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Subpoena survival guide

Objecting to a subpoena

If you decide to object to a subpoena, talk to a lawyer. If you cannot get legal advice, use this section as a guide.

There are three kinds of objection:

  • The subpoena is not valid for technical reasons
  • General objections against a valid subpoena
  • Objections based on claims of privilege or specific protections.

Objections to validity

Failure to comply with the technical requirements

Each jurisdiction has its own rules about the technical requirements of a subpoena. They deal with:

  • conduct money (supplying subpoena recipients with enough money to comply)
  • time for service (delivery) of the subpoena
  • manner of service.
Insufficient conduct money

When a person is subpoenaed to give evidence in court he or she must be given ‘conduct money’, to cover reasonable costs of complying with the subpoena. This is to cover reasonable travel expenses and incidental expenses, such as photocopying.

Conduct money is not generous. But, for example, the NSW District Court Rules require that when a person is subpoenaed to produce documents he/she must receive all reasonable costs of complying with the order. If the request will involve a lot of photocopying, the recall of large amounts of material from archives at significant cost, or long distance travel and accommodation, you can ask for more conduct money.

If you have received insufficient conduct money, contact the person who sent you the subpoena and explain your concerns. They might be willing to narrow their request or pay you more. If you reach a new agreement, get it in writing. If you are unable to resolve the dispute or there is not enough time to do so before court, you can raise an objection in court, but make sure you do this before producing the documents.

If the court agrees with you, the issuing party will usually be ordered to pay the additional conduct money, and you will then have to comply with the subpoena.

Story iconCase study: Kim

Kim is giving evidence in a jury trial. During cross-examination the defence lawyer asks her: ‘You never told anyone else about this, did you?’ Kim says, ‘Yes I did. I told the doctor at Langton Hospital.’ This is the first time that either the defence or the prosecution has heard about a disclosure to staff at Langton Hospital. A subpoena is then issued for the records held by Langton Hospital about Kim’s visit. The Judge approves overnight service because a long expensive jury trial is already underway. The subpoena and attached ‘short service order’ are given to Langton Hospital at 3:30pm that afternoon and the documents must be produced at court at 10am the next morning.

Time for service

If you have not been given enough time to comply with a subpoena, according to the court rules, you do not have to attend court or produce documents.

For example, the NSW District Court Rules require that a subpoena must be served within a ‘reasonable time’:

  • if served by mail, the subpoena must be properly served 21 days before the hearing;
  • if served personally, 5 days is sufficient.
Short service’ orders

Courts have the power to order ‘short service’, which means they can override the usual time limitations. A court may order ‘short service’ if it is satisfied that it is in the interests of justice to do so. Any order for short service must be attached to the subpoena.

Subpoena served outside time

The rules around time are designed to ensure that you have enough time to deal with subpoenas properly: you need to consult your client, and you may need to access files, contact former staff members, consult your colleagues, and/or talk to a lawyer.

If a subpoena does not comply with the rules for time of service you need to notify the person who sent the subpoena and the court. The court is likely to allow you more time.

You need more time

If the subpoena complies with the time requirements but you need more time, contact the person who sent it, explain your concerns and see if you can agree on more time. Always ask for confirmation in writing. Notify the court as well. Keep a copy of this correspondence.

If you cannot agree on a time extension, do as much as you can to comply in the time you have, then go to court on the date specified and ask for more time. Talk to a lawyer before you do this.

Subpoena issued without a ‘legitimate forensic purpose’

A ‘legitimate forensic purpose’ means that the subpoena is likely to uncover something that will have a significant impact on the outcome of a case. In short, there needs to be a good reason for issuing the subpoena. The tests for this are:

  • Criminal: is it ‘on the cards’ that the documents would materially assist the accused’s defence?
  • Civil: is it likely that the documents will materially assist on an identified issue, or is there a reasonable basis (beyond mere speculation) that they will be likely to assist?

A subpoena is only valid if it has a legitimate forensic purpose. The law does not allow subpoenas to be issued for ‘mere fishing expeditions’.

How to object: lacking legitimate forensic purpose

You make an application to the court to set aside the subpoena. The court will look only at the subpoena itself, not at the documents or things requested in the subpoena.

Failure to seek/grant leave

Some subpoenas are subject to stricter rules: they apply in relation to sexual assault victims and in family law cases, and some other courts. These subpoenas are only enforceable if the court has granted ‘leave’ (formal permission) for them to be issued.

If you think that your subpoena is in one of these categories, check whether the court has granted leave to issue it. If you believe the subpoena is invalid because leave has not been granted, notify the court and the person who sent you the subpoena. You should always acknowledge that you have received the subpoena, and let the court know that you will respond if and when the rules have been followed.

Most subpoenas in family law matters, for example, are only issued with the court’s permission. The exception is subpoenas issued by an Independent Children’s Lawyer.

TIP / In any criminal or AVO case, always check whether or not the Sexual Assault Communications Privilege applies. If it does, the court must give permission before subpoenas are issued.

Story icon Case study: Michaela

Michaela is a physiotherapist who treats Jemima and Emily, who are sisters. Emily is the victim of a sexual assault and a prosecution of the alleged perpetrator is underway. Michaela receives a subpoena for all notes about Jemima’s treatment.

Since Jemima is not at all involved in the court case, and there’s nothing in the case to suggest that Jemima has discussed Emily with Michaela in any way, Michaela can argue that the subpoena for Jemima’s details does not have a legitimate forensic purpose, because there is nothing to suggest that it is ‘on the cards’ that the records about Jemima could materially assist the accused’s defence. Jemima could seek her own legal advice and representation.

