Key Concepts

  • Failure to comply with a subpoena duces tecum is punishable as contempt.
  • If the person who receives the subpoena believes that responding to it would be impermissible or unduly burdensome, he or she may object or move to quash or modify the subpoena.
  • If an objection or motion to quash is made, the party issuing the subpoena must get a court order to compel the person’s compliance.

Failure to Comply with a Subpoena Duces Tecum

A person who fails to obey a properly served subpoena duces tecum without adequate cause may be held in contempt of court. See N.C. R. Civ. P. 45(e)(1); see also G.S. 5A-11 (criminal contempt); G.S. 5A-21 (civil contempt). For more information, see the related entries on Criminal Contempt and Civil Contempt.

Objections to a Subpoena Duces Tecum

A person who has been served with a subpoena to produce records or other tangible things may object to the subpoena. The objection must be in writing, and it must be served on the party or the attorney designated in the subpoena within ten calendar days of service of the subpoena, or before the time set for compliance if the time is less than ten calendar days after service. See N.C. R. Civ. P. 45(c)(3); see also N.C. R. Civ. P. 6(a) (computation of time). A person may object on the grounds that the subpoena:

  1. does not allow reasonable time for compliance;
  2. requires disclosure of privileged or protected matter and there is no applicable exception or waiver;
  3. imposes an undue burden on the party subpoenaed;
  4. is unreasonable or oppressive; or
  5. is procedurally defective.

N.C. R. Civ. P. 45(c)(3). If the person objects to the subpoena because he or she believes that the information sought by the subpoena is privileged or otherwise protected from disclosure, he or she must object “with specificity” and support the objection by sufficiently describing the nature of the communications, records, books, papers, documents, or other tangible things not produced. N.C. R. Civ. P. 45(d)(2).

Motions to Modify or Quash a Subpoena Duces Tecum

A person commanded by a subpoena duces tecum to produce items may test the relevancy and materiality (but not the admissibility) of the designated items by filing a motion to quash or modify the subpoena in the county where the items are to be produced. N.C. R. Civ. P. 45(c)(5); Vaughan v. Broadfoot, 267 N.C. 691 (1966). A trial judge has authority to modify a subpoena to produce documents. See State v. Richardson, 59 N.C. App. 558 (1982), aff’d in part and rev’d in part on other grounds, 308 N.C. 470 (1983) (recognizing trial court’s authority to modify subpoena to limit it). The motion to quash or modify must be made within ten calendar days after service of the subpoena or before the time specified for compliance if the time is less than ten days after service. N.C. R. Civ. P. 45(c)(5); see also N.C. R. Civ. P. 6(a) (computation of time).  As with objections, the judge may modify or quash a subpoena duces tecum if the subpoenaed person shows that it: 

  1. does not allow reasonable time for compliance;
  2. requires disclosure of privileged or protected matter and there is no applicable exception or waiver;
  3. imposes an undue burden on the party subpoenaed;
  4. is unreasonable or oppressive; or
  5. is procedurally defective. 

See N.C. R. Civ. P. 45(c)(3), (c)(5). If the judge enters an order to quash or modify a subpoena, he or she may order the party who issued the subpoena to pay all or part of the reasonable expenses and attorney’s fees of the subpoenaed person. N.C. R. Civ. P. 45(c)(8).

Although it has been held that the decision whether to quash or modify the subpoena is within the discretion of the trial judge, and is not subject to review absent an abuse of that discretion, the judge must be guided by sound legal principles when making the decision. See Vaughan, 267 N.C. at 697. In exercising his or her discretion, “the trial judge should consider the relevancy and materiality of the items called for [by the subpoena], the right of the subpoenaed person to withhold production on other grounds, such as privilege, and also the policy against ‘fishing expeditions.’” State v. Newell, 82 N.C. App. 707, 709 (1986).

Subject to constitutional limitations, a judge may quash or modify a subpoena if it is overly broad or not served in a timely manner. See, e.g., Newell, 82 N.C. App. at 709 (no abuse of discretion by trial judge in quashing overbroad subpoena where only a “tiny fraction” of the materials requested were “even arguably material to the inquiry”); see also Vaughan, 267 N.C. at 699 (subpoena for production of documents on first day of trial properly quashed where it was a “fishing or ransacking expedition”); Ward v. Taylor, 68 N.C. App. 74 (1984) (no abuse of discretion by trial judge in quashing subpoena as unreasonable and oppressive since plaintiffs waited until the last minute to serve an extremely broad subpoena for all time cards and records of all work over an eight-year period when they had known of the importance of the records for at least two weeks).

Does the State Have Standing to Challenge Subpoenas to Third Parties?

If the defendant subpoenas documents from a third party (such as a victim or witness) and the prosecutor objects or moves to quash on the grounds that the subpoena is improper or unduly burdensome, the defense may argue that the state lacks standing to challenge the subpoena.

Some jurisdictions have said the state lacks standing to contest subpoenas to a third party, unless the state can claim a privilege or other "legitimate interest" in the requested documents. See, e.g., United States v. Tomison, 969 F.Supp. 587 (E.D.Ca. 1997) ("A party only has standing to move to quash the subpoena issued to another when the subpoena infringes upon the movant's legitimate interests" and in this case "the government lacks standing to raise the exclusive grounds for quashing the subpoena, since it lacks the sine qua non of standing, an injury in fact relative to those grounds"). Accord, United States v. Daniels, 95 F.Supp.2d 1160 (D.Ks. 2000) ("The government will often lack standing to challenge a subpoena issued to a third party absent a claim of privilege, proprietary interest in the subpoenaed material, or some other interest in the subpoenaed material."); United States v. Nachamie, 91 F.Supp.2d 552 (S.D.N.Y. 2000) ("The Government's argument that it has standing based on its own interest is unavailing. [...] Surely, the concept of standing was not meant to be so elastic.").

