Have you been served? Responding to a Subpoena to Produce
A subpoena to produce is a court document used to compel a third party (who is not party to a legal action) to produce documents to the Court relevant to issues in dispute between litigating parties. Essentially, a subpoena is a way for a party to proceedings to obtain documents from a non-party.
Complying with a subpoena can be a time consuming and costly process. In this article we examine what documents need to be produced to the Court in response to a subpoena, steps which can be taken to set aside a subpoena and what costs you can recover.
What documents do you need to produce?
A subpoena to produce is a document issued by the Court which needs to be complied with. Failure to comply with a subpoena constitutes contempt of court. However, not all documents sought by the issuing party necessarily have to be produced and there are grounds to resist producing documents.
When you first receive a subpoena, you should carefully read the schedule to the subpoena which sets out what documents are being sought by the issuing party. If you don’t have any documents which respond to the subpoena, a letter stating this should be sent to the Registrar of the Court which issued the subpoena.
If the subpoena seeks copies of documents which are confidential or the subject of legal professional privilege (that is, the documents have been prepared for the purpose of a lawyer providing legal advice to a client) the documents still need to be sent to the Court, but can be kept separate to the other documents in an envelope labelled “Subject to confidentiality/legal professional privilege”.
If the documents sought are too vague or lack relevance to the issues in dispute in the proceedings, you can write to the issuing party (or their solicitor) seeking to narrow the scope of the subpoena. If you are unable to resolve the matter, you have the right to apply to the Court to seek to have the subpoena set aside. 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 providing evidence as to why the subpoena is onerous.
How do I produce documents?
Documents produced in response to a subpoena must be sent to the Court and not the issuing party or their lawyers. You can either post the documents to the Court Registry or attend in person on the Court date nominated on the subpoena.
Recovery of Costs
The issuing party must provide you with conduct money when the subpoena is served. However, it is also obliged to meet your reasonable costs associated with complying with the subpoena, including photocopying costs and any costs of staff retrieving relevant documents.
If the conduct money provided is not sufficient to meet your costs of complying with the subpoena, an agreement should be sought with the issuing party as to an agreed amount. If you cannot agree on an amount, you can apply to the Court for an order as to your costs of production.
If you are served with a subpoena you should act promptly to review the subpoena, locate relevant documents and, if appropriate, take steps to narrow the scope of the subpoena or seek to have the subpoena set aside.
If you or someone you know wants more information or needs help or advice, please contact us on 1300 149 140 or email firstname.lastname@example.org.