01 Mar 2012

"You've been served": A quick refresher on responding to subpoenas to produce documents

by Douglas Bishop, Scott Grahame

You have obligations when you're served with a subpoena, but you also have options.

The Supreme Court of NSW rules concerning subpoenas have been overhauled with updates to the Uniform Civil Procedure Rules 2005 (NSW) in 2011 and the introduction of Practice Notes 18 and 19 this year.

This article is a reminder of your obligations when served with a subpoena to produce documents, and considers the practical impact of the introduction of Practice Notes 18 and 19.

Does the recipient of a subpoena need to comply?

The short answer is "yes". A subpoena to produce documents is an order issued by the Supreme Court of NSW. Failure to comply with a validly issued subpoena, unless lawfully excused, constitutes contempt of court.

What does a recipient of a subpoena need to produce?

The subpoena should spell out explicitly the relevant documents you must produce. If the request contained in the subpoena is very broad or vague, you have the right to apply to the Supreme Court to have it set aside (see below).

Documents can be produced either by posting them to Registrar of the Supreme Court two clear days before the return date or by attending the return of the subpoena in person at the Supreme Court. The documents produced in answer to the subpoena should not be sent directly to the issuing party.

When you send the documents to the Registrar of the Supreme Court, ensure that they are accompanied by a copy of the subpoena with the section entitled "Declaration by Subpoena Recipient" duly completed. This involves setting out whether the documents are originals or copies and whether you wish them to be returned to you at the completion of the proceedings.

It is permissible to produce copies of documents unless the subpoena specifically requires the originals to be produced. If you do not request the return of the documents in the declaration, then Practice Note 18 states that the Supreme Court will destroy the documents.

Issuing parties can specify on the subpoena whether electronic copies of documents can be produced instead of hard copies. Practice Note 18 states that these documents can be provided on a DVD, a CD or a USB device or can be emailed to the registry at [email protected].

How much time does a recipient of a subpoena have to comply?

The date by which documents must be provided to the Registrar (the return date) is specified in the subpoena. This period of time can be as short as five business days from the date you are served with the subpoena.

If you need more time to comply or have any other concerns about size or nature of the request, you should contact the issuing party (or their lawyers) and negotiate a revised date within which to comply. However, if no agreement is reached then you must attend the return of subpoena and make submissions to the Registrar as to why you should be given an extension of time.

Grounds for setting aside a subpoena

The first step which should be taken if you cannot comply with a subpoena or consider the request to be unreasonable is to contact the issuing party and seek to have it withdrawn. However, if these negotiations fail, you can apply to the Registrar to set aside a subpoena on a number of grounds, including that the subpoena:

  • was not issued for a legitimate forensic purpose;
  • constitutes "fishing" (ie. is more directed at finding documents to see if the issuing party has a case than finding documents relevant to its case);
  • is drafted with insufficient particularity in describing the documents;
  • is trying to be a substitute for discovery; or
  • calls for too many documents or imposes too unreasonable a burden on you in proportion to the potential relevance of the documents.

In order to set aside a subpoena, you are required to file and serve on the issuing party a notice of motion and supporting affidavit which adduces evidence supporting one or more of the above grounds and then to appear before the Registrar at the return of the subpoena.

Do confidential or privileged documents have to be produced?

Some documents that fall within the scope of a subpoena may be commercially sensitive and thus confidential. A common solution to concerns you may have regarding confidentiality is for the Registrar to require the inspecting parties to sign a confidentiality undertaking.

Communications between a lawyer and a client are also subject to legal professional privilege and you should be aware that this privilege may be waived by producing documents under subpoena. You are still obliged to produce these privileged documents to the Court, but they should be placed in an envelope labelled "Subject to confidentiality/legal professional privilege".

Documents that are subject to legal professional privilege cannot be inspected unless by a further order of the Supreme Court. If a claim for legal professional privilege is made over certain documents you must appear before the Registrar on the return date, file an affidavit in support, and make submissions as to why the documents are subject to legal professional privilege.

Can I claim back my expenses?

The reasonable costs associated with your compliance (including the cost of legal advice sought in relation to compliance) are recoverable to a certain degree, including any photocopying costs. The first step however, should be to attempt to reach an agreement with the issuing party as to your reasonable costs. If you cannot agree on an amount, Practice Note 19 states that on the return date you can apply to the Court for an order for your costs of production.

Ordinarily the question of expenses will be determined after compliance with the subpoena – unless there is evidence establishing a genuine doubt about the ability of the issuing party to meet any order for expenses.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.