What to do if you get a subpoena? 5 things you need to know.

Received a subpoena and not sure what you have to do next?  Can you ignore it?  Can you claim the cost of answering it? 

Over the coming months, we will provide a four part series on responding to subpoenas, including:

• Producing documents in answer to a subpoena

• Protecting sensitive information

• Making a claim for legal privilege.

• Protecting commercially sensitive information through confidentiality regimes.

• Protection of information under standard court practice.

• Recovering your costs of compliance.

What is a subpoena?

A subpoena is an order made by a court at the request of a party to a court case that requires the recipient to either produce documents, attend court to give evidence, or both.

The most common subpoena is for the production of documents.

A subpoena for the production of documents will specify:

• The categories of documents sought.

• The date by which the subpoena had to be served on you.

• The date by which the documents have to be produced.

• The date on which the proceedings are listed in the court so that the court can check whether documents have been produced and make orders for access to the documents by the parties.

As a subpoena is a court order, failing to respond to a subpoena without lawful excuse is a contempt of court.  There may be civil or criminal penalties.

Formalities

A subpoena must be served by giving it to an individual, or delivering it to the registered office of a company (including by post).

If a subpoena is served after the date for service specified in the subpoena, you are not obliged to comply with it.

You are also not obliged to comply with a subpoena unless conduct money (usually about $30) is paid or offered.  Conduct money is to cover the cost of getting the documents to the court by post.  It is not intended to reimburse the cost of finding and collating the documents or getting legal advice.  The right to those expenses is discussed in Part 4 of this series.

What you have to do

On receipt of a subpoena you should identify and collate any documents you have that fall within the listed categories. 

Tip - separate the documents into bundles that correspond with the categories.

Complete the declaration on the back of the subpoena to confirm that you require the return of the documents, or that the documents can be destroyed. 

Tip - unless specifically requested, copies of documents will be sufficient.

There are two ways to get the documents to the court:

• Attend court on the date specified on the subpoena with the documents (along with a copy of the subpoena) or

• Deliver or send the documents (along with a copy of the subpoena) to the court registry addressed to the registrar, so that the documents are received at least two clear days before the day the subpoena is listed before the court.

Note that:

• If you do not have any documents in the categories described in the subpoena, you can simply write and tell the court.

• You do not need to create documents to answer the subpoena. 

• If you hold electronic documents you can either produce copies on a USB device or similar, or print them.

Court attendance

If you have not sent documents to the court registry, you will need to attend court to formally produce them.

Unless there has been a claim of privilege or commercial sensitivity made over the documents (see Part 3 of this series), it is likely that the court will make a “general access order” granting all of the parties to the litigation the right to examine the documents.

Conclusion of proceedings

At the conclusion of the litigation the court will either return the documents to you or destroy them.

Next instalment

Often a subpoena will seek documents that are of little relevance in the proceedings, or the categories sought will be so broad in scope, or so vaguely described that compliance with the subpoena would be unduly difficult or time consuming.

Our next instalment will outline what rights you may have to apply to set aside or vary a subpoena for those reasons.

Author: Ben Hardy

Part two of our series: Setting aside a subpoena: oppression and fishing expeditions 

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