BUSINESS RECORDS SUBPOENAS: Step-by-step

Sacramento County Public Law Library 813 Sixth Street, 1st Floor, Sacramento, CA 95814 (916) 874-6012 www.saclaw.org

Disclaimer: This guide is intended as general information only and is based on the information provided in Nolo Presss How to Solve Divorce Problems in California, pages 174-181. It is important to read that section or another book on civil procedure to determine if this process is right for you. Your case may have factors requiring different procedures or forms. If you need further assistance, consult a lawyer. CONTENTS This instructional packet includes samples of: Deposition Subpoena Business Records (SUBP-010) Attachment 3 Notice of Taking Deposition Records Only No Appearance Sample Interrogatories to Custodian of Records Notice to Consumer or Employee (SUBP-025) It also includes a Worksheet to Determine Dates of Service and blank copies of Notice of Taking Deposition Records Only No Appearance and Sample Interrogatories to Custodian of Records for your use. SUMMARY OF STEPS: 1. Figure out the timing 2. Fill out forms 3. Have the courts filing room stamp the subpoena 4. Make photocopies 5. Serve the Consumer/Employee, if any 6. Wait 10 days for possible objections (5 if you had the Consumer/Employee personally served) 7. Serve the Witness, and wait 15 days 8. Receive and review the documents BACKGROUND When a company or organization that is not a party has records you need, use a Deposition Subpoena for Business Records to obtain them. (If the company is a party, use a Request for Production of Documents.) Warning! You cant get the records right away. It will take about 30 days even if everything goes smoothly, so plan ahead. Whos Who? Witness The company or organization that has the records you need. For instance, this may be the phone company, the police department, an employer, a credit card company, or a bank. Custodian of Records The person who maintains the records for the Witness. This may be a human resources manager, a bank employee, etc. You dont need to name them; the Witness will assign the proper person to respond to your subpoena. Consumer/Employee If the records you are requesting relate to a persons consumer transactions (phone bills, purchases, bank records, etc.) or to his or her job, that person 1

is called the Consumer/Employee. Important! The law gives the Consumer/Employee the right to object to the Witness giving you the records if it would violate their privacy, so you have to let them know ahead of time. PROCEDURE Overview Using a Deposition Subpoena for Business Records is usually a two-part process. First, if the records relate to a Consumer/Employee, you must have that person served with a Notice to Consumer or Employee and the subpoena, and give them at least five days to object. If there are other parties in the case, they get served with copies of the Notice and Subpoena too. Second, if the Consumer/Employee doesnt object, you then have the papers personally served on the Witness, and give them time (at least 15 days) to respond. This must be personal service; mail wont work. They should respond by sending you copies of the records you request. Despite the name, there is no actual deposition or hearing. (If the Consumer/Employee objects, the Witness cant respond until the objection is resolved. See Step 6, below.) Step-by-Step Instructions Step 1: Figure out the timing. Choose the day you want to receive the documents and figure out your schedule. (See: Worksheet to Determine Dates for Service.) The timing is very important and can be tricky, because if there is a Consumer/Employee, you have to give that person time to object, but you must also give the Witness at least 15 days to produce the documents. Step 2: Fill out the following forms (see the attached samples for more information on specific forms): a. Deposition Subpoena Business Records (SUBP-010), with Attachment 3. This paper is the actual court order to the Witness. Attachment 3 explains exactly what records you are requesting the police report, bank statements, employment information, or whatever it is that you need. b. Notice of Taking Deposition Records Only No Appearance. This tells the Witness and the other party(s) about the subpoena and the deadline. c. Interrogatories to Custodian of Records. Leave this blank. The Custodian of Records fills this out when sending you the records. d. Notice to Consumer or Employee (SUBP-025). Fill out the top portion of this form, but leave the bottom portion blank. If the Consumer/Employee decides to object to the subpoena, he fills this part out and has a copy served on you and on the Witness.

