By Kate Davey (Senior Associate) and Paul Welling (Principal Solicitor)
Your company has been served with a subpoena – what happens next?
What is a subpoena?
A subpoena is a legal document issued by a Court at the request of a party to a legal proceeding. It requires a person or a company to produce documents. A subpoena may also be served to compel a person to give evidence at a hearing or trial, but the discussion below focusses on the more common subpoena to produce documents.
Failure to comply with a subpoena is contempt of court.
If a natural person fails to comply with a subpoena, the Court may punish that contempt by imposing a term of imprisonment or a fine (or both). If a company fails to comply, the Court may punish the contempt by sequestration of the company’s assets or a fine (or both).
It is therefore imperative that you act quickly when served with a subpoena and, if necessary, seek legal advice.
Complying with a subpoena
A subpoena should clearly set out the documents which are required to be produced and a date for production of those documents.
If the request contained in the subpoena is broad or vague, you may have the right to apply to have the subpoena set aside – as discussed below.
You do not need to comply with a subpoena unless it is served on or before the day specified in the subpoena as the last day for service. The time for compliance/production can be as short as 5 days from the date on which the subpoena was served. If the subpoena has been served in time but you require more time to collate and prepare the requested documents you should immediately contact the issuing party’s lawyers to seek an extension of time.
If you do not wish to object to the subpoena, you should deliver or send a copy of the subpoena and the requested documents to the address specified in the subpoena (usually the Court registry or similar). Do not send them directly to the party who served the subpoena. The documents should be sent in sufficient time so that they are received on or before the date for production specified in the subpoena.
Unless the subpoena specifically requires the production of original documents, you may produce copies of the documents requested. Those copies may be in the form of a photocopy or in PDF format on a CD or USB.
Objecting to a subpoena
It may be possible to object to producing a document identified in a subpoena (or to that document being inspected by one or more of the parties to the proceeding) on the following bases:
- the subpoena is unclear, vague or too broad;
- the documents are sought for an improper purpose or an ulterior motive (including where the subpoena amounts to a “fishing expedition” by the issuing party in the hope that something relevant is produced);
- if compliance would place an undue or oppressive burden on you (for example where a large number of documents are sought which will take significant time and expense to collate);
- the requested documents contain material that would expose you to the risk of criminal charge or penalty; and/or
- the documents requested are subject to legal professional privilege (that is, they are confidential communications between a solicitor and a client for the dominant purpose of providing legal advice or for use in existing or anticipated litigation).
If you consider that any of the above grounds might exist, legal advice should be sought. It may be possible to reach an agreement with the issuing party whereby the subpoena is withdrawn or the categories of documents sought are narrowed or varied.
However, if no agreement can be reached you must notify the Court in writing of your objection and the grounds of that objection before the date for production specified in the subpoena.
Confidential documents/documents which are subject to a claim for legal professional privilege
Mere confidentiality will usually not provide sufficient grounds to object to production.
This is because an implied undertaking exists in legal proceedings not to use any confidential information obtained via a subpoena for a collateral or ulterior purpose unrelated to the subject proceeding.
If you consider that any of the documents being produced are confidential or may be subject to legal professional privilege, these documents should be placed into a separate sealed envelope marked as “Confidential and/or Privileged – not to be opened except by Court order” when they are produced.
Expenses of compliance
The Court has the power to order the issuing party to pay the amount of any reasonable losses or expenses which you incur in complying with the subpoena. Keep a record of time spent in searching for and collating documents as well as photocopying costs, postage and other related expenses. If you engage lawyers to provide advice, some of those costs may also be recoverable.
What if we do nothing?
As noted above, failure to comply with a subpoena is contempt of court and can have very serious consequences.
If your company has been served with a subpoena, it is crucial that you act immediately. We can assist you through every step of the process including compliance, objections and making a claim for legal professional privilege. Contact us for an obligation free discussion.
