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Subpoenas – who should pay for compliance costs?

Victor Harcourt, Sven Edquist, Jonathan Williams

Your organisation may find itself having to comply with obligations to produce documents to the court, even if it is not a party to a legal dispute. If so, there are steps you may take to protect your organisation and recover the costs of complying with the subpoena.

A subpoena will often attach a cheque for a nominal sum of money for compliance costs however the amount rarely covers the hours spent searching, checking, redacting and collating documents. The costs of complying with subpoenas can mount up, especially when a file search produces voluminous electronic files and documents. 

Thankfully, the courts have recognised that an organisation that complies with a subpoena is entitled to have costs and expenses reimbursed so that it is not out of pocket as a result, particularly in circumstances where it has no interest in the relevant proceedings. If you are served with a particularly onerous subpoena, you may seek an order from the Court requiring the issuing party to pay the amount of any reasonable loss or expense incurred in complying with the subpoena.

In addition to the costs of collating and copying documents, recoverable expenses may include:

  1. Advice as to the validity of the subpoena and whether the addressee should comply with it at all or in part.
  2. Correspondence with the issuing party regarding the subpoenas terms particularly with a view to narrowing or clarifying the scope of documents to be produced.
  3. Advice as to whether documents need not produced because they are subject to claims for privilege.
  4. Advice as to whether inspection of documents may be restricted on the basis of confidentiality including correspondence, attendances and negotiations with the issuing party as to the terms for inspection.
  5. Attendances in court on the return of the subpoena including attendances to assert that the subpoenaed documents should be protected from unrestricted access due to their confidential character and ensuring confidentiality undertakings have been properly given.

If you do seek an order for compliance costs you must show that the expenses were incurred in compliance with the subpoena and were reasonable. The documents to be produced should be described in the schedule of the subpoena with reasonable particularity. Accordingly, where a subpoena is defective or too broad, a greater sum in compliance costs will be reasonable, particularly if the subpoena is set aside.

After being issued with a subpoena, it is important to consider the scope of the documents described in the subpoena. If the documents are described in vague and broad terms, you may be able to limit your costs of complying with the subpoena by contacting the issuing party to identify if the documents being sought can be further clarified and more confined.

Further, before complying with the subpoena, you must give notice to the issuing party that substantial loss would be incurred in complying, including an estimate of the loss or expense. After giving this notice, you may find that an issuing party will be keen to further clarify and confine the scope of the documents that they are seeking.

If your organisation is served a subpoena in litigation it is not a party to, you should consider obtaining legal advice about your obligations and your ability to recover the costs associated with compliance.

We are here to help

Contact one of our expert team members, Victor Harcourt, Sven Edquist or Jonathan Williams, from our aged care team if you have any questions regarding subpoenas and your rights and obligations.

If you would like to keep up to date with Alerts, news and Insights from our aged care team, you can subscribe to our mailing list here. We also have a broad range of standard and tailored template aged care agreements, policies and other documents you can find more information about here.

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