SUBPOENAS – WHY AND HOW?

A subpoena is a legal document issued by a Court at the request of a party to a matter which compels another party to produce documents or to give evidence before a Judge at a Court hearing.
There are 3 types of subpoena:

1. A subpoena for production;
2. A subpoena to give evidence; and
3. A subpoena for production and to give evidence.

A subpoena can be issued to produce information pertaining to any individual relevant to the proceedings. In family law matters, this commonly includes police records, medical records, child protection records and school records. Importantly, it is not always possible to obtain this information by subpoena simply because it relates to a party involved in the matter. The party issuing the subpoena must be able to prove that the information that they are seeking is relevant to their case. Courts do not look lightly upon parties who issue subpoenas as part of a “fishing expedition” in an effort to uncover information which may or may not exist.

It is a requirement that the subpoena clearly outlines what information a party is seeking and includes the specific dates which are relevant to the proceedings. It is not simply a matter of requesting an individual’s entire medical history as the party issuing the subpoena may expose themselves to another party raising an objection to the production of those documents.

It is also expected that a party or their legal representative should make all reasonable attempts to obtain the required document or evidence before filing the subpoena.

To file a subpoena, a party must file the original document at the Federal Circuit Court or Family Court registry. They will also need to provide enough sealed copies to serve the person or organisation to which the subpoena is issued as well as each party in the matter. A filing fee is payable at the time that each subpoena is filed with the Court.

After the subpoena is filed, the party issuing the subpoena must arrange for it to be served on all relevant parties to the matter. If the subpoena requires a person to attend Court to give evidence, the subpoena must be served on that person or organisation by hand no less than 7 days before they are required to attend Court. If the subpoena requires a person to attend Court to give evidence and to produce documents, the issuing party must serve the subpoena by hand at least 10 days before they are required to attend Court to give evidence and to produce the material.

In circumstances where a person or organisation is required to produce documents only, the subpoena may be served by ordinary service at least 10 days before they are required to produce the documents to the Court.

Conduct money is also required to allow the named person or organisation to meet the reasonable expenses of complying with the subpoena. This may be used to cover travel costs if they are required to attend Court to give evidence, as well as a daily payment amount should they be required to be absent from their place of employment or residence. If the witness is an expert, the expert may provide the issuing party with a daily fee for their attendance at Court. Conduct money may also cover photocopying costs if the named person is required to produce documents. The issuing party should discuss with the named person or organisation to ascertain how much conduct money they require to comply with the subpoena. Otherwise, the minimum amount must be provided. If the conduct money is not paid, the named person or organisation is not required to comply with the subpoena.

As long as the subpoena is filed and served in accordance with the applicable Court filing fee and the necessary conduct money is paid, the subpoena must be complied with. A person who does not comply with a subpoena may be issued with a warrant for their arrest or they may face an Order for costs arising from their non-compliance.

A person or organisation served with a subpoena has the right to object to producing a document if they believe that the request for information is too broad, is irrelevant or is covered by privilege. If the objection is rejected or no objection is raised, the issuing party may then file a Notice of Request to Inspect the documents obtained by subpoena. Copies of documents may be taken by the inspecting party save and except for medical records, child welfare records or police records.

Parties in family law proceedings in the Federal Circuit Court are restricted to issuing a maximum of 5 subpoenas relating to the proceedings. However, an updated subpoena may be issued to the same person or organisation if new material is sought. Leave of the Court must be granted in order to file a subpoena to a new person or organisation if the limit is exceeded. There is no limit on the number of subpoenas that may be issued in proceedings in the Family Court.

If used appropriately, a subpoena may be a helpful tool in advancing a party’s case.

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