Being Served with a Subpoena
Have you been served with a subpoena but have no idea what to do with it? Are you wondering if you can ignore it? Furthermore, are you aware of the options for amending a subpoena?
We explore what a subpoena is and how to comply. We also look at when you do not need to comply, including when you can set aside or amend a subpoena.
What is a Subpoena?
A subpoena is a court order made at the request of a party to a court case. It compels the recipient to either produce documents, attend court to give evidence or both. It is important to strictly comply with the terms of the subpoena.
The most common form of subpoena is to produce documents. The subpoena will specify:
- The categories of documents sought.
- The date:
- By which the subpoena had to be served on the recipient;
- By which the documents have to be produced to the court; and
- The listed court proceeding for the subpoena.
When You Don’t Need to Comply
Failure to respond to a subpoena without a lawful excuse is a contempt of court. Penalties for non-compliance range from civil to criminal.
There are two lawful excuses for non-compliance that you should look out for. Firstly, if the other party served a subpoena after the date of service stated in the subpoena. Secondly, if the other party didn’t pay or offer conduct money with the subpoena. Conduct money covers the cost of sending the documents to court and is usually around $30.00.
How to Comply
If you do not have a lawful excuse, then to comply with a subpoena, you must:
- Identify the documents that fall within the listed categories in the subpoena and collate them.
- Complete the declaration (on the back of the subpoena) to state whether you want the documents to be destroyed or returned to you.
- Send the documents to court. This can be done in 2 ways. Firstly, you can attend court on the date stated on the subpoena with the documents and a copy of the subpoena. Secondly, you can deliver or send the documents and a copy of the subpoena to the court registry. You must do this at least two business days before the date the subpoena is listed before the court.
How to Set Aside or Amend a Subpoena
You can make an application to the court to set aside or amend a subpoena for two reasons:
- Where the subpoena was issued for an improper purpose; or
- Where it would be oppressive to comply with the subpoena.
What is a Subpoena with Improper Purpose?
Improper purpose is where the documents requested are not relevant to the proceedings. Furthermore, it could be that the party seeking the documents is going on a ‘fishing expedition’. This is when it is apparent the documents to be produced do not support nor weaken either party’s case.
What is an Oppressive Subpoena?
A subpoena may be oppressive if compliance will impose an onerous or expensive burden on the receiving party. For example, if the time and costs for producing the documents outweigh the importance of the documents to the proceedings. In this case, there may be grounds to set aside or amend the subpoena.
Please get in touch if you have any questions about subpoenas. We can advise on how to respond if you’ve been served with a subpoena, and apply to have the subpoena amended or set aside in some circumstances.