The Force Awakens: The Power Of The Subpoena That Can Withstand Objection

A subpoena is an order of the Court, commonly used to compel a non-party to proceedings to give oral evidence, produce documents, or both. Subpoenas are an important mechanism to facilitate the administration of justice between parties to a proceeding, particularly in circumstances where a party is not forthcoming in the discovery process, or where evidence is not otherwise available to the parties.

A subpoena to produce documents places an obligation on a non-party to proceedings to review their records, collate documents captured within the scope of a subpoena, and provide such documents to the Court.  Similarly, a subpoena to give oral evidence puts a non-party to the inconvenience of attending Court to give oral evidence in relation to a proceeding.

The non-party may be entitled to out of pocket expenses, including legal costs in some circumstances, from the issuing party in responding to a subpoena.

Given the imposition placed upon non-parties the subject of subpoenas, it is important that parties to proceedings and their legal representatives give proper consideration to the timing and scope of subpoenas issued in proceedings, as well as whether there are any alternative mechanisms which may be exhausted prior to issuing a subpoena such as a Notice to Produce or an application for production orders.

When to issue a Subpoena

There are a number of factors to consider when determining whether it is appropriate to issue a subpoena, and if so, when and to whom the subpoena should be issued.

Firstly, in deciding whether to issue a subpoena, parties and their representatives should carefully consider the purpose of their subpoena. It is commonly accepted that documents produced pursuant to a subpoena may not be used otherwise than for the purpose of the litigation in which they are produced. That is, without the permission of the Court documents produced in proceedings may not be used for any purpose other than in relation to the conduct of those particular proceedings.

Secondly, parties and their representatives should consider to whom a subpoena is being addressed, noting that there are certain entities who are not obliged to comply with subpoenas, or whose obligation to comply is limited by legislation.

Finally, once the appropriate purpose and addressee for a subpoena has been considered, a party or practitioner should turn their mind to the timing of a subpoena. Whilst the optimal timing for a subpoena to be issued will ultimately depend upon the circumstances of each individual case, it is typically accepted in most cases that a subpoena should be issued after the parties have exchanged discovery, but with ample time prior to a trial so as to afford the parties time to resolve any pre-trial issues which may arise from the production of documents and / or requirement of a witness to give evidence.

Generally, parties and their representatives may consider the following factors when deciding upon the most appropriate time to issue a subpoena:

1. Any statute, practice directions or court orders in relation to the timing of filing and serving subpoenas, as well as whether the party has leave to file subpoenas;
2. Whether the parties have had an opportunity to file their written evidence and / or pleadings;
3. Whether the matter is proceeding to a trial or interlocutory hearing, and if so, the proximity to same; and
4. Who the subpoena is being issued to, and whether that party may obtain further documents relevant to the proceedings after the production date for the subpoena.

Objections to Subpoenas

Parties subject to a subpoena, interested parties and parties to proceedings in which a subpoena is filed have the right to object to the production of documents or attendance to give oral evidence on various grounds.  Some objections which commonly arise in relation to a subpoena to produce documents include objections on the following bases:

1. Relevance: A party issuing a subpoena must have a legitimate forensic purpose for doing so, including that the documents sought may have a connection to the issues in dispute for the purposes of trial.
2. Fishing: A subpoena cannot be used for the purpose of conducting a “fishing expedition”. That is, a subpoena cannot be issued by a party who has no evidence that there is a reasonable possibility that compliance with the subpoena will prove useful.
3. Substitute for discovery: There is caselaw to suggest that a party must exhaust discovery from the other part(ies) to proceedings prior to issuing a subpoena for the production of documents to a non-party, however, this is not always the case.
4. Scope: Whilst the description of documents sought by way of subpoena does not need to be precisely specific, a subpoena may not be enforceable where it requests a scope of documents so wide that it imposes an unnecessarily onerous task on the subpoenaed party.
5. Oppression: A subpoena to produce documents should not place an onus upon the subpoenaed party to collate and produce documents so great that it would be considered oppressive in terms of cost and resources. This is particularly important to consider where many of the requested documents have no apparent relevance to the proceeding.
6. Privilege: Documents required to be produced pursuant to a subpoena may be objected to on the basis that they are subject to a claim of legal professional privilege or privilege on the ground of self-incrimination.
7. Confidentiality / privacy: Confidentiality, privacy and / or the commercial sensitivity of documents must be weighed against the proper administration of justice when determining whether documents should be produced pursuant to a subpoena, and if so, whether it is appropriate for the Court to impose restrictions upon the use of and access to said documents.

A successful objection to a subpoena may result in a subpoena being partially or wholly set aside, meaning that the party issuing the subpoena may not be able to rely upon documents already produced pursuant to the subpoena, or enforce the production of documents pursuant to the subpoena.  That may also carry a cost consequence to the issuing party.

Lavan Comment

It can be difficult to determine when it is appropriate request the issue of a subpoena and / or prepare a subpoena so as to withstand any scrutiny or objections by the recipient and parties to proceedings.  At Lavan, we provide our clients with technical and strategic advice to ensure that any subpoena prepared and issued in a manner will assist them to secure the forensic advantage in a dispute.

For further information on how to best approach your legal dispute in order to achieve your commercial objectives, contact Cinzia Donald, Partner, Lavan.