Receipt of a subpoena to produce documents can be the government agency's first formal exposure to the wider dispute or controversy in progress and may signal, at worst, an imminent claim or cross-claim, or, at least, heightened stakeholder interest.
Early consideration of the issues and the response can help manage risk, including by the agency re-familiarising itself with the facts (and location of documents), particularly where events occurred some time ago and relevant staff may not be available.
Frequently, however, subpoenas languish in an obscure inbox or in-tray until they become a problem shared, just before the return date.
The preferable approach is to work through the issues well beforehand, to maximise the benefit of the time available for reviewing, investigating, negotiating, recording and reporting.
Below is a convenient checklist of the suggested steps on receipt of a subpoena for production, which we will develop in our forthcoming session, ' Subpoenas – tips and traps, a checklist for infrequent players to manage risk', in our NSW Government lawyers annual CLE seminar series in March.
The checklist
The checklist issues are broadly divided into three areas – form, substance and production.
Form
- Was leave required?
- Is your agency a party?
- Was the agency properly served?
- Have the regulations regarding service of subpoenas on your agency been complied with?
- Is the correct agency named as the recipient?
- Is it addressed to more than one person?
- Is the addressee identified by name or description of office?
- Does it identify a document or thing to be produced?
- Does it specify the date, time and place for production?
- If the address for production is other than the court, is the person permitted to take evidence in the proceeding?
- Is the last day for service specified?
- Has it been served before the last day of service?
- If the last day for service is less than five days before the compliance date, have orders for short service been served with the subpoena?
- Have those orders otherwise been complied with?
Substance
- Does the subpoena adequately identify the things to be produced?
- Are the documents apparently relevant to the proceedings?
- Is the subpoena "fishing"?
- Are the documents sought solely because of their capacity to impugn the general credit of a witness?
- Does the subpoena amount to an abuse of process?
- Is there a statutory prohibition against disclosure?
- Do the documents sought contain confidential information?
- Would compliance with the subpoena be burdensome and oppressive?
Production
- Should the proposed access order be disturbed?
- How are you dealing with privilege?
- How are you dealing with confidentiality?
- Do you need to appear?
- Keep a copy of what was produced.
- Consider making a list (the Registrar may call for one).
You have considered the issues, now what?
A subpoena may arrive devoid of context, which makes it difficult to assess issues of substance. Contacting the issuing party to obtain this context (and raise any issues of form) is key. It may also be helpful to contact the non-issuing party or parties for a different perspective.
These matters can be confirmed in writing when the undertaking is sought for the payment of reasonable costs of compliance.
Open to negotiation are the return date, the scope of production, the extent of searches to be carried out and the arrangements for access (particularly if documents are to be produced, which the parties are contractually obliged to keep confidential).
Capturing the value
Having been through the exercise (based on another party's agenda), it is useful to consider what the agency may gain from it.
Documenting the enquiries made, which resulted in the production of the documents, is not only good risk management, but can help steer the agency in case of future subpoenas concerning the same or similar subject matter.
That can be developed further for subpoenas which cover events which occurred some time ago or where relevant staff are no longer available, by mapping in detail the document holding.
Moderating the wish list
Subpoenas are drafted by a party and issued administratively by the Registry and yet have the force of an order of the court. Rather than the issuing party satisfying the court that a subpoena is necessary, the receiving party must move the court for orders setting the subpoena aside.
What will moderate the issuing party's behaviour is price – the exposure to an order for costs if a set-aside application is successful, or to compliance costs if the burden of compliance is significant.
Working through the above checklist can expose key issues for the agency, provide a framework for articulating them to the issuing party and for negotiating the issues. To learn more, register for our CLE session here.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.