File a Motion to Quash the Subpoena or File a Protective Order

A motion to quash is a formal application made to a court or judge for purposes of having a subpoena vacated or declared invalid. Grounds may exist for asserting that the subpoena or request for testimony should be quashed, in whole or in part. For example, the information sought may be protected by the therapist-client privilege and therefore may not be subject to discovery, or it may not be relevant to the issues before the court (see section titled "Possible Grounds for Opposing or Limiting Production of Client Records or Test Data" below). This strategy may be used alone or in combination with a motion for a protective order.

A motion for a protective order seeks an order or decree from the court that protects against the untoward consequences of disclosing information. A protective order can be tailored to meet the legitimate interests of the client and of third parties such as test publishers and the public. The focus of this strategy first and foremost is to prevent or limit disclosure and the use of sensitive client and test information. The protective order—and the motion—may include any of the elements listed in the preceding section.

If, because of local procedure or other considerations, guidance cannot be sought through the informal means of a letter to the court, it may be necessary to file a motion seeking to be relieved of the obligations imposed by the demand for production of the confidential records. In many jurisdictions, the possible motions include a motion to quash the subpoena, in whole or in part, or a motion for a protective order. Filing such a motion may require the assistance of counsel, representing either the psychologist or the psychologist's client.

Courts are generally more receptive to a motion to quash or a motion for a protective order if it is filed by the client about whom information is sought (who would be defending his or her own interests) rather than by a psychologist who, in essence, would be seeking to protect the rights of the client or other third parties. The psychologist may wish to determine initially whether the client's lawyer is inclined to seek to quash a subpoena or to seek a protective order and, if so, may wish to provide assistance to the client's attorney in this regard. If the client has refused to consent to disclosure of the information, his or her attorney may be willing to take the lead in opposing the subpoena.

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