Wolk and Levine’s Subpoena Series Responding in California
In Wolk & Levine’s “Subpoena Series,” we will break down what a subpoena is, what you should look for under both State and Federal law, and finally, we will discuss unique circumstances and potential objections.
What is a Subpoena?It was bound to happen. A client, contractor, or employee is involved in litigation and your small business received a subpoena for its records. Subpoenas can be daunting, particularly when you don’t see them coming.
A subpoena is a legal demand for a nonparty to produce documents, answer questions, and/or appear at a legal hearing. Subpoenas may be issued by the court or a legislative body, but they are generally issued by the litigants themselves. There are many types of subpoenas. However, this Series will focus on a subpoena for the production of business records, since that is one of the most common types. Like any other method of discovery, California requires litigants to follow certain procedural and evidentiary rules when issuing and serving a subpoena; but courts usually do not approve subpoenas before they are issued and served. Thus, while a subpoena will say that your business is “ordered” to produce the records described therein, you are only legally required to do so if the subpoena itself is legally compliant.
What are the Relevant Dates?A subpoena must indicate the date the records are due, however such date must be compliant with California law. Generally, a litigant cannot require you to produce any records less than 20 days after the subpoena was issued (date attorney or litigant signed), or less than 15 days after the subpoena was served, whichever date is later. However, there are specific situations where this timeline may be shorter. For example, in a criminal action, a business is generally required to respond to a subpoena within 5 days of receipt. Thus, if the applicable date does not conform to these requirements, your business should, at the very least, be able to extend the response deadline.
What is the Subpoena Requesting?Generally, the documents a subpoena requests are described in the subpoena or a separate attachment. California law requires all subpoenas to describe any documents or document categories with specificity and/or particularity. A litigant cannot initiate a so-called fishing expedition and simply request, e.g. all payment information your business possesses for all time. Another important item to consider is whether the subpoena seeks records that are personal to any individual consumer, such as one of your business’s clients, customers, or employees. In that instance, California requires the subpoenaing party to provide a “Notice to Consumer” to the applicable individual when requesting certain types of documents including, but not limited to, documents that contain a consumer’s personal information and are kept by physicians, therapists, accountants, attorneys, banks, insurance companies, etc., as well as personnel or employee records. Such notice alerts the individual that his or her own records are involved in the subpoena and gives him or her an opportunity to object to their disclosure. If the consumer does object, he or she will generally send any objections to your business as well as the subpoenaing party.
How do I Respond?In California, if you ignore or otherwise fail to respond to a subpoena, even if it is not legally compliant, you may be subject to a judicial order that not only compels your business to respond, but that finds it in contempt of court for its failure to do so. That said, your business should consult an attorney before responding to a subpoena. The response could be deemed incomplete, may include records for which there is no legal obligation to produce, and, most importantly, may inadvertently divulge records that implicate consumer or employee privacy or other privileged information, subjecting your business to legal liability.
An attorney can properly make and preserve objections to the subpoena and make sure that any response is legally compliant. An attorney can also advise you on how to respond to objections from a consumer or threatening letters from opposing counsel. As discussed, your business may not have to completely comply with subpoenas, but it should take them seriously. To that end, if your business receives a subpoena for any reason, you should contact an attorney as soon as possible to ensure your rights are protected.