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
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
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.
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