The issue of a subpoena is a means by which a party in litigation may obtain information from non-parties to litigation. It is not uncommon for companies and government agencies to be issued with subpoenas to give evidence in court proceedings and/or to produce documents.
When a government agency first receives a subpoena a number of questions arise as to whether the agency has to produce information or documents in response to the subpoena and if so, how it should do that. The purpose of this article is to provide some practical guidance in relation to some of the more commonly asked questions that arise upon receipt of a subpoena.
For the sake of consistency, this article refers only to the Federal Court Rules ("FCR") but it is important to note that each court will have its own rules and common law in relation to subpoenas and that those rules and that law will be different. Accordingly, when an agency receives a subpoena it must make sure that it has regard to the correct set of court rules as that will impact upon how and when an agency produces it documents and information. An agency's legal advisers will of course be able to assist in this regard.
It is also relevant to note that some government agencies may have specific policies in place to ensure consistent practice in terms of complying with subpoenas - for example whether an agency might seek to recover the costs of complying with a subpoena. Always check to see if your agency has such policies in place (or ask you legal adviser to check) and take care to follow any such policies.
The first thing to note is that subpoenas can only be issued by courts and tribunals, ie. they cannot be issued by a party to litigation without having first been "signed off"/sealed by a court or tribunal. A subpoena is a court document from which the recipient should be able to ascertain the court/tribunal that the subpoena has been issued and therefore the rules which apply to the subpoena.
The rules relating to the issue of subpoenas by the Federal Court are set out in Orders 27 and 27A of the FCR. In the Federal Court, a subpoena may only be issued with leave of the Court, ie. a party needs to make an application to the court for leave to issue a subpoena ("issuing party") (Order 27A rule 2). This means that the party requesting such leave will generally be required to provide some justification to the court as to why that party thinks there might be utility in the issue of a subpoena. It may also provide an opportunity for other parties to the litigation to make submissions as to why leave to issue the subpoena should/should not be granted. The ultimate decision to grant/refuse such leave, of course, lies with the court.
A subpoena can be issued for the recipient to give evidence in court proceedings and/or to produce material. A failure to comply with a subpoena may constitute contempt of court (Order 27 rule 12). It is therefore important to be aware of the circumstances under which a subpoena must be complied with. It is convenient to deal with the rules that apply to compliance in relation to each different type of subpoena separately. As the rules and procedures associated with subpoenas to produce are more complex than those associated with subpoenas to give evidence, the discussion below on subpoenas to produce is more extensive than that for subpoenas to give evidence.
Subpoena to give evidence
A subpoena to attend court to give evidence will state the date and time (called the "return date") and place at which the recipient is to appear to give evidence (Order 27 rule 3(5)). The return date will generally be the date of the hearing, which has been predetermined by the court.
A recipient of a subpoena to give evidence need not comply with it unless conduct money is provided a reasonable time before attendance is required (Order 27 rule 6(1)) and the subpoena is served (in general) at least five days before the date for attendance (Order 27 Rule 3(8)(a)). Conduct money means money to meet the reasonable expenses of the recipient of attending court and returning after so attending.
Therefore, upon receipt of a subpoena to give evidence, the recipient should consider the costs that he/she may incur in compliance with the subpoena, such as traveling costs, legal costs and wages foregone as a result of compliance with the subpoena. If the subpoena is not accompanied by conduct money or, at the very least, an undertaking by the issuing party that it will pay conduct money, then ask the issuing party for it. If the issuing party does not provide conduct money a reasonable time before attendance is required, the recipient of the subpoena does not need to attend to give evidence.
Subpoena to produce
General information about production
A subpoena to produce will state the document or thing to be produced, the date and time (also called the "return date") and place for production (Order 27 Rule 3(4)). The subpoena should also state whether copies of the documents may be produced by the recipient of the subpoena. If the subpoena states that a copy of the documents may be produced, it would be prudent to provide a copy rather than original documents. Even if the subpoena does not state that a copy may be produced, the recipient of the subpoena may produce a copy with the consent of the issuing party (Order 27 rule 7(4)).
Time for and method of compliance
There is a requirement that a subpoena should be served (in general) at least five days before the return date (Order 27 Rule 3(8)) thereby allowing at least five days for the recipient of the subpoena to locate the material which may fall within the scope of the subpoena.
There may however be circumstances where a large amount of material may fall within the scope of a subpoena and further time is needed to locate the material, such that a recipient of a subpoena considers that it is unable to produce the material by the return date. In such circumstances, it is generally best for the recipient to write to the solicitors for the issuing party informing it that further time is necessary for the production of material and seek the agreement from the issuing party that the time for compliance be extended. The agreement of the issuing party and the recipient can then be communicated to the court.
If the recipient of a subpoena does not have the material described in the subpoena, it would be prudent for the recipient to write a letter to the court and the issuing party informing them that this is the case.
If the recipient is able to produce the relevant documents by the return date specified in the subpoena, it may attend personally or by legal representative at the return date to produce the documents (or preferably copies thereof) or it may deliver the documents to the place for production two clear days before the return date (Order 27 rule 6(4)).
Application for reasonable loss or expense
Unlike a subpoena to give evidence, there is no requirement that conduct money be paid to a recipient of a subpoena to produce. The court may however order the issuing party to pay any reasonable loss or expense incurred by the recipient in complying with the subpoena (Order 27 rule 11). Such reasonable loss or expense may include legal costs incurred by the recipient of the subpoena on how to deal with the subpoena and photocopying costs.
If a recipient intends to apply for an order for such costs to be awarded, it may be prudent, at first instance, to seek to negotiate with the issuing party an amount for payment of such costs without the need for a formal application to be made to the court (and thereby expending further expenses). Order 27 rule 11 also applies to subpoenas to give evidence.
Return of material
The registrar of the Federal Court retains discretion on when material produced should be returned to the recipient of the subpoena, albeit that the registrar must provides 14 days' notice to the issuing party of the intention to return such material (Order 27 rule 10).
Objection to inspection and setting aside
There are a number of circumstances in which a document or information may be subject to a claim for client legal privilege, public interest immunity or parliamentary privilege. Generally speaking, the relevant document should still be produced to the court, with an indication that privilege is claimed in relation to the document/s, and an application should simultaneously be made to the court objecting to the inspection of the relevant documents by the issuing party. Of course, discussions between an issuing party's solicitors and an agency's lawyers, prior to the date of production for the documents in issue, are sometimes an effective means of heading off a potentially expensive application in relation to privileged material.
There are also some circumstances in which a recipient may apply to have a subpoena set aside in whole or in part (Order 27 rule 4), for example, if the subpoena is oppressive, amounts to "fishing", is being used for an improper purpose or constitutes an abuse of process (eg. if it is used in place of the proper discovery processes).
A detailed discussion of these two issues will be set out in a further article in the next edition of Information Insights.
The discussion above has focused on some parts of the process for handling subpoenas to produce documents and subpoenas to give evidence from the perspective of a recipient of a subpoena. The FCR provides the means by which the recipient of a subpoena can be recompensed for its costs in complying with a subpoena, including legal costs. The FCR also sets out timeframes within which certain actions need to be taken and it is important that recipients of subpoenas have regard to the relevant return date set out in the subpoena.
While practical steps are suggested in this article, it is most important that the recipient of a subpoena ensure that it comply with the relevant court rules that apply to the subpoena and any internal policies that their agency might have for compliance with subpoenas.