Quashing a Delaware subpoena: fourteen days to object in writing, and no motion needed to stop production

A Delaware document subpoena can be stopped without going to court. Serve a written objection on the party or attorney named in the subpoena, and the rule does the rest:

If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the Court.

The burden flips. You do not move to quash; they move to compel.

The fourteen-day objection

Del. Super. Ct. Civ. R. 45(c)(2)(B):

Subject to paragraph (d)(2) of this rule, a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the Court. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production. Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded.

Three things follow.

The shorter period governs. A subpoena demanding production in seven days must be objected to inside those seven, not fourteen.

No motion is required of you. The objection alone suspends the obligation.

Non-parties get cost protection built into any compel order — the order "shall protect" a person who is not a party or an officer of a party from significant expense.

This route covers production and inspection only. A subpoena commanding attendance to testify is not suspended by a written objection; that needs a motion to quash.

Moving to quash

Rule 45(c)(3)(A) lists three grounds on which the Court must act:

On timely motion, the Court shall quash or modify the subpoena if it (i) fails to allow reasonable time for compliance, (ii) requires disclosure of privileged or other protected matter and no exception or waiver applies, or (iii) subjects a person to undue burden.

"Shall quash or modify" — not may. On a timely motion these are mandatory.

Rule 45(c)(3)(B) covers two more categories where relief is discretionary and conditional: a subpoena requiring disclosure of "a trade secret or other confidential research, development, or commercial information", or of "an unretained expert's opinion or information not describing specific events or occurrences in dispute and resulting from the expert's study made not at the request of any party".

There the Court may quash or modify — or may order appearance or production on specified conditions, but only if the issuing party shows substantial need that cannot be met without undue hardship and assures that the subpoenaed person "will be reasonably compensated".

The unretained-expert provision is the one people miss. A subpoena aimed at an expert's independent work, not done for any party, is presumptively protected.

The duty the issuing party owes you

Rule 45(c)(1):

A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The Court shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney's fee.

The Court "shall enforce" the duty, and the named sanctions are lost earnings and a reasonable attorney's fee — remedies aimed at the recipient's actual loss rather than at punishing the issuer.

Rule 45(c)(2)(A) removes a common source of burden outright: a person commanded to produce documents "need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial."

What a valid subpoena must contain

Rule 45(a)(1) requires every subpoena to state the court and the county it issued from, the title of the action, the court where it is pending and the civil action number, the command itself with a time and place — and:

(D) set forth the text of subdivisions (c), (d), and (e) of this rule.

A Delaware subpoena must reprint your rights on its face — the protections in (c), the response duties in (d), and the contempt provision in (e). A subpoena that does not carry that text is not in the form the rule prescribes, and it is the first thing to check.

Rule 45(a)(2) fixes the issuing county: a subpoena issues from the county where the action is pending; where the action is pending in another court, a deposition subpoena issues from the county where the deposition is to be taken, and a standalone production subpoena from the county where production is to be made.

Rule 45(a)(3) allows two issuers: the Prothonotary, who issues it "signed but otherwise in blank" to a party who completes it, and "A Delaware attorney, as an officer of the Court", who may issue and sign one directly.

Service

Rule 45(b)(1) allows service by the Sheriff or by "any person who is not a party and is not less than 18 years of age", by delivering a copy to the person named.

It adds a requirement aimed at the other parties, not the recipient: "Prior notice of any commanded production of documents and things or inspection of premises before trial shall be served on each party in the manner prescribed by Rule 5(b)."

So a pre-trial document subpoena requires advance notice to every party — which is how an opposing party learns of it in time to object.

Proof of service, where needed, is filed with the Prothonotary of the issuing county.

If you do produce

Rule 45(d)(1): documents are produced "as they are kept in the usual course of business" or "organized and labeled to correspond with the categories in the demand". Those are alternatives, and the choice is the producing party's.

Rule 45(d)(2) governs withholding on privilege:

When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.

The claim must be express, and described well enough for the other side to contest it. A blanket assertion is not compliance.

Rule 45(e): "Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of court."

That is the reason to object or move rather than simply not respond. The objection route in (c)(2)(B) is what converts silence into a protected position.

Where this connects

For a deposition subpoena, see Delaware depositions — where a party who notices a deposition without serving the subpoena can be ordered to pay the other side's attendance costs.

If a dispute over a subpoena has to go to the Court, the discovery motion rules apply, and Delaware will not accept the filing without a certification of the dates, time spent and method of your attempt to resolve it. See the Delaware motion to compel, which also covers the appropriate court where a non-party deponent sits outside Delaware.

On the mandatory arbitration track, a defendant may issue a Rule 45 subpoena duces tecum for a plaintiff's medical records, with cost-sharing among the parties who ask for copies. See Delaware mandatory non-binding arbitration.

How Delaware compares

A short checklist

1. Check the compliance date first. If it is sooner than fourteen days, that is your deadline.
2. Serve a written objection on the party or attorney named — no motion needed to stop production.
3. Remember an objection does not excuse attendance. A testimonial command needs a motion to quash.
4. Check the subpoena reprints subdivisions (c), (d) and (e). The rule requires it on the face.
5. Check the issuing county against where the action or the production sits.
6. If you are a non-party, say so. Any compel order must protect you from significant expense.
7. Describe anything withheld on privilege well enough to be contested.
8. Do not simply ignore it. Failure without adequate excuse may be contempt.

Where these rules live

• Del. Super. Ct. Civ. R. 45 — Subpoena
• Del. Super. Ct. Civ. R. 30 — Depositions upon oral examination
• Del. Super. Ct. Civ. R. 26 — General provisions governing discovery
• Del. Super. Ct. Civ. R. 37 — Failure to make discovery: Sanctions

This page explains what the rules say. It isn't legal advice.