Litigation and Dispute Resolution

I’ve been served with a Subpoena: What do I do?

23 May, 2024

Firstly, what is a Subpoena?

A subpoena is a document issued by a court on the request of a party to a proceeding.

A subpoena requires the recipient, properly served, to produce documents or provide evidence.

A subpoena can come in three forms, namely:

  • a subpoena for production;
  • a subpoena to attend to give evidence; or
  • a subpoena for production and to attend to give evidence.

A subpoena for production and to give evidence should not be requested if production of documents and or things alone would be sufficient.

What to do when served with a Subpoena

  1. Confirm you are the correct recipient of the subpoena and it has been served on the correct address;
    Under s 109X of the Corporations Act 2001 (Cth), a Company must be served either on its registered office as listed with ASIC, or by delivering a copy of the document personally to a director of the Company who resides in Australia.
  1. Consider whether you have been served before the last date of service as listed on the subpoena;
    If you have not been served in time, you may not need to comply until otherwise advised.
  1. Review the schedule of the subpoena (which sets out the document or categories of documents to be produced) and consider whether you have enough time to produce the requested documents by the court’s return date requirement;
    If you are concerned you do not have enough time, you can request further time from the relevant party to the proceeding      or approach the court.Note: A subpoena can only compel you to produce documents that are in your possession, custody or control. If documents had been destroyed prior to the service of a subpoena, in line with general company practice for example, write to the court advising that you do not have documents to produce.
  1. Produce the requested documents to the court either online or in person with a copy of the subpoena.
    If you have any concerns about producing a particular document because it is commercially sensitive or might be privileged or otherwise have concerns about producing it, you should seek legal advice before production.

What not to do when served with a subpoena

  1. Don’t ignore it;
    Failing to comply with a subpoena can be considered contempt of court and could lead to your arrest and/or an order to pay the costs of the issuing party as a result of your non-compliance.
  1. Do not destroy documentation, even if you would otherwise be doing so under routine procedures;

There are serious consequences if it is found that you purposefully destroyed documents to avoid a subpoena.

How do I resist a subpoena?

Subpoena recipients must comply with a subpoena unless there are valid objections. A valid objection includes the documents sought under the subpoena are not relevant to a fact in issue in the proceedings, the documents are sought for an improper purpose, or the terms of the subpoena are overly broad and/or oppressive.

Recipients or other parties to the proceedings can file a motion to the court to have the subpoena set aside for one of those grounds. The court may determine that all or part of the subpoena be set aside.

Takeaways

A subpoena is an important legal document that should not be ignored.

Best practice as a third party caught up in a dispute required to produce documents is to reach out to our litigation and dispute resolution team who can advise you, guide you through the process, produce responsive documents on your behalf (if any) and/or liaise with the parties to the proceeding as required in relation to confidentiality issues and/or objections to the subpoena.

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