The rule in Leighton Contractors that subpoenas should not be used to bypass non-party disclosure procedures is not absolute. While ordinarily a party seeking documents from a non-party should use the non-party disclosure process, there may be exceptional circumstances — such as urgency or risk of document destruction — where subpoenas for document production in advance of trial are permissible. A party to proceedings has standing to apply to set aside subpoenas issued to non-parties on the basis of abuse of process.
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