Checklist for in-house counsel: complying with subpoenas to produce

Dispute Resolution eBulletin - 30 August 2012

Summary

A subpoena to produce documents places a significant burden on the subpoenaed party to locate documents and produce them to the court. This often proves to be a time-consuming and costly process. 

This e-Bulletin provides a checklist for in-house counsel to use when served with a subpoena to produce. It aims to assist you to properly comply with subpoenas, so that the "proper administration of justice" is adhered to while, at the same time, your company's confidential and commercially sensitive documents are protected.

 

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What to do when served

The purpose of a subpoena is to allow the issuing party to obtain documents to assist their case. The documents sought must be relevant to the proceedings and be readily identifiable.

When served with a subpoena you should consider: 

  1. Whether the scope of the subpoena is onerous or a "fishing expedition", including:
    1. whether the scope of the subpoena should and can be narrowed;
    2. what third parties to proceedings should request from the issuing party; and
    3. how to recover costs that are reasonably incurred as a result of compliance with the subpoena.
  2. Whether the documents requested are commercially sensitive and, if so, how to comply with the subpoena while retaining confidentiality over the commercially sensitive nature of the documents.
  3. Whether an application to set aside a subpoena that is too wide, onerous or a "fishing expedition" should be filed.
  4. How to deal with documents that are privileged.

Below we have discussed each of these four points in more detail.

Scope

You should consider whether the scope of the subpoena is onerous and whether it should and can be narrowed. 

A subpoena may be considered onerous if:

  • it fails to identify, with reasonable particularity, the documents required to be produced;
  • the documents sought should be the subject of an application for discovery between the parties to the proceedings and not the subject of a subpoena; and
  • there are no dates as to what period documents are relevant and some categories of documents appear to be a "fishing expedition".

Determining whether a subpoena is onerous will involve a review of the pleadings to understand the relevant issues in dispute, in order to challenge the scope of the documents sought. Amending or narrowing the scope, if successful, would reduce the effort and expenses you will incur in complying with the subpoena. 

If and when the subpoena has been limited, and you are ready to comply with it, you should provide the issuing party with an estimate of the likely costs you will incur in complying with the subpoena and request that they provide an undertaking to pay these costs. 

Costs that can and should be claimed include: 

  • reasonable fees for administrative and/or managerial staff in the retrieval and production process of documents; and/or 
  • any printing costs. 

For example, you could provide charge-out rates for locating and printing documents for production.

Any costs that you claim in complying with the subpoena must be considered reasonable. Costs can only be claimed once they have actually been incurred, except in exceptional circumstances, such as financial difficulty preventing compliance with the subpoena.

It is important to be aware that even if the issuing party does not confirm their consent to pay your costs, you are still required to produce the documents. The normal course in these circumstances is to produce the documents and subsequently apply to court for "payment of reasonable costs incurred in complying with the subpoena".

Commercial sensitivity

In certain situations, the documents requested in the subpoena to produce will be commercially sensitive. As such, you can request confidentiality undertakings from the issuing party so that the documents produced are limited to, for example, the legal advisors to the dispute. 

For example, a subpoenaed party may be reluctant to produce documents which reveal their confidential client lists or pricing details. As such, they could request that those specific documents be produced on condition that it is only viewed or accessed by persons who sign a confidentiality undertaking. 

Applications to set aside a subpoena 

If attempts to amend or limit a subpoena prove unsuccessful, you can consider applying to Court to set aside any or all aspects of the subpoena. 

This option should be considered where you are unable to reach an agreement with the other side to limit the scope of the subpoena, in circumstances where a subpoena is too wide, onerous or a "fishing expedition". However, this can prove to be a costly exercise and, as such, should be considered a "last resort". 

Privilege

Where documents sought in the subpoena are privileged, they can be produced to the court in a sealed envelope marked "privileged". In such circumstances, the issuing party will not be given access to the privileged documents. If there is a question as to whether the documents are privileged, the issuing party will bear the onus of proving to the court that documents should be produced by the subpoenaed party.

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What happens if I don't comply with the subpoena?

Failure to comply with a subpoena, without lawful excuse, is a contempt of court that can result in a warrant for arrest being issued. This can apply even in circumstances where you were not personally served with the subpoena, but had actual knowledge of its service.

As such, addressees must either ensure full compliance with a subpoena upon service, or seek assistance in determining what action to take in relation to the subpoena (see What to do when served, above).

 

Conclusion

Responding to a subpoena can be an onerous and costly experience. However, the relevant civil procedure rules in each state, along with recent case law, provide assistance by ensuring that:

  1. the scope of subpoenas that are too wide, onerous or a "fishing expedition" can be reduced or set aside;
  2. you can limit the exposure of commercially sensitive documents while still producing the documents in compliance with a subpoena; and
  3. there is a mechanism for the subpoenaed party to recover its reasonable costs of complying with a subpoena to produce.

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Further information

All information on this site is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material published can be accepted.