Cost of complying with a subpoena
In court cases parties may issue subpoenas to people who are not involved in the case to produce documents relevant to the case to the court. When a subpoena is issued to a third party that person may be put to trouble in searching for and gathering together the documents and providing them to the court.
People who are complying with a subpoena are entitled to be paid by the party who issued the subpoena an amount which is sufficient to meet the ‘reasonable expenses’ of complying with the subpoena. In a recent case, the court considered what would be reasonable ‘recompensable expenses of complying with a subpoena’.
Facts: In a property settlement case, the husband issued a subpoena to produce documents to the wife’s mother. The wife’s mother objected to the production of all but 2 of the documents in the subpoena. The court ordered that the wife’s mother only needed to provide a narrow collection of documents
After the decision the wife’s mother asked the court to order that the husband pay her costs of compliance with the subpoena or alternatively, her legal costs in bringing the application to set aside the subpoena. The claimed expense was $21,843.56 consisting of $20,243.06 in legal fees and $1,408.00 personal costs of responding to the subpoena and obtaining a report from her medical practitioner and accounting services.
Court Decision: The court found that the wife’s mother failed to satisfy the court that the legal fees nor the personal expenditure were ‘reasonable expenses in complying with a subpoena’.
With respect to the wife’s mother’s alternate claim, given the wife’s mother was substantially successful in having the collection of documents to be produced narrowed, the court was persuaded that there were circumstances justifying the making of an order that the husband pay the wife’s mother’s legal costs for her objection to the subpoena. The court ordered the amount payable to the wife’s mother was to be agreed between the parties or as assessed by a costs assessor