A person or corporation can receive a subpoena to produce documents (and sometimes to be examined in relation to those documents), in the context of litigation in the Superior Courts in this State, even though that person or corporation is not a party to the litigation.
An application to the court for a subpoena to issue to a third party is usually made by a party to the litigation on an ex parte basis, so that the first time the third party knows of the subpoena is at the time of being served with it.
So what should you do if you receive a third party subpoena to produce documents? Do not ignore it and do not delay. The subpoena will contain a date on which (or by which) the documents must be produced to the court. You must comply with that date, or apply for an extension of time for compliance, or to set aside the subpoena, before that date. If you do not, on a worst case scenario, you could be liable in contempt.
If you believe that you cannot comply with the subpoena, for example, if you no longer have the documents in your possession, or if you believe the subpoena operates in a way that is unfair, or oppressive, then you should first liaise with the solicitors for the party that served the subpoena. You may be able to reach an agreement to narrow the scope of the subpoena. If you can not, you may make an application to the court to vary the subpoena, or to set it aside.
You are entitled to certain protections in relation to the documents the subject of the subpoena. For example, you may (in the right circumstances) claim legal professional privilege in relation to the documents. You may rely on the right against self incrimination. You may seek to negotiate (and if agreement cannot be reached, make an application to the court) for a confidentiality regime in relation to the documents.
Generally, you will be entitled to your reasonable costs of compliance with the subpoena and production of the documents. The subpoena may not always provide for costs, so you may need to bring an application to the court.
Most reasonable solicitors acting on behalf of the party issuing the subpoena will be willing to discuss and negotiate the basis of compliance with the subpoena. If you are uncertain as to how to deal with it, you should always seek legal advice (inside the time for compliance with the subpoena).
For more information please contact partner Alison Robertson on (08) 9288 6872 / alison.robertson@lavanlegal.com.au.