However, a majority of jurisdictions have said that the state does have standing to challenge the subpoenas, because the state is a party to the underlying action and it has a legitimate interest in preventing the abuse of process against witnesses, victims, and others. See, e.g., Commonweath v. Lam, 827 N.E.2d 209 (Mass. 2005) (joining the "majority of courts" interpreting this issue and holding that state had standing to object because the state can assist the judge in determining whether the challenged subpoena "involves an improper 'fishing expedition'" and the state "has an interest in preventing unnecessary harassment of a complainant and other [state's] witnesses caused by burdensome, frivolous, or otherwise improper discovery requests"). Accord, State v. Russell, 897 N.W.2d 717 (Iowa 2017) ("The majority approach for courts interpreting Federal Rule of Criminal Procedure 17(c) or their own similar rules is to find the State does have standing" to challenge the subpoenas); United States v. Hughes, 895 F.2d 1135 (6th Cir. 1990) ("district court properly exercised its discretion" in granting prosecutor's motion to quash defendant's subpoena directing a state's witness to "produce all invoices from drug wholesale suppliers for any pharmacies in which he had a proprietary interest or was employed during the period of July 1986 through January 1987" on the grounds "that the requested documents were not relevant or admissible at trial, that the defendant was engaging in a 'fishing expedition' and that the subpoena was oppressive and unreasonable").

North Carolina's appellate courts have not clearly addressed this issue yet, but in at least one such case a prosecutor's motion opposing the defendant's subpoenas to medical and mental health facilities, the public school system, and a state agency was considered on the merits, indicating that the state does have standing to raise these issues. See State v. Love, 100 N.C. App. 226 (1990) ("the prosecutor made an oral motion to quash the subpoenas" at a pre-trial hearing, and "after reviewing the subpoenas and hearing the arguments of counsel, the trial court granted the motion to quash the subpoenas, with the exception of medical records relating to an October 1988 examination of the victim"), conviction vacated on habeas grounds, Love v. Johnson, 57 F.3d 1305 (4th Cir. 1995) (holding that the trial court erred in concluding that the subpoena was overbroad, remanding for in camera inspection of the records); see also State v. Newell, 82 N.C. App. 707 (1986) (trial court did not err by quashing defendant's subpoena to a third party for "the production of all of its files and records relating to the victim and another witness," holding that "discovery is not a proper purpose for a subpoena duces tecum; anything in the nature of a mere 'fishing expedition' will not be allowed" and "a party is not entitled to have brought in a mass of books and papers in order that he may search them through to gather evidence").

Practice Pointer

No downside to trying
In light of the cases cited above, prosecutors should consider filing an objection and motion to quash if it is necessary to protect victims or witnesses from undue burden, harassment, or expense. (See a sample objection in the Motions and Briefs section on this page.) Even if the court concludes that the state lacks standing to sustain the challenge, the act of filing it may be enough to: (1) alert the judge to the issue and prompt him or her to address it directly; or (2) provide the third party with an opportunity to pursue the argument independently.

Court Order to Override Objection or Motion to Quash

If an objection or motion to quash is made, the party serving the subpoena is not entitled to inspect or copy the designated materials unless the court enters an order permitting him or her to do so. N.C. R. Civ. P. 45(c)(4). In some instances, the subpoenaed party will appear in court at the time designated in the subpoena and make an objection to disclosure. If this procedure is followed, the parties will have an opportunity to obtain a ruling from the court then and there. In other instances, the subpoenaed party will object before the scheduled proceeding, in which case “the party serving the subpoena shall not be entitled to compel the subpoenaed person's appearance at a deposition or to inspect and copy materials to which an objection has been made except pursuant to an order of the court.” Id. To secure the subpoenaed party’s attendance at a hearing, the issuing party may move for a motion to compel, pursuant to N.C. R. Civ. P. 45(c)(4): “If objection is made, the party serving the subpoena may, upon notice to the subpoenaed person, move at any time for an order to compel the subpoenaed person's appearance at the deposition or the production of the materials designated in the subpoena. The motion shall be filed in the court in the county in which the deposition or production of materials is to occur.” Id. (For additional information on topics such as issuance, service, and notice, see the related entry on Subpoenas to Produce Documents – Contents and Basic Procedure.) 

If the judge refuses to require that the documents be produced, the attorney can move to have the documents sealed and included in the record in the event of appeal. See State v. Hardy, 293 N.C. 105 (1977); see also State v. Burr, 341 N.C. 263 (1995) (court states that it could not review trial judge’s denial of motion to require production of witness’s medical records because defendant failed to make documents part of record). If the judge refuses to require production of the documents for inclusion in the record, the party can make an offer of proof about the anticipated contents of the documents. 

If, following an objection or motion to modify or quash, a judge enters an order compelling the production of records, books, papers, documents, or other tangible things, the judge may protect any person who is not a party or a party’s agent from “significant” expense caused by complying with the subpoena. The judge may order the subpoenaed person to be “reasonably compensated” for the cost of producing the designated material. N.C. R. Civ. P. 45(c)(6).  But note that judges may not order the payment of “routine” document production expenses because compliance with a subpoena is considered an ordinary business expense for responding to court proceedings.

Portions of this entry were excerpted from the 2013 North Carolina Defender Manual, Volume II, Chapter 29.