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What do I do if I receive a Subpoena?

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A Subpoena is, effectively, a Court Order that requires the recipient to do certain things, usually in relation to a legal proceeding in which the recipient has no interest.  Receiving a Subpoena can be a nuisance, but because it is effectively a Court Order, its receipt should never be taken lightly.

Subpoenas may be served on individuals (over the age of 18 years old) or on companies.  In the case of a company, an officer of the company needs to comply with the Subpoena.  Remember, companies can be served with Court documents by posting or delivering the document to its registered office.  Therefore, any company that uses an address other than its principal place of business as its registered office (such as an Accountant’s office) needs to ensure that there is a fool proof system in place to ensure that any documents served at the registered office are immediately brought to the attention of the directors of the company.

There are three types of subpoena:

Subpoena for Production

This Subpoena requires production of documents to the Court’s custody.  These days it more common to allow the recipient to simply deliver the requested documents to the relevant Court’s registry, rather than the recipient having to attend Court and appear before a Judge.

The Subpoena will specify the manner for compliance and the date for compliance.

Subpoena to Give Evidence

This Subpoena requires the recipient to attend Court on the day specified (or such later date as may be notified by the solicitor for the party who issued the Subpoena) to give evidence in the witness box.

Subpoena for Production and to Give Evidence

This Subpoena is a combination of  the above two Subpoenas.

A Subpoena remains in force until:

(a)        It is complied with;

(b)        The issuing party or the Court releases you from your obligation to comply; or

(c)        The trial is concluded.

The Subpoena will nominate the last date for service.  At the time of service you will also need to receive conduct money that is sufficient to meet your reasonable expenses of complying with the Subpoena.  If you receive the Subpoena after the last date for service or do not receive sufficient conduct money you may not have to comply with the Subpoena.

Failing to comply with a Subpoena is serious offence.  You could be found guilty of contempt of Court and a warrant may be issued for your arrest.  It is therefore imperative that you respond to the Subpoena within the time allowed.  This may include contacting the lawyer for the party that has issued the Subpoena to discuss your compliance.

Obtaining Advice

We strongly recommend that you seek our advice if you are served with a subpoena.  In most cases our advice will be short and simple and will not result in the incurring of much expense.

You are able to object to complying with part or all of a Subpoena for Production provided specified grounds exist.  For example, if the category of documents sought in the Subpoena are too wide, are irrelevant or subject to legal professional privilege.

There may also be documents that you are required to produce that are confidential or commercially sensitive.  Whilst this does not relieve you from the obligation to produce those documents, it is important that steps are taken to protect the confidentiality or commercial sensitivity of those documents.  This is an area where we can help.

If an objection to production is to be taken, that will need to be heard by the Court.  We can advise of the likelihood of the objection succeeding, the validity of the Subpoena and its service and the commercial aspects of compliance versus objection.

The Dispute Resolution & Litigation Team has extensive experience in advising recipients of Subpoenas.  We will discuss strategy with you to ensure that the best litigation tactics are applied having regard to your commercial interests.

Author:  Kaye Griffiths