Discovery: Business Records Subpoena

1

Determine Whether the Documents Are “Consumer or Employee” Records

If they are, you need to add about two weeks to the process.

“Consumer records” are records sought from telephone companies; banks, insurance and financial services providers; health care providers; schools; attorneys; or accountants. CCP § 1985.3(a)(1)). An “employee” is individual who is or has been employed by a witness whose records are sought. “Employee records” include books, documents, other writings or electronic data pertaining to employment of any employee or former employee. CCP § 1985.6.

Once you determine whether you are seeking consumer/employee records, you can determine what steps to take and how far in advance you need to start.

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).

If the Records are NOT Consumer or Employee Records, Skip to Step 9

5

Complete the Additional Form for Consumer/Employee Records

In addition to the forms in Step 3, fill out page 1 of a Notice to Consumer or Employee and Objection (SUBP-025). Make enough copies of all forms for yourself, the witness, and all parties. You will serve these copies in later steps.

6

Serve the Consumer/Employee with the Deposition Subpoena and Notice to Consumer or Employee

Serve the consumer/employee with a copy of:

• Stamped Deposition Subpoena for Production of Business Records (SUBP-010) and Attachment (MC-025), and
• Notice to Consumer or Employee and Objection (SUBP-025).

You can have this served by mail to the consumer/employee’s last-known address, or by personal service if you are low on time.

The person who is serving the Notice for you must complete the proof of service on the back of the original Notice to Consumer or Employee and Objection (SUBP-025). The server then gives the signed original Notice to you. You will use it in Step 9.

7

Serve All Parties by Mail

If the only other party is the consumer/employee, skip this step.

Serve by mail all parties (or their attorneys) with copies of

• Deposition Subpoena for Production of Business Records (SUBP-010) (plus Attachment (MC-025))
• Notice to Consumer or Employee and Objection (SUBP-025) (showing the signed proof of service on the back).

Keep the originals for your files. You may need them for a motion to compel production later.

The person who is serving your documents for you must complete a Proof of Service by First Class Mail (POS-030) form. For more information on this Proof of Service, see our guide to Proof of Service by Mail.

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 (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 attorneys or self-represented litigants.

The server then signs the original Proof of Service form, and gives it to you. Keep this in your files.

8

Wait for Consumer/Employee to Respond

Wait at least 10 calendar days (5 if you had the consumer personally served) before moving on to Step 9, “Serve the Witness.”

The consumer/employee’s deadline to object is 5 days before the production date. A non-party consumer/employee just needs to fill out the objection on Notice to Consumer or Employee and Objection (SUBP-025). A consumer/employee who is a party needs to file a motion to quash the Subpoena in court.

If the consumer/employee objects or files a motion to quash: the witness is not permitted to respond to your Deposition Subpoena. You may make a Motion to Compel Production (deadline: 20 days after service of the written objection), or file an Opposition to the Motion to Quash, as appropriate. Motions to Quash Subpoenas are not covered in this Guide; see a reference librarian for more information on this process. For more information, see our guide Motion to Compel Discovery Responses.

Fill out but do not sign a Proof of Service by Mail (POS-030) listing all of the documents to be served and showing proof of service by mail on all parties. This Proof of Service will be used in Step 10, but you must include a copy of it in the packet you serve the witness. For more information on this Proof of Service, see our guide to Proof of Service by Mail.

9

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

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

If the documents are not consumer or employee records, have the witness (third party with the records) personally served with:

• 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).

If the documents are consumer or employee records, have the witness personally served with:

• Deposition Subpoena for Production of Business Records (SUBP-010)
• Attachment (MC-025)
• Notice to Consumer or Employee and Objection (SUBP-025), showing signed proof of service on the back.
• 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.

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How to Item Heading

Description

10

Serve the Other Party or Parties (Unless You Served in Step 7)

Skip this step if you completed steps 5-8, Notice to Consumer or Employee. If you did, the service in Step 9 is sufficient.

Serve all parties by mail with copies of all documents listed in Step 9. 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.

11

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.