A subpoena is a written court order issued on the request of a party involved in court proceedings, to another party as a way of obtaining evidence for use in those proceedings. The RMB Compensation division explains they play a crucial role in litigation and allow parties to obtain evidence to support their case.
Often a party will refuse to comply with a subpoena, claiming it is too broad and is being used to find information beyond its intended purpose.
They will claim that the party issuing the subpoena is casting a wide net in the hope of catching something, and therefore the term “fishing expedition” is used.
But how can you make sure that the subpoena is not merely a fishing expedition?
The issues have been set out in a long list of case law on the topic.
As was noted in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Ltd, a subpoena does not constitute a “fishing expedition” where there are reasonable grounds to believe that fish of the relevant type are contained in the pond. That is, if it is reasonably considered that a subpoena is issued to target a specific type of fish, it will not be an “expedition”.
This is particularly relevant where fundamental issues have arisen and/or occurred over long periods and are unlikely to be “one off”. For example, if an injury is caused by maintenance issues, then such issues are unlikely to have arisen randomly and as a “one off”. It is more likely that those issues have presented problems over a long period, and the documents surrounding past issues and attempts to fix them are likely to exist (and therefore fish of that type will be in the pond).
In the decision in R v Saleam (1989) 16 NSWLR 14 (at 18), the court also placed emphasis on the need for the identification of a legitimate forensic purpose for which the subpoena was issued and that it is “on the cards” that the documents sought would materially assist the party issuing the subpoena.
For example, returning to a situation where injuries arise from maintenance issues, the history of past problems and the party’s knowledge of those issues are highly relevant (and would “materially assist”) in establishing negligence because of the requirement to prove that an injury was reasonably foreseeable.
The “fishing expedition” excuse for non-compliance with subpoenas is overused and often claimed in circumstances where the documents should be produced.
If you would like to speak to a lawyer who specialises in subpoenas, please contact our office to arrange a free consultation. You can contact us by by phone or our 'Ask a Question' tool on ourwebsite.