Australia: How do I respond when a Lawyer requests confidential documents from me?

From time to time, companies and individuals may receive requests from lawyers to provide copies of confidential documents they hold. In Queensland, this can be done in several ways: by a solicitor's letter, by Notice of Non-Party Disclosure or by subpoena.

A request for copies of documents made in correspondence from a solicitor may not be enforceable against you, so you should consider the circumstances before responding. For example, it might be the correspondence suggests the lawyers are trying to find documents which might help their client in an action against you. As there is unlikely to be any penalty against you if you refuse to provide your documents in these circumstances, you may choose to decline the request on the basis of confidentiality. However, where the request for documents is stated to be based on an entitlement under legislation, such as workers' compensation legislation, then you should seek independent legal advice about the request before responding.

A common procedure, which is permitted by the Queensland Court rules (the Uniform Civil Procedure Rules), for lawyers to obtain documents on behalf of their client from someone who is not a party to current litigation is to serve a Notice of Non-Party Disclosure. The Rules do not permit the party requesting the documents (called the Applicant) to general disclosure from the non-party named in the notice (called the Respondent), so the Notice should only require disclosure of specific documents or a specified class of documents, and these must be directly relevant to an allegation in issue on the pleadings of the litigation. The Notice must provide the Respondent with enough information to make an informed decision whether to produce the documents or make an objection.

Unless the Respondent objects, the documents specified in the Notice of Non-Party Disclosure which are in the Respondent's possession or control must be produced to the Applicant within 14 days after service. It is important to keep in mind that you are not obliged to provide documents in your possession or control that are not specified in the Notice, and nor are you obliged to respond to questions which might also be put to you by the person requesting the documents. After complying with the Notice, the Respondent is under no continuing obligation to disclose.

An objection to the Notice must be made in writing, must state the reasons for the objection and must be served on the Applicant. The reasons for an objection may include:

  • the expense or inconvenience of complying with the Notice;
  • the lack of relevance of the documents;
  • the lack of particularity with which the documents are described in the Notice;
  • a claim of privilege; and
  • the confidential nature of the documents.

Serving an objection has the effect of staying the Notice, and the Applicant may apply to the Court for a decision about the objection within 7 days after it is served.

Another example of a formal request for documents is a subpoena or witness summons, which – if valid – is a Court order to give evidence or produce documents. A valid subpoena must be dated, have the name of the Court that issued it and be authenticated by the Court, either by Court seal or by signature of a Court officer.

Despite the legal status of a subpoena, you are still entitled to express your concerns about release of the documents and to request the basis or the purpose of the subpoena. Although this does not excuse you from complying with the subpoena, once you have received a response, you may ask the Court to review the documents you have produced to the Court, and for the judge to determine whether certain documents can be assessed as not relevant to the proceeding and excluded from the documentation released to the parties to the litigation. Taking this course will result in the Court allocating a hearing date for the objection to be heard, which will put you to expense and inconvenience. However, depending on the circumstances, you might consider that maintaining the objection is worthwhile.

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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