Handling a Subpoena: A Guide for NFPs & Charities

Introduction

Receiving a subpoena can be a challenging experience for not-for-profits (NFPs) and charities, as it requires careful handling to ensure compliance with court requirements and protect your organisation’s interests. This guide provides practical information to help you understand what a subpoena is, what steps to take when one is issued, and how to manage issues such as privilege, confidentiality, and compliance expenses.

Consulting an NFP lawyer is highly recommended, as legal advice is essential for responding to a subpoena, especially when dealing with complex disputes or confidentiality issues. By following this guide, your organisation can respond confidently and appropriately to any subpoena, reducing the risk of legal complications and ensuring your obligations to the court are met.

Understanding What a Subpoena Means for NFPs

What Is a Subpoena

A subpoena is a formal court order issued by a court or tribunal at the request of a party involved in a legal case. This legal document compels the person or organisation it is served on, known as the subpoena recipient, to either provide evidence, produce documents or other items, or both.

It is important to understand that being served with a subpoena does not make your NFP a party to the court proceedings. Instead, you are considered a third party holding relevant information.

While the term ‘subpoena’ is most common, some courts or tribunals may use different names for a similar type of order, such as:

• Witness summons
• Third party notice for production

Regardless of the name, the legal obligation to comply remains the same. A subpoena is distinct from a search warrant, which is a court order that permits authorities to enter and search your premises.

The Different Types of Subpoenas Issued by a Court

When handling a subpoena, it is crucial to first understand what it is asking of your organisation. A court can issue different types of subpoenas, each with a specific requirement. The main types your NFP might receive include:

• A subpoena to attend: Also known as a Subpoena Ad Testificandum, this order requires an individual from your organisation to appear in court or a tribunal on a specific date to provide evidence as a witness.
• A subpoena to produce: Also called a Subpoena Duces Tecum, this is a common type for organisations and requires you to produce specific documents, records, or other tangible items to the court.
• A subpoena to produce and to attend: This is a combination of the two types above, requiring an individual to both attend court to provide evidence and produce specified documents.

NFP’s Initial Steps for Handling a Subpoena

How to Verify the Subpoena Is Valid

Upon receiving a subpoena, your first step is to confirm its validity. An invalid subpoena may not need to be complied with, so checking these details is a crucial part of the process.

You can verify the document by checking for several key features:

• Look for a court seal or stamp. The document should have a “filed” stamp or an official court seal, which proves it was issued by a court or tribunal. If you have any doubts, you can contact the relevant court to confirm they have a record of it.
• Check the date of service. A subpoena will specify a “last date for service.” If you received it after this date and cannot meet the compliance deadline, you should contact the issuing party to request an extension.
• Ensure correct service procedure. Each court has rules for how a subpoena must be delivered. This often means it must be handed to a person directly or left at their business premises. For example, the Corporations Act 2001 (Cth) specifies that a company can be served at its registered office.
• Confirm provision of conduct money. You should be provided with a small payment, typically between $30 and $50, to cover immediate reasonable expenses like travel. If conduct money was not provided, you should raise this with the issuer, as in some cases, you may still be required to comply.

Key Things Your NFP Must Not Do

When handling a subpoena, certain actions can lead to serious legal consequences. It is essential to avoid these mistakes to protect your organisation from penalties.

Most importantly, you must not ignore the subpoena. A subpoena is a formal court order, and failing to comply without a lawful excuse constitutes contempt of court. This can result in penalties such as:

• Fines
• An order to pay the other party’s costs
• In rare instances, imprisonment

Additionally, you must not destroy any documents requested in the subpoena. Once you have been served, you are legally obligated to preserve all relevant information. Destroying documents, even if it aligns with your organisation’s routine document disposal procedures, can have severe consequences if it is found to be a deliberate attempt to avoid production.

A Practical Guide to Responding to a Subpoena to Produce

How to Correctly Produce Documents for the Court

When responding to a subpoena to produce, you must provide the documents to the court or tribunal, not to the issuing party.

You can either attend court on the specified return date to hand them over in person, or send them to the address listed in the subpoena. If posting, ensure they are received at least two clear days before the return date.

Unless the subpoena specifically requests originals, produce clear copies and keep the originals for your own records. If you must hand over originals, always make a copy for your NFP.