Step 3: Get the subpoena issued by taking all these papers, except the Interrogatories to Custodian of Records, to the filing room at court and ask the filing clerk to issue it. When the clerk stamps it with the courts seal, it becomes an official court order. You dont need to file anything now. Step 4: Make at least 3 sets of photocopies of all the papers (one for you, one for the Consumer/Employee, one for the Witness, and one each for any other parties attorneys). Keep all the originals safe in case you need them later. Step 5: First round of service (on Consumer/Employee and other parties, if any). Remember, you cant do the service yourself! Get someone who is not a party to do the service for you. a. Have the Consumer/Employee served (by mail if time, or personal service if not) with copies of all documents. Have the process server fill out the proof of service on the back of the Notice to Consumer or Employee. b. If there are other parties in the case: On the same day, have all other parties (or their attorneys, if any) served with copies of all documents. Have the process server fill out a generic proof of service form for these. Step 6: Wait 10 days (5 if you had the Consumer/Employee served by hand) for any objection from the Consumer/Employee. If the Consumer/Employee objects, he or she must file a motion to quash or modify the subpoena (if a party) or serve a written objection (if a nonparty) 5 days before the date specified for production. If this happens, the Witness may not produce the documents until you get a court order or work out an agreement between you, the Witness and the Consumer/Employee. In that case, you may make a motion to compel production within 20 days after service of the written objection. For more information on the procedure and on possible grounds for objections, see California Code of Civil Procedure sections 1985.3 and 1985.6, and California Points and Authorities, Chapter 81.240-81.254.) Step 7: Second round of service (on Witness). After the time for objection has expired, have the Witness personally served with copies of all documents. Make sure the copy of the Notice to Consumer or Employee has the proof of service. Have the process server fill out the proof of service on the back of the original Deposition Subpoena. Keep that in your files in case a dispute comes up. Step 8: Receive the documents. If all goes well, you should receive the documents in the mail shortly after the due date, along with the completed Interrogatories to Custodian of Record. At this point: a. Check the Interrogatories to Custodian of Record to make sure that every question has been answered (not applicable is not an acceptable answer). b. Check the enclosed documents to make sure that you received all the records you requested. 3

FOR HELP For assistance in creating these documents, you may want to contact a professional photocopier service (call a local law office and ask who they use) or consult an attorney. To find assistance in the Sacramento area, use the Legal Referral information on our website at http://www.saclaw.org/pages/legal-referral-list.aspx. FOR MORE INFORMATION On the Web: The Deposition Subpoena Business Records (SUBP-010) and Notice to Consumer or Employee (SUBP-025) forms are available from the Judicial Councils website at: http://www.courts.ca.gov/forms/. You can learn more about discovery in general at Nolo.com: http://tinyurl.com/c35z3a. Information about preparing evidence for admission in a court trial or hearing can be found on the Judicial Councils website at: http://www.courts.ca.gov/xbcr/partners/ getting-evidence.pdf. At the Law Library: The following books have information about preparing business records subpoenas: How to Solve Divorce Problems in California pp. 174-181. KFC 126 .S55 Litigation by the Numbers Chap.5 (Discovery), Sec. 5.3.5. KFC 995 .G67 Information on consumer/employee objections can be found in: California Points and Authorities Vol. 8, Chap. 81, Sec. 240-254. KFC 1010. B4

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IF YOU HAVE QUESTIONS ABOUT THIS GUIDE, OR IF YOU NEED HELP FINDING OR USING THE MATERIALS LISTED, DONT HESITATE TO ASK A REFERENCE LIBRARIAN.

Business Records Subpoena: Worksheet to determine dates for service Work backwards from the date you want to receive the documents (Date of Production). 1. Choose the date for production of documents. 2. Count backwards 15 days. If the 15th day is a holiday or weekend, keep going until you reach a workday. This is the last day the Witness can be served. (It is a good idea to serve it a few days early, in case of problems with the service.) 3. Choose the date you will actually serve the Witness (on or before the date in step 2). 4. Count backwards from that date another 10 days. Again, if the 10th day is a holiday or weekend, keep counting backwards until you reach a workday. This is the last day the Consumer/Employee can be served by mail. If you are short on time, you can save a few days by having the Consumer/Employee personally served. In this case, you only have to count back 5 days from the date you expect to serve the Witness. Worksheet: Fill this out to figure out the dates (using a calendar can help): Event: Date of Production Last day to serve the Witness Instructions: Enter the date you want to receive the documents here: Starting from the Date of Production, count backwards 15 calendar days. If the day you land on is a weekend or holiday, keep going until you reach a workday. This is the last day to serve the Witness. Enter that date here: You can serve the Witness earlier, if you choose. If you decide to serve it earlier, enter that date here: Starting from the day you actually plan to serve the Witness, count backwards 10 calendar days. If the day you land on is a weekend or holiday, keep going until you reach a workday. This is the last day to serve the Consumer/ Employee by mail. Enter that date here: You can serve the Consumer/Employee earlier, if convenient. If you are short on time, you can have the Consumer/ Employee served by hand. If you plan to have the consumer/Employee served by hand, instead of 10 days, count backward 5 days from the day you actually plan to serve the witness.
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Date: ___/___/20__

___/___/20__

Day you actually plan to serve the Witness Last day to serve the Consumer/ Employee

___/___/20__

___/___/20__

[Blank]

This portion (the caption) should include exactly the same info as on other documents in the case.

