Responding to a Subpoena to Produce Documents in New South Wales

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Table of Contents

• Complying With a Subpoena to Produce
• Objecting to a Subpoena to Produce
• Key Takeaways

In litigation, a court may subpoena one of the parties to produce documents that they possess. It can be time-consuming and expensive to provide these documents. Therefore, if you have received a subpoena to produce documents, it is important to know how and when you need to respond, in what circumstances you can object, and whether you can recover the costs of compliance. This article describes how to respond to a subpoena to produce in New South Wales.

Complying With a Subpoena to Produce

A subpoena is a court order. Therefore, you must comply unless you have a lawful reason not to. For example, you may be served with the subpoena after the last date for service. The subpoena will state this date on the front and is the last day by which the other party must serve — or deliver — the subpoena to you. The other party can serve it in person, by mail, by fax or by email. If they serve it after this date, you have a valid ground for objecting to the subpoena.

Most parties will not have a lawful reason for non-compliance, however, and the court will take non-compliance with a subpoena seriously. The usual penalty is to be held in contempt of court. This is a separate offence for disobeying court directions that can be punished by fine or imprisonment.

The subpoena will list the documents you must produce. If the request is broad or unclear, you can apply to the court to have the subpoena set aside. However, you should first try to contact the other party. Direct negotiation can resolve minor issues faster and at lower cost than unnecessary court appearances.

The subpoena will also state a ‘return date’ which is your last day to comply. You must ensure that you deliver these documents to the court by this date. You may either:

• attend court on the return date with the documents;
• upload the documents electronically to the court registry website (if  the subpoena provides this option); or
• post the documents to the court registrar.

If you are posting the documents, give enough time to ensure that the court receives them two days before the return date. However, if you need extra time, you can apply to the court for an extension.

Claiming Expenses

A party issued with a subpoena is entitled to claim reasonable costs they incurred while complying. You can either agree on the amount with the issuing party or apply to the court to seek an order for the costs incurred. Costs can include photocopying and postage costs, as well as costs for seeking legal advice on the subpoena.

Objecting to a Subpoena to Produce

You can apply to the court to set aside a subpoena on grounds that it:

• does not have enough detail about the documents to be produced;
• seeks production of too many documents or imposes an unreasonable burden; or
• lacks a legitimate purpose, such as being a ‘fishing expedition’ to find relevant documents.

You will also need to swear an affidavit that details your reasons in support of your Notice of Motion to set aside the subpoena. A Notice of Motion is a written request for the court to make an order while the case is underway. On the subpoena return date, you will also need to appear before the court to attend the hearing for the motion.

However, it will be easier and less expensive if you can have the other party withdraw the subpoena. If necessary, they can reissue it with more clarity or a tighter focus. Therefore, before applying to the court, arrange a negotiation to discuss the concerns.

Objecting on Grounds of Privileged Documents

Documents that comprise communications between a lawyer and client for the purpose of giving or receiving legal advice are subject to legal professional privilege — that they are for the lawyer’s and client’s eyes only. However, you must still supply these documents if they relate to the issues set out in the subpoena.

To avoid waiving privilege, you should place these documents in a separate envelope clearly marked as ‘subject to legal professional privilege’. The other party may not inspect these documents unless the court makes an order permitting inspection. You should also make it clear in your compliance with the subpoena that you object to the production and inspection of those documents. You will need to file an affidavit in support of your claim of privilege, as it will only be determined following a hearing by the court.

Key Takeaways

If you receive a subpoena to produce, you must comply with it promptly. However, be careful that you do not provide documents outside the scope of the subpoena. You should consider seeking legal advice to ensure you are only providing what you have to, that you are not inadvertently waiving any legal privilege and that you are claiming back all of your reasonable costs.