Responding to Third-Party and Workers' Compensation
Civil Subpoenas for Personnel/Employment Records in
California Courts
A Step-By-Step Guide for Department
Personnel Officers
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CONFIDENTIAL - Attorney/Client Communication
A third party subpoena is a subpoena that requests
documents (and sometimes testimony) in a case
where the City is not a party to the lawsuit.
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CONFIDENTIAL - Attorney/Client Communication
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CONFIDENTIAL - Attorney/Client Communication
Is it your Subpoena?
Check PeopleSoft to verify that the employee works in
your department.
If the employee does not work in your department, but does
work elsewhere in the City, please contact the DHR
Subpoena Coordinator immediately.
If the person is not found in PeopleSoft at all, meaning they
were never a City employee, return a signed Custodian’s
Declaration of No Records to the subpoena service.
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CONFIDENTIAL - Attorney/Client Communication
Was the Subpoena Properly Served?
Was the person who accepted service empowered to do so?
•The Mayor’s Office is the default agent for service of
process in the City.
How was the subpoena served?
•Service by email or fax is only acceptable by prior
agreement with subpoena services.
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CONFIDENTIAL - Attorney/Client Communication
Keep a Detailed Log
Create an online folder with the matter name with the case
name and place a PDF of the subpoena and related
documents into the folder. This way it may be accessed for
future use.
You should also keep pristine and redacted copies of all
documents produced in response to subpoenas for six
months after the subpoena has been issued.
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CONFIDENTIAL - Attorney/Client Communication
Civil or Criminal Case?
Criminal subpoenas will continue to be processed and
responded to by the City Attorney's Office.
How can you tell if it is a criminal subpoena? Look for this
title format: People v. [Name]
With criminal subpoenas, DO NOT RELEASE ANY
WITNESS CONTACT INFORMATION
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CONFIDENTIAL - Attorney/Client Communication
Does the Subpoena Involve Peace Officers?
Notify the your General Counsel if you receive a subpoena
for Peace Officer records.
The definition of "peace officer" not only includes officers in
the San Francisco Police Department, but also officers in the
Sheriff, Animal Control, District Attorney, and Adult and
Juvenile Probation Departments.
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CONFIDENTIAL - Attorney/Client Communication
Federal Subpoenas
Federal Subpoenas will continue to be handled by the
City Attorney’s Office.
The subpoena will indicate that the case is pending in
United States District Court (“USDC”). Federal
subpoenas served on the City are rare and require
Deputy City Attorney review.
If a subpoena is from the USDC, email a copy of the
subpoena to the City Attorney's Office Labor Team
paralegals as soon as possible .
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CONFIDENTIAL - Attorney/Client Communication
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CONFIDENTIAL - Attorney/Client Communication
Notices of Appearance
A Notice for Appearance, which may be included in a
subpoena, is an order to a non-party in a case to appear for
deposition or appearance at trial.
Notices to Appear must be processed and responded to by
the City Attorney's Office before the hearing date listed
on the subpoena.
DO NOT RELEASE ANY WITNESS CONTACT
INFORMATION
Contact your General Counsel.
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CONFIDENTIAL - Attorney/Client Communication
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CONFIDENTIAL - Attorney/Client Communication
Workers’ Compensation Subpoenas
A subpoena for Workers’ Compensation records is not valid
unless it has a case number.
If there is no case number, then the case has not been filed,
jurisdiction has not been established, and the filing party has
no power of subpoena.
Attorneys may try to gloss over their lack of subpoena
power by writing "unassigned" where the case number
should be, or by telling you that not having a case number is
"the way Workers’ Compensation cases are done."
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CONFIDENTIAL - Attorney/Client Communication
Notice to Consumer and Proof of Service
A consumer notice and proof of service must
accompany all California civil subpoenas that seek
personal records, such as employment records.
Check the proof of service to ensure that the appropriate
attorney and/or party has received the Notice to
Consumer.
If you are concerned that the consumer may not have
received a consumer notice, you can call the attorney
listed on the proof of service to make sure they received
a copy of the subpoena.
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CONFIDENTIAL - Attorney/Client Communication
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CONFIDENTIAL - Attorney/Client Communication
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CONFIDENTIAL - Attorney/Client Communication
Statutory Deadlines
The Notice to Consumer must be served at least five days
before you (custodian of records) are served with records
subpoena, plus an additional five days if served by regular
mail. (CCP § 1985.3(b))
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CONFIDENTIAL - Attorney/Client Communication
Statutory Deadlines (continued)
A custodian may not comply with a records subpoena earlier
than 20 days after the issuance of the subpoena, or earlier than
15 days after service of the subpoena, whichever date is later.
(CCP § 2020.410(c))
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CONFIDENTIAL - Attorney/Client Communication
Statutory Deadlines (continued)
The subpoena must be served with “sufficient time in advance” to
give the custodian “a reasonable opportunity” to locate and
produce documents. (CCP § 2020.220)
Ask the subpoena service for more time if needed, and it will
very often be granted with good cause.
