What to do if you’re served with a Subpoena to Produce Documents in Family Law

Introduction

Lawyers, Accountants, Medical Practitioners, Banks, Schools, Kindergartens and other businesses who are involved in the home life, health and work/business lives of families and their children are all susceptible to being served with a Subpoena to Produce documents so as records can be uplifted and considered in the proceedings as potential admissible evidence.

This article considers how to respond to a Subpoena if you’re served.

What is a Subpoena?

A Subpoena is actually a form of Order, which is made by a Court which legally requires and directs the recipient, to produce documents to the Court for use in the proceedings.

If a Subpoena carries the seal of the Court which has issued it, then it legally requires the recipient to comply with it or penalties (such as fines or in the worst of cases, arrest) may result.

It is something which should not be ignored given that once served, it obliges compliance – usually on a timely basis to help in upcoming proceedings.

A Subpoena is one of the lawful means by which a party can access evidence which might be available for use in an actual case, which is on foot in a Court.

Subpoenas are generally used where other avenues of accessing the documents or information have been exhausted, or where there is only one source from which the documents might be available.

Types of Subpoenas?

This article concentrates on what to do if you are a recipient of a Subpoena to Produce Documents.

The Court can also be asked to issue a Subpoena (Directing a Person) to Attend and Give Evidence, as well as a Subpoena to Give Evidence and Produce Documents.

Requirements of the Issuing Party – the Party Seeking Subpoena Compliance

A person asking the Court to issue a Subpoena and thereby create an obligation upon someone who isn’t a party to the case, to deliver up documents to the Court for use in legal proceedings, has some significant obligations to comply with. These include:-

1. A Subpoena must only ask for relevant material to be produced.
2. A Subpoena should not be too onerous or oppressive, particularly as a recipient is unlikely to be involved in the proceedings and typically has a business of their own to run.
3. A Subpoena should not be issued in relation to the production of documents, where there exists another method of getting access to documents (i.e. other avenues of obtaining the documents ought to have been exhausted).
4. When a Subpoena is served, conduct money must also be provided, coupled with approved documents which the Court has published for a Subpoena recipient, detailing the rights of a Subpoena recipient (including rights about claiming compliance costs and objecting to compliance).
5. An issuing party must pay reasonable compliance costs incurred by the Subpoena recipient.

What to Do If Served With a Subpoena to Produce

Firstly, don’t panic.

You were obviously chosen as the person/business with whom this family provided their custom or business.

Secondly, it is best to conduct yourself in a manner consistent with how you want yourself or your business to be perceived. If you seek the respect of the Court, the legal teams involved and the families with whom you are dealing, then you should take a sensible attitude to the Subpoena.

Complying with a Subpoena is actually a part of your civic/community duties and something which assists in the administration of justice.

Many, many times we see difficult conduct in relation to Subpoena issues.

Thirdly, we recommend that if the situation is beyond you because:-

• You think the Subpoena can’t be complied with in time;
• You think the demands upon you are too great or perhaps you don’t have a big staff sufficient to cope with the information gathering task;
• You have a concern that you are being unfairly targeted to cause your business problems perhaps because of a relationship you have or are perceived to have with one of the spouses; or
• You anticipate significant costs (including allocation of staff or personal time or for professional advice) will be involved in compliance with the Subpoena then, you should consider getting prompt legal advice so as to ease your stress and have the issue resolved.
• You can “Object” to complying with a Subpoena if there are valid reasons to do so.

Of course, if the matter is simplistic, then you may well wish to simply bundle the few relevant documents up and send them to the Court to answer the Subpoena.

If the matter is going to incur costs exceeding the amount of conduct money provided, and unfortunately, it is all too common for a paltry $25 in conduct money to be provided, then you will need to approach the issuing party to ask for reasonable compliance costs.

Objections to Subpoena

If there is a valid reason to object (and this may be because of any one or more of the issues discussed in the section hereof titled, “What to Do if Served with a Subpoena to Produce”) a Notice of Objection should be served at the earliest possible time.

