A subpoena requiring a person to produce evidence can assist in serving the administration of justice. However, in a computer driven society such as ours, serving a subpoena can lead to complications.
Subpoenas normally refer to hard copy documents but they can also refer to records stored on a computer. If a record is stored on a disk drive or server computer and it is not privileged information, it may be requested for production by the court.
The problem lies in the definition of ‘document’ and in the processes of retrieval of information. What does one do for example if the subpoena is seeking information stored on more than one computer or the information is stored in such a way that retrieval would require the computer to be reprogrammed?
There has been very little in the way of statutory guidance as to how an issue such as this can be easily resolved. In a recent case Jacomb v Australian Municipal Administrative Clerical & Services Union, Justice Heering raised the question as to whether a recipient of a subpoena is obliged to generate a document that does not currently exist and will only come into being after a number of other documents are merged together.
Justice Heering then drew the distinction between simply printing out a hardcopy form of an existing document and having to create a new document from information stored in electronic form. He determined that processing or calculating new information will create a new document and a subpoena cannot refer to a document that at the time the subpoena was issued, did not yet exist.
Certainly this is an area of the Law that needs to be addressed fairly quickly and in a sensible fashion. A direction or new legislation needs to set out how the Courts deal with subpoenas requiring recipients to;
- Extract data from one or more computers; or
- Seek information that exists but retrieval of that information requires reprogramming of the computer; or
- Seek information that requires calculation or aggregation of existing data.
If direction is not forthcoming then as it stands many of those recipients of subpoenas will be excused from complying with the order to produce simply because of existing ill defined directions.