Objections to a valid subpoena

Abuse of process

A court may set aside a subpoena: if it decides it is an abuse of process; if the person who is served with the subpoena is unable to produce the material requested; or if the court does not have power to order production of the requested documents.

To object on this ground, you need to go to court on the date specified and ask the court to set aside the subpoena.

Oppressive

If you believe a subpoena is too difficult or too time consuming or too expensive to comply with, you may argue in court that it is ‘oppressive’. Keep in mind that ‘inconvenient’ is not the same as ‘oppressive’. If in doubt, seek legal advice. A subpoena may also be oppressive if it is not specific enough about which documents it is seeking or if collecting and producing the documents is unduly onerous. If this is the case, it is a good idea to explain in your objection how it is so onerous. What makes it unusually difficult to comply with?

Objections based on specific protections

Information requested is privileged

The general law on subpoenas includes rules that shield certain types of information from disclosure in court cases. Some examples include:

  • Client legal privilege (also known as legal professional privilege)
  • Religious confessions privilege
  • Self-incrimination privilege
  • Public interest immunity
  • National security privilege (‘matters of state’)
  • Professional confidential relationship privilege (for example, between a doctor and patient, or social worker and client).
  • Sexual Assault Communications Privilege

Whilst the detail is different, these rules generally try to balance the competing interests of open justice, the rights of the parties, and others who might be affected by disclosure of the information.

Professional Confidential Relationship Privilege

If you are a doctor, social worker, counsellor or therapist (or anyone who provides confidential professional services to clients) you can ask the Judge or Magistrate to protect your documents or evidence in any court case. NSW law gives the Judge a discretion to maintain confidentiality if the harms of disclosure outweigh the desirability of the evidence being given. Otherwise, the requested information will be disclosed.

Even when the Court decides to release the information, objecting due to this privilege can give you and your clients reassurance that this really was necessary in the case. The Court can also put more stringent limits on what happens to the documents. For example, no photocopying, or only to be accessed by legal representatives.

This protection is additional to any protection given by the Sexual Assault Communications Privilege and applies in any NSW court case. Claiming privilege does not guarantee that confidentiality will be maintained. See Evidence Act NSW 1995 sections 126A and 126B.

Story icon Case study: Sue

Sue is a clinical nurse who assessed a man who was a suicide risk in police custody. The Judge in the criminal trial decided that the professional confidential relationship privilege applied to his conversations with Sue. Evidence of what he said to her was not admitted. The confidential relationship between Sue and the patient was protected. [Based on a real case R v Leung [2012 NSWSC 1451]

TIP / If you provide confidential professional services to clients, you can claim Professional Confidential Relationship Privilege in answer to any subpoena for your records. But it’s up to you to do this. Unless you tell the Court that the items requested by subpoena are sensitive and privileged, they will be treated like any other document.

Objections based on the Court’s obligation to ensure the proceedings are fair

Even if the SACP and Professional Confidential Relationship Privilege don’t apply, there may still be options available.

If you have privacy or other concerns about releasing information, asking the Court to use its discretion to limit access to material validly produced under subpoena might help.

How does this work?

After the Court has heard earlier objections and has control of documents produced under a subpoena, it still has to decide whether to give anyone else access to them. The Court has a broad power to decide what will best serve the interests of justice, including the ‘elucidation of truth’. But this does not automatically mean the disclosure of private information – far from it. For example, in National Employers Mutual Association Ltd v Waind and Hill [1978] 1 NSWLR President Moffitt said (at [383]):

"There may be good reason why [the Court] may, or indeed, should, refuse inspection of irrelevant material of a private nature, concerning a party to the litigation, or, concerning some other person who is neither a party or a witness."

Similarly, section 26 of the Evidence Act NSW 1995 gives a Court broad powers to control the evidence that is put before it.

Talk to a lawyer if you think these options might apply to you.

Records containing ‘child at risk’ reports

‘Risk of harm’ reports made to Family and Community Services cannot be produced in any court except in children’s care and protection proceedings, and then only in certain circumstances.

The identity of a person who made a child at risk report (including mandatory reporters) must not be disclosed to any person or body except with the consent of that person.4 A court may only order the disclosure of the identity of a person making an at risk report if it is of critical importance in the proceedings and a failure to admit the evidence would prejudice the proper administration of justice.

If you are subpoenaed for information that would disclose a child at risk notification or the identity of a maker of such a report, you can object to the subpoena as an abuse of process without confirming or denying the existence of those records.

You may be able to agree to protect the identity of a child at risk report maker and the child at risk report by copying the records requested and blacking out (‘redacting’) the relevant reports or information. Talk to a lawyer in these circumstances.

4 Children and Young Persons (Care and Protection) Act 1998 (NSW) s 29(1)(f).

TIP / If you use a permanent marker on typed print it is often possible to still read the print underneath. To ensure complete redaction, black out a photocopy of your records then photocopy it again.

Records detailing Victims Support and (statutory) victims compensation claims

Details of victims’ claims for counselling and other support are not generally “admissible” evidence. Similarly, the fact that victims compensation and “recognition” payments have been claimed (or made) cannot be used in most cases.

You cannot be required to produce evidence of this type even if it is requested by a subpoena: see Victims Rights and Support Act 2013, Section 113.

The Victims Commissioner can order information to be produced to the Commissioner though, to help in the investigation or assessment of a claim: Victims Rights and Support Act, Section 12.