What is a subpoena?
A subpoena is a legal document. It is a court order issued at the request of a party to the proceedings, who believes that a person, who is not otherwise involved in the legal issue, possesses relevant documents or information.
A subpoena issued by a lower court, such as the Magistrates court may be called a ‘summons’ but in all other respects it will conform to the requirements of a subpoena. A subpoena compels a person to produce documents or give evidence in court proceedings.
Requirements and processes relating to subpoena’s vary according to the jurisdiction and type of Court e.g. Civil, Criminal, Children’s or Family Courts. The information contained on this website is relevant to NSW only.
Responding to Subpoenas
Schools are frequently served with subpoenas to either produce documents and/or occasionally to employees to give evidence relating to various court matters from personal injury actions to family court disputes.
There are three types of subpoenas:
- Subpoena for Production: A court order that requires production of documents to the court
- Subpoena to Give Evidence: A court order that requires a person to attend court to give evidence
- Subpoena for Production and to Give Evidence: A court order that requires production of documents and to attend before the court to give evidence.
Subpoena for Production
Responding to a subpoena to produce documents can be burdensome and time consuming. Conduct money should accompany the subpoena as well as a schedule detailing what documents are required to be produced.
Conduct money should be provided in order to comply with the subpoena. If the costs of complying with the subpoena (for example legal costs and photocopying) exceed the conduct money a request for additional costs can be made to the issuing party. If denied, the school can make an application to the court.
Schools can also request the issuing party to narrow the scope or the school can make an application to set it aside if the subpoena cannot be properly answered, is too vague or broad, sought for improper purpose or if complying causes an undue burden. The fact that the documents sought under subpoena are confidential or contain personal information does not mean that the subpoena may be set aside. However, if the documents attract legal professional privilege then this may make them exempt from disclosure, but the documents will still need to be produced to the Court.
Subpoena to Give Evidence
When served with a subpoena to give evidence, the employee must comply with it and attend court on the date specified on the subpoena. If they do not comply, a court may issue a warrant for their arrest and order payment of any costs caused by the non-compliance. A court may also find the employee guilty of contempt of court.
Subpoena for Production and to Give Evidence
If the subpoena requires an employee to give evidence and produce documents, they must attend court on the date specified on the subpoena and produce the documents set out in the schedule.
The information contained on this website is of a general nature only and does not constitute legal advice. There may be other obligations imposed on schools in relation to responding to a subpoena that are not mentioned here. If your school needs help with responding to a subpoena related issue, you can contact the CSNSW Legal Hotline on 1800 4CSNSW (1800 427 679).