How to respond to a subpoena (or 'What the hell do I do with this?')
Summary of a seminar/paper dated 16 September 2015
Brad Watts, Torts (Justice), CSO Solicitor Advocate
"Ignore it and hope it goes away"
- A subpoena is a court order. It cannot be ignored. Failure to comply with it may result in sanction for contempt of court, including arrest.
- The issuing party wants something from you which they think they need for their case in court; they are unlikely to just forget about it.
- If you ignore the subpoena it will not go away; it will only have to be complied with in a much shorter time frame later.
"Back the trucks up"
- Just because a subpoena appears to call for 'all documents' about someone or something, that does not mean you should cease all other work and photocopy the entire contents of your department's offices then deliver it to the Court.
- Review the subpoena carefully. Comply promptly and professionally if reasonable.
- Object if necessary.
- Contact the Crown Solicitor's Office.
Review the subpoena
It is important to read a subpoena carefully when you receive it.
- Out of which court and which registry was it issued?
- When was it issued and when was it served — what is your timeframe for compliance?
- At whose request was it issued? (i.e: which party wants your documents?)
- When is it returnable?
- What exactly is sought — read the schedule!
- Are there documents responsive to the subpoena in your possession and control?
- How are the documents to be delivered and to where, precisely?
- What access orders apply?
- What happens to the documents after the case is over?
- Was conduct money provided? (If so, is it enough?)
NB: DO NOT rely on the failure to provide conduct money, or sufficient conduct money, as a reason not to comply with a subpoena!
Comply if reasonable
The majority of subpoenas are not objectionable, or perhaps not worth objecting to.
- A reasonably precise call in a subpoena for a limited number of clearly identifiable and uncontroversial documents, that you have and that are clearly relevant to the issues in the proceedings, can and should be complied with.
- Only produce documents actually caught by the schedule to the subpoena.
- You can and should produce copies of the documents called for, unless production of the original is specified in the subpoena.
- You should always keep a copy of exactly what you produce.
- You should place the material into an envelope ("packet") and place a copy of the subpoena on the front of the packet.
- The packet should be produced by mail or in person (or email if applicable) to the registry of the Court, NOT to the party who issued the subpoena.
- You should obtain a receipt from the Registry confirming production.
- A covering letter is not necessary but can be helpful.
NB: all production and access to documents under subpoena is subject to the "implied undertaking" which provides that production of and access to documents produced under subpoena, even without any other order of the Court, is subject to an implied undertaking that the documents will not be used for any purpose other than the subject proceedings.
Object if necessary
If there is or may be an objection seek legal advice and/or communicate the objection to the issuing party in the first instance and try to negotiate. If negotiation is unsuccessful, seek legal advice or representation – and notify the Court of the objection.
Do not produce until the objection is dealt with (but you can and should produce any material to which no objection is taken).
- Abuse of process – including lack of a legitimate forensic purpose ("LFP")
- Statutory privilege
- Legal professional privilege ("LPP")
- Public interest immunity ("PII")
Legitimate forensic purpose
The threshold issue for production of documents under any subpoena is the requirement that there be a LFP for the documents sought. If there isn't, then the subpoena, or the objectionable part of it, will be set aside as an abuse of process.
There is extensive authority on the question of what constitutes a LFP.
The issuing party must establish a LFP for the material sought under a subpoena and also establish that it is 'on the cards' that such material exists and will assist its case.
Most often the LFP objection will relate to the breadth of the subpoena – the failure to limit the call in the schedule to identifiable and relevant documents only, thereby capturing documents for which there is no LFP.
The crucial point is that there is almost always scope to limit a call under a subpoena on the basis of LFP and this can usually be achieved via negotiation without any court appearances being necessary, resulting in less work being required to comply with the subpoena.
If agreement cannot be reached, an application can be made to set aside the subpoena.
A subpoena may be oppressive if it places an undue burden on the producing party to produce documents that do not have sufficient relevance (this is a balancing exercise — related to LFP).
Legal professional privilege and litigation privilege
- exist via both Common Law and statute (Evidence Act 1995 NSW) (read decision on NSW Caselaw)
- the "dominant purpose test" applies, see: ESSO Australia Resources Ltd v Federal Commissioner of Taxation (1991) 201 CLR
Public interest immunity
NB: The CSO must be instructed for these claims
Applies to confidential information, the disclosure of which would damage the public interest.
Contact the Crown Solicitor's Office
- Do you need help with understanding the subpoena and what it requires?
- Is the subpoena objectionable?
- Can the subpoena be narrowed?
- Is a court appearance necessary?
- Do you need more time to comply?
- Are there logistical issues with production?
- We deal with subpoenas in all courts every day for all parts of government.
- We can help.
The webinar can be accessed here.