Have you been subpoenaed?

Being served with a subpoena can be stressful and daunting. However, you should not delay or fail to act upon receiving a subpoena.

Outlined below are key features of subpoenas.

What is a subpoena?

A subpoena is a means by which the court compels the production of records to court or the giving of evidence in court.

There are three main types of subpoenas:

• Subpoena for Production ― this requires the recipient to produce records to a court.
• Subpoena to Give Evidence ― this requires the recipient to appear in court to provide oral testimony.
• Subpoena for Production and to Give Evidence ― this requires the recipient to both produce records and appear in court to testify.

Penalties for non-compliance are serious and can include a term of imprisonment in the most extreme cases. This is because failing to respond to a subpoena is a form of contempt of court and is a very serious matter.

Our focus here will be on subpoenas which require the production of records to court, which is a commonplace scenario for many businesses.

Once you’re served

It is important to act quickly when you’re served with a subpoena. The required records need to be produced to the court by the required date, which needs to be immediately identified upon receiving the subpoena. There can be exceptions to this, such as in certain circumstances where objections are taken to the subpoena.

Upon receipt, it is advisable to get advice and assistance in respect of the following matters, amongst other things:

• whether you have been served within the required time, failing which it may mean you don’t need to comply with it;
• properly identifying the categories of records the subpoena requires you to produce to the court;
• identifying where you should search for potentially responsive records and the extent of necessary searches;
• a review by a lawyer of the records you identify as potentially responsive to make sure you’re producing only the right records;
• ensuring your rights concerning legal privilege and commercial confidentiality are appropriately protected when producing records; and
• making sure you produce records to the court in an appropriate way, for example, some courts require you to lodge documents online and this varies from court to court.

Usually subpoenas require you to produce records in a short period of time, so it is important that you reach out and get advice straightaway to ensure you don’t put a foot wrong.

Objecting to a subpoena

It may be appropriate to object to a subpoena on a range of bases, e.g. the terms of the subpoena are too wide and general, too vague, amounts to fishing, it’s oppressive or an abuse of process, amongst other grounds.

It’s critical to get clear advice on this first up, so that such issues are properly handled and you don’t unnecessarily expose yourself.

Recovering compliance costs

It’s important that once you’ve responded to the subpoena that you recover your expenses properly incurred in complying with it. The extent of what you recover may in large part be determined by the steps you take from day 1 in handling the way you respond to the subpoena.

The recoverable compliance costs can cover a range of items, such as the following:

• the costs of compiling responsive records;
• the costs of obtaining legal advice;
• the costs of taking objections; and
• the internal costs of responding to the subpoena incurred by the subpoena addressee.

However, this list is not exhaustive and other costs may be recoverable, depending on the circumstances, such as the costs of engaging an external IT provider to recover records.

Contact us

If you receive a subpoena and are unsure how to respond our would like to discuss any aspect of the services we provide for handling subpoenas, please contact a member of our Litigation & Dispute Resolution group.