A subpoena is an order of the Court requiring a person (usually a non-party to the Court proceedings) to attend Court either to give evidence or to produce documents to the Court.
Essentially a subpoena is a way that a party to proceedings can obtain information from a non-party.
Failing to comply with a subpoena (provided it has been validly issued) may constitute a contempt of Court, so you must carefully consider the terms of the subpoena and respond accordingly.
The subpoena should also be served with conduct money to cover reasonable expenses for production of the documents.
What documents do I need to produce?
The schedule of the subpoena should clearly set out the relevant documents you must produce to the Court. If the schedule of documents is too wide or vague, you should contact the issuing party (or their solicitor) to have the subpoena withdrawn as a first step. If this fails to resolve the matter, then you can apply to the Court to set aside the subpoena on various grounds. This is done by way of Notice of Motion with a supporting affidavit.
Documents which are the subject of legal professional privilege (that is, documents which have been prepared for the dominant purpose of a lawyer providing legal advice to the client or professional legal services relating to Court proceedings) still need to be produced to the Court if they are requested by subpoena. These will need to be kept separate to other documents and marked as being ‘subject to legal professional privilege’.
If you have documents which you believe are confidential or commercially sensitive, or which are communications with a lawyer subject to legal privilege they will still need to be produced to the Court. They should be kept in a separate envelope and marked accordingly.
How do I produce documents?
Documents need to be produced directly to the Court – not to the party who issued the subpoena. You can either post the documents to the Court Registry or attend on the Court date.
Where documents are confidential or commercially sensitive the Court may make an order that parties who inspect the documents sign a confidentiality undertaking – or instruct that only legal counsel may inspect the documents.
Documents which are the subject of a legal professional privilege cannot be inspected by parties unless the Court makes a further order.
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