Being served with a subpoena can be an intimidating and confusing experience, especially if you are unfamiliar with the legal process. A subpoena is a legal document that requires you to provide testimony, produce documents, or both. It's essential to handle this situation correctly to comply with your legal obligations and to protect your interests. Here is a comprehensive guide to the steps you should take if you are served with a subpoena in New South Wales (NSW).
What to do when served with a subpoena
1. Understand the subpoena
The first step upon receiving a subpoena is to carefully read and understand its contents. There are two primary types of subpoenas you might receive:
i. Subpoena Ad Testificandum – which requires you to appear and provide oral evidence in legal proceedings.
ii. Subpoena Duces Tecum – which requires you to produce specific documents, records, or other tangible evidence.
You should pay close attention to the details, including the date, time, and location where you need to appear or deliver the documents, and the precise nature of the evidence or documents that have been requested. You should review the schedule of the subpoena (which sets out the document or categories of documents required to be produced) and consider whether you have enough time to produce the requested documents by the court's return date listed.
2. Verify the subpoena's validity
Not all subpoenas are valid. You should ensure that the subpoena has been properly issued and served. For proper service, the subpoena must be served in accordance with relevant legal procedures. In NSW, this often means it must be handed to you personally or left at your residence or place of business. For example, section 109X of the Corporations Act 2001 (Cth) (link to Act https://www.legislation.gov.au/C2004A00818/latest/text) provides that a company must be served either on its registered office as listed with ASIC, or by delivering a copy of the document personally to a director of the company who resides in Australia.
You should also confirm that you are the correct recipient of the subpoena and that it has been served on the correct address. You should also consider whether you have been served before the last date of service as listed on the subpoena as if you have not been served in time, you may not need to comply until otherwise advised.
3. Respond appropriately and timely
If you are concerned you do not have enough time to produce the documents requested, you can request further time from the relevant party to the proceedings or approach the court. It is also important to note that a subpoena can only compel you to produce documents that are in your possession, custody, or control. If documents had been destroyed prior to the service of a subpoena, in line with general company practice for example, you can write to the court advising that you do not have documents to produce.
You respond appropriately by
i. Acknowledging receipt – some subpoenas may require you to acknowledge receipt by signing and returning a form.
ii. Meeting production deadlines – you should ensure you comply with any deadlines for producing documents or appearing in court.
iii. Prepare documents – if you are required to produce documents, gather, and organise them as specified. You should produce the requested documents to the court either online or in person with a copy of the subpoena.
4. Obtain legal advice
If you have any concerns about producing a particular document because it is commercially sensitive or might be privileged or otherwise you have concerns about producing it, you should seek legal advice before production.
One of the most delicate aspects of responding to a subpoena is balancing the need to comply with legal requirements while protecting confidential information. This is especially critical in business settings where commercially sensitive information or personal data may be involved. Your lawyer can provide assistance navigating the process ensuring that compliance does not inadvertently lead to the disclosure of protected information. Your lawyer can advise you as to the filing of a motion to prevent production of documents or assist in the redaction of sensitive information.
Best practice as a third party caught up in a dispute required to produce documents is to obtain legal advice to guide you through the process, produce responsive documents on your behalf (if any) and/or liaise with the parties to the proceeding as required in relation to confidentiality issues and/or objections to the subpoena.
5. Do not ignore it
A subpoena is an important legal document that should not be ignored. If you fail to comply with a subpoena, it can be considered contempt of court and could lead to your arrest and/or an order to pay the costs of the issuing party as a result of your non-compliance. Compliance is not only a legal obligation but also a means to avoid unnecessary legal complications.
6. Do not destroy any documents
You should not destroy any documents, even if you would otherwise be doing so under your normal company routine procedures. There are serious consequences if it is found that you purposefully destroyed documents to avoid a subpoena.
7. Resisting a subpoena
Subpoena recipients must comply with a subpoena unless there are valid objections. A valid objection includes the documents sought under the subpoena are not relevant to a fact in issue in the proceedings, the documents are sought for an improper purpose, or the terms of the subpoena are overly broad and/or oppressive.
Recipients or other parties to the proceedings can file a motion to the court to have the subpoena set aside for one of those grounds. The court may determine that all or part of the subpoena be set aside.
8. Keep detailed records
You should maintain comprehensive records of all your actions related to the subpoena, including any correspondence you have received or sent and making a copy of all documents you might produce in accordance with the subpoena issued upon you. This documentation can be crucial if any disputes arise about your compliance.
9. Costs and compensation
Responding to a subpoena can be time-consuming and may incur significant costs, particularly if it involves the production of extensive documentation. In NSW, you might be entitled to claim reasonable expenses called conduct money related to complying with the subpoena. Discuss this aspect with your lawyer to understand what compensation you may be eligible for and how to claim it.
Receiving a subpoena in NSW is a serious legal matter that requires careful handling to ensure compliance and to protect your rights. By understanding the subpoena, seeking legal advice, and responding appropriately, you can navigate the process effectively. If you ever find yourself in this situation, following these steps will help you manage the process with confidence.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.