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Responding to a Subpoena – What are your options?

Most individuals or businesses may never have to deal with a subpoena, but when faced with one it can often be confusing as to what rights and obligations you...

Zoe Whetham

Most individuals or businesses may never have to deal with a subpoena, but when faced with one it can often be confusing as to what rights and obligations you have.

So, what exactly is a subpoena?

 A subpoena is a court order to either:

  • Produce documents; and/or
  • Give evidence.

A subpoena can be issued by a number of different people who are party to proceedings. In criminal proceedings, you may receive a subpoena from police, the prosecution, the accused or their legal representatives.

Subpoena to Produce Documents

This type of subpoena will usually specify a schedule detailing what type of documents are being requested and the date by which the documents need to be provided to the court.

It is important to read the schedule carefully to understand exactly what needs to be provided. If you are uncertain, or the wording is confusing or too demanding you should seek legal advice.

Subpoena to Give Evidence

A subpoena to give evidence will require you to attend court as a witness at a specified date and time.

Do I have to produce the documents and/or attend court?

A subpoena is an order of the court which you must comply with unless you raise an objection. Regardless of how you decide to proceed, you should never ignore a subpoena.

If you fail to appear in court or respond to a request for documents, the party who requested the subpoena may apply for a warrant. The court may then issue a warrant for your arrest if:

  1. You are the person named on the subpoena, and
  2. No just or reasonable excuse has been offered for failing to comply.

Can I raise an objection?

An objection to a subpoena can be raised for a number of reasons, including but not limited to:

  • Insufficient conduct money for the reasonable costs incurred in complying with the subpoena;
  • The issuing party did not comply with the court rules for when the subpoena should be served;
  • The subpoena is oppressive in scope (i.e. requires too many documents);
  • The subpoena does not have a legitimate forensic purpose; or
  • The documents contain privileged information (e.g. confidential patient records).

There are exceptions and technical legal rules around when and how to object to a subpoena. It is best to seek legal advice as to the particulars of the subpoena served against you.