Some courts permit electronic production of documents (for example, on a USB). It is worth contacting the court to confirm whether this option is available.

To ensure the court handles your documents properly, follow these packaging steps:

• Place the documents in a sealed envelope or secure bundle.
• Clearly label the package with the court proceedings number and details of the parties.
• Add your organisation’s details as the subpoena recipient.
• Attach the completed declaration form usually found on the last page of the subpoena.

If a thorough search reveals none of the requested documents, you must still respond. Send a copy of the subpoena to the court together with a covering letter and the completed declaration, stating that no relevant documents are in your possession or control.

Common Grounds for an Objection or Dispute

Your NFP is not required to comply with a subpoena if there are valid grounds to object. You can apply to the court to have the subpoena set aside or try to negotiate a narrower scope with the issuing party.

Common reasons for disputing a subpoena to produce include:

• The request is too broad or oppressive: The subpoena may be a “fishing expedition” if it lacks specificity and demands an unreasonably large volume of documents.
• Compliance would be excessively onerous: Gathering the documents would be extremely time-consuming and burdensome for your organisation.
• The documents are not relevant: You may object if the requested material does not appear relevant to the facts in issue.
• The request has an improper purpose: A subpoena cannot be used for purposes other than the legal proceedings for which it was issued.

Seeking legal advice is strongly recommended if you believe you have grounds to dispute the subpoena, as a lawyer can help you formally apply to the court or negotiate with the issuing party.

Managing Privilege & Confidentiality Issues

You must produce all subpoenaed documents to the court, even if they contain privileged or confidential information. However, a specific process exists to protect such material from general inspection.

For documents you believe are subject to privilege (for example, communications with your lawyer), first collate them separately. Place them in a sealed envelope or folder clearly marked ‘PRIVILEGED AND CONFIDENTIAL’ and ‘not to be inspected’. Then attend court on the return date to request a no-access order for those documents.

If documents contain other confidential information, you can still protect them. You should:

• Place the confidential documents in a separate, clearly marked bundle.
• Contact the issuing party before the return date to see if you can agree on a confidentiality undertaking.
• Apply to the court for orders limiting who can access and inspect the documents, such as restricting access to the parties’ lawyers only.

A Practical Guide to Responding to a Subpoena to Attend Court

What to Expect & How to Provide Evidence in Court

When a subpoena requires an individual from your organisation to attend court, they will be providing evidence as a witness under oath or affirmation, which is a legally binding promise to tell the truth. It is important to be punctual and dress appropriately for the court hearing.

When in the witness box, there are several key principles to follow to ensure you provide clear and honest evidence. Your role is to assist the court, not to favour one party over another.

To provide evidence effectively, you should:

• Listen carefully to every question. If you do not understand a question or a specific word used, ask for it to be repeated or clarified before you answer.
• Only answer the question asked. Avoid providing extra information that was not requested, as this can complicate your testimony.
• Speak only about what you know. Your evidence should be based on what you have personally seen or heard, not on assumptions or guesses about what might have happened.
• Be honest if you do not know the answer. It is perfectly acceptable to state that you do not know the answer to a question. You should not feel pressured to provide information you are unsure about.
• Do not argue with the lawyer. Maintain a professional demeanour and focus on providing truthful answers, even if the questioning becomes difficult.

What to Do if You Cannot Attend the Court Hearing

If you are unable to attend court on the specified date due to circumstances such as illness or being overseas, you must not ignore the subpoena. A subpoena is a formal court order, and failure to appear can have serious consequences.

The correct first step is to contact the issuing party promptly to explain the situation. The contact details for the issuer, often a lawyer, will be on the subpoena document.

By communicating early, you may be able to:

• Arrange an alternative date for attendance, or
• Be excused from attending on that specific day.

Conclusion

Successfully handling a subpoena requires a practical understanding of your obligations, from verifying the document’s validity to correctly producing documents or attending court. Properly managing issues like privilege, confidentiality, and compliance expenses is crucial to protecting your organisation throughout the process.

If your not-for-profit is responding to a subpoena, seeking expert legal guidance is a critical step in protecting its interests and ensuring a compliant response. Contact the experienced not-for-profit lawyers at LawBridge today for specialised assistance from dedicated not-for-profit lawyer professionals in managing the subpoena process and upholding your legal obligations.

Frequently Asked Questions