The filing of a Notice of Objection operates as a stay of the Subpoena and your compliance will be deferred.

We recommend filing an Objection as a last resort.

Before filing an Objection, efforts should be made to contact the issuing party or their lawyer and negotiating either:-

• The discharge of the Subpoena; and/or
• A narrowing of the documents sought; and/or
• A proper level of compliance costs; and/or
• An extended compliance time as your circumstances may require.

Compliance Costs

One of the most hotly contested issues relating to Subpoenas, is the requirement that the recipient be paid proper compliance costs by the issuing party.

Put simply, if proper compliance costs are not paid, then compliance is not required.

There are countless examples where an issuing party is trying to economically minimise the costs of having the documents and does not give proper thought to the impact of the Subpoena being served on the recipient and/or the amount of work needed to be done by the recipient to comply.

Quite obviously, the more detailed the information sought, the more costly the compliance costs will be.

Case law also supports the notion that when a person is served with a Subpoena, it is reasonable for the recipient to take some legal advice in relation to their rights and obligations, although the allowable legal costs will need to be linked with and reasonably claimed according to the complexity of the matter/documents sought.

Legal advice can be taken about objections and ensuring proper compliance costs are met and in turn, those legal costs, provided they are reasonable, can similarly be claimed.

However, compliance costs cannot be “profit costs” having regard to what is probably best called, doing our civic duty and supporting the administration of justice. It can only be reasonable. For example, if you charge out an employee at your business at $150 per hour, the same rate could not be applied towards collating and producing documents to the Court.

If you want to have the best chances of claiming compliance costs, we recommend early and ongoing communications with the issuing party or their lawyer.

This would involve a prompt letter confirming receipt of the Subpoena and then responding to:-

• Confirm whether or not you have documents;
• Confirm how long you estimate it will take you to answer the Subpoena by supplying the information to the Court; and
• Confirm the amount of compliance costs you will have to seek, which should be linked to time to be taken, the amount of copying to be done, as limited amount of legal costs for legal advice as is possible and any in-house compliance costs which will be incurred, giving the details of the number of hours estimated and the hourly rate to be passed along.

The smoothest of matters will see a reasonable lawyer for the issuing party confirm early on that what you are asking is agreed or seek to negotiate a resolution with you.

However, some matters will require you to refrain from complying until an agreement about these matters is reached. If a timely agreement is not reached, then the proper means by which to trigger a Court event to resolve the Subpoena issue, is the filing of a Notice of Objection in the Court which issued the Subpoena.

You are entitled to be represented by a lawyer at any hearing about the Objection and to claim the costs of that representation.

Before going that far, however, it would be most helpful to your case to be able to show the Court the efforts you made to resolve the compliance costs or any other Subpoena issues by calm and reasonable correspondence which was sent by you to the issuing party.

The Court does not generally like third parties, being unconnected to the marriage or spouses, being inconvenienced in their own business pursuits by any Subpoena and will generally favour the business being provided with reasonable compliance costs and reimbursed for any reasonable legal advice required.

Availability to Provide Advice and Representation – Evans & Company Family Lawyers

Our firm is experienced, skilled and well equipped in order to promptly and economically assess what should be done in response to you or your business being served with any Subpoena.

We can take over the management of responding to the Subpoena for you and alleviate at least some of the stressors involved in the process.

In a properly handled matter, a balance between minimising disruption, ensuring proper compliance costs are met and maintaining your reasonable business reputation will be the outcome.

Please remember this article – refer to it as needed. It would be a good idea for you to provide this to your staff for safe keeping or filing so as to be used as a reference point if the situation arises and you need to refer to it or remember who you can trust to handle or resolve the situation for you.

We’re here to help at a moment’s notice and can ensure Subpoena compliance does not disrupt your business.

Legal costs incurred in such a process can typically be provided to your accountant for inclusion in your income tax returns as a proper deduction arising in the course of your business.

Dean Evans,

Partner and Accredited Family Law Specialist