The Pitfalls of Subpoenas

A. Legislative context

1. Subpoenas are governed by Part 33 of the UCPR. Rule 33.2 states that:

The court may…by subpoena order the addressee:

(a) to attend to give evidence as directed by the subpoena, or
(b) to produce the subpoena or a copy of it and any document or thing as directed by the subpoena, or
(c) to do both of those things.

This paper focuses on subpoenas for production.

Rule 33.3 deals with the form of subpoenas and provides for some requirements as follows:

a. a subpoena must not be addressed to more than one person;
b. a subpoena must identify the addressee by name or by description of office or position;
c. identify the document or thing to be produced;
d. specify the date, time and place for production. The place specified for production may be the court or the address of any person authorised to take evidence;
e. the last date for service of a subpoena is the date falling 5 days before the earliest date on which an
addressee is required to comply with the subpoena or an earlier or later date fixed by the court;
f. If the addressee is a corporation, the corporation must comply with the subpoena by its appropriate
or proper officer.

Rule 33.4 deals with setting aside of subpoenas and provides that the court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it. Such application must be made on notice to the issuing party. The court may order that the applicant give notice of the application to any other party or to any other person having a sufficient interest.

 B. The Case Law

Setting aside an improper subpoena

This topic is addressed first as when one knows what makes subpoenas susceptible to being set aside, one will know how to draft them to avoid such susceptibility.
The law governing the setting aside of subpoenas is set out in the common law.
Although this paper dealt with the State legislative context, the following principles also apply to the subpoenas issued in the federal jurisdiction.
Generally, other than matters of non-compliance with the form as set out in rule 33.3 of the UCPR, ill drafted subpoenas can suffer from any one or more of the following issues:

a. the subpoenas lack a legitimate forensic purpose;
b. the subpoenas are an abuse of process;
c. the subpoenas are oppressive;
d. the subpoenas are directed to the wrong person.

The broad overlapping principles of law are explained in the forgoing.

A subpoena must be issued in good faith and for a legitimate forensic purpose, and this will be so when the documents sought are relevant to a fact in issue.

The only legitimate purpose of requiring the production, and permitting the inspection of, a stranger’s documents can be to add, in the end, to the relevant evidence in the case.

In terms of relevance the Courts have provided the following guidance:

a. That the appropriate test that must be applied is that of “apparent relevance to the issues”. The test of “apparent relevance” is:

“[d]oes the material sought have apparent relevance to the issues in the principle proceedings, ie is adjectival, as distinct from substantive, relevance established?”

The test for adjectival relevance is satisfied if the material has apparent relevance. That is, whether the documentation called could possibly throw light on the issues in the main case.

A subpoena will be set aside if it represents an exercise in ‘fishing’. That is, if the subpoena is served not for the purpose of requiring production of specific documents which the person subpoenaed is reasonably expected to hold, but with the intention of seeing what documents may exist, and whether the issuing party has a case at all. There must be something beyond speculation, some reasonably based ground for belief that takes the demand beyond a mere fishing expedition.

The fundamental test is that a subpoena must describe with reasonable particularity the documents for which it calls. This is a judgment that must be made by reference to an individual subpoena, and in the circumstances of a particular recipient of the subpoena.

A subpoena is liable to be set aside as oppressive if it is cast in terms that it places on the person to whom it is addressed the same kind of burden as is placed on a party required to give discovery of documents. In this sense, a subpoena must not require the recipient to form a judgment about the issues between the parties and the relationship of the documents to those issues.

A subpoena is also liable to be set aside as oppressive if, although not amounting to an obligation tantamount to discovery, it nonetheless imposes an onerous task on the recipient to collect and produce documents many of which can have no relevance to the litigation. That is, a subpoena must be couched in terms of reasonable particularity, and if it calls for the production of a large number of documents of doubtful relevance, it will be regarded as oppressive and abuse of process.

A subpoena requiring production of documents held by a corporation should be directed to the corporation itself, requiring production by its proper officer. A subpoena should not be served upon an employee of a corporation (an employee does not “control” the documents, his employer does) nor upon a director unless the director has authority of the corporation to produce the documents or where the director effectively owns and controls the corporation.

C. Drafting tips

The essential point is that a person issuing a subpoena must take care, particularly in the case of a subpoena addressed to a non-party, not to cast on that person an unreasonable burden in the nature of discovery.

It should be plain to the recipient of a subpoena what they need to produce. Conversely, one needs to be careful about being too particular or specific to avoid missing production of useful documents.

Use precedents wisely – don’t follow them blindly.

Avoid phrases such as “relating to…” or “documents evidencing…”. These phrases imply the use of judgment by the subpoena recipient. Instead use words like “documents comprising…”, “documents setting out…”, “documents stating…”.

Try and inform yourself about the documents that may exist by calling the subpoena recipient (if third party and not legally represented – consider ethical issues). Calling and engaging will allow you to be more particular.

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