Discovery vs Subpoena

In some instances, it is not commercially viable to obtain an order for discovery in a legal matter.

Due to time constraints, the quantum or damages sought, or other considerations, an order for discovery may not be feasible to address a shortfall of evidence.

However, there are several ways for litigant parties to obtain further materials that will assist in litigation and satisfy their evidentiary burden, of which subpoenas are one.


Subpoenas can be issued to a third party, who is not subject to the litigation, compelling them to comply with the request.

There are generally two different forms of subpoena:

  1. Subpoena to attend and give evidence

This subpoena is issued when a litigant party seeks the attendance of a third-party to provide evidence.  The evidence gathered is usually in relation to the material facts of the case, such as the factual scenario of what has occurred.  These subpoenas are designed to compel an individual to attend Court and recount the facts or events they have witnessed.

  1. Subpoena to produce

This subpoena requires the third-party to produce documents to the Court for inspection by the litigant parties.  Once the documents are provided to the Court in a sealed envelope, the litigant parties can gain access to the documents, provided there are no objections from any litigant who did not issue the subpoena, or the third-party themselves.

There are four common grounds of opposition to access orders being made for the enveloped material:

  1. Relevance – That the material sought would not assist in determining a fact in issue.
  2. Oppression – The materials are so voluminous and onerous amounting to being oppressive.
  3. Fishing – The subpoena does not clearly identify what documents are sought. 
  4. Privilege – The documents, if produced, would breach legal or other professional privilege.

Before issuing a subpoena, it is important to know what documents you are seeking and how they would assist the Court in determining a relevant fact in issue.  If the subpoena does not comply with these rules it is liable to be struck out.

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