Enforcing overseas subpoenas in New Zealand

High profile Mega case highlights subpoena in action

Subpoenas aren't just for FBI dramas and criminal cases—civil claims wield them too, making legal battles as gripping as any blockbuster – for example you may have heard Harvey Specter, the character from the TV show “Suits” use subpoenas as part of his legal toolbox in civil claims? 

Overseas subpoenas can act as a cross border enforcements to assist a variety of parties requiring the attendance of a witness, or witnesses, in Court or to produce documents. For example, this process might assist parties trying to recover debt from parties overseas, parties that are in relationships with people overseas, have ex-partners overseas or have business interests overseas that are the subject of a dispute in the courts.

What is a subpoena?

A subpoena is a document requiring the attendance of a witness at a trial to testify or to produce documents, or both.

Because evidence is vital to any case, the information provided is factual and used as proof to support a claim. 

A person subpoenaed who fails to comply with it can be arrested, and if they do not have a lawful excuse they can be fined. 

The subpoena in action

A high-profile case where the subpoena was called into action relates to Republic of Kazakhstan v Mega, the company founded by internet businessman Kim Dotcom. We do not know how the subpoena was served but it may have been served on Mr Dotcom at his mansion! 

The Republic of Kazakhstan commenced proceedings against unknown hackers in the United States District Court for the Southern District of New York. It requested information from Mega Ltd, a New Zealand registered company, to identify the hackers. 

The application was opposed by Mega. Its reason for opposition was that it took a principled stance that it was willing to comply with court orders but would reasonably challenge them to protect the privacy of its users. Justice Moore was satisfied that the application should be granted. 

(Republic of Kazakhstan v Mega Ltd [2016] NZHC 963, [2016] NZAR 810). 

The process

It can be difficult navigating the process for enforcing an overseas subpoena in New Zealand’s legal landscape. We have set out below a summary of how the process may look. 

Sections 184-187 of the Evidence Act 2006 (Act) governs how compliance with an overseas subpoena can be enforced by the New Zealand High Court. 

1. The process begins with a Letter of Request from the overseas court to the High Court of New Zealand (Letter of Request).
2. In practice, a Letter of Request could be from: The United States District Court for the Southern District of New York to the New Zealand High Court requesting its assistance in obtaining evidence for civil proceedings before the Court. 

3. For a New Zealand court to have jurisdiction to order that evidence be taken in New Zealand for use in an overseas proceeding, (i.e. to order compliance with an overseas subpoena) there are three requirements that must be met by an application under s 184 of the Act:

   (a) that the application is made to implement a request issued by or on behalf of a requesting court; and

   (b) that any requirements prescribed in rules or regulations made under section 200 as to the form of the application and the manner in which it must be made are satisfied; and

   (c) that the evidence to which the application relates is to be obtained for the purposes of civil proceedings which either have been instituted before the requesting court or whose institution before that court is contemplated.

4. The second requirement, set out in Section 184(b) states that an application must meet the prescribed requirements as to form as set out in s 200. 
5. Substantial compliance with the Hague Convention on Evidence Abroad (to which New Zealand is not a party) is required as s 200 does not set out rules and regulations regarding the form of a Letter of Request.[1]

6. The form of the Letter of Request must be in ‘substantial compliance’ with the Hague Conventions which require the request to be in English and to specify:[2]
   

   (a) the authority requesting its execution and the authority requested to execute it;

   (b) the names of addresses of the parties to the proceedings and their representatives;

   (c) the nature of the proceedings to which the evidence relates; and

   (d) the evidence to be obtained or other judicial act to be performed.

   As appropriate, the request must also specify:

   (e) the name and addresses of persons to be examined;

   (f) the questions to be put the persons to be examined or a statement of the subject matter about which they are to be examined;

   (g) the documents or other property to be inspected; and

   (h) any requirement that the evidence be given on that or affirmation and any special form to be used.”

7. Once a Letter of Request has been issued, then a without notice or on notice originating application seeking orders to effect the Letter of Request can be filed with the High Court (pursuant to r 19.5 of the High Court Rules 2016). 
8. Once jurisdiction is established under s 184, the next question is whether the High Court should exercise the s 185 power to give effect to the overseas court’s request. 

9. The High Court may order the taking of evidence in New Zealand if it is considered appropriate to give effect to the overseas subpoena as set out in s 184. An order may include but is not limited to: 

   (a) “for the examination of witnesses, either orally or in writing at any agreed time or at any specified time and place:

   (b) for the production of documents:

   (c) for the inspection, photographing, preservation, custody, or detention of any property:

   (d) for the taking of samples of any property and the carrying out of any experiments on or with any property:

   (e) for the medical examination of any person

   (f) without limiting paragraph (e), for the taking and testing of samples of blood from any person.”
   

10. The New Zealand High Court does not have full discretion to make an order for compliance with the overseas subpoena. As a court order cannot:

    (a) require any particular steps to be taken, unless they are steps that can be required to be taken by way of obtaining evidence for the purposes of civil proceedings in the High Court (section 185(3)). 

    (b) require a person to:[3]

• State what documents relevant to the proceeding that they have or have previously been in their possession, custody, or power (s 185(5)(a)); or
• Produce documents other than the documents specified in the order as appearing to the court as likely to be in the person’s possession, custody or power (s 185(5)(b)).

11. Another consideration is how will the person give evidence if they are based overseas? The High Court may be reluctant to make orders with appearing via AVL under the Courts (Remote Participation) Act 2010, as it was held in a High Court case that there can be “inevitable complications of being involved in a hearing of significant duration with incompatible time zones”.[4]
    
12. The High Court can order that evidence be taken or obtained other than on oath if that is what is requested by the overseas court (section 185(3) and (4)).
    
13. The process of enforcing overseas subpoenas in New Zealand cannot be used arbitrarily to facilitate an investigatory inquiry or an equivalent to the general discovery process. 

If you have been served with a subpoena or are trying to enforce an overseas subpoena in New Zealand please contact Ben Molloy on @email or 09 306 0605 or Holly Whitney on @email or 09 985 2534.