Responding to a subpoena

Receiving a subpoena can be intimidating and confusing. Whether you’re a witness, a party to legal proceedings, or holding relevant documents, understanding how to properly respond to a subpoena is crucial to protect your rights and fulfill your legal obligations. This guide walks you through the essential steps of responding to a subpoena correctly and avoiding potential legal consequences.

What is a Subpoena?

A subpoena is a legal document issued by a court or tribunal (usually on behalf of a party) that, subject to exceptions, compels you to either give evidence (subpoena to give evidence) and/ or produce documents (subpoena to produce documents). There are three main types of subpoenas in Australia:

• Subpoena to Give Evidence: Requires you to attend court or tribunal to provide testimony
• Subpoena to Produce Documents: Requires you to provide specific documents or records
• Subpoena for Both Evidence and Documents: Combines both requirements

First Steps After Receiving a Subpoena

1. Don’t Panic or Ignore It

A subpoena is a legally enforceable court order. Ignoring it can result in serious consequences including contempt of court charges, fines, or even imprisonment. Take immediate action once received.

2. Review the Subpoena Carefully

Examine these key details:

• Issuing court or tribunal: Which court issued it?
• Case name and number: Identify the proceedings
• Date and time of compliance: When must you respond?
• Type of subpoena: Testify at a hearing, produce documents, or both?
• Specific requirements: Exactly what is being requested?
• Conduct money: Am I entitled to compensation for having to comply? 

3. Note the Response Deadline

Subpoenas have strict time limits. Most require compliance within a specific timeframe, typically 10-28 days from service. Mark your calendar immediately.

Legal Requirements for Subpoena Compliance

For Subpoena to Produce Documents

1. Locate and preserve all requested documents
2. Make copies (keep originals safe)
3. If required to produce deliver to the court registry before the deadline
4. Receive any required conduct money

For Subpoena to Give Evidence

1. Clear your schedule for the specified date
2. Prepare your testimony (but don’t discuss with other witnesses)
3. Arrive at court early on the day
4. Bring identification and the subpoena
5. Wait to be called to give evidence

Valid Grounds for Objecting to a Subpoena

You may have legitimate grounds to challenge a subpoena, including:

1. Oppressivley Expensive

If compliance with the subpoena would be oppressive to you because substantial expenses to comply with the subpoena may not be reimbursed by the issuing party, you may apply to have the subpoena set aside or varied.

2. Lack of Relevance

The requested documents or evidence must have a legitimate connection to the case. Subpoenas which are irrelevant, or considered to be too broad or issued due to an apparent finishing expedition, requests may be challenged.

3. Privileged Information

Certain documents are protected by legal privilege, example are:

• Legal professional privilege: Communications with your lawyer
• Without prejudice privilege: Settlement negotiations
• Medical privilege: Confidential doctor-patient communications

4. Not Compliant with Formal Requirements

Subpoenas that do not comply with the formal requirements may be challenged. 

How to Object to a Subpoena

1. File a Notice of Motion or Application with the issuing court
2. Serve copies on all parties to the proceedings
3. Attend the hearing to present your objections
4. Provide evidence supporting your objections
5. Await the judge’s ruling before taking further action

Consequences of Non-Compliance

Failing to properly respond to a subpoena can result in:

• Contempt of court charges
• Fines or monetary penalties
• Imprisonment in extreme cases
• Costs orders against you
• Adverse inferences drawn in proceedings
• Warrant for your arrest (for failure to appear as witness)

Practical Tips for Responding

Document Production Tips

• Organize documents chronologically or by category
• Create an index of documents produced
• Identify any specific documents you object to producing 
• Keep copies of everything you submit
• Obtain a receipt from the court registry

Witness Preparation Tips

• Review relevant documents beforehand
• Dress appropriately for court
• Speak clearly and directly to the question
• Answer only what is asked
• Be honest – giving false evidence is perjury

When to Seek Legal Advice

Consult a lawyer if:

• The subpoena requests privileged information
• Compliance would be extremely burdensome or costly
• You’re unsure about your obligations
• The subpoena appears invalid or improperly served
• You’re a party to the proceedings
• Criminal charges are involved
• You are concerned that your compliance with the subpoena may not be in your best interests.  

Costs and Expenses

You’re generally entitled to “conduct money” – reasonable expenses for complying with a subpoena:

• Witness fees: Usually a daily allowance
• Travel expenses: To and from court
• Accommodation: If required to stay overnight
• Document copying costs: Reasonable copying expenses

Request conduct money from the issuing party before compliance if not provided with the subpoena.

Special Considerations

For Employees and Businesses

If subpoenaed in your professional capacity:

• Notify your employer immediately
• Check workplace policies
• Determine if legal representation will be provided
• Consider confidentiality obligations to third parties

For Medical Professionals

Special rules apply to patient records. Generally, you may need patient consent or a court order to release medical records, even with a subpoena.

Step-by-Step Response Checklist

✓ Review all requirements and deadlines

✓ Seek legal advice if uncertain

✓ Object within timeframe if necessary

✓ Gather/organize requested documents or prepare testimony

✓ Ensure compliance by the deadline

✓ Keep copies of all communications and submissions

✓ Claim expenses if applicable