A former employee is in a divorce dispute and the opposing party sent multiple subpoenas for my bank records without providing notice to me. The records were released to this party without giving me any notice and opportunity to object. In addition, this person has filed statements in court alleging that I am assisting my former employee with hiding money, which is without merit. What remedy do I have for them obtaining and using my bank records in a divorce proceeding without sending me notice, as well as their defamatory statements? This came to my attention after the records had already been produced and used in court. Sanctions? Civil Harassment Restraining Order? Civil Suit?
Thank you for the answer. I am the account holder on the bank records. The subpoena shows that no Notice to Consumer was sent to me, only to the party to the divorce, who is NOT an account holder on the bank records. I do not believe the bank should have released the records since the Notice to Consumer was not sent to any account holder on the bank records. How can I obtain protections to ensure that this person does not continue to subpoena my records without notifying me? Also there is an issue with the person falsifying proofs of service of the original Notice to Consumer to the party to the divorce. They never received the NTC. The process server can't be located; it's a bogus address and phone number.
Lawsuit / Dispute Attorney
The banks, by definition, are custodians of consumer records ["personal records"] under Code of Civil Procedure §1985.3(a)(1). The statute requires that you be served with a copy of each subpoena and each Notice to Consumer (Judicial Council Form SUBP-025) at least five days before the subpoena is served on the bank (CCP § 1985.1(b)(3)) and at least 10 days before the return date specified in the subpoena (CCP § 1985.3(b)(2)). The statute also requires that, prior to the production of the records, the subpoenaing party must serve on each bank either proof of compliance with the requirement of notice to you or your written authorization to release the records. (CCP § 1985.3(c).) Failure to comply with the foregoing requirements is sufficient basis for the banks to refuse to produce the personal records sought by a subpoena duces tecum. (CCP § 1985.3(k).)
Production of the records by the banks without compliance with the notice requirements of the statute is a violation of your right of privacy under Article 1, Section 1, of the California Constitution. That is a Constitutional tort and entitles you to sue each of the banks for damages according to proof. Damages are recoverable even if they are only nominal damages. Before doing so, your first priority should be to move the court from which the subpoenas issued to quash each of the subpoenas for noncompliance with the statutory requirements, for an order recalling and delivering to you each document produced and every copy made of each such document, for an order striking from the record each subpoenaed document improperly introduced into evidence and all testimonial references to and testimony concerning each such document, and for monetary sanctions (including the attorney's fees and costs incurred in the motion) against the subpoenaing party and his/her attorney(s) and their law firm.
As to the filed statements in court alleging that you are assisting your former employee with hiding money -- which you consider to be defamatory -- those statements are privileged under the so-called litigation privilege afforded by Section 47(b)(2) of the Civil Code -- UNLESS they are "An allegation or averment contained in any pleading or affidavit filed in an action for marital dissolution or legal separation made of or concerning a person [such as yourself] by or against whom no affirmative relief is prayed in the action." Any such allegation or averment "shall not be a privileged publication or broadcast as to the person making the allegation or averment within the meaning of this section unless the pleading is verified or affidavit sworn to, and is made without malice, by one having reasonable and probable cause for believing the truth of the allegation or averment and unless the allegation or averment is material and relevant to the issues in the action." (Civ. Code § 47(b), ¶ 1.) If the purportedly defamatory statements are subject to the quoted exception to the litigation privilege, you can file an action against the person(s) making those statements and the attorney(s) publishing them by filing them with the court or pronouncing them in open court on the record.
I strongly urge you to engage competent litigation counsel to prosecute your rights. I can refer you to competent counsel in Sacramento if you require referrals.
Disclaimer: This answer is provided as a courtesy. This response does not constitute legal advice, which requires an attorney-client relationship, and this response does not create an attorney-client relationship between us. It is impossible to properly evaluate a legal problem without a detailed consultation and a comprehensive review of all the facts, documents, and/or other materials involved. In addition, if you are in a state other than California (where I am admitted to practice), your state may have different laws. You therefore should not rely on this answer, but should consult with local counsel for definitive guidance.
Construction / Development Lawyer
Notice to Consumer is required with a subpoena. Rules are set forth in CCP 1985. However, it appears you may not be the account holder on the bank records? We recommend getting a copy of the subpoena from your bank, or the other counsel as they would have recieved notice. The other counsel may be more helpful. The Bank will argue they are complying with a court order. And, they would likely be correct. Another matter that will be challenging is whether your objection would matter at all as it appears appear relative to the allegations in the dispute and germaine to obtaining these bank records. If producing these bank records caused damages, you need to figure that out now and quantifiable. Make sure they are not produced in any court filing with the court which becomes public record. If they are produced, there may be sanctions in producing account numbers, social security numbers, etc. But, again, proof of damages will be important. As a reminder, the subpoena and production by the bank does not become court record unless one of the counsels uses it for trial, law & motion, etc. So, the banks production to the two parties could be kept relatively private. To avoid further injury, you might consider hiring a lawyer to obtain protections if no real damages have occured to date (eg. Stipulation by parties, redaction of information for trial, In Camera review by the court, etc).
Tim Broussard, Esq
Kring & Chung
This email does not create an Attorney-Client relationship.
Family Law Attorney
Your first gripe is with your bank; if they released records on an account on which you're the account holder, and on which your former employee isn't, and wasn't ever, an account-holder, without notice to you, THEY screwed up. Make sure they know.
You can't stop the attorneys in a case from issuing subpenas with proper notice. You can and should demand that all copies of the records which the attorneys, or parties, or deposition officer received improperly be returned to you immediately.