Parties to every legal dispute require documents and evidence to prove their claims about issues in dispute. To gain access to this material, courts can issue a subpoena to any relevant party, even if they are not a party to the dispute itself. It is essential that individuals and businesses understand what they can do when they receive a subpoena because, as an order of a court, they cannot ignore it. This article explains what a subpoena is, as well as how to respond to, or set aside one.

What is a Subpoena?

A subpoena is an order from a court to either attend court to give evidence or to produce a document or thing (a piece of evidence) within your possession. A person or business receives a subpoena because a party to a legal matter believes that they have information relevant to issues in dispute. Both the civil and criminal law employs subpoenas.

Regulations exist to govern the format and service of subpoenas. For example, in New South Wales these are the Uniform Civil Procedure Rules 2005 (NSW). A subpoena requiring the production of a document or thing must identify that document or thing and specify the date, time and place for production. A subpoena to give evidence must detail the date, time and place for attendance. The recipient should also receive conduct money a reasonable time before you need to give evidence. A subpoena should only ever have one addressee. If that addressee is a business rather than individual, the subpoena should name the appropriate office or position. Typically, the recipient of a subpoena will have at least five days before they must comply. However, a court can shorten or lengthen this period.

A person or business who receives a subpoena should never simply ignore it. A subpoena is an order of the court. If a recipient willfully ignores it, they may be liable for contempt of court. If a party receives a subpoena, there have two courses of action open to them: comply with it or make an application for the court to set it aside.

Complying with Subpoenas

If you comply with a subpoena, you either:

  • Give evidence at the appointed time; or
  • Produce the document or thing at the specified time.

When you produce documents or things, you produce them to the court rather than a particular party. A recipient can produce personally or via mail. If they choose to do so in person, they attend court at the specified time with the subpoena and provide the requested material to the Registrar. Alternatively, if a party produces via mail, they should send their documents to the address specified in the subpoena. The documents must arrive at least two clear days before the appointed date and time.

Be aware that if a subpoena requests a party to both produce documents and give evidence discharging one of these obligations does not permit them to disregard the other.

Setting Aside Subpoenas

Any party with a sufficient interest (not simply the recipient) can apply to the court to have a subpoena set aside. If a court grants the request, the subpoena is ineffective, and its recipients need not give evidence or produce documents.

Courts most commonly set aside subpoenas because they are either oppressive or were not issued for a legitimate forensic purpose. A court might consider that a subpoena that is excessively broad such that it unfairly burdens or prejudices a recipient oppressive. Similarly, a subpoena that is ambiguous and which requires the recipient to make a judgment or guess those documents required for production might also be oppressive. In coming to its decision, a court will try to balance the burden on the recipient with the interest to the parties of having that material. On this point, context is important. The same subpoena may or may not be oppressive depending on whether the recipient is a large corporation with extensive resources or an individual or small business.

A court can also set aside a subpoena if it was issued for an illegitimate forensic purpose. These are called ‘fishing expeditions’ and are undertaken to locate something of relevance. However, subpoenas cannot take the place of discovery. A party must reasonably believe when issuing a subpoena that the documents identified in it are relevant to the dispute.

If you have questions about issuing or objecting to a subpoena, you may likely need legal assistance. Call our dispute lawyers on 1300 544 755 or fill in the form below.

Carole Hemingway

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