Subpoenas: What do I do if I receive a subpoena?

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It can be stressful if you, either personally or through your business, receive a subpoena to either produce documents or attend court to give oral evidence. Whether it’s in a criminal trial or other legal proceedings, many people are unaware of their right to object to a subpoena and have a lawyer argue against their requirement to give or provide evidence. If a subpoena or a summons is issued against you, it’s important to be aware of your options. Broadly, there are a few things to look at in assessing your requirement to give evidence, particularly it’s important to assess whether you are capable of being compelled to give evidence, whether the evidence sought is actually in your custody or control and whether the evidence sought pursuant to subpoena is admissible.

Do I have to comply with a subpoena?

A subpoena or summons is an order of the issuing court and there are various penalties should you fail to comply without reasonable excuse. On the other hand, it is often possible to successfully object to a subpoena on a variety of grounds. In some instances, matters will be inadmissible and privileged and incapable of production being ordered unless that privilege is waived. In other instances it may be the case that to call a particular person to give evidence may be subject to a qualified public interest immunity as it may damage a particular relationship or involve the waiver of a class of privilege held by another party that has not consented to this.

In other circumstances, a subpoena may be held to be oppressive in circumstances where the material is sought or too broad to be reasonably complied with. In other situations the subpoena may be dismissed by application of the recipient because it characterises an exercise in ‘fishing’; this is where a subpoena seeks information in the hope that something may exist that would assist the issuing parties case, rather than any founded belief that the material actually exists.

What about the cost of compliance?

Generally an issuing party will need to provide ‘conduct money’ before the return date of the subpoena; this is money to reasonably cover the costs of the party served with the subpoena or summons; either in the production of documents or the attendance of a witness at the court. Where insufficient conduct money has been provided, the court and issuing party may be notified and a greater allowance negotiated or ordered. The costs of conduct nominated by a party, however, need to be reasonable and not to the extent of profiting from compliance with the subpoena.

What about search warrants?

Sometimes material will be gathered by an investigative body pursuant to a search warrant. In such instances compliance with the warrant is important as to do otherwise may constitute hindering police in the lawful exercise of their duty. In some circumstances it may be appropriate to ask the Police to wait and seek to file an urgent application in the Supreme Court to ensure that either the warrant is disallowed or that the material remains sealed and is held by the Court. This can be particularly important where sensitive commercial documents that may be subject to a privilege are seized pursuant to a warrant.

How do I know if subpoena is valid?

Culshaw Miller Criminal Lawyers act for people and corporations served with summons to appear or produce and subpoenas in criminal, civil and family law proceedings. The team at Culshaw Miller Criminal Lawyers in Adelaide can advise you as to your rights, obligations and discuss possible strategies to ensure that commercially or personally sensitive material can be protected to the highest extent possible. If you’ve been served with a subpoena or summons or have had a search warrant produced to you by police, Culshaw Miller Criminal Lawyers are available 24 hours a day to provide urgent advice or representation. For after hours advice, call (08) 8312 4520; to make an appointment to see one of our criminal solicitors, call 08 8464 0033. You can e-mail our Tom Cuthbertson for advice at tom.cuthbertson@culshawmiller.com.au