A subpoena is an order of the Court which requires a party to attend a proceeding and/or a third party to (a) produce documents or thing(s) (b) attend Court to give evidence (typically in a trial) and/or (c) both produce documents and/or things and attend Court to give evidence.
Where a party has objected to production or inspection of documents during the general litigation process, a party may issue a subpoena under the court rules to compel the other party to produce the documents being sought.
What do you do when you are served with a subpoena
- Put the issuing party on notice of your objection – before objecting to a subpoena, the parties must engage in correspondence and negotiations prior to making a formal application to the Court objecting to production and/or inspection;
- Advise the issuing party if you cannot meet the timeframe for compliance;
- Request a copy of the pleadings and/or orders made by the Court which refer to the subpoena – this may assist to narrow down a request for documents, and challenge the relevance of the documents sought under cover of the subpoena; and
- Consider whether there are any Court orders setting down a date for parties to issue a subpoena – have the orders been complied with?
Process for objection to a subpoena
Who can object?
The addressee or a party/person with sufficient interest (this may not be a party or the addressee, but it could be a third party) will be required to advise the Court that it objects to the production and/or inspection of documents. A party issued and served with a subpoena must either comply or object (if there are applicable grounds of objection – see further below).
How can you object?
An objection must be made before production of documents becomes due under the subpoena. Practically, it is recommended that as soon as a party or interested party wishes to object to a subpoena, it puts the issuing party and the Court on notice by way of a short letter to the relevant Registry/Prothonotary and it must set out the basis for the objection in that notice.
At this juncture, the court rules inhibit the Court from permitting production or inspection of documents and the matter is then referred (traditionally to an Associate Judge of the Court) for hearing and determination. All parties will then be notified and have an opportunity to appear at the hearing.
Grounds for Objection
The Court is able to set aside or strike out a subpoena in whole or in part. The grounds for objection to production of documents include the following:
- The subpoena is invalid or bad on its face.
Some of the circumstances in which a subpoena might be invalid or bad on its face include:
- the issuing party has failed to comply with the rules of the Court and provide the relevant time limitations (and/or conduct money) for the addressee to comply with the subpoena;
- the subpoena has been addressed to the incorrect party;
- the subpoena is poorly drafted or is very broad to the extent it is difficult to ascertain what documents are being sought.
- Lack of Legitimate Forensic Purpose and relevance to the proceedings
The onus lies upon the issuing party to establish, expressly and precisely, the legitimate forensic purpose for which access to document(s) is sought and that the document(s) are relevant to the resolution of the matter before the Court. The test for relevance in this instance would require any Defendant issuing to confirm that ‘it is on the cards’ or there is a ‘reasonable possibility’ that it will assist its case. This must be established in order for the documents to be produced. A subpoena may constitute an abuse of process where it has not been served with the genuine purpose of obtaining relevant evidence.
A subpoena which is unclear, expressed imprecisely, or unreasonably broad (either in category or in time period) is likely to be considered oppressive and/or tantamount to ordering discovery against a person. It is imperative that a subpoena is drafted specifically to the issues in dispute and seeks documents which are only relevant to the issues outlined in the pleadings.
The subpoena is a fishing expedition and an abuse of process in circumstances whereby the class of documents sought are too wide and are irrelevant or ancillary to the proceedings. The subpoena must specify the documents or things it seeks with ‘reasonable particularity’, and it should not seek broad categories of documents or leave it to the recipient to decide. When a party is issuing a subpoena, they should be conscious that their request is not too wide so as to be oppressive and risk being set aside or struck out.
The documents being sought are the subject of client legal privilege, relating to original documents that need to be sourced or are no longer in existence, and/or the documents contain confidential or commercially sensitive information.
Whilst confidentiality is not a ground for objection and non-compliance, the Court will consider the relevance of the information contained in the document in the context of the proceeding.
Accordingly, it is recommended that a party engage with the issuing party to agree on consent orders to have any confidential and irrelevant information redacted in documents, and that a letter is provided to the Registry explaining the objection to inspection of those parts of the documents being produced. At all times the addressee must comply and seek the approval of the Court and not only the issuing party.
It is important to note that parties should not forget that production of subpoena documents may only be used for the purposes of that proceeding (and not some proceeding, current or future) – they are protected in the same way and fashion as discovered documents.
Costs of a subpoena
Generally, costs orders can be made against the issuing party for any reasonable loss or expense incurred in compliance with the subpoena including for legal advice. Practically, costs are dealt with after a subpoena has been complied with or where an application to set aside is made and the party bringing the application is successful. The successful party will be entitled to an order that the issuing party pay its costs of the application (vice versa if the issuing party is successful).
Third-party addressee costs of compliance are typically paid for and include seeking legal advice as to relevance, confidentiality and production/inspection of documents. Typically, reasonable costs would be payable by the issuing party, and if no agreement, the addressee should seek an order from the Court.
If you have any questions about this article, please get in touch with an author or any member of our Litigation & Dispute Resolution team.
This information and the contents of this publication, current as at the date of publication, is general in nature to offer assistance to Cornwalls’ clients, prospective clients and stakeholders, and is for reference purposes only. It does not constitute legal or financial advice. If you are concerned about any topic covered, we recommend that you seek your own specific legal and financial advice before taking any action.