In our first instalment of how to deal with a
subpoena, we looked at the simple machinery behind subpoenas, and
how you should respond to one should you have the joy of
You will recall from our first instalment that a subpoena is a
court order compelling production of documents, attendance at court
to give evidence, or both. As such, strict compliance with the
terms of the subpoena is necessary.
However, the court rules at both state and federal levels
provide that a party with a "sufficient interest" may
make an application to fully or partly set aside a subpoena.
The case law relating to subpoenas has lead to an emergence of
two bases upon which you can apply to set aside or vary a
Where the subpoena has been issued for an improper purpose;
Where compliance with the subpoena would be oppressive to the
A number of circumstances may arise where the purpose
underpinning a subpoena could be characterised as for an improper
purpose, the most common of which is referred to as a "fishing
For example, a subpoena might seek production of documents that
go beyond the scope of the issues raised in the proceedings, and so
it may be argued that those documents should not be produced
because they are not relevant.
Similarly, a subpoena will also be characterized as a
"fishing expedition" if there is no apparent basis for
supposing that any documents caught by the subpoena could assist or
weaken the case of any of the parties.
Courts have regularly stated that parties to litigation should
not use a subpoena as a substitute for discovery from a non-party.
Discovery is the general process by which parties to litigation
obtain documents from each other party. A subpoena that is not
precise about the documents to be produced, or which requires the
recipient to make a judgment as to which documents relate to the
issues between the parties, is liable to be set aside.
The other ground to set aside or vary a subpoena is where
compliance with the subpoena would be so burdensome on its
recipient as to be oppressive.
Assessing the question of oppressiveness is one that involves
balancing the burden placed on the recipient and the public
interest that documents relevant to the issues in dispute should be
freely available to the parties.
The types of factors relevant to these considerations include
the volume and breadth of material that is required to be produced,
the relevance they have to the proceedings, and the costs and time
that would be expended in complying with the subpoena.
For example, in the digital age it is not uncommon for an
enormous amount of electrionic material to fall within the scope of
a subpoena. At times, it can be a long and costly exercise to
identify and retrieve this data. As such, if compliance with a
subpoena will be unduly onerous and expensive, there may be grounds
to set aside the subpoena, or at least to limit the scope of the
What if my information is private?
If an application to set aside a subpoena is unsuccessful, then
you will need to produce the documents sought.
If you have concerns as to disclosing privileged or commercially
sensitive information contained within the documents, there are
options available to a subpoena recipient to protect that
In our next instalment, we examine the types of applications
that can be made to the court to protect that information.
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