Compliance with summons, subpoenas and orders of discovery

Occasionally, agencies need to comply with requirements imposed by courts to produce or disclose documents needed for legal proceedings, including proceedings in which the Commonwealth is not a party. These requirements usually arise following the issue and service of a summons, subpoena or similar document in a proceeding, or by way of an obligation or court order.

Summons

A summons announces that a legal proceeding against the party summonsed has commenced and requires them to appear in court or respond in writing.

Subpoena

A subpoena is a court order requiring the giving of evidence, or the production to the court of documents, or both.

If served with a subpoena, an agency is obliged to either comply with it or apply to the court which issued the subpoena to set it aside.

A court will set aside a subpoena which is too wide or expressed in vague or general terms requiring the agency it is served on to make extensive searches through a huge volume of documents or to make fine judgements about the relevance of documents.

An agency served with a subpoena is entitled to recover reasonable costs of complying with that subpoena.

If the subpoena requires only the production of documents or a thing, an agency can comply by delivering the documents or the thing to the court which issued the subpoena within the time stated on the subpoena.

Discovery

Discovery is the process where parties to a legal proceeding identify and disclose to each other documents that are relevant to the issues in the proceeding. In some courts, an order for discovery may be made against a person or a body who is not a party to the proceeding.

Substantial obligations may be imposed upon agencies to whom an order for discovery is directed. Both processes require the agency to whom an order is directed to make a reasonable search for relevant documents, including documents held in a digital form, in their control. Performing a reasonable search may also require the agency to identify systems that have not been searched and documents that were, but are no longer, in the agency’s control. For example, potentially discoverable documents that have been deleted in accordance with a disposal schedule.

In recognition of the burden (including time and cost) that discovery can cause, courts are increasingly reluctant to order discovery of all documents which might relate to the issues in dispute in a court proceeding, but to limit the scope of discovery to only what is necessary or that can be carried out sensibly taking into account all of the circumstances, including the resources of the parties. Practice Note CM 5 – Discovery provides further guidance for discovery in the Federal Court.

Practice Note CM 6 – Electronic Technology in Litigation sets out a framework for managing the discovery of electronic documents in the Federal Court. It includes a checklist for parties to discuss the discovery of electronic documents at a pre-discovery conference and sample protocols to manage the exchange of discoverable documents between parties and the Court.

Depending on the circumstances, failure to comply with an order for discovery (e.g. to produce all documents falling within a stated description) may result in the agency being found in contempt of court.

Copyright National Archives of Australia 2017