What’s the Difference Between a Subpoena and a Notice to Produce?

Subpoenas and notices to produce are documents which obtain information during Court proceedings. Although both serve to obtain information, they are used in different circumstances.

Subpoena

A subpoena is a writ or order which requires someone or an organisation to provide evidence. This evidence can be by way of testifying during trial or providing documents. Subpoenas are not issued to the parties in the proceedings. Rather, they are issued to third parties who possess information. The Court registry will then file your Subpoena, where you will also have to pay a filing fee. Once lodged, you have to issue the Subpoena on the subject as well as the other parties in your matter.

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The subject of the Subpoena can object to it if they do not possess the information sought or if the descriptions in the Subpoena are too broad. Further, the Court may set aside the Subpoena if it is not drafted properly. Common objections include:

  • If the subpoena is requesting information protected by legal professional privilege
  • When the content of the Subpoena is oppressive
  • If the content of the Subpoena is irrelevant to the matter at hand

If your subpoena is objected to, you will be allocated a hearing date to determine whether the Subpoena should be set aside.

Once a subpoena has been filed and served, the recipient must comply. If your subpoena is seeking documents, the subject may charge a fee for copying the documents, known as ‘conduct money’.

Example

You are in the midst of a property dispute with your former spouse. You want to obtain their individual bank statements because you believe that they have been siphoning money from your joint bank account. Your lawyer issues a Subpoena on the bank requesting the documents. The bank charges a fee of $50 to obtain and copy the documents.

Notice to produce

By contrast, a notice to produce is a document which requests information directly from another party to your matter. Notices to produce ordinarily refer to documents or items in the possession of another party. The party who receives the notice has to produce the document within 14 days, or another time specified by the Court.

Unlike a subpoena, it does not force the recipient to produce the documents but instead lays the foundation for the submission of secondary evidence. Subpoenas and notices to produce are nota form of discovery, which is its own process.

Subpoenas and notices to produce are important Court documents that allow you to obtain the information you’ll need to build a strong case. If you issue a Notice to Produce or Subpoena, it’s important that your lawyer draft it correctly. Further, if you receive one, it’s important that you comply unless you have reasonable grounds to object to it.

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