Financial advisor is expecting a subpoena for client files for a civil suit in which it is not a party. Is the party issuing the subpoena required to give notice to the client? Essentially my question is, is a financial advisor considered a "witness" under CCP 1985.3, giving it greater protection over consumer records?
financial advisor -
if deposition notice to the other parties in the litigation; what the financial adviser does with client notice is up to the financial adviser
if trial witness - financial adviser must be included on witness list that all parties will have; again, what the financial adviser does regarding the client is up to the financial adviser
financial adviser would be foolish not to advise client and give client the ability to seek protection from the court.
California has special rules when seeking records of a consumer from a non-party to a lawsuit, which are explained in CCP 1985.3, which you reference in your question.
It is not clear from your question who the client is, if they are a consumer and if they are a party to the lawsuit, but for the purposes of this response I will presume you are the client, a consumer and a party to the lawsuit.
The opposing party to the lawsuit, in subpoenaing records from the financial advisor also needs to send out a notice to consumer. This notice to consumer, along with the subpoena, must be sent to the consumer 5 days prior to the subpoena being served on the financial advisor. Only after giving five (5) days’ notice to the consumer can the subpoena be served on the financial advisor, along with proof that the consumer has been served.
Failure to comply with these requirements invalidates the service so that the financial advisor would be under no duty to produce the records. Even if the financial advisor produces the records, it is ground for objection to admission of the records. There may be other reasons to object to the subpoena as well. If this is your situation, you should discuss with an attorney on how to proceed.
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