Responding and complying with a subpoena to produce documents to Court

If you were served with a subpoena to produce documents to Court, would you know what to do and how to respond to it?

A subpoena is issued by a Court and therefore must be taken seriously. It is a contempt of Court not to comply with a subpoena. If you receive one, you should seek legal advice. This is because there are various grounds for objecting to a subpoena and often grounds to oppose inspection of documents produced.

Below is a summary of your obligations and the process of complying with a subpoena for production of documents (also known as a “form 42A subpoena”) if you are served with one.

If I am served with a subpoena to produce documents to Court must I comply?

It is very important to respond to and comply with a subpoena to avoid a Court order being made against the person served with the subpoena (the Recipient).

In saying this, however, there are various situations where the Recipient may be able to object to some or all of the documents being produced or inspected, or the Recipient may seek to have the entire subpoena or part of it set aside or varied.

Grounds of objection may include:

• The subpoena lacks adequate particularity, is too vague and broad
• The subpoena amounts to a “fishing expedition” (meaning that it is being used by a party to see if the documents may assist their client’s case, rather than obtaining documents relevant to the case)
• The documents sought under the subpoena are for an improper purpose or an ulterior motive
• If compliance with the subpoena would be an undue or oppressive burden for the Recipient (for example where compliance would subject the Recipient to searching and compiling an excessively large amount of documents, taking a large amount of time and at great expense)
• The documents seeking to be produced contain material that would expose the Recipient to the risk of criminal charge or penalty
• The documents sought to be produced are subject to client legal privilege (meaning confidential communications between a solicitor and a client for the dominant purpose of providing advice or for use in existing or anticipated litigation).

If a Recipient considers that the subpoena should be varied or set aside for any of the above grounds, legal assistance should be sought. The Recipient (or the solicitors engaged to assist) should first contact the issuing party to seek to have the subpoena amended or withdrawn. If an agreement cannot be reached, the Recipient’s solicitor may make an application to the Court. If the Recipient is successful on its application, the party who issued the subpoena may be liable to pay the Recipient’s costs of contesting the subpoena.

What must I produce to the Court under a subpoena?

If the Recipient does not object to the subpoena, then it must promptly produce the documents or things (for example a CD or USB) that are set out in the schedule to the subpoena. A well-drafted subpoena will clearly and precisely set out the documents or things to be produced to the Court. All documents and things must be sent to the Court either by post or by hand delivery. Documents may be presented in hard copy or on a CD or USB. Documents must be sent directly to the Court and not to the party who issued the subpoena.

When produced to the Court, the documents must be accompanied by a signed and dated ‘Notice to addressee and declaration’. This Notice will tell the Court whether it can destroy the subpoenaed documents (usually if they are copies) or whether the Recipient would like them to be returned once the Proceeding is finalised.

If documents being produced to the Court are of a confidential or privileged nature, these documents should be placed into a separate sealed envelope marked as “Confidential and Privileged – not to be opened except by Court order”.

How much time do I have to comply with a subpoena?

A subpoena will always state the date by which documents are to be received by the Court, and it is important to ensure that you comply with this date. The time between being served with a subpoena and the time for compliance can in some instances be as short as five business days. It is therefore important that as soon receive a subpoena you act on it.

If a Recipient requires more time to collate and prepare the documents for the Court, they should immediately contact the solicitors who issued the subpoena, to seek an extension of the compliance date.

What about the costs of complying with a subpoena?

Upon service of the subpoena, the Recipient will be provided with conduct money. If the conduct money is not sufficient to cover the costs of complying with the subpoena then the Recipient is entitled to seek additional payment from the party who issued the subpoena, provided that these costs are reasonable.

Such costs may include:

• the cost of obtaining legal advice in relation to the subpoena;
• the time spent to respond to and comply with the subpoena; and
• photocopying costs.

The first step is to try to come to an agreement with the issuing party as to your reasonable costs. If you are unable to agree, you may consider making an application to the Court for an order that your reasonable compliance costs be paid.

It is important to remember that you must still comply with the subpoena even if you have not agreed on costs.

If you are served with a subpoena to produce documents, please contact a member of our Litigation and Dispute Resolution team to discuss compliance, the scope of the documents that are being sought, and the recovery of your reasonable compliance costs.

This article originally appeared in the autumn 2016 edition of InDispute. Other articles in this newsletter included

• Am I being oppressed?
• Intervention Orders 101