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A Non-Party Must Intervene to Quash a Subpoena to Another NonParty; Kelley v. Kelley

One may think that a person can always move to quash a subpoena directed to their records, even if the records are kept by a third-party. And this may be true—but you need to follow the proper procedure, or your efforts will come to naught.

Kristy and Clay Kelley married, had a child, and divorced. Kristy died after a disappearance in 2014, and her father, Kenneth Scales investigated her death. Scales became aware of facts which made him interested in Clay’s cell-phone records, and he
filed a subpoena duces tecum and request for production of documents to Clay’s cellphone carrier, Verizon. Clay hired a lawyer who entered a limited appearance and moved to quash the subpoena and obtain sanctions. But he did not move to intervene. The trial court eventually found that the issue was moot, as Verizon had produced the records, and refused to award
sanctions.

Clay appealed this decision, but the Court of Appeals refused to address the merits of his case because he had failed to intervene. Clay argued that his failure to intervene could be ignored because he had standing to challenge the subpoena. But the Court found this argument was “misplaced” because while Clay was aggrieved, he was not a party in the trial court. Therefore, his appeal was dismissed.

Scales asked the Court to award appellate attorney’s fees, but the Court declined. While Clay could not bring his appeal, there was no indication that it was brought in bad faith.
Lessons:
1. The Court of Appeals may raise the issue of whether you are properly a party, even if that issue is not raised in the trial court.
2. In order for a non-party to move to quash a subpoena to another non-party, the movant must first intervene as a party.