party to the civil action in which this subpoena duces tecum is served may, prior to the date for production, bring a motion under Section 1987.1 to quash or modify the subpoena duces tecum. Notice of the bringing of that motion shall be given to the witness and deposition officer at least five days prior to production. Then state why the above law fits your situation.. IV. CONCLUSION A motion to quash or limit Plaintiff s request for the Bank of America and Chase CitiCorp document request is warranted in this case, both subpoenas being a stark violation of Defendant s right to privacy to bank and consumer records. Not withstanding the foregoing, the Chase CitiCorp subpoena must be quashed completely, because it was issued in an untimely manner. Date: JONES LAW AND MEDIATION OFFICES Name of the Attorney, For Plaintiff, name of client

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITIONER S MOTION TO QUASH BANK OF AMERICA SUBPOENA I. INTRODUCTION On or about November 29, 2007, Respondent served the Bank of America subpoena on Petitioner while he was yet self represented. Because of his lack of training, Mr. Smith did not know the procedure to stop or limit production of his bank records. On December 21, 2007 Respondent was also served with a Chase CitiCorp subpoena, just prior to his retaining Jones Law and Mediation Offices to represent him in this case. Ms. Jones office contacted Petitioner, Elena Smith s attorney Mr. Berenji alerting him to the fact that both this Bank of America subpoena and a subsequent Chase CitiCorp subpoena were overly broad. See Declaration of Tammy Jones and Petitioner s Separate Statement. II. THE COURT MAY MAKE AN ORDER TO QUASH OR MODIFY A SUBPOENA IS A PROPER MEANS BY WHICH A PARTY S RIGHT OF PRIVACY MAY BE PROTECTED The court may, as set forth in pertinent part, of California Code of Civil Procedure 1987.1 make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon such terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the parties, the witness, the consumer, or the employee from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the consumer. In this case, the parties were only married for three years. Failure to include a date of production exclusive to the relevant time frame is a violation of Petitioner s privacy. 28 MEMORANDUM OF POINTS AND AUTHORITIES - 1

1 2 3 4 5 6 Moreover a court may make any other order as may be appropriate to protect the parties from unreasonable or oppressive demands. Lee v. Swansboro Country Property Owners Assn., (2007) 151 Cal. App. 4th 575 59 Cal. Rptr. 3d 924. Clearly, the breadth and scope of Respondent s subpoenas are overly broad failing to include any date boundaries and are an invasion of his privacy where they request documents outside of the time frame of his marriage to Respondent. 7 8 9 10 III. RESPONDENT S FAILURE TO FILE BANK OF AMERICA MOTION TO QUASH FIVE DAYS BEFORE PRODUCTION DUE IS EXCUSABLE NEGLECT 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 California Code of Civil Procedure 1985.3(g) Any consumer whose personal records are sought by a subpoena duces tecum and who is a party to the civil action in which this subpoena duces tecum is served may, prior to the date for production, bring a motion under Section 1987.1 to quash or modify the subpoena duces tecum. Notice of the bringing of that motion shall be given to the witness and deposition officer at least five days prior to production. On December 28, 2007, the Custodian of Records of Bank of America was made aware of the fact that a motion to quash would be filed in this matter when a letter was hand delivered to Bank of America however no motion was yet filed where counsel had yet to have a meaningful opportunity to meet and confer on the issue. This letter put Bank of America on notice four (4) days prior to the production date. The failure to give a five day notice is therefore because of inadvertence and/or excusable neglect where Jones Law and Mediation had only been retained on December 20, 2007, not giving them ample time to review the file and confer with opposing counsel. (Declaration of Tammy Jones) /// 28 MEMORANDUM OF POINTS AND AUTHORITIES - 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 IV. PETITIONER S CHASE CITICORP SUBPOENA IS UNTIMELY BEING ISSUED BEYOND THE THIRTY DAYPRIOR TO TRIAL DEADLINE TO REQUEST DISCOVERY The Discovery Act imposes a thirty day (30) discovery "cut-off" before the date initially set for trial unless otherwise ordered, according to CCP 1985.3(d), 1985.6(d), and 2020.410(c), as set forth in California Practice Guide Civil Procedure Before Trial at Ch. 8E-2, 5(b), which in this case means a December 14, 2007 deadline to issue their subpoena. The deadline is necessary because a party would need time to timely file a motion to quash and all hearings on motions have a fifteen (15) day deadline before trial. So where the document in Chase CitiCorp may be timely produced if the subpoena were not defective, still time would need to be needed to file a motion to quash or a motion seeking a protective order. Thus, when Petitioner serves a December 21, 2007 subpoena with a production date a mere 5 days before trial there would scarcely be time to prepare one s case to consider the production. Moreover in accordance to California Rule of Court 14.15, the parties are obligated to exchange exhibits (given the current trial date of January 29, 2008) on January 22, 2008. The date of production on the CitiCorp subpoena of January 24, 2008, even if it were proper, will not even provide admissible evidence. 23 24 25 26 27 28 /// CCP 1985.3(d) A subpoena duces tecum for the production of personal records shall be served in sufficient time to allow the witness a reasonable time, as provided in Section 2020.410, to locate and produce the records or copies thereof. V. MEMORANDUM OF POINTS AND AUTHORITIES - 3

1 2 3 4 5 6 7 CONCLUSION A motion to quash or limit Petitioner s request for the Bank of America and Chase CitiCorp document request is warranted in this case, both subpoenas being in violation of Respondent s right to privacy to bank and consumer records prior to his marriage to Petitioner. Not withstanding the foregoing, the Chase CitiCorp subpoena must be quashed completely, because it was issued in an untimely manner. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Date: JONES LAW AND MEDIATION OFFICES Tonya L. Jones, Esq. Attorney for Respondent, Frank Smith MEMORANDUM OF POINTS AND AUTHORITIES - 4