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Be careful about language when drafting subpoenas

Subpoenas to produce documents are commonplace in litigation of all kinds. They are a means by which a litigant can require non-parties to the dispute, to produce documents or other materials that may be relevant to issues that are in dispute. However, because subpoenas are Court orders that compel the recipient to produce documents, they need to be carefully directed to relevant documents.

It is commonly said, for example, that subpoenas cannot be used as a “fishing expedition” in the hope they will result in the production of useful material. Similarly, subpoenas cannot be drafted so widely that compliance with them is unduly onerous.

The Supreme Court recently dealt with a subpoena argument in the context of a dispute about the proper interpretation of a Letter of Understanding and Deed of Acknowledgment between a plaintiff and defendants. In broad terms, the Letter of Understanding was to the effect that the plaintiff would invest $10,000,000.00 in the first defendant company. A central issue in the case was whether, on its proper construction, that letter amounted to a loan repayable with interest; or an investment that was repayable early if certain condition had been met (but they had not).

The defendant issued subpoenas to the plaintiff’s solicitors and accountant for “all documents relating to” the Letter of Understanding and various other documents. Both subpoenas were sets aside.

The primary ground appears to be that the documents sought would not assist the Court to determine the proper construction of the Letter of Understanding because, at best, they would relate to the plaintiff’s subjective intention (whereas, when a Court must construe or “interpret” contractual documents, subjective intention is generally not relevant).

The Court went on the say, however, that it will rarely be appropriate to use the connecting phrase “relating to” in a subpoena. The phrase is very broad and too vague; and would necessarily compel the recipient to produce many documents that were not relevant to issues in dispute.  The subpoenas were set aside and the defendants were ordered to pay costs: Mac Wealth Holdings Pte Ltd v Integrated Green Energy Amsterdam BV [2020] NSWSC 351.

Liability limited by a scheme approved under Professional Standards Legislation

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