Setting aside a subpoena: oppression and fishing expeditions

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 “being served”.

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 subpoena:

• Where the subpoena has been issued for an improper purpose; or
• Where compliance with the subpoena would be oppressive to the receiving party.

Improper purpose

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 expedition”.

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.

Oppression

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 subpoena.

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 information.

In our next instalment, we examine the types of applications that can be made to the court to protect that information.

Authors: Ben Hardy and David Creais

Part one of our series: What to do if you get a subpoena? 5 things you need to know

Part three of our series: Privilege and confidentiality - Subpoenas and sensitive information

Part four of our series: What happens after you've produced? Implied undertakings and subpoenas