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CONFIDENTIAL - Attorney/Client Communication
Count the Days
Sunday
1
Monday
2
Tuesday
3
Wednesday
4
Thursday
Friday
Saturday
5
6
7
11
12
13
14
Notice to
Consumer
MAILED
8
9
10
Extra 5 Days
for mailing
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
Custodian
served
Subpoena
EARLIEST DAY
TO ANSWER
SUBPOENA
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CONFIDENTIAL - Attorney/Client Communication
Witness Fee Check
Make sure the party issuing the subpoena provides a check
for the $15 witness fee, plus costs such as the cost of paying
non-City personnel to retrieve documents kept off-site.
You are entitled to fee even if you never produce records.
The fee is for searching.
Make sure check is made payable to your department, or to
the "City and County of San Francisco."
Release no records without proper payment!
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CONFIDENTIAL - Attorney/Client Communication
Determining Scope of Subpoena
Review the scope of the documents requested.
Most ask for payroll and personnel records.
Sometimes Workers’ Compensation files and other personnel
records are requested.
Occasionally non-personnel documents are requested in the
subpoena such as videos, radio logs, claims against CCSF, and
contract documents. Contact your General Counsel for these
documents.
Notify your General Counsel if you receive subpoenas
requesting Peace Officer records.
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CONFIDENTIAL - Attorney/Client Communication
Collecting the Documents
Carefully gather all the responsive documents from inside and
outside your department.
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CONFIDENTIAL - Attorney/Client Communication
Custodian’s Affidavit
A Custodian’s Affidavit is required for each category of
documents provided, e.g., payroll, personnel, Workers’
Compensation.
An affidavit is a formal sworn statement signed by the Custodian
of Records verifying the authenticity of the documents, and
the thoroughness of the document search.
If there are no records responsive to the subpoena, then a
Declaration of No Records (DNR), also called a Certificate of
No Records (CNR), is issued.
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CONFIDENTIAL - Attorney/Client Communication
Redacting Documents
Redaction is the “careful editing of a document, especially to
remove confidential references,” according to Black’s Law
Dictionary, 7th Edition (1999).
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CONFIDENTIAL - Attorney/Client Communication
Redacting Documents (continued)
Document redactions can be accomplished electronically
using Adobe Acrobat Professional.
Our office strongly recommends that document
redactions be done in this manner.
Redactions using a black marker will have to be copied again
so that the information cannot be seen on the produced
copies.
See Pages 7-8 (Step 11), Third Party Subpoena Response
Guide.
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CONFIDENTIAL - Attorney/Client Communication
What Do You Redact?
Social Security numbers (Be sure to check your
department or agency's internal Employee ID numbers
because they are often based on SSNs.)
Financial information (bank routing numbers, credit card
accounts, etc.)
Drug and alcohol records (such as DUIs)
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CONFIDENTIAL - Attorney/Client Communication
What Do You Redact? (continued)
Mental health and substance abuse records
Third-party medical information
City Attorney-client and City Attorney-work
product privileged information
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CONFIDENTIAL - Attorney/Client Communication
WITHHOLDING RECORDS
First Reports of
Injury (Form
5020)
Identify withheld
documents in a
cover letter.
Contact General
Counsel for
guidance.
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CONFIDENTIAL - Attorney/Client
Communication
Producing Redacted Documents
Unless the party issuing the subpoena has asked for delivery
in a specific format, we recommend that you produce the
documents on disc to save paper.
Keep a copy of what is produced, disc or hard copy paper,
for your files. (Burn 2 discs!)
To save money on postage, we also recommend that when
the documents are ready to go, you call the requesting party,
or their subpoena service, and tell them to come and pick
them up.
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CONFIDENTIAL - Attorney/Client Communication
In Review
Check if the subpoena goes to your Department
From the beginning:
Log all subpoenas
Track due dates, and
Keep pristine and redacted copies of all documents
Make sure the subpoena does not concern a criminal or
federal matter. If so, contact the appropriate CAO Labor
Team paralegal.
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CONFIDENTIAL - Attorney/Client Communication
In Review (continued)
Check to make sure the subpoena is not for a Notice to Appear
Make sure there is a $15 witness fee check plus costs such as
payment for off-site retrievals
Review scope of requested documents
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CONFIDENTIAL - Attorney/Client
Communication
In Review (continued)
Collect documents
Get signed Declaration or Affidavit of Custodian of Records
covering each category of documents requested
Redact documents
Produce documents electronically on disc
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CONFIDENTIAL - Attorney/Client
Communication
Who Do You Call for Help?
If you have any questions about the legality of a subpoena or
what is requested, please contact:
Jane Montes-Hall at 415-554-3909 ([email protected]) for cases where the plaintiff's last name
begins with A-L; or
Eric Lach at 415-554-3871 ([email protected]) for cases
where the plaintiff's last name begins with M-Z.
We are here to support you.
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CONFIDENTIAL - Attorney/Client Communication