What are our obligations and rights?

It is not uncommon for parties involved in Court proceedings to issue Subpoena to Produce Documents upon third parties. It is for this reason that we often receive calls from clients who have been served with Subpoena, but have no involvement in the proceedings and question their rights and obligations.

So, let's answer a few of the most commonly asked questions by third parties...

1. Do we have to comply with the Subpoena?

The simple answer is yes (unless you want to apply to the Court to have it struck out). As a Subpoena represents an order by the Court, it compels the party to produce documents. Non-compliance can result in the issue of a warrant, order for payment of costs or in extreme cases, a Court may find a party guilty of contempt.

2. What documents do I need to produce?

The issuing party will provide detail of the documents required. You will need to produce any of those documents which are in your possession, or you can locate. If you can not access the documents, then you must write to the Court and advise of that fact.

3. Can I be asked to turn up to Court?

Compliance of Subpoena is taken seriously by the Court. In a recent case, the Court looked at whether a company officer should be called to give oral evidence as to the sufficiency of the company's compliance with a Subpoena, and the scope of questions that may be asked of that person.

The Court looked at the following:

  • Does the issuing party have reasonable cause to test the party's compliance? The Court will look at whether the recipient demonstrates a lack of understanding of its obligations and the steps it took to comply with the Subpoena.
  • If there is evidence to be given, the relevant person to attend court is not necessarily the CEO but the person who has adequate knowledge of the company's affairs and its compliance with the subpoena, irrespective of his or her position in the company.

4. Can I recover my costs?

The issuing party must provide you with conduct money (usually about $30). However this may not cover your expenses. The Court Rules provide that an issuing party should pay your reasonable loss or expense for compliance. Usually this is something which can be done by negotiation with the issuing party. However, if you have not agreed on the amount, the Rules require that you must still produce the documents.

5. If we need to get our lawyer or accountant to assist with the production of documents and information, can we recover their costs?

Generally, the answer is yes. In a recent case, the Court looked at whether an issuing party may be liable to reimburse the expenses reasonably incurred by a third party not named in the Subpoena.

For instance, in order to comply with a subpoena, a party may require advice on questions such as confidentiality and privilege, or require the search of records through another source. The Court found that if the third party involvement in the task of responding to the subpoena was a reasonable product of the terms of the Subpoena, then the issuing party is required to meet the reasonable costs and expenses of doing so. The Court found that the Rules do not require the applicant for payment of expenses to be the named recipient of the Subpoena.

6. How do I produce the documents?

You do not need to attend Court personally to produce the documents. They can be sent by post or courier, but you must remember to attach the Subpoena to the front. Generally copies of documents are sufficient; unless the issuing party has nominated that it requires originals.

7. Can I send documents electronically?

Until recently, the answer in most jurisdictions was no. However, the Federal Court and the Supreme Court have adopted new approaches to the production of documents which allows the issuing party to indicate whether production in an electronic format is acceptable. If so, this is likely to make production of documents much easier, by allowing them to be produced on DVD, CD, USB, using the eLodgment service of the Federal Court, or emailing them to the Supreme Court registry.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.