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Subpoenas deemed to be a “fishing expedition”

Subpoenas deemed to be a “fishing expedition”

Subpoenas are a useful way of gathering evidence, but that evidence needs to be relevant to the issues in dispute, otherwise they amount to a “fishing expedition”, as discussed in a recent case:

  1. Could these documents possibly throw some light on the issues in the substantive proceedings? The father was unable to point to anything that would affect either a change of residence or a restructuring of the contact orders. The mother’s psychologist was later explained as being involved to discuss “strategies” to enable her to deal with the father. The allegations against the mother do not tell me whether or not those strategies have been working. The health of the mother’s child Z is mentioned by the father to be something to do with her parenting but the rhetorical language he used was prefaced with a statement of his concern. Unfortunately, his concern seemed to be a suspicion rather than something of substance. That must be so when the children and Z are otherwise happy and active children.
  2. I have already observed that the father was hoping to find something from this material and that is “fishing”. If there was a basis to assert that Z is such a handful that the children’s emotional risk is at stake, there might be some argument but that is not what the father pursued. This had all of the hallmarks of an invasion of privacy for an ulterior purpose.
  3. In respect of Y, nothing I could find in the father’s evidence would justify the issue of a subpoena. No indication was given about why he had not approached the relevant doctor. No suggestion was given as to why he needed the information given Y’s rather extraordinary talents.
  4. I have to balance the potential utility of the material sought against the burden which compliance with the subpoena will cast on the recipient or rather, against the invasion of the mother’s privacy. There being no apparent utility in the material or none to which the father could point, his subpoenae must be seen as an abuse of process and the objections should be upheld. The materials received should be returned to the persons served.

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