Swamped by Subpoena: Court Quashes Overreaching Demand in Shvets Property Dispute

🧑‍⚖️ Introduction

In the Federal Circuit and Family Court of Australia case Shvets & Shvets [2025] FedCFamC1F 120, the Court grappled with the balance between a litigant’s right to subpoena documents and the burden such a subpoena can place on non-parties. The husband in a property dispute issued a broad and burdensome subpoena to E Pty Ltd—an entity formerly linked to his wife and her father—demanding production of over 765,000 emails. The Court ultimately deemed the request oppressive and awarded costs to the third party. This case serves as a significant reminder of the proportionality principle in legal discovery.

📋 Facts and Issues

Facts:

• The case involves a property settlement dispute between Mr Shvets (the husband) and Ms Shvets (the wife).
• The husband issued a subpoena to E Pty Ltd—previously co-owned by the wife and her father—to produce documents spanning an 8-year period beginning in January 2016.
• The subpoena encompassed over 765,487 emails and attachments, which would cost an estimated $2.5 million to review.
• E Pty Ltd objected to the subpoena, arguing it was overly burdensome and lacked sufficient conduct money.
• Despite attempts over 9 months to narrow the scope of the subpoena, no agreement was reached.
• E Pty Ltd eventually produced a limited set of 395 documents, but the Court received only 253, possibly due to privilege claims or uploading issues.
• The husband sought to have part of the subpoena set aside and proposed that each party bear their own costs.

Issues:

1. Was the subpoena, as issued, oppressive and overly burdensome under the applicable rules?
2. Should E Pty Ltd be compensated for its costs in attempting to comply?
3. Was the husband responsible for ensuring the subpoena was reasonable and for providing adequate conduct money?

⚖️ Application of Law

The Court applied several provisions of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth):

• Rule 6.33 allows the Court to set aside all or part of a subpoena.
• Rule 6.34 enables compensation for any loss or expense incurred in complying.
• Rule 6.35 specifies that the issuing party (the husband) must cover reasonable costs when the subpoena is issued to a non-party, provided they give prior notice of likely expense.

In evaluating compliance costs, Justice Carew referenced Titan Enterprises (Qld) Pty Ltd v Cross [2016] FCA 1275, where Logan J stated that legal costs for assessing privilege and lawfulness are compensable

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The Court accepted E Pty Ltd’s submissions and emphasized that reviewing such a volume of data to assess legal professional privilege is labor-intensive and costly—even if no claims of privilege were ultimately made

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🔍 Judicial Reasoning

Justice Carew found the subpoena to be oppressive due to:

• Its massive scope: Encompassing up to 5 million documents and 250 GB of data
• .
• The lack of cooperation despite repeated efforts by E Pty Ltd to negotiate a reasonable limitation on scope
• .
• The unreasonable expectation that a non-party should bear extensive compliance costs.

Even though the husband had already paid $21,705 to a data retrieval company, the Court reasoned that this did not relieve him of the duty to cover E Pty Ltd’s legal and compliance-related costs. Justice Carew ultimately fixed the compensation at $15,000, acknowledging the difficulties in precisely quantifying the expenses due to a lack of updated cost particulars

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🎓 Take-Home Lesson

This case is a cautionary tale for litigants issuing subpoenas. Courts will not tolerate discovery demands that are excessively wide in scope and unduly burdensome, especially toward non-parties. Legal practitioners must:

• Tailor subpoenas precisely to relevant documents.
• Engage early and cooperatively with recipients to limit scope and cost.
• Be prepared to compensate non-parties for legitimate compliance expenses, particularly where privilege reviews are required.

Failure to heed these principles risks not only quashing of the subpoena but also significant cost penalties.