Appears simple right? You are representing a respondent in a victims of institutional abuse case or another matter, for example, you are representing the Police Association, in a civil claim. Your firm receives a subpoena to produce documents (UCPR rules 33.2). You believe the documents that are to be produced have, in your view, sensitive or confidential material included, which you don’t want the other side to have access to. They may include identifying names of complainants (historical victims of sexual abuse) or confidential communication (or other reason). You may decide to object on the basis of privilege (UCPR rules 1.9 & 5.7). Alternatively, you may decide to redact the documents prior to producing documents under subpoena, is that permitted? Can the third party, compelled to produce documents, provide the subpoenaed material to their solicitors, instead of the Court?
Redaction of subpoenaed documents has been the basis of judicial determination, which will assist to answer the above questions.
In Octagon Inc v Hewitt & Anor (No 2)  Dixon J stated at paragraph , in part:
The principles applicable to the redaction of documents produced for inspection were recently surveyed by Kaye J in Gunns Ltd and Ors v Alexander Marr and Ors  These principles were not in issue before me. In summary, the discovering party is prima facie required to produce for inspection the whole of the document being discovered by it, even where parts of the document are irrelevant. The practice of sealing up or masking irrelevant parts of the document is long established, particularly where the discovering party has a legitimate claim to confidentiality in the irrelevant part of the document. Ultimately, the onus to establish an appropriate basis for redaction rests with the party resisting production of the whole of the document. Where redactions are in dispute it is for the court to determine, on the material before it, whether that party has a right to do so. In making that determination, the court will focus on ensuring the attainment of justice between the parties. That the rules of court are designed to serve and enhance the ends of justice, and to facilitate the resolution and determination of disputes between parties…..
In Grace v Grace (No 8) 2014 Brereton J referred to the matter of Prismex Technologies Pty Limited & Colin Lindsay Taggert v John Matyear at paragraph  where he stated:
As to the redaction, I have on many occasions indicated that those who redact documents produced pursuant to a notice or tendered as evidence, without the leave of the court embark on a perilous course. Redaction except where made as a matter of a claim of privilege is not a matter of right, but something permitted only with the court’s leave.
In the recent case of LG v Brian Brock as Executor Of the Estate Of The Late Leo Clarke  NSWSC 323, the plaintiff subpoenaed the Diocese. The documents produced on subpoena were ‘significantly redacted” being said to contain “information which was imparted to the Diocese in circumstances of confidence” which consisted of names and identifying particulars of women who had complained of sexual abuse over the years. The plaintiff pressed for unredacted copies to be produced. The Defendant filed a Notice of Motion to have restricted access orders pursuant to the Courts Suppression and Non -Publication Orders Act 2010 (NSW). The third parties produced the subpoenaed material to their solicitors, not the Court.
A subponea was issued to the Church’s Professional Standards Committee and the redacted content was of the same nature as that which had been blanked out by the Diocese. The Defendant filed a Notice of Motion seeking orders to redact in addition to those orders claimed by the Diocese, due to the ‘irrelevant‘ nature of the names included in the documents and correspondence which contained complaints of sexual abuse.
The court referred to UCPR Rule 33.8 and the Courts power to give directions in relation to the inspection and copying of any document…that has been produced in response to a subpoena.
Fagan J, said at 
“production to the Court under subpoena is quite different from production of discoverable documents to the opposing party for inspection. Before a party who has issued a subpoena may see the documents produced in response to it, an order must be made under r 33.8. It is at that point that limited inspection by way of redaction may be ordered, or not.”
“a party is entitled to see documents produced under subpoena which may support some facts relevant to his or her case…..A plaintiff is not to be denied access to documents just because they do not alone prove the whole of her case upon the point to which they related.”
Fagan J ordered (in part):
- the plaintiff and her legal advisers have access to all documents produced in response to the subpoena in an un-redacted form.
New South Wales Supreme Court Practice Note – General Division 19 specifies proposed access orders when a subpoena is issued.
If the nature of the documents to be produced under the subpoena mean that one or more of the parties may be entitled to claim privilege, or seek orders restricting access in relation to all or some of the documents, then the Issuing party must nominate a proposed access order that provides first access to the party that may be entitled to claim privilege or apply for restricted access
The person to whom the subpoena to produce is addressed must return the subpoena notice and declaration to the court with the produced items, not their solicitors.
Redaction is not a matter of right but only permitted with the courts leave. Consideration of the Court Suppression Non-Publication Order Act 2010 (NSW) is also a useful tool, as it may be sufficient to protect confidentiality. Compliance with access orders is the way to deal with alleged confidential or privileged documents, leaving the decision to the Court, not unilateral decisions made by the party who is producing.
Call or email me today to organise your free 15 minute consultation to discuss any questions you have on best practices and procedure.
Read another one of my blogs on subpoenas: “Do You Need To Attend Subpoena Lists In The Family Court?“
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