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A subpoena is a court order requiring a person or entity to provide evidence to the court to assist with pending or active legal proceedings or investigations. A subpoena can compel you to provide evidence in two ways. You might need to produce documents and material to the court or attend court and provide oral evidence as a witness. Generally, another party in a court case will issue a subpoena. However, the court (or a registrar of the court) also has the inherent power to issue a subpoena of its own accord. This article provides an overview of the objection process and the consequences of failing to comply with a subpoena properly. 

Procedure for Objecting to a Subpoena

As the subpoenaed party, you may wish to object to the production of documents. In that case, you must notify the registrar and the issuing party by completing a notice of objection. The notice of objection should state the grounds upon which you are objecting and would generally be one of the following three grounds:

  • technical issues;
  • the subpoena is too broad, vague or irrelevant, making it oppressive; or
  • the documents requested by the subpoena are subject to legal professional privilege.

An Example

You are a defendant in a court case where the plaintiff alleges you have infringed their trademark. The plaintiff issues a subpoena demanding you produce all documents relating to the registration of all IP your company owns. This includes any legal advice associated with the registration of the IP. You would likely be able to object to this subpoena (in whole or part) for two reasons:

  1. the other registered IP you have is likely not relevant to the infringement claim. Also, if you have many registered IP, producing all requested documents could be a very costly process. Consequently, the subpoena is too broad and demands production of irrelevant documents. For these reasons, a court may deem the subpoena oppressive, and set it aside; and
  2. the legal advice you received when registering the IP is likely subject to legal professional privilege. This means that it is protected from being disclosed by law. Likewise, the subpoena cannot compel you to disclose privileged material. 

If you have been subpoenaed and intend to object to the subpoena or some of its requirements, you must do so by the production date. If you do not object by the production date, the party who issued you the subpoena may inspect any document you have produced in response to the subpoena and take copies of them.

What Facts or Documents Must I Present Under a Subpoena?

If issued with a subpoena, what information, documents or material must you present to the court? The general legal position is that each party to a case must produce all facts in their knowledge. Likewise, they must produce all relevant documents in their possession, which are requested by a subpoena and material to the case of the issuing party. This is the case notwithstanding that production may be contrary to the subpoenaed party’s personal interest or its claims in the relevant court case. 

In a practical sense, this means that a subpoenaed party must provide all information or documents requested in the subpoena in its knowledge or possession, unless the subpoenaed party has lawfully objected to the subpoena. 

Policy Reasons Behind Requiring Strict Compliance

Litigation is a time consuming and costly process. The collection of evidence is a key component of this process. However, it can also contribute to the length and delay of litigation. This is particularly the case when dealing with time-wasting distractions that occur when managing objections to the production of documents. 

Strict compliance with subpoenas also aims to minimise the need for:

  • making changes to the parties’ key arguments or matters in dispute; and  
  • wasteful delays and postponements of trial dates.

The overall goal is to encourage the courts to handle trials as quickly and cost-effectively as possible.  

Consequences for Failing to Comply With a Subpoena

A subpoena is a legally binding court order. Consequently, if you fail to comply with a subpoena without a legitimate lawful excuse, a court could deem you in contempt of court.  The consequences of being held in contempt of court include:

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

Key Takeaways

A subpoena is a significant document, which can have severe consequences if you respond incorrectly or fail to respond at all. If you are issued a subpoena, you should consider the following things:

  1. Check the subpoena’s validity. For example, does it contain the relevant court’s seal? Has it been served on you on time? Is it adequately addressed to you?
  2. Review the documents you are required to produce. Are they irrelevant to the issues for consideration by the court? Are they vague, broad or ambiguous? If they are, you should consider seeking legal advice to have the subpoena set aside.
  3. Collect all the documents requested, which are in your possession, and make copies. However, check if you are expressly required to provide originals. Ensure you identify and separate any documents you consider privileged and mark these documents as privileged. 
  4. Produce the documents to court following the instructions on the subpoena by no later than the last date for production. Or, if you cannot meet that deadline, liaise with the issuing party to seek an extension. 

It is also important to note that each state has slightly different technical requirements regarding subpoenas. If you would like to know more about subpoenas, your rights and obligations under an issued subpoena, contact LegalVision’s disputes lawyers on 1300 544 755 or fill out the form on this page.

Frequently Asked Questions

What is a subpoena?

A subpoena is a court order requiring a person or entity to provide evidence to the court to assist with pending or active legal proceedings or investigations. For example, you might need to produce documents and material to the court or attend court and provide oral evidence as a witness.

What are the grounds for objecting to a subpoena?

When objecting to a subpoena, you must complete a notice of objection and state your grounds for objection. There are generally three grounds for objecting. First, you might have technical issues, or secondly, the subpoena is too broad, vague or irrelevant, making it oppressive. A third reason to object is if the documents requested by the subpoena are subject to legal professional privilege.

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