You may not be in litigation against another person, or even in dispute with anyone, however you may dragged into someone else’s litigation if you’re served with a subpoena.
The worst thing you can do is ignore a subpoena – it’s an order of the issuing court or tribunal and, unless you get yourself specifically excused, you must comply with the order or risk being found in contempt of court.
Here’s a run-down of what you should do.
What’s a subpoena?
It’s a legal document issued by a court or tribunal at the request of a party to litigation. A subpoena compels a party who is not directly involved in court proceedings to give evidence.
There are three types of subpoenas:
to produce documents to the court or tribunal;
to give oral evidence to the court or tribunal; or
a combination of both, where you produce documents first and then appear at a later date to give oral evidence at a hearing.
Do you have to respond?
Yes, a subpoena is an order of the issuing court or tribunal. Unless you get yourself specifically excused from compliance, failure to respond is a contempt of court. In severe cases, you may be arrested for that contempt.
Don’t panic – you’re not being sued – but you should get legal advice pronto so you understand what you’re being ordered to do and by when. Chances are you’ll need to search for the documents being subpoenaed and your lawyer will need time to properly advise you whether you should seek to be excused from compliance with the subpoena.
How do you get excused?
If you can’t get the person who had the subpoena issued to you to agree you’re excused from some or all of the subpoena requirements, you need to make an application to the relevant court or tribunal to be excused from compliance.
You'll be excused from compliance only in certain circumstances, which include where:
the requested documents aren't actually in your possession;
the subpoena has been served too late for you to comply or doesn't otherwise comply with the rules of service;
you haven't been paid “conduct money” by the issuing party as a part step to meeting your costs of complying with the subpoena;
the subpoena is oppressive, for example it seeks an unreasonable volume of documents;
the subpoena is an abuse of process, for example it has been issued to you for reasons not directly related to issues in dispute in the litigation;
the subpoena is too broad in its scope or vague in its terms, for example it's “fishing” for any information rather than seeking information specific to the litigation; or
You’re unavailable to give evidence, for example you'll be overseas on the day of the hearing at which you were ordered to give oral evidence.
You won’t be excused from compliance only because you’re not a party to the litigation, or you don’t want to get involved in the dispute, or you don’t have spare time or resources to find the documents or come to court to give oral evidence, or it’s all just too bothersome.
Do you have to produce original documents?
No, unless the subpoena specifically asks for original documents. For example, original documents may be sought where the authenticity of a document is in dispute. Otherwise, a copy of a document is fine.
A good point to remember is that if you don’t specifically ask the court or tribunal to return your documents to you, the court or tribunal will destroy those documents rather than continue to store them.
Do you have to produce legally privileged or commercial-in-confidence documents?
Yes, but you can mark the documents as this and produce them to the court or tribunal in a sealed envelope. Putting the documents in a sealed envelope may not of itself prevent them from being inspected by the parties to the litigation, but everyone will need to appear before a member of the court or tribunal to deal with:
broadly what's in the documents;
why they're privileged or commercially sensitive;
why they're sought under subpoena;
why anyone disagrees the documents are privileged or commercially sensitive; and
if and how everyone’s competing interests can be accommodated, for example by the litigation parties giving a confidentiality undertaking before inspecting commercially sensitive documents.
Who pays the costs of your compliance?
Broadly, the party who had the subpoena issued to you. However, only your “reasonable” costs are reimbursable which may be less than your actual costs, and your costs are only reimbursable after you’ve incurred them.
The best way to deal with costs is to negotiate and reach agreement with the issuing party. Otherwise, you can apply to the court or tribunal for their assistance.
The talented team at Meyer Vandenberg can assist you with any of the issues discussed above, just call…
For more information contact the Commercial Dispute Resolution Team:
Bernice Ellis Partner Commercial Dispute Resolution Team
(02) 6279 4385 Bernice.Ellis@MVLawyers.com.au
Greg Brackenreg Special Counsel Commercial Dispute Resolution Team
(02) 6279 4409 Greg.Brackenreg@MVLawyers.com.au
Courtney Noble Associate Commercial Dispute Resolution Team
(02) 6279 4324 Courtney.Noble@MVLawyers.com.au
Justine Harper Senior Lawyer Commercial Dispute Resolution Team
(02) 6279 4400 Justine.Harper@MVLawyers.com.au