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Subpoenas: What are they and how do you respond if you have been served with one?

By Lynda Lim DE Senior Litigation Lawyer.

During legal proceedings, it is not uncommon for parties to seek access to documents or to obtain further evidence that is in possession of the other side or a third party. Indeed, each party has the right to gather evidence and in doing so, the most common method of gathering evidence is through a subpoena. We take a look at the following:

What is a subpoena?

A subpoena means an order compelling a person to attend at court to give evidence or to produce a document or thing to a court or to do both things.

A subpoena may only be issued with permission by the Court. A party (called the issuing party) may apply to the Court for leave to issue a subpoena without notice to the other party. If the Court grants leave to issue a subpoena, the subpoena will be sealed with the Court’s seal. The sealed subpoena must be personally served upon the addressee. Conduct money must be given to the addressee if they are subpoenaed to give evidence.

Does the addressee need to comply with the subpoena?

The answer is “yes”! The Court Rules will explain how the addressee shall comply with a subpoena. Failure to comply with a validly issued subpoena, unless lawfully excused, constitutes contempt of court and may result in an arrest.

What does an addressee need to produce?

The subpoena should clearly identify the relevant documents that will need to be produced. Documents can be produced either by posting them to the Registrar of the Court or by attending the return of the subpoena in person at Court.

When does an addressee of a subpoena have to comply?

The date by which documents must be provided to the Registrar (the return date) is specified in the subpoena. This period of time can be as short as five business days from the date the subpoena is served.

What happens to documents or things produced to the Court under subpoena?

No one is allowed access to a document or thing produced unless the Court has granted leave or a Registrar has granted permission. Access orders are often made in Court on the return date written on the subpoena. Permission to inspect, copy and uplift may also be given by a Registrar in the registry prior to the return date. However, a Registrar cannot permit inspection if the addressee, a party or a person with sufficient interest has lodged an objection in writing together with the grounds of the objection.

When is the material returned?

Subpoenaed material that has become an exhibit will not be returned until the original case, the time limit for appeal and/or appeal from the original case are concluded. Any subpoenaed material that has not been made an exhibit may be returned once the original case is finished. It is therefore important to retain a copy of the material produced to Court. The material is returned to the most recent address provided, unless permission is given to destroy the documents.

Grounds for setting aside a subpoena

If the addressee cannot comply with a subpoena or considers the request to be unreasonable, the first step is to contact the issuing party and seek to have it withdrawn. If these negotiations fail, an application can be made to the Registrar to have the subpoena set aside on a number of grounds, including that the subpoena:

  1. Fails to comply with proper procedure
  2. Is trying to be a substitute for discovery
  3. Is oppressive
  4. Is irrelevant
  5. Is an abuse of process, and/or
  6. Contains privileged documents.

If you have been served with a subpoena or you would like further information, please contact Senior Litigation Lawyer, Lynda Lim, for a full and frank discussion.