Gone fishing

In a previous article, we addressed some of the pitfalls of drafting subpoenas and provided some tips and tricks for the drafting of subpoenas (see “The Pitfalls of Subpoenas”). Since that article, the NSW Court of Appeal has addressed the issue again with a timely warning to insurers that improperly drafted subpoenas will be set aside, in whole or in part.

In Lowery v Insurance Australia Limited,[1] the NSW Court of Appeal reiterated that the issuing of subpoenas which constitute fishing, or are issued without a legitimate forensic purpose, will be set aside in whole or in part, even if the subpoenaed party produces documents. In this case, a number of subpoenas were issued on behalf of the insurer defendant upon a number of telephone companies, the Commissioner of Police, and Roads and Maritime Service. The majority of the NSW Court of Appeal set aside the entire subpoenas upon the telephone companies and sections of the remaining subpoenas. In justifying these orders, the majority of the Court reiterated:

• Subpoenas issued relating to the credit of parties should not “trawl speculatively” for documents that may possibly be used to impugn a witness’ credit;
• Documents relating to credit should be limited to relevant matters, in this case, matters that involved dishonesty. Again, it appears that some specificity of this dishonesty is required, not simply seeking production to determine whether any such documents exist;
• Subpoenas to telephone companies ought to be limited to the phone numbers of specific individuals, alternatively, be limited by a reasonable period of time; and
• Finally, it is not the role of the Court to redraft subpoenas – if the subpoenas are improperly drafted and constitute an abuse of process, then they will be set aside in whole or in part.

As the Court made clear, it is unusual for the Court of Appeal to consider an appeal arising from an interlocutory judgment; however, the Court considered the precedential value as justification to entertain the appeal. In such circumstances, the judgment provides guidance for insurers and litigants to properly consider the scope of any subpoena to be issued. A careful reading of the judgment provides a number of clues as to what the Court of Appeal would have considered appropriate for the subpoenas to have been valid.