Discovery: Business Records Subpoena

1

Determine Whether the Documents Are “Consumer or Employee” Records

If they are, use our Consumer/Employee Record guide instead of this guide.

2

Set a Date and Location for Production

Select your date at least 15 days away for non-consumer/employee records, or at least 30 days away if the records are consumer/employee records.

Contact a copy service in your area to see if they handle document subpoenas. The service you hire to do this is called the “Deposition Officer.” The Deposition Officer must be must be a professional photocopier registered under California Business & Professions (Bus. & P) Code §§22450–22463, with some exceptions. You may need to contact several to find one that provides this service.

3

Have the Court Clerk “Issue” Subpoena (Self-Represented Parties Only)

Take the Deposition Subpoena for Production of Business Records (SUBP-010) to the court where your case is pending to be “issued” (stamped with the court seal). In Sacramento, visit the main courthouse at 720 9^th St., Room 102 (filing room).

Ask the clerk to issue them for you. When the clerk stamps it with the court’s seal, it becomes an official court order. The clerk will probably do it right then. You can ask them to issue several blank subpoena forms if you think you will need them later. There is no fee for this.

Attorneys can sign subpoenas themselves as “officers of the court” and do not need to take this step.

When you receive the issued subpoena, make enough copies of the stamped subpoena for yourself, the witness, and all parties. You will serve these copies in later steps.

4

Complete the Required Forms

You will need two forms to subpoena business records:

• Deposition Subpoena for Production of Business Records (SUBP-010)
• Attachment (MC-025), describing the records you need (you will number this “Attachment 3”)

Completed samples are at the end of this Guide.

NOTE: When you issue a Deposition Subpoena for Production of Business Records (SUBP-010), there are three options for production in the first paragraph of the first page. Option “a” is having the records delivered to the Deposition Officer (generally a copy shop) will be the easiest in most situations. Note that you must arrange to pay the witness their costs before taking delivery of the copies. Talk to your Deposition Officer about how to accomplish this. One option is to ask the Deposition Officer to pay the witness and then bill you.

Under option (b), a Deposition Officer (copy shop employee) goes to witness’s place of business to pick up the copies. Under (c), the subpoenaing party [you] goes to the witness’s place of business and copies the records. (CCP §2020.430).

Most self-represented litigants should choose option (a).

5

Serve the Witness (the Company or Agency with the Records) by Personal Service at Least 15 Days before Production Date

a. Serve the Witness

Serve these documents at least 15 days before the production date. (CCP § 2020.410(c)):

• Deposition Subpoena for Production of Business Records (SUBP-010)
• Attachment (MC-025)
• Proof of Service by Mail (POS-030) on all parties (unsigned but otherwise complete).

The server (a person over the age of 18 who is not a party to the case) must personally deliver the required documents on the witness or its representative, along with a check for fees. If the witness is an organization, any officer, director, custodian of records, or any agent or employee authorized by the organization to accept service of a subpoena can be served on behalf of the organization. (CCP § 2020.220.)

The server then signs the proof of service form on the back of the Deposition Subpoena for Production of Business Records (SUBP-010) and returns it to you. Keep this in case you need it for a motion later.

Fees Paid to the Witness:

The witness is entitled to payment of reasonable costs prior to providing the documents to the Deposition Officer. These costs include:

Reproduction costs of $0.10 per page for documents 8 ½” x 14” or less; $0.20 per page for copying documents from microfilm; and actual costs for oversize documents or documents requiring special processing.

Other Costs of clerical costs of $24 per hour per person; actual postage costs; and costs for necessary services of third persons, including retrieval from microfilm.

These costs are paid when the witness delivers the business records and an itemized statement listing costs. Evid C §§ 1563(b)(1), (2), & (3). 

If you requested to inspect the original documents at the witness’s location, the witness is entitled to a flat fee of $15, so write a check for the server to take along. Evid C §1563(b)(6).

b. Serve the Other Party or Parties

Serve all parties by mail with copies of all documents listed in Step 5. If they have attorneys, serve the attorneys instead.The proof of service form should be completely filled out, but not signed. Make a copy of the unsigned proof of service before proceeding.

The server (a person over the age of 18 who is not a party to the case) must then mail a copy of the documents along with a copy of the unsigned proof of service form on the opposing attorney(s) or self-represented litigant(s).

The server then signs the original Proof of Service form, and gives it to you.

6

Wait for the Documents

You’re done for now. The documents should arrive at the copy service by your chosen production date.

If your Deposition Subpoena is ignored, or you get nothing but a written objection, you may need to file a motion in court to compel the witness to produce the documents. For more information, see our guide Motion to Compel Discovery Responses.