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Dealing with Subpoenas

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By Phoebe Langridge, Lawyer, MST Lawyers

A subpoena is a daunting document. Expressed as an order of a Court, a subpoena requires the person served to either attend Court to give evidence, produce documents to a Court or both.  It is a common practice for parties involved in litigation to issue subpoenas. 

Most commonly, recipients of subpoenas will automatically comply with the subpoena because they assume they must do so. However, there are bases upon which a subpoena can be challenged.  If you are served with a subpoena and are unsure of your rights and obligations you should seek legal advice to make sure that you don’t find yourself handing over documents which you may not have to hand over or, as a result of your actions, be in contempt of court.

Subpoenas to Produce Documents

If you receive a subpoena to produce documents, before complying with it, you should consider:

1.  Is the scope of the documents requested too wide?

If the scope of the documents requested in the subpoena is too wide, in that it doesn’t specify with reasonable particularity the documents to be produced, it may be considered to be too onerous and need to be narrowed to provide sufficient particularity.

2.  Are the documents subject to legal professional privilege?

If the documents requested are private communications between you and your lawyer and therefore privileged they must still be provided to the Court but in an envelope marked “privileged”. The Court will not allow the issuing party or any other parties to see the documents unless they can convince the Court that the documents are not privileged.

3.  Are the documents commercially sensitive?

If the documents requested in the subpoena are commercially sensitive you can seek a confidentiality undertaking from the party inspecting the documents or which limits who can inspect the documents.  

Subpoenas to give Evidence

If you are issued with a subpoena to give evidence, you must attend that stated Court on the date and at the time listed in the subpoena. If you do not attend Court on that date and at that time, you may be considered to be in contempt of court and liable to a penalty. 

The issuing party must attach conduct money to the subpoena to give evidence. The purpose of conduct money is to cover the subpoenaed party’s reasonable expenses of travel to attend to give evidence. 

If the issuing party has served the subpoena out or time or failed to provide conduct money you may have the right to refuse to attend Court to give evidence. However, it is important you obtain legal advice before refusing to attend Court.

Additional Expenses

In some instances an application can be made to the Court for the reimbursement of “reasonable expenses” incurred by the subpoenaed party in addition to conduct money. Applications of this kind may include expenses for legal advice, photocopying expenses, additional travel expenses or other reasonable costs which have been incurred by the subpoenaed party in complying with the subpoena.

Knowing your rights and getting good legal advice can be paramount to limiting the time and expense incurred with complying with third party subpoenas.

For further information about dealing with subpoenas, please contact our Dispute Resolution and Litigation team by email litigation@mst.com.au or by telephone +61 3 8540 0200.