McCabes regularly receives correspondence from recipients of subpoenas to produce asserting that they do not intend to comply with the terms of a subpoena issued to them on the basis that insufficient conduct money has been provided.

Given the regularity with which we receive these types of responses, we consider that its time to set out a ‘refresher’ of the position, at law, with respect to compliance with subpoenas to produce.

Compliance with subpoena to produce

In NSW, a recipient of a subpoena to produce cannot refuse to comply with the subpoena on the grounds that no or insufficient conduct money was provided by the issuing party.

The authorities make plain that it is only after compliance with a subpoena to produce (that is, after the material sought has been produced) that an addressee is entitled to make an application to the court by way of notice of motion for the payment of their reasonable costs for compliance with the subpoena.

With respect to subpoenas to produce issued by the NSW Supreme Court, the appropriate time to bring an application for the reasonable costs of production is on the return date for the subpoena (i.e. the date stated on the subpoena by which the addressee is required to produce the relevant material).

This is distinct from the position with respect to a subpoena to attend to give evidence. That is, an addressee of a subpoena to attend is not obliged to comply with the subpoena to attend if conduct money sufficient to meet the addressee’s reasonable expenses of attending court is not provided prior to the required attendance date.

Relevant case law

One of the leading authorities for the proposition that an addressee cannot lawfully refuse to comply with a subpoena to produce where, in the addressee’s opinion, the conduct money is insufficient to meet the costs of compliance is set out in the decision of Austin J in Re Bauhaus Pyrmont Pty Ltd (in liq) [2006] NSWSC 253 which was reaffirmed by Brereton J in Hall v Donlon [2011] NSWSC 1088 at [4]:

… The requirements for the handing over or tendering of conduct money to an addressee are expressed in (NSW) Uniform Civil Procedure Rules 2005, r 33.6(1), as being limited to a subpoena to attend to give evidence. Thus the requirement for handing over or tendering conduct money does not apply to subpoenas for production.

However, pursuant to UCPR rule 33.11, the Court does have discretion to make an order that the issuing party pay the amount of any reasonable loss or expense incurred by an addressee in complying with the subpoena. In this regard, Brereton J went on to state at [5]:

… Ordinarily, that question is determined after compliance with the subpoena, when the addressee has incurred expenses.

Notwithstanding the ‘ordinary position’, it is at least conceivable that where the reasonable costs of compliance with a subpoena to produce are (a) likely to cause a significant burden on the addressee; and/or (b) in circumstances where there is a real concern that the issuing party may not be able to satisfy a costs order relating to the costs of production, an application could be made under the Court’s inherent jurisdiction for the payment of compliance costs prior to compliance with the terms of the subpoena: Re Bauhaus at [16].

Reducing costs

Producing subpoenaed material by electronic formats may assist in reducing both the costs of an addressee’s compliance with the subpoena as well as the costs and time involved in the issuing party reviewing the produced documents.

It useful to remember that, with the introduction of UCPR rule 33.6(7) in 2011, an addressee may comply with a subpoena to produce by producing a copy of the documents requested in any electronic form that is acceptable to the issuing party. It is now commonplace in NSW for subpoenaed material to be produced on USB or other electronic storage device.

Issuing parties should remember to identify any acceptable electronic formats by which the subpoenaed material can be produced (either in a letter accompanying the subpoena to produce or in the subpoena schedule).

Recommendations for addressees

As an addressee, you have a legal obligation to comply with the subpoena to produce regardless of the amount of conduct money provided. Failure to comply with a subpoena to produce is a contempt of court and may result in a warrant being issued for your arrest.

If you believe the conduct money is insufficient to cover the reasonable costs of compliance, you may apply for an order of the court seeking reimbursement for the reasonable costs that you have incurred after you have produced the documents requested. You should bring any such application on the return date of the subpoena.

That being said, there is utility in first seeking to obtain an agreement or undertaking from the issuing party (prior to compliance) regarding the payment of your reasonable costs. If you provide an itemised breakdown of the reasonable costs you are seeking, an issuing party may be more amendable to the costs you propose.