The Burden of Getting a Protective Order for a Subpoena

If the opposing party issues a subpoena, what is the threshold another party must meet to obtain a protective order? This question is about parties only, not non-parties who are the targets of the subpoena.

Rule 26(b)(1) is clear: “the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claims or defenses and proportional to the needs of the case….”  If this threshold is met, Rule 45(c)(3) both creates and limits a court’s ability to quash or modify a subpoena.  Rule 45(c)(3)(A) states a subpoena must be quashed or modified if it:

(i) fails to allow reasonable time for compliance;
(ii) requires a person to travel to a place more than 100 miles from the place where that person resides, is employed, or regularly transacts business in person, unless the person is commanded to attend trial within Nevada;
(iii) requires disclosure of privileged or other protected matter and no exception or waiver applies; or
(iv) subjects a person to an undue burden.

Rule 45(c)(3)(B) states subpoena may be quashed or modified if it requires disclosing

(i) a trade secret or other confidential research, development, or commercial information; or
(ii) an unretained expert’s opinion or information that does not describe specific occurrences in dispute and results from the expert’s study that was not requested by a party.

If Rule 26(b)(1)’s threshold relevance test is met, the court’s ability to modify or quash the subpoena is then limited to the reasons listed in Rule 45(c)(3).  This assumes it is another party who is objecting instead of the subpoenaed party.  For instance, the subpoenaed party could object per Rule 45(c)(3)(A)(iv) that the subpoenas subjected them to an undue burden.