Name and address of deposition officer or professional photocopier. Insert the date you chose for production of documents. See Worksheet to Determine Dates of Service.

Always check Box A. Businesses will probably mail the documents.

Check Continued on Attachment 3. You will list the records you are requesting on a separate sheet. (See next sample document.)

Leave this portion blankthe file clerk will sign here.

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Fill in brief caption info here (names and case number)

Leave this portion blank the person who serves the subpoena will fill it out.

List all the items and documents you need to get from the Witness. If you need samples that fit your particular case, ask the law librarian for a book on your topic. 9

[Blank]

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Your name, address, and phone number

Customize the highlighted words to fit your case.

Change Plaintiff and Defendant to Petitioner and Respondent if necessary

Name and address of deposition officer or professional photocopier.

Insert the day you have chosen for production of documents (see worksheet)

If you are not the plaintiff, change these to reflect your role in the case (defendant, petitioner, or respondent).

11

[Blank]

12

This portion (the caption) should include exactly the same info as on other documents in the case.

Consumer/ Employees name

Your name

Name and address of the Witness

Date of production (same date used on the subpoena)

Leave this portion blank. If the Consumer/Employee is not a party to the case, he or she can use this section to object.

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Fill in brief caption info here (names and case number)

Leave this portion blank the person who serves the notice for you will fill it out.

Leave this portion blank if the Consumer/Employee objects, he or she will have this part filled out.

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____________________(name) ____________________(address) ____________________(city, ST, zip) ____________________(phone)

____________________,

IN PRO PER

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SACRAMENTO

____________________, Plaintiff, vs. ____________________, Defendant

) Case No.: ____________________ ) ) NOTICE OF TAKING DEPOSITIONRECORDS ONLY ) -NO APPEARANCE ) ) ) ) ) )

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that the deposition of the custodian of records of ____________________________________________________________ will be taken in the above-entitled action before a Notary Public at the following address: _____________________________________________________, on ____________________ at ___________am/pm, and continued from day to day thereafter, Sundays and holidays excluded, until completed, on behalf of the ___plaintiff ___defendant.

DATED: ____________________ ________________________________________ signature ________________________________________ Type or write name

NOTICE OF TAKING DEPOSITIONRECORDS ONLY-NO APPEARANCE 15 1

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INTEROGATORIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8. In response to subpoena duces tecum served on your, have you produced any and all records mentioned in that subpoena? ANSWER: 7. Are the entries in the records made at or near the time of the event to which they relate? ANSWER: 6. Are these records kept in the regular course of your employers business? ANSWER: 5. List all attached records: 4. Are you the duly authorized custodian of records, and do you have in your care, custody and control all records listed below? ANSWER: 3. What is your job title? ANSWER: 2. By whom are you employed? ANSWER: (Attachment to Notice of Deposition) 1. What is your name? ANSWER:

INTERROGATORIES TO 17 CUSTODIAN OF RECORD 1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

9. Has any portion of any record or records mentioned in that subpoena ever been altered or removed from your records prior to this time; if so, explain. ANSWER

10. Are the copies attached true copies of your records? ANSWER: 11. Are the sources of information and method and time of preparation of the records such that the information is trustworthy? ANSWER: 12. Explain briefly how the records were prepared: ANSWER: 13. What information was used to prepare the records? ANSWER: 14. Would you please turn over at this time to the Deposition Officer of the subpoenaing party, or to the court, all the records, documents and writings which were made a subject of this subpoena duces tecum (and for the purposes of this subpoena, photocopies will be sufficient)? ANSWER:

I, ____________________________ (name), am the duly authorized custodian of records for ____________________________ (company or organization) and have authority to certify that I have answered the above questions, and that the documents enclosed are true, legible, and durable copies of the records described in the subpoena duces tecum. I declare under penalty of perjury under the laws of the State of California that the above, including any attachments, is true and correct and that this declaration is executed on __________________ (date) at ___________________(city), California. ____________________________ CUSTODIAN OF RECORDS Note: this document must be notarized if the documents are being sent from outside the State of California.

INTERROGATORIES TO 18 CUSTODIAN OF RECORD 2