Have you ever been subpoenaed?
Have you ever wondered about subpoenas and whether you could use one to your advantage?
What are these magical subpoenas really, and are you bound to comply with the requests made?
Let’s look at the WHO WHAT WHY WHENs of subpoenas. For all intents and purposes, this info-bite is drafted with an overarching ‘family law’ flavour.
We will start with WHAT first.
What is a subpoena? Definition of ‘subpoena’ from an old, weathered, law dictionary:- “a writ issued in an action or suit requiring the person to whom it is directed to be present at a specified place and time, and for a specific purpose, under a penalty (sub poena)”. The definition goes on to specify the different types of subpoena (ie to produce documentation only, to attend Court AND produce documentation, to attend Court to give evidence only).
In effect (and in plain English), it is an order that requires a person/ entity to provide evidence to the Court (note- any document/evidence requested is to be sent to the Court and not the issuing party). This is to be done either in person by giving the evidence at Court during a hearing, or by making available and producing to the Court, specific documents by a specified time and date. It depends what the contents of the subpoena mandate.
The subpoena (at least the Federal Circuit Court’s version) is plastered all over its front page with unmissable warnings to the person served: – If you fail to obey this subpoena be prepared to have a warrant issued for your arrest and/or to pay any costs/suffer penalties that may apply.
We see these types of documents flying around often in our family law cases. Which brings me to my next questions – WHY are subpoenas used, WHO can issue subpoenas and WHO can inspect any of the documentation produced under a valid subpoena?
It really depends what side of the coin you find yourself. If your intent is to corroborate your own case and buttress your arguments with evidence (ie to show there has been family violence or child abuse, for instance) then you would issue a subpoena to the relevant authority/ person to produce such documentation. On the other hand, if your intent is to quash the opposition’s assertions either expressly made or implied, you might subpoena a third party who may have available the evidence you need to achieve this goal (ie obtaining a police record or business record / bank accounts or history of treatment or prior convictions regarding your opponent).
Which brings me to my next question – WHEN will the documentation sought to be obtained under a subpoena:
a) be required to be produced by the person from whom it is sought and
b) be authorised to be distributed to all interested parties?
Are you bound by complying with the subpoena? And what if you refuse to provide the information sought? What if you are a party to the case, and you yourself raise issue with the documents the other side has sought to subpoena from a third party not part of proceedings?
It is important to note that (depending on what jurisdiction you find yourself in), there are different rules as to the form to be used, service of the subpoena document, filing fees, conduct money and limits on the number of subpoenas that may be issued without leave of Court first granted.
Note in particular that you must be very specific in your requests for documents sought and your requests must bear a degree of relevance to the matters before the Court. Failure to do so, could expose your subpoena to challenge (formal wording is ‘objected to’ by way of a Notice of Objection being served). An objection could be made either by the recipient of the subpoena or an interested party. An objection could be made to either all, or part, of the subpoena requests.
The usual grounds for objection are:-
-That the subpoena is being used as a ‘fishing expedition’
-That compliance with the subpoena is oppressive/ places an unreasonable burden on the recipient – in Waind & Hill, the Court spoke of requests that “impose an onerous task on a stranger to collect and produce documents many of which can have no relevance to the litigation”, and continued, “production of a document on subpoena by a stranger is only required if the document is sufficiently relevant to the action in the sense that it is likely to add in the end, in some way or other, to the relevant evidence of the case”.
-That issuing the subpoena is an abuse of process
-As implied above, that the documents sought to be produced by way of subpoena are irrelevant to the matters at hand – the Court in Hatton & Attorney-General & CBA said a “lack of apparent relevance will be a sufficient ground in itself to set aside a subpoena”
-That the subpoena is really being used as an underhanded means of obtaining ‘discovery’ documentation regarding a ‘stranger’ to the case who is otherwise not liable to make these documents available to either party/ the Court – a ground successfully used to object in The Commissioner for Railways & Small
-All of the above
There are of course other objections that can be raised to production ie privilege (ensure you do not waive privilege inadvertently), confidentiality/ medical/ legal records etc. Likewise Centrelink ATO and Child Support Agency do have available to them ‘get out of jail free’ cards so that they are not necessarily compelled to provide any documentation sought – but there may be other recourse available to you to obtain the documentation in these situations.
If your subpoena is successful, all parties can inspect its contents and use the information. If there is an objection raised to a subpoena, the Court will ultimately determine the issue, and it is up to the issuing party to satisfy the Court as to relevance etc. Costs may also be sought.
The bottom line take away tip would be “ask yourself” –
1.If you are the party issuing the subpoena, “ask yourself” inter alia – can I obtain / have I exhausted the avenues of obtaining, these documents in any other (legal of course!) way? Are my requests for supply of documentation clear and relevant enough to what it is I am trying to achieve? Do I need leave of Court? Will the request be deemed oppressive on the recipient? Do I run the risk of having to pay costs if any objection is upheld by the Court? Are there any barriers such as privilege, confidentiality etc which could interfere with the process?
2.If you are the recipient or an interested party, “ask yourself” whether the requests made fall into any of the abovenamed categories identified by the Court as valid reasons for objection (or perhaps the documentation has already been provided during discovery or could be)– and if this is the case – ask yourself why you should not make an application for costs against the issuing party.
If you have any questions or need any advice – please call us 03 9752 2388 or email firstname.lastname@example.org
Ross Legal Pty Ltd
*Note – this piece of writing is not intended to be relied upon as legal advice – you should always obtain independent legal advice catered to your specific facts and circumstances.