Have you been served with a subpoena to produce and are you unsure about how to comply with it? Recipients of subpoenas can often find the compliance process burdensome and inconvenient. However, it is important that recipients fulfil their responsibilities under a subpoena to avoid penalty or punishment.
What is a subpoena?
A subpoena to produce is an order issued by the court which requires a person or company (Subpoenaed Party) to produce certain documents to the court. The Subpoenaed Party can be another party, or an individual, or company outside of the proceedings.
How do I comply with a subpoena to produce?
A subpoena to produce will list all the documents, or things, you must produce, as well as the process for doing so and the date by which you must comply. Unless original documents are required, hard copies of the documents may be presented, or posted to the specified court registry. Alternatively, copies of the documents may be filed electronically, or on a CD or USB, by the compliance date.
Along with any documents required for production, the Subpoenaed Party must also provide the following:
- a copy of the relevant subpoena;
- a completed Form 44 notice and declaration (attached to the subpoena received); and
- a cover letter that clarifies whether the subpoena has been fully complied with and clarifies any objections made to any documents.
How do I object to a subpoena?
A Subpoenaed Party can object to a subpoena if the subpoena:
- was not served within 5 business days of the compliance date (unless the court has waived this requirement);
- was issued without the permission of the court (if required);
- is oppressive as it:
- is too time consuming, expensive or difficult to comply with; or
- does not specify in enough detail the documents, or information, which need to be produced requested;
- seeks production of documents or information that:
- is privileged;
- is not relevant to the proceedings;
- exposes the Subpoenaed Party to the risk of criminal charge or penalty;
- contains private information; or
- includes a 'child at risk' report or details of victims' support and victims' compensation claims.
A subpoena cannot be set aside if it is merely inconvenient.
Conduct Money
Despite common assumptions, a Subpoenaed Party cannot refuse to comply with a subpoena to produce on grounds that they have not received sufficient conduct money. This has been affirmed by the courts on several occasions.1
However, Subpoenaed Parties may seek compensation for any 'loss and expense' incurred in complying with the subpoena pursuant to the Uniform Civil Procedure Rules 33.11(1). These expenses may include costs related to:
- responding to and complying with the subpoena;
- photocopying and delivering material;
- corresponding with the issuing party regarding the subpoena;
- attendances in court; and
- legal advice received in relation to the subpoena.
What happens after I produce the documents?
Following production, the issuing party will seek leave of the court to access and inspect the documents. These documents may be used in a party's claim or defence. The court will then return, or destroy, documents when proceedings are concluded. The documents cannot be accessed by the public or used for any other purpose besides in the proceedings on foot.
What happens if I don't comply?
If a Subpoenaed Party does not comply with a subpoena to produce without lawful excuse, they may be deemed in contempt of court. This can involve arrest, fines, or the impounding of company assets.
Key Takeaways
It is always good practice to seek legal advice as soon as a subpoena to produce has been served. Each court will have its own rules in relation to subpoenas and there are various grounds upon which a subpoena may be set aside. A lawyer can assist and guide you as to what a subpoena to produce requires of you, and whether you can object.
Footnote
1 Re Bauhaus Pyrmont Pty Ltd (in liq) [2006] NSWSC 253; Hall v Donlon [2011] NSWSC 1088.
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.
