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A Q&A guide on the different ways to respond

to a subpoena issued in a New Jersey civil pro-

ceeding. This Q&A addresses the requirements

for complying with a subpoena, objecting to a

subpoena seeking documents, moving to quash

a subpoena and moving for a protective order.

OVERVIEW OF RESPONDING TO STATE SUBPOENAS

1. Please identify and describe the different ways to respond to

 Informally communicating with the issuing party or attorney to

informally resolve any disputes over the subpoena.

2. Please identify the requirements for complying with the

different subpoenas in your jurisdiction.

COMPLYING WITH A DOCUMENT SUBPOENA

To comply with a document subpoena, the person subpoenaed must:

 Produce all non-privileged responsive documents.

 Produce the documents as they are kept in the usual course of

business, unless the documents are organized to correspond with

the categories of the request (N.J. Ct. R. 4:18-1(b)(2)(A)). Electroni-

initial production, with a supplemental response (N.J. Ct. R. 4:18-

1(b)(3)).

To withhold privileged documents, the subpoenaed person must

submit a privilege log that describes the withheld documents in a

manner that enables other parties to assess whether the unproduced

evidence is actually privileged (N.J. Ct. R. 4:10-2(e)).

Although Rule 4:14-7(c) of the New Jersey Rules of Court requires

that document subpoenas also compel a witness' attendance at a

deposition, in practice, many document subpoenas allow the subpoe-

naed party to comply by directly mailing documents to the requesting

 Answer questions if directed to do so.

A witness who refuses to cooperate may face sanctions. (N.J. Ct. R.

4:23-2(a).)

COMPLYING WITH AN INFORMATION SUBPOENA

To comply with an information subpoena, the person subpoenaed

must answer the questions in the information subpoena. Answers

to information subpoenas must be in writing and under oath. The

subpoenaed witness must respond within 14 days of service of the

information subpoenas. (N.J. Ct. R. 6:7-2.)

3. Please indicate whether written objections may be served in

EZRA D. ROSENBERG, MICHELLE HART YEARY AND THOMAS J. MILLER, DECHERT LLP, WITH PRACTICAL LAW LITIGATION

© 2014 Thomson Reuters. All rights reserved.

 For a protective order modifying the subpoena.

For document subpoenas, a court may quash or modify a document

subpoena if compliance would be unreasonable or oppressive. (N.J.

Ct. R. 1:9-2.)

For more information about the motions to quash or modify a sub-

poena, see Question 5.

4. Please identify and describe the main grounds for objecting

to a subpoena in your jurisdiction.

UNREASONABLE OR OPPRESSIVE

For a subpoena issued during the course of discovery, a party or the

person who is subpoenaed may object to a subpoena on the grounds

that compliance would cause or impose either:

 Annoyance.

 Embarrassment.

 The importance of the information sought to the case.

 How easily the information sought can be produced.

 Whether there are less burdensome means of accessing the

information.

 The significance of the rights or interests that a party seeks to

protect by limiting disclosure.

(Berrie v. Berrie, 457 A.2d 76, 80-81 (N.J. Super. Ct. Ch. Div. 1983).)

Subpoenas may also be deemed unduly oppressive if they do not

provide reasonable time for a party to respond (Wasserstein v. Swern

& Co., 200 A.2d 783, 786-87 (N.J. Super. Ct. App. Div. 1964); see 4 N.J.

 Compels attendance at a deposition in an improper location (see

N.J. Ct. R. 4:14-7(b)(1)).

 Is improperly served (for example, by failing to personally serve the

subpoena) (see N.J. Ct. R. 1:9-3).

 Is missing certain required information (see State Q&A: Drafting

and Issuing Subpoenas: New Jersey: Question 5 (www.practicallaw.

com/6-569-5426)).

VAGUENESS

A party or person who is subpoenaed may object to a subpoena on

the grounds that the subpoena was unreasonably vague and not

specified with reasonable certainty (Wasserstein, 200 A.2d at 786).

grounds that the subpoena targets irrelevant documents. The issuing

party must show that the subpoena seeks relevant and material infor-

mation (Wasserstein, 200 A.2d at 786). However, the issuing party is not

required to show that the evidence sought will be admissible at trial.

PRIVILEGE

A party or subpoenaed person may object to a subpoena on the

grounds that the subpoena targets privileged documents as speci-

fied under Rules 500 to 533 of the New Jersey Rules of Evidence. The

claims of privilege must be expressly made and describe the nature

of the evidence in a way that does not reveal the protected informa-

The motions that may be made in response to a subpoena are:

 A motion to quash the subpoena.

 A motion for a protective order to modify the subpoena.

MOTION TO QUASH

If informal attempts to resolve a dispute over a subpoena have failed,

a party or subpoenaed person may make a motion to quash the sub-

poena. A motion to quash a subpoena must include:

 A notice of motion.

 A proposed form of order.

 An affidavit setting out the relevant facts.

 Embarrassment.

 Undue burden or expense.

1:10-2). To enforce a subpoena, a court may:

Court decisions concerning subpoenas are interlocutory orders which

are subject to the appeals requirements of Rule 2:5-6 of the New

Jersey Rules of Court. Interlocutory appeals require first that a party

move for leave to appeal (N.J. Ct. R. 2:8-1).

Parties must file a notice of motion for leave to appeal with both the

trial court and the appeals court within 20 days of the date of service

of the appealed order. If a party files a motion for reconsideration of

the order with the trial court, the deadline is extended to 20 days fol-

lowing the service of the order deciding the motion for reconsidera-

tion. (N.J. Ct. R. 2:5-6.)

Courts rarely grant leave to appeal for discovery matters (40 N.J.

Prac., Appellate Practice and Procedure § 5.7).

Appeals courts apply a deferential abuse of discretion standard when

reviewing decisions concerning subpoenas (Pomerantz Paper Corp. v.

New Cmty. Corp., 25 A.3d 221, 236 (N.J. 2011)).