SUBPOENA ALERT: What to do if you are served with a subpoena

Subpoenas are frequently used in litigation. They can be issued to individuals or companies who are not directly involved in legal proceedings, but who may have information or documents that provide evidence.
If you are issued with a subpoena, it is important to know your rights and obligations. The basics of complying with a subpoena are below, but if you are issued with a subpoena, it is usually safest to seek legal advice.

What is a subpoena?

A subpoena is a legal document that requires you (or your company) to attend court or a tribunal.
Broadly speaking, three kinds of subpoenas exist:

  1.  subpoenas that require you to attend court or a tribunal;
  2.  subpoenas that require you to produce documents to a court or tribunal; and
  3. subpoenas that require you to both attend court and produce documents to the court or tribunal.

When you receive a subpoena, you should read the document carefully to see exactly what it is requiring you to do, and the deadline for doing so.

Do I have to comply with a subpoena?

Yes, unless grounds exist on which to have the subpoena set aside or to have its requirements changed. There are consequences for failing to comply with a subpoena by the due date.
If you would like to have the subpoena set aside or the requirements varied, seek legal advice well before the due date.

How do I comply with a subpoena?

If the subpoena requires you to attend court or a tribunal, you should attend on the day set out in the subpoena.
If the subpoena requires you to produce documents, you must send the documents to the address set out in the subpoena. This will be the address of the relevant court or tribunal.
You must not send the documents directly to the person who issued the subpoena. This is because it is up to the court or tribunal to determine who is allowed to inspect them and who is not.

What if I need extra time to comply?

The party who issued the subpoena can agree to give you extra time to comply with it. If you would like additional time, you should contact the party issuing the subpoena (or their solicitor) to negotiate an extension of time.
You can also apply to the court or tribunal for an extension of time if you cannot get agreement from the party who issued the subpoena, and if the requested extension of time is reasonable. A lawyer can assist you with this process.

What if the subpoena requires me to provide confidential information or documents?

The fact that documents or information are confidential does not mean you do not have to produce them. You should produce the documents to the court or tribunal and, if you do not want them to be inspected, you can make an objection to inspection. You should provide the confidential documents to the court or tribunal in a sealed envelope, clearly marked that the documents contained in it are subject to an objection to production.

It is then up to the court or tribunal to decide whether inspection of the documents will be permitted. The court will weigh up the sensitivity of the documents and the loss you might suffer if they are inspected, against the relevance of the documents and the evidence they may contain.

If the documents are subject to legal privilege (for example, they contain instructions to your lawyers or advice from your lawyers), a court or tribunal will often prevent inspection by any party.
If the documents contain commercially sensitive information, the court or tribunal can refuse to allow inspection or grant access to the documents to certain people, or limit it to certain conditions.
If you have been required to produce confidential information or documents under a subpoena, seek legal advice to protect your interests.

Can I get the subpoena set aside?

In certain circumstances, you can apply to the court or tribunal to have the subpoena set aside or varied. Grounds for setting aside or varying a subpoena can include:
1. the subpoena is not properly drafted or served;
2. the subpoena is too broad or vague to be complied with;
3. the subpoena is a ‘fishing expedition’ (meaning that it is looking for documents that could help a case, rather than documents that are definitely relevant to a case);
4. there is not enough time to comply with the subpoena;
5. complying with the subpoena will place an unreasonable burden on you (for example, by requiring you to produce large amounts of documents that are not necessarily relevant to the litigation, or it is not clear which documents are required to be produced); or
6. the subpoena is issued to obtain copies of privileged information (for example, advice given to you by your lawyer).

For example, in Re Brady R Pty Ltd and 280 R Street Pty Ltd (No 1) [2018] VSC 334, the Supreme Court of Victoria considered subpoenas issued by a party that required production of broad categories of financial statements, bank statements, loan documents, marketing plans and schedules, and various other business documents for several property developments that were regarded as similar to the ones in dispute.

The subpoenas were served with a covering letter which clarified that the party was not seeking all the documents required by the subpoena, but would be satisfied with documents that just showed certain financial information about the property developments. The covering letter also offered to cooperate with the recipients to minimise the amount of documents in the dispute.
Justice Sifris held that the subpoenas were far too wide, on the basis that they required a large number of documents to be produced and the issuing party had conceded in its covering letter that it did not actually require all the documents sought for the purposes of the proceeding. Justice Sifris further held that the subpoenas required the recipients to trawl through all the documents they held to attempt to meet the request and effectively undertake the exercise of discovery (an obligation that falls exclusively on the actual parties to the proceeding). The subpoenas were held to be oppressive and were set aside on that basis.

If you would like to have a subpoena set aside, seek legal advice.

Am I going to be paid for complying with a subpoena?

The principle is that an individual or corporation that has been issued with a subpoena should not be out of pocket as a result of a subpoena. This means that while you will not be paid for complying with a subpoena, you are entitled to recover any reasonable expenses incurred in that process.
When you are served with a subpoena, you will often be given a small amount of cash (known as ‘conduct money’). This is because you are not required to comply with a subpoena unless the party who issued it covers your reasonable costs in complying with it.
What can be considered a reasonable cost is ultimately up to the court or tribunal issuing the subpoena, although the parties can agree what costs will be paid between themselves.
In Victoria, reasonable costs have been held to include:

  • the cost of obtaining legal advice to comply with a subpoena
  • photocopying costs;
  • travel costs;
  • for a corporation, the cost of the employee time spent complying with the subpoena.

If you need the costs of complying with a subpoena to be covered, you should seek to negotiate this with the party issuing the subpoena. If you cannot reach agreement, you will need to make an application to the court or tribunal that issued the subpoena for orders to have your costs covered. The law surrounding these applications is quite involved and can be difficult to navigate. If you need to make an application to have your reasonable costs covered, seek legal advice.
Comment

Subpoenas are frequently used in litigation, and we have advised many individuals and companies on their rights and obligations when it comes to complying with subpoenas.
While the law surrounding subpoenas may seem straightforward, it is important to remember that only an experienced lawyer will know, for example, whether any grounds exist for setting a subpoena aside, how to ensure that your confidential information is protected, and how to ensure that you are reimbursed for all relevant expenses in complying with a subpoena.

If you are issued with a subpoena, we recommend that you seek legal advice immediately.
For more information please contact:
Radhika Kanhai on 03 9608 2239 or r.kanhai@cornwalls.com.au
or
Stephanie Davies on 03 9608 2133 or s.davies@cornwalls.com.au for more information.