Are you a business or a person who has received a subpoena from someone else? When you receive a subpoena, you usually have to comply with the request. However, there are certain situations where you can object to the subpoena. This article will explain the different situations where you can object to a subpoena.

What is a Subpoena?

A subpoena is a court order that requires either:

  • a witness to attend court to give evidence; or
  • a person or company to produce documents to the court for evidence in a case.

Parties in a court case issue a subpoena to people or companies who are not part of the case. A subpoena will state when you are required to attend court to provide evidence or when you have to produce the requested documents. If you receive a subpoena, you usually have to comply with the request or risk getting a fine. However, there are valid reasons for you to object to a subpoena.

What Are the Reasons to Object to a Subpoena?

You can object to a subpoena by arguing that the:

  1. subpoena has not been issued correctly according to the law (technical grounds);
  2. subpoena is an abuse of process or oppressive (general objections); and
  3. requested documents cannot be disclosed because of special rules that apply to the evidence (privilege).

Technical Grounds

Every state or territory in Australia has different requirements on how subpoenas are prepared and served. If the person serving a subpoena fails to follow all the requirements, you can successfully object to the subpoena. Common reasons for objecting to a subpoena on technical grounds include that:

  1. the party failed to serve the subpoena on your correct address or failed to serve the subpoena within the appropriate timeframe;
  2. the party issuing the subpoena does not agree to cover your reasonable costs for complying with the subpoena; and
  3. the issuing party fails to show a legitimate purpose for wanting the information or documents for their case. 

Examples

  1. The party served the subpoena to your old residential address rather than your new address. 
  2. If you live in Bathurst and the subpoena states you have to attend a hearing in the Sydney CBD, the party that issued the subpoena should pay your reasonable travel costs. 
  3. If the party wants documents relating to employment records when the dispute is actually about insolvent trading between directors, that is not a reason to request those documents. Broad-ranging requests are known as “fishing expeditions”. A subpoena must unearth information that the party reasonably believes is relevant to the dispute. 

General Objections

Courts understand that people or companies may not always be able to comply with a subpoena, especially if the request is broad or ambiguous. For this reason, you can object to a subpoena if you can show the subpoena is an abuse of process.

For example, a subpoena is issued on a large $200 million company to provide all of its employment records. However, those records cannot be produced or are irrelevant to the court case on insolvent trading

Similarly, you can object to a subpoena if it is oppressive. The meaning of “oppressive” may depend on the resources required to comply with the subpoena. If the subpoena request is ambiguous and broad, a court may also rule the subpoena as oppressive. 

In the above example, the subpoena would be oppressive as it would be extremely expensive and time-consuming to produce all the documents.

Privilege

Privilege is the legal protection of certain correspondence and communications. A common example is client legal privilege.The privilege operates by protecting any communication between you and your lawyers when the advice relates to taking legal action.

For example, a party cannot subpoena your former lawyer to provide email correspondence about confidential business matters that are at the centre of a dispute. 

Key Takeaways

If you have received a subpoena, you must either comply with the subpoena or find a valid reason to object. Otherwise, you could face heavy fines or other penalties. Three common reasons to object to a subpoena include: 

  • technical grounds, where the party fails to issue the subpoena properly;
  • general objections, where the subpoena is an abuse of process or oppressive; and
  • privilege, where the law protects certain information from being used as part of a court case.

If you have questions or need to know if you can object to a subpoena, get in touch with LegalVision’s dispute resolution lawyers on 1300 544 755 or fill out the form on this page.

Robert Nay
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