Receiving a subpoena for anyone can be daunting and a bit nerve-wracking, especially if you are not a party to the proceedings and have no idea what they are about! Below, we provide some tips on what to do if you want to resist a subpoena.

Remind Me Again: What is a Subpoena?

A subpoena is a court order requiring a corporation or natural person to either attend court to give evidence or to produce documents or other evidence. If you have received a subpoena, you need to produce documents under the subpoena schedule unless it is set aside.

When Can a Subpoena be Set Aside?

Any person with a legitimate interest can apply to have the subpoena set aside. It is therefore not just the recipient who can apply for the order to resist a subpoena. The effect of setting a subpoena aside means that it will be ineffective, and the recipient will not be required to produce the documents. This article focuses on setting aside a subpoena on the ground of oppression. A subpoena will be oppressive if it places an onerous burden on the recipient. So what is deemed oppressive enough to resist a subpoena?

Is the Subpoena Too Wide or Ambiguous?

As a recipient of a subpoena, you are not expected to produce everything but the kitchen sink. The subpoena should not be excessively wide in scope, should clearly set out what it requires from you, and should not ‘unfairly burden’ or prejudice the recipient. If it does unfairly burden the recipient, it can be deemed oppressive. Similarly, a subpoena cannot be ambiguous, to the extent that the recipient of the subpoena has to guess or form his or her judgment about the documents that will fall within the scope set out in the subpoena. It should be clear on the face of the subpoena exactly what you are required to produce.

Requesting Clarification

One way to narrow the scope of the subpoena is to write or otherwise contact the other party to seek clarification as to what documents or evidence they are after. If that doesn’t work, it’s then open to you to apply to have the subpoena set aside.

What Might a Court Consider an Oppressive Subpoena?

The grounds of oppression are not limited and different factual circumstances can affect whether a subpoena is oppressive. The court, for example, may consider that a subpoena requiring a party to produce copies of all bank statements issued by a particular bank or branch for six months or an entire year to be oppressive.

On the other hand, depending on the circumstances, the court may consider that larger corporations, who have sufficient resources and entire departments to deal with subpoenas, are not oppressed by a wide or ambiguous subpoena in the same way that an individual would be, and allow the subpoena to have full effect.

So if You Receive a Subpoena and You Think it is Oppressive What Should You do?

As set out above, you should raise any concerns you have about a subpoena through direct correspondence with the issuer. It may be that you can reach an agreement with them to clarify what documents they are looking for or to narrow the scope of what they are after. If you can reach that agreement, then you will not need to make any applications to the court.

If you can’t reach an agreement with the other party, it may be appropriate to apply for the court to declare the subpoena oppressive and set it aside.

Key Takeaways

Subpoenas are a common type of court document used to obtain information, documents or other evidence from parties during a legal dispute. If the scope of a subpoena is wide or ambiguous, you may have grounds to resist a subpoena for being oppressive.

If you think that this applies to your situation, LegalVision’s dispute team can assess a subpoena and provide you with advice as to whether it is oppressive, and what steps you can take to amend the subpoena or set it aside. Questions? Get in touch on 1300 544 755.

Emma George

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