Subpoenas

Question 1

What is a subpoena?

Answer 1

• Order in writing which requires the addressee to
  o either attend to give evidence; or
  o to produce a document/thing; or
  o both (r42.01).
• It is the appropriate process to compel a person to attend a trial as a witness or to produce documents to the court.

Question 2

How is a subpoena served?

Answer 2

• Must be personally served (r42.05)
• And conduct money must be given (r42.06(3))
• Needs to specify the date, time and place for attendance (r42.03)
• Must be served at least 5 days before the earliest date on which address is required to comply.
• Subpoenas are issued by court and must comply with r 42.03 which requires the subpoena to be
  o Addressed to a single person by name or by description of the office or position;
  o Identify the materials sought;
  o Served in the appropriate timeframe; and
  o Served with conduct money.

Question 3

How are the documents produced?

Answer 3

• Documents must be produced on the date specified in the subpoena and the issuer must file an affidavit of service – r42A.04

Question 4

What are the costs of compliance with a subpoena?

Answer 4

• Per r42.11, court may order the issuing party to pay the amount of ‘any reasonable loss or expense’ incurred in complying with the subpoena – this is in addition to any conduct money paid.

Question 5

What happens if the subpoenaed documents are privileged?

Answer 5

The party must still comply with the order however, docs must be produced to the court - also if a valid claim for privilege, should ask for the parties to only look at redacted documents.

Question 6

What is the consequence of not complying with a subpoena?

Answer 6

• Failure to comply without a lawful excuse with a subpoena is contempt of court – r42.12

Question 7

Can an objection be made to a subpoena?

Answer 7

• If the addressee objects to the inspection of the items produced, it must notify the prothonotary in writing of the objections and the grounds for the objection at the time of the production – r42.09.5/ 42A.07
• The addressee can also object to answering the subpoena at all or in part and apply to set it aside. – r42.04
• Such an application can be on the basis that the subpoena has no legitimate forensic basis or is oppressive.