Discovery Methods – Subpoena to Nonparty Deponent or Business Records Custodian

 

WHAT IS A SUBPOENA?

          A subpoena is a method of discovery that allows a party in a civil matter to compel the testimony of a person that is not a party to the case, to get business records, or to get both testimony and records. There are three types of deposition subpoenas:  testimony, records, or both.

WHO CAN ISSUE A SUBPOENA?

          The clerk of the court where the action is pending or an attorney can issue a subpoena. If you are not represented by an attorney, then you must request the clerk of the court to issue a subpoena.

ARE THERE LIMITATIONS TO SUBPOENAS?

          A. GEOGRAPHIC LIMITS:

There are geographical limitations to a subpoena. Please see California Code of Civil Procedure Section 2025.250 for further information. The geographical limitations differ depending on whether the person being subpoenaed is an individual or an organization.

          B. PERSONAL OR CONSUMER RECORDS LIMITS:

There is a special procedure you must follow if the documents you are requesting are personal or are considered consumer records. For example, personal records are records from a pharmacist, dentist, bank records, etc. Consumer means an individual person, as opposed to a corporation or other business entity.

If you are seeking personal or consumer records you must serve the person whose personal or consumer records you are seeking with the following documents: (1) a copy of the subpoena, (2) privacy notice, (3) notice to consumer or employee and objection. These documents can be served on the person’s attorney or if they do not have an attorney then you can serve them with the documents personally, or by mail.

The notice to consumer and objection must be served at least 10 days before the date set for production of the records.

The notice to consumer and objection must be served at least 5 days before service on the records custodian.

ARE THERE TIMING REQUIREMENTS FOR SERVING A DEPOSITION SUBPOENA?

YES!

The deposition subpoena must be served on the records custodian at least 15 days before the date you set for production.

The deposition subpoena and privacy notice must be served on the consumer at least 20 days before the date set for production.

THE CONSUMER/PARTY CAN ALWAYS OBJECT.

If the consumer/party objects to the deposition subpoena, the burden is on them to show why the Court should prevent the deponent to produce the documents or give testimony.

WHY SHOULD I USE A DEPOSITION SUBPOENA?

This is likely the most complicated discovery method for parties who are self-represented. However, subpoenas are likely to yield more useful information, than a notice to produce, which puts the burden of responding on a party to the action. With a notice to produce, the party demanding the documents has the burden of proving why the documents are relevant. With subpoenas it is the other way around.

 Make sure you tailor your request specifically so you do not get objections that delay production. Be aware that I have seriously simplified my discussion of subpoenas. Please seek the help of legal aid or an attorney!

ADDITIONAL RESOURCES:

1. For Civil Subpoenas Visit the Judicial Council of California.

2. California Code of Civil Procedure Section 2025.210 to 2025.280.

by Attorney Judith Elaine Hoover on 06/11/12

Disclaimer: The contents on this blog are informational only and not meant, intended, nor should be considered legal advice, advertisement, or solicitation for business. The material posted on this blog is not intended to create, and receipt of it does not constitute, a lawyer-client relationship, and readers should not act upon it without seeking professional counsel.

Furthermore, the information contained on this blog is not specific to any particular set of circumstances. All links to outside information are meant to provide further information on the topic addressed, I make no warranties, express or implied, as to the accuracy of the information contained herein or in the attached links.

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