Receiving a subpoena can cause a significant amount of anxiety and stress. In this article, we provide some practical tips as to how to appropriately react to receipt of a subpoena, and an overview of the basis upon which a subpoena may be set aside.
What is a subpoena?
A subpoena, as it is described under statute, is a written Court document (issued by the Court), at a party’s request to compel a person to:
- attend to give evidence; or
- produce documents or things; or
Only a party to proceedings may lodge a subpoena but it can be issued to anyone – the other party in the litigation or a third party.
In Australia, all jurisdictions’ respective procedural rules set out the mechanism by which a party may issue a subpoena in a proceeding. The party who lodges the subpoena bears the burden of ensuring that the relevant legal procedures have been complied with. Subpoenas are ordinarily only able to be issued once the pleadings in a dispute have closed, and after the parties have carried out their respective discovery/disclosure obligations; however, it is always important to review the relevant procedural rules of the particular jurisdiction in which the dispute is based as they can vary.
Do I have to comply with a subpoena?
The short answer is yes – unless there is a basis upon which the subpoena may be set aside. Failure to comply with a subpoena without a lawful excuse amounts to contempt of Court, which can in some circumstances carry heavy penalties.
What do I do when I receive a subpoena?
You should seek legal advice as soon as a subpoena is received – there are often very short timeframes associated with compliance. A lawyer will be able to assist with guidance as to what the subpoena is actually seeking and whether you can read down the scope based on the plain meaning of the words, whether you have a basis upon which to set it aside, and how best to proceed.
In the event that there are issues with the subpoena, a lawyer will also be able to assist in guiding the appropriate way in which to address it – whether it is by simply writing to the issuer to highlight the problem, and ask to have it reissued, or to file an application with the Court seeking to have the subpoena set aside.
Importantly, Clayton Utz has an experienced eDiscovery team with our Forensic and Technology Services group, who will be able to assist with data collection in respect of a subpoena to produce documents. This will ensure that nothing is missed, and the breadth of material relevant to a subpoena is able to be easily ascertained.
How do I comply with a subpoena?
In the event that the subpoena is to produce documents or objects, you comply with the subpoena by delivering copies of the documents, or the thing, to the specified Court registry by the time contained in the subpoena. Similarly, if the subpoena is to give evidence, you comply by attending the Court at the time specified.
In the case of documents, the issuer must then seek the leave of the Court for “uplift” – that is, leave to inspect the documents. Where it is to give evidence, the issuer will call that person as a witness.
I don’t want to comply – what do I do?
Unfortunately, it is not simply a matter of whether one wishes to comply with a subpoena. If you don’t wish to comply with it, you must find some basis upon which to have the subpoena set aside.
There are several bases upon which to set aside a subpoena, the most common of which are:
- relevance (also known as “fishing”);
- non-compliance with relevant procedural rules;
- the subpoena seeks privileged material (whether on the basis of legal professional privilege, the privilege against self-incrimination, or otherwise).
Where a subpoena is for the production of documents, the material sought must be clearly defined. Where the scope of the material sought is overly broad or ambiguous so as to place an unreasonable burden upon the recipient insofar as collection and production of the material is concerned, it is open to the recipient to object to the obligation to comply with the subpoena on the basis that it is oppressive.
This decision is made having regard to the particular circumstances of the dispute, and the relevant parties; for example, it is often much easier for a large entity to collate and produce information than it is for an individual.
In circumstances where you wish to apply to set aside a subpoena on the basis of oppressiveness, it is important to lead evidence that actually demonstrates why production would be oppressive – for example:
- details as to the number of sources that would need to be searched for relevant material, and the number of documents to be reviewed;
- any issues that may affect the documents, such as privilege, that would require review by the recipient’s legal team;
- any changes to document storage / computer systems which may be relevant; and
- any difficulty such as a significant amount of time being required in searching or reviewing the material with any specificity on the basis of the broad wording of the category.
An issuer may be seen to be “fishing” where they issue a subpoena for documents or material that has no relevance to the issues in dispute on the pleadings, or is being issued for an illegitimate forensic purpose – for example, where documents are sought so as to enable a proceeding to be commenced against another party, or to provide the issuer with a commercial benefit. Objecting on the basis of relevance can be a useful strategy, as it places the issuer in a position where it must point to a need for the material in which to move the dispute forward.
With that in mind, the threshold as to what is relevant is reasonably low – there must simply be some potential relevance to an issue in dispute for one to clear this burden, meaning that it is often a difficult objection upon which to succeed.
Non-compliance with procedural rules
Subpoenas are subject to the relevant procedural rules in each jurisdiction, so those rules should be reviewed upon receipt – however, common ways in which subpoenas may be set aside include:
- failing to comply with service requirements – given that a subpoena must be directed to a person (whether “the proper officer” of a company or a specific individual), it must be served personally, not by email or post; and
- failure to pay conduct money – when issuing a subpoena for someone to attend to give evidence, the issuer must provide sufficient funds to meet the reasonable expenses of the addressee of attending court as required by the subpoena and returning after so attending. A failure to do so is a reasonable basis for the recipient failing to attend. It is worth noting that this is different to the costs and expenses of compliance with a subpoena for production; a subpoenaed party cannot avoid compliance with that subpoena simply because those costs and expenses haven’t been made upfront.
Notably, the fact that a subpoena may seek irrelevant or privileged material or similar does not ordinarily mean that you don’t have to respond to the subpoena, unless there is some other basis upon which to set it aside. Rather, the material still has to be produced, but the recipient objects to uplift on the basis that the material is properly privileged.
Where a subpoena seeks material that is subject to privilege, it falls to the recipient to provide evidence that it is in fact subject to a relevant privilege.
Although a claim of privilege is often unsuccessful, an exception is identified in those cases surrounding legal professional privilege, public interest immunity and privilege against self-incrimination. Therefore, if a person is issued a subpoena which places any of the aforementioned privileges at risk, documentation must be produced by the addressee in Court that identifies legitimate grounds for an objection.