Continuing Obligation to Provide Documents Subpoena

A subpoena is a court order that tells someone to produce something and/or give evidence at a hearing or trial.

A subpoena can only be issued when a case is before a court. A court can't make an order unless there are court proceedings in progress.

You can apply for a subpoena if you are a party in a case that is currently before a court.

You can apply for a subpoena if:

• a person refuses, or is unable, to provide you with the document(s) or information that you require for your case
  
• you want a person to be a witness at the hearing or trial.
  

To apply for a subpoena you must fill out the approved form and file it with the court. Each court will have its own form that you can download from the courts website.

You may need permission from the court to apply for a subpoena.

There may be a limit to how many subpoenas you can apply for without the courts permission.

Each court has its own rules for when you can apply for a subpoena. You should check the courts rules before applying for a subpoena.

 The document(s) and information produced under a subpoena are available to all of the parties in your case. You should not apply for a subpoena if you believe the document(s) or information might be harmful to your case.

Before applying for a subpoena, you should get legal advice.

What should be in a subpoena

If you are going to apply for a subpoena you will need:

• the name of the person who must do what the subpoena requests. If you wish to subpoena an organisation, you should address the subpoena to the person authorised to act on behalf of the organisation, for example, The Proper Officer.
  
• the address of the person or organisation. You should contact the organisation before you prepare a subpoena to check the correct address for service. A large organisation may have multiple offices, and the subpoena may need to be sent to a specific office.
  

• the name of document(s) or thing(s) to be produced. You must provide a clear description of the document(s) or information that you require.
  

You can name two or more people in a subpoena if:

• the subpoena is to give evidence
  
• you are asking the people to produce the same document(s) or information.
  

What should not be in a subpoena

A subpoena should not include a request for:

• the subpoenaed person to create a document. The document(s) you request must already exist.
  
• the subpoenaed person to decide what documents to produce. For example, 'All documents that show that the respondent has transferred money to an account the respondent opened in a false name'.
  
• a court to produce documents. To ask a court for documents, you must send a written request to the registrar.
  

If you are not sure how to prepare a subpoena, you should get legal advice.

Filing and serving a subpoena

Depending on the court, you may be able file your subpoena online or in person, at the registry where the court is located.

If you are filing your subpoena in person, you must file:

• the original subpoena
  
• a copy for each person named in the subpoena
  
• a copy for each party to the case
  
• a copy for yourself.
  

You may have to pay a fee to file your subpoena. You should contact the court or check the court's website to find out whether you will have to pay a fee.

When the court receives your documents it will:

• fill in the date the subpoena must be served by
  
• fill in the return date (date documents must be provided to court)
  
• fill in the date of the hearing
  
• stamp your documents with its seal
  
• give them back to you to serve.
  

The court will keep your original subpoena for its records.

The subpoena must be personally given to the person it is addressed to by the date for service. You must also serve every other party to the case with a copy of your subpoena.  You can pay for a professional process server to serve the subpoena or do it yourself.

Each court has its own rules for time limits for service of subpoenas. You should check the courts rules before you attempt service.

If you do not serve your subpoena correctly, it may not be valid.

Short service of a subpoena

Sometimes, you might need to apply for an extension of time for the service of a subpoena. For example, you find out about new evidence a few days before your hearing date and you don't have time to comply with the standard rules.

A court may order short service if it is satisfied that it is in the interests of justice to do so. Any order made for short service must be attached to the subpoena and served.

If you are considering applying for an order for short service of a subpoena, you should get legal advice.

To apply for an order for short service, you will need a Notice of Motion form and an affidavit in support of your application.

You can get copies of forms from:

Conduct money

Conduct money is money paid to a person who receives a subpoena to cover the cost of producing the document(s) or going to court.

You must pay conduct money when you serve your subpoena.

The amount you pay:

• must be reasonable
  
• will depend on the amount of documents or information you have requested, and/or the distance the subpoenaed person has to travel to court.
  

 You should check the court rules to find out if there is a minimum amount you must pay.

If you do not pay conduct money, the subpoenaed person is not required to comply with the subpoena. You may be ordered by the court to pay the amount requested by the person subpoenaed.

