What is a subpoena*?
Central to any dispute resolution proceeding is the right of a party to gather evidence. A common method of gathering evidence is through subpoena, which is an order of the court used by a party to compel another party (in most instances an unrelated third party) to give evidence or produce a document, or both.
Consequences of Non-Compliance with Subpoena
Failure to comply with a subpoena within the timeframe provided for without lawful excuse is a contempt of court and may result in your arrest.
Objecting to Compliance with a Subpoena
Upon being served with a subpoena, the recipient of the subpoena, or a person who has a sufficient interest in objecting to the subpoena, has the right to apply to the Court:
- for an order setting aside the subpoena (or part of it) or for relief in respect of the subpoena; and
- for an order with respect to your claim for privilege, public interest immunity or confidentiality in relation to any document or thing the subject of the subpoena.
To object to a subpoena, you must notify the Prothonotary in writing of that objection and state the grounds of that objection before the day specified in the subpoena. This is done by way of summons and an affidavit in support.
Upon receiving notice of your objection, the Prothonotary shall refer the subpoena to a Judge or Associate Judge of the Court for the hearing and determination of the objection.
Grounds for objection
You may be able to rely on one of the following grounds in setting a subpoena aside or objecting to the other party’s right to inspect the documents. Legal advice should be sought in preparing to object.
1. Failure to comply with proper procedure
A person may object to a subpoena on the basis that the requirements under the Uniform Civil Procedure Rules (UCPR) have not been complied with. Some requirements include:
- The subpoena must be in the approved form and accompanied by a notice alerting the recipient to their right to challenge the subpoena.
- The subpoena must contain an adequate description of the document or thing to be produced.
- Conduct money must be provided to the subpoenaed person at the time of service or at a reasonable time before the return date of the subpoena. Conduct money means an amount sufficient to meet the person’s reasonable expenses in connection with complying with the subpoena. You need not comply with a subpoena if conduct money has not been provided.
A major issue that arises in the case of subpoenas is the conflict between a person’s right to access evidence and documents to support its case, and the right to have the confidentiality of certain information or documents preserved. However, it is important to note that confidentiality is generally not treated as a ground to set aside a subpoena, but a factor to be taken into account together with other tests, such as “oppression”.
Objections commonly arise in the case of medical records on the basis of ensuring that the public’s interest in preserving highly sensitive information divulged in the course of treatment/counselling is not undermined. RKL were involved in a case where the judge ruled on the admissibility of counsellor’s records that were subpoenaed. You can read more about the case at http://www.rklawyers.com/areas-of-practice/22-family-law-and-de-facto-law/16-subpoenas-and-counsellors-in-family-law.html (link).
If you become aware that your medical practitioner or counsellor has been subpoenaed for your medical records, you may object to their production in writing to the Prothonotary. On the other hand, if you are a medical practitioner or counsellor and you have been subpoenaed, it may be prudent to give notice to your patient to enable them an opportunity to object. This also raises the issue of who owns patient records. Generally, patients own the factual information which constitutes their medical history. However, once information is voluntarily divulged to a medical practitioner, it belongs to both the patient and the medical practitioner.
A subpoena may be objected to on the basis that it is “oppressive”. Oppression may be demonstrated if it can be shown that:
- the task involved in identifying, locating and producing the documents is burdensome;
- the description of the documents is ambiguous or too broad;
- it is unlikely that the documents will be admitted into evidence; or
- the cost of complying with the subpoena is too high and the party issuing the subpoena is unable to reimburse the cost of the party’s compliance with the subpoena.
A subpoena may be challenged on the basis that the documents requested are not relevant to any issue in the proceedings.
The test in determining relevance is not whether the documents are directly relevant to an issue in the proceeding, but whether the documents are “apparently relevant”. To be “apparently relevant” the documents must relate to the subject matter of the proceeding.
5. Abuse of process
It is possible to object to a subpoena on the ground that it amounts to an abuse of process.
An example of abuse of process is where the issuing party files a subpoena rather than the more appropriate method of gathering evidence such as discovery. For instance, where a subpoena is used as a substitute for discovery to determine the strength of the party’s case, rather than attempting to obtain relevant evidence, the basis of issuing the subpoena will constitute an improper purpose or an “illegitimate forensic purpose”. If it is found that the subpoena’s scope is so broad so as to potentially give rise to a “fishing expedition”, the question then becomes whether the documents requested bear any relevance to the proceeding.
A subpoena may be objected to on the grounds that the documents requested are privileged. Legal-professional privilege protects the recipient of a subpoena from disclosing communications shared between a client and their lawyer that enable the client to obtain, or their lawyer to give, legal advice.
The relevant test to be applied in determining whether production of documents is protected by legal-professional privilege is the “dominant purpose” test. That is, whether the dominant purpose of the communication or document between the lawyer and their client was for the provision of legal advice or services.
*Please note that this article refers to subpoenas in the context of the Supreme Court of Victoria.
If you have been served with a subpoena and require assistance, please contact RKL on (03) 9519 9888.