The forms of subpoena to produce used in most courts now contain extensive notes that explain how to comply with the subpoena. These should be followed. Subject to that requirement, the following steps should be taken to respond to a subpoena to produce:
- Check the validity of the subpoena to produce. The document should bear the issuing court’s seal and must have been served on or before the date specified in the subpoena as the last date for service.
- Identify the documents that must be produced in response to the subpoena. If the request contained in the subpoena is very broad or vague, consider seeking legal advice about having the subpoena set aside. Alternatively, it may be possible to negotiate the scope of the requirements in the subpoena with the party who caused it to be issued. Where possible, this may be preferable to having the cost and risk of trying to have the subpoena set aside.
- Collect and copy the documents for production, unless the subpoena specifically requires you to produce the original documents. In many cases documents can now be produced electronically (e.g. on USB or CD-ROM). The subpoena will ordinarily state this if it is the case.
- Identify any privileged documents and place them in a separate bundle clearly marked as privileged and not to be inspected.
- Complete the Declaration appearing on the last page of the subpoena and attach it to the subpoena or copy of the subpoena that accompanies the documents or things produced to the Court under the subpoena.
- Produce the documents to the Court by:
- delivering or posting the documents to the Registrar at the address specified in the subpoena for that purpose so that they are received no less than 2 clear days before the return date of the subpoena; or
- attending Court on the return date of the subpoena to produce the documents to the Court in person.
Contact the issuing party to negotiate an extension if further time is needed to respond to the subpoena. If the issuing party does not agree to an extension, it will be necessary to attend the Court on the return of subpoena date to seek an extension from the Registrar, who will most usually grant reasonable requests for extensions.