In the recent New South Wales Supreme Court case of McClure v Lam [2025] NSWSC 1272, the plaintiff claimed she was given poor advice with respect to her condition during a consultation with her doctor, when it was suggested she undergo pelvic floor surgery where a conservative line of treatment may have been more appropriate.
Her doctor, the defendant, said he had no independent recollection of the specific discussion with the plaintiff, but defended the claim by producing a statement referring to what usually occurs in his pre-operative consultations with his patients, on i.e. his description of his “usual practice”.
The plaintiff then sought to compel production of the defendant’s patient files from other similar procedures that he had performed between 2011 and 2015 (where he had advised patients about, or performed, certain pelvic floor surgical procedures) to test the credibility of the defendant’s claim that his advice to the plaintiff reflected his “usual practice”.
To obtain the doctor’s past patient files and operation reports, the plaintiff issued a subpoena seeking production of:
“(a) All clinical files for all patients during 1 January 2011 to 31 December 2015 that [the defendant] advised his patient to proceed with a TVT, Elevate and prolapse procedures; and
(b) All operation files of all patients during 1 January 2011 to 31 December 2015 that [the defendant] performed at TVT, Elevate and prolapse procedures.”
The defendant objected to production of the documents under the subpoena on 2 grounds:
It is a well-established principle that a subpoena must be issued for a legitimate forensic purpose (see Hongkong Xinhe International Investment Company Ltd v Bullseye Mining Ltd [No 4] [2021] WASC 287). If not, there may be grounds to appeal. However, the threshold for a legitimate forensic purpose is low. A and a court must consider whether there is a reasonable possibility that the documents sought in the subpoena will materially assist the claim or defence or are relevant to an issue in the proceedings. The documents subpoenaed must only be apparently relevant.
Justice Garling found that this subpoena was issued for a legitimate forensic purpose – namely, to verify the accuracy of Dr Lam’s stated “usual practice” in patient consultations. The Court recognised that evidence of a practitioner’s standard approach to patient advice and treatment could be relevant to whether a specific patient had been properly advised. The request of the subpoena was considered to reach the threshold of a relevant forensic purpose.
A subpoena may also be objected to on the basis of oppression. Whether a subpoena is oppressive will be determined by reference to the breadth of the subpoena, the documents involved, and the burden placed on the addressee. Importantly, the Court said that just because the subpoena recipient says the scope of a subpoena is oppressive, that will not usually be enough to show oppression. The Court must balance the task to be undertaken with the apparent relevance and forensic need for the documents.
The defendant submitted that the subpoena issued by the plaintiff was oppressive on the basis that the practice management software used by the defendant to store his patient records was not capable of returning documents under a global key word search as would be required to respond to the subpoena. The software, however was capable of identifying patients who underwent procedures described by a Medicare Item Number. Because the subpoena did not require the defendant to return records relating to a particular medical item number, the defendant would instead need to review each of his patient records individually to see whether it fell within the scope of the subpoena.
In order to make the necessary assessment, the Court requested the following detail be included in the defendant’s submissions:
After receiving that information, the Court was able to accept that a task requiring the review of 1,338 patient records would likely take a significant period of time.
The breadth of the documents sought was also considered wide because the plaintiff had requested records relating to “prolapse procedures”, which was a very general term.
The Court therefore found that responding to the subpoena as drafted by the plaintiff would be oppressive and on that basis the subpoena should be set aside.
However, the Court provided guidance indicating that another subpoena could be issued that would serve a legitimate forensic purpose and that would not be oppressive.
The Court indicated that, should another subpoena be issued, it should be confined to seeking records identifiable by specific Medicare item numbers (35599, 35570, 35571, 35573) for the period 1 January 2011 to 31 December 2013. Such a subpoena would remain forensically legitimate and not oppressive, as the defendant’s electronic records system could easily locate those patient files.
The take aways from McClure v Lam are two-fold and apply when both issuing and responding to a subpoena.
When issuing a subpoena, carefully craft the scope of the subpoena to avoid issues where the scope of the request is so wide that it may be considered oppressive, or it may not serve a legitimate forensic purpose if the scope is so general that it might return many irrelevant documents. Also consider who you are requesting the documents from and the capability of their systems to locate those documents. Ask – could my request for documents be more specific or narrowed in any way? It may be appropriate to ask the recipient of the subpoena how to best request documents so that compliance with the subpoena can be possible in the most efficient way for the recipient.
This article was written by, Hayley French, Lawyer Insurance.
It is typically lower than the threshold for “relevance” in relation to discovery.
Note that in Western Australia it would be considered an abuse of process to issue a subpoena to the defendant to obtain these documents. If they are relevant, then they are discoverable, and the request should properly be made as a request for further and better discovery rather than the defendant being compelled by subpoena.