March 2018

What happens after you’ve produced? Implied Undertakings and Subpoenas

Once you have produced documents to a court under a subpoena, you might wonder what happens to those documents and how they might be used against you (especially in circumstances where you’re not a party to the proceedings).

So far, we have looked at what a subpoena is, how to comply with one served on you, and how to protect sensitive and privileged documents.

In this fourth and final instalment of our series on subpoenas, we look at how documents produced under subpoena can be admitted as evidence, and the rights of persons who produce those documents.

Production and Entry into Evidence

When you produce documents to a court under a subpoena, those documents do not automatically become admitted into evidence in the proceedings.

On the return date of a subpoena (which is noted on the subpoena form), there is a hearing at the Court where parties to the proceedings and third parties who are producing documents can ask the Court to make orders as to who can access the documents and at what time.

For example, a party may be given access to the documents prior to another one, so that it can review the documents first and remove any legally privileged documents before the other side reviews them.

It is quite common for parties to a proceeding not to attend the return of subpoena if documents have been produced and the proposed access order (which is noted on the subpoena form) does not prejudice their case.  If the parties do not object to the access order, the Court simply makes the order in accordance with the terms of the subpoena.

Once access orders have been made, the parties will then have the ability to review the documents produced. If a document produced is relevant to one party’s claim or defence, they will then need to put that document into evidence in the proceedings.

This can be done by:

  • attaching the documents which they wish to rely on to witness statements or affidavits; or

  • tendering a copy of the documents to the Judge during the final hearing generally on the basis that they are a business record.

The “Implied Undertaking”

When you produce documents to a court, as a general rule, a party who has sought production of those documents can only make use of them for the purpose of the legal proceedings already on foot (and not for any other reason).

This is sometimes referred to as an “implied undertaking” – that is, the person who receives the documents is said to have impliedly provided an undertaking that they will not use documents which the Court has compelled production of, in other proceedings or for any other purpose.

In effect this means that the produced documents:

  • cannot be used in other proceedings (even if the substance of the proceedings are similar);

  • cannot be “leaked” to the media; and

  • cannot be accessed by the general public so that new proceedings can be brought against the producing party.

When the rule doesn’t apply

However, in some circumstances, a court may grant a party leave to use the documents produced for another purpose.  To obtain leave of the court, a party will need to ask the Court to relieve them of their undertaking or obtain the consent of the producing party to use the documents in the way they propose.

The main reason parties generally seek the court’s indulgence is so that they can add new causes of action against an existing party or alternatively add a new party to the proceedings.  When determining such an application, the Court is mindful of avoiding duplication of proceedings and costs incurred by the parties.  The court is also mindful of not causing injustice to the producing party or other parties to the proceedings.

In summary

Even after production of documents to court under subpoena, there remains good reasons to be vigilant in respect of the use to which those documents are put by parties who may seek access to them.

If you have been served with a subpoena, contact our team of experienced lawyers who can help you comply with it and protect any confidential or legally privileged information.

For those of you who may have missed our previous bulletins on subpoenas, here are the links to parts one, two and three.

Part one of our series: What to do if you get a subpoena? 5 things you need to know
Part two of our series: Setting aside a subpoena: oppression and fishing expeditions
Part three of our series: Privilege and confidentiality – Subpoenas and sensitive information

Authors: Adam Cutri and Stephen Ke