6 Tips for Responding to a Subpoena to Produce

If you hold evidence that could help determine facts in a court case against, the court can issue you with a subpoena. You must take care when responding to a subpoena to ensure you meet your legal obligations. If you receive a subpoena and fail to respond, you could face serious consequences. This article will outline how you should respond to a subpoena to produce.

What Is a Subpoena?

A subpoena is a legal document that compels someone to produce documents or give evidence at a hearing or trial. A court can issue it at the request of a party to a court case.

There are three different types of subpoenas, including:

• subpoena for production to deliver documents;
• subpoena to give evidence in court as a witness; and
• subpoena for production and to give evidence, which requires you to produce documents and provide testimony at a hearing.

This article will focus on responding to a subpoena to produce. This relates to documents or other tangible evidence that you must to deliver in accordance with the order. The subpoena should identify the:

• specific document or item;
• date, time and place for production; and
• last date they can validly serve you the subpoena.

How Should You Respond If You Receive a Subpoena?

1. Do Not Ignore It

A subpoena is a legally binding court order. This means you cannot ignore it unless you have a legitimate lawful reason. Failing to comply with a subpoena will constitute committing contempt of court and may result in:

• a warrant for your arrest; and
• an order to pay any costs caused by your failure to comply.

2. Act Quickly

You must act quickly after receiving a subpoena. It will specify a date of return, by which time you need to have produced the documents that it requests. Importantly, you generally have two options before this date: 

• comply with the subpoena; or 
• make an application to the court to contest its validity.

3. Read the Subpoena Carefully

Whether you wish to comply with the subpoena or make an application objecting to it, you should be able to answer:

• which court and registry issued it;
• when it was issued and when was it served;
• which party in the court proceeding requested the documents; 
• on what date you must deliver the materials; 
• which evidence the subpoena is seeking;
• whether you have possession of the documents requested;
• where the items should be delivered and by what means;
• whether any access orders will apply to preserve confidential information in the documents; 
• what happens to the materials after the case finishes;
• whether you are provided with adequate conduct, to compensate you for expenses incurred while complying with the subpoena.

If you want to object to the subpoena, you should pay particular attention to the procedure of the subpoena being served and oppressiveness of its requests, such as if:

• you were served the subpoena after the date it was supposed to be delivered;
• you do not have possession of the requested documents or it would require unreasonable resources to get possession of the documents; and
• whether you will receive conduct money.

4. Collate the Relevant Documents

If you decide to comply with the subpoena, you should start collating the requested documents. In doing so, you should focus on the specific items outlined in the subpoena. 

You do not need to produce the entire contents of your records relating to the matter. Instead, the subpoena will only require that you deliver certain documents:

• connecting to a particular event, person or subject; and
• created within a specified date range.

5. Protecting Confidential Information

When preparing the items called for by the subpoena, you should pay particular attention to documents that contain: 

• commercially sensitive information;
• confidential information; or 
• material that is subject to legal professional privilege. 

All documents requested by the subpoena must be delivered. However, there are steps you can take to protect the confidentiality of certain records. You should:

• deliver these documents in a separate sealed envelope or box marked “subject to legal professional privilege” or “confidential”;
• make it clear that you object to the inspection of those documents;
• contact the party that requested the subpoena to agree on conditions that maintain your confidential information; and
• apply to the court for orders to protect your confidentiality.

You should ensure that the parties to the court proceedings may not inspect these documents, unless: 

• the court makes an order permitting inspection; or
• you have an appropriate confidentiality regime in place. 

6. Claim Costs

In addition, you may be entitled to claim compensation for reasonable expenses you have incurred while responding to a subpoena. This can include the cost of:

• photocopying;
• postage; and
• seeking legal advice.

To determine the costs you are entitled to recover, you can:

• agree on an amount with the issuing party; or 
• apply to the court to seek an order for the costs incurred. 

Key Takeaways

If you receive a subpoena, you must respond to it quickly. You should ensure that you are:  

• only providing what you have to; 
• not inadvertently waiving any legal privilege; and 
• claiming back all of your reasonable costs. 

However, you should consider whether you are entitled to object to the subpoena on the basis that it has not been validly served or is oppressive.