What is a subpoena?
A subpoena is a Court order, sought by a party to a legal proceeding, requiring a person who is not a party to the legal proceeding to:
- attend Court to give evidence; or
- produce a document or thing; or
- do both of these things.
A subpoena is issued to obtain evidence which is relevant to the legal proceeding (see more below).
Failure to comply with a subpoena is a contempt of Court.
How do I issue a subpoena?
Particular Court forms must be used to issue a subpoena, and the form must be stamped at the Court registry, and personally served on the addressee.
The subpoena must specify a date and time for compliance by the addressee.
Subpoenas should be drafted by an experienced litigator, as they can easily be challenged if certain technical and substantive requirements are not met.
How do I challenge a subpoena?
A subpoena can be challenged by the addressee, any party to the legal proceeding and any other person with a sufficient interest in the proceeding.
Typically the Court will be requested to set aside the subpoena or part of it, and to prevent inspection of documents.
In making its decision the Court will determine whether the subpoena has a legitimate forensic purpose.
A legitimate forensic purpose will be established if a document gives rise to a line of enquiry which is ‘relevant’ to the issues before the Court, including for the purpose of meeting the opposing case by way of cross-examination of a witness.
A broad test is applied to determine whether a document is ‘relevant’.
Apparent relevance is sufficient. It is not a question of whether a document could be tendered in evidence. This is because the purposes of a subpoena include:
- appraising the parties of the strengths and weaknesses of their respective cases before trial
- facilitating the management of cases before trial
- facilitating preparation for mediation
- encouraging the settlement of cases.
Please contact me if you would like assistance drafting, issuing or challenging a subpoena.
Related blog articles:
“Subpoenas are an easy and powerful way to obtain relevant evidence from third parties to litigation”