 Before you serve your subpoena, you should contact the subpoenaed person to find out how much conduct money they will require to comply with the subpoena.

Complying with a subpoena

If you have received a subpoena, you must comply with it unless you have a lawful excuse not to. For example, you were served after the date for service or you were not given conduct money.

If you do not comply with a subpoena, and you do not have a lawful excuse, you may be held in contempt of court and a warrant may be issued for your arrest. You may also be ordered to pay another party's legal costs.

 If you are going to post the requested documents to the court, they must arrive by the return date.

 If you have received a subpoena that you do not want to or cannot comply with, you should get legal advice.

Inspecting documents produced under subpoena

When the documents you have requested have been provided to the court, you must ask the courts permission to inspect the documents. To do this, you must file the approved form with the court before the hearing.

Each court has its own form that you must use.

At the hearing, the court will have to decide whether to allow you access to the documents it has been provided. If the court grants you access, there are three orders it can make:

• view only
  
• photocopy
  
• uplift (take from the courthouse).
  

If you are only allowed to view the documents, you should make detailed notes of what information is in the documents. It is a good idea to bring a notepad and pen with you to the court when you are inspecting documents.

 You may have to pay a fee to photocopy the subpoenaed documents.

 If you want to uplift any documents, you may have to fill out a form to ask the court for permission. You should check the courts rules before you take any documents.

Objecting to a subpoena

You can object to a subpoena on the following grounds:

• a failure to comply with the technical requirements of a subpoena
  
• the subpoena is oppressive or an abuse of process
  
• the documents or information sought is privileged.

Depending on the type of objection you want to make, you may be able to send a notice to the court explaining your reasons for objection or you may have to attend court to explain your reasons in person.

You should check the courts rules about objecting to subpoenas.

If you want to object to a subpoena, you should get legal advice.

Failure to comply with the technical requirements of a subpoena

You can object to a subpoena where:

• you were not given enough conduct money
  
• you were not served in time
  
• you need more time to comply with the subpoena
  
• the document(s) does not contain information relevant to issues in the case
  
• the court did not give permission for the subpoena to be issued (if required).
  

If you were not given enough conduct money, you should contact the person who sent you the subpoena to fix the problem.

If they will not give you the money you need, you must raise an objection at court. You must do this before you give them the documents they want.

The subpoena is oppressive

A subpoena may be oppressive if it:

• is too time consuming, expensive, or difficult to comply with. For example, the documents are too old or there are is unusually large number of documents.
  
• does not specify in enough detail the document(s) or information requested.
  

A subpoena is not oppressive just because it is inconvenient.

The subpoena is an abuse of process

A court may set aside a subpoena if:

• it is an abuse of process
  
• the subpoenaed person is unable to provide the document(s) or information requested
  
• the court does not have the power to order the subpoenaed person to produce the requested documents.
  

To object on this ground, you must go to the hearing and ask the court to set aside the subpoena.

The documents or information sought is privileged

You can object to a subpoena if the document(s) or information sought is protected by one of the following types of privilege:

• client legal privilege
  
• religious confessions privilege
  
• public interest immunity
  
• national security privilege
  
• professional  confidential relationship privilege
  
• sexual assault communications privilege.
  

You can object to a subpoena on these grounds even if you are not the person named in the subpoena, but you must have a sufficient interest in the document(s) or information requested.

If you cannot object to a subpoena because of privilege, but the document(s) requested contain your private information, you may be able to object to your private information being shared. A court may refuse inspection or limit access to documents if it decides that the documents:

• contain your private information, and
  
• your information is irrelevant to the case.
  

You may also be able to object to a subpoena on the grounds that it contains:

• a 'child at risk' report
  
• details of victims support and victims' compensation claims.
  

This information is generally protected.

If you want to object to a subpoena, you should get legal advice.

What happens to documents or things produced to the court

Documents or things that were not made an exhibit will be returned once the original case is finished.

Documents or things that were made an exhibit will be returned after:

• the original case is finished,
  
• the time limit for an appeal has passed, and
  
• any appeal is finished.
  

The court will not return any material which it has written on or marked in some way.

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Source: https://www.lawaccess.nsw.gov.au/Pages/representing/lawassist_readingwritinghome_wysk/Subpoenas.aspx

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