Subpoenas - We’ve Been
Served! Now What?
Presented by Seymour “Sy” Everett & David L. Martin
Presenters
Seymour “Sy” Everett, III is a Partner with Lewis Brisbois Bisgaard & Smith, a national full
service law firm with offices throughout the United States. He is a regular speaker at legal
seminars and a former adjunct professor at USC School of Law. A graduate of UCLA and
Seton Hall School of Law, he routinely represents cities, school districts, public agencies,
police officers, and other governmental agencies in all aspects of litigation. Cases include
general liability, motor vehicle accidents, libel, slander, personal injury, environmental and
administrative compliance. Recent jury trials include: Lorenzana v City of Buena Park
(Defense Verdict, May 2016); Wilson v Grieder, (Defense Verdict, July 2015); IME v WASC
(Defense Verdict, May 2015) and Reumont v Gordon (Defense Verdict, March 2015). Mr.
Everett is admitted to practice in all state courts in California, including United States Federal
District Courts. Mr. Everett’s can be reached at 714.668.5518 and
[email protected]
David L. Martin is a Partner with Lewis Brisbois Bisgaard & Smith. He has extensive
litigation experience representing public entities in state and federal court, including, cities,
school districts, police departments, and other public agencies. Mr. Martin graduated from
UCLA School of Law and Brigham Young University. He has authored and published
numerous articles impacting cities and routinely counsels public agencies. Recent articles
include, “The Trivial Defect Doctrine – How Municipalities Can Avoid Having Their Repair
Criteria Used Against Them.” Mr. Martin is also a director for the Irvine Valley College
Foundation, Board of Governors and an Associate Director of Wescom Central Credit Union.
Mr. Martin can be reached at 714.966.3136 and [email protected]
The Purpose of a Subpoena
• Subpoenas are used to obtain
documents or testimony from
those who are not part of the
litigation.
• Subpoenas are issued under the
authority of the Court, which
retains enforcement power.
• The term ‘subpoena’ originated
from the Latin phrase sub poena,
meaning ‘under penalty.’
Subpoena Example
Sending party and
related court.
Subpoenaed party.
Date of deposition.
Directions if there is a motion to
quash and/or objection.
Specifics of order.
Witness fees and who to call
with questions.
Types of Subpoenas
• Documents only.
• Testimony only.
• Documents and
testimony. This is
sometimes referred to as
a ‘Subpoena Duces
Tecum.’
• Trial Subpoenas.
Service of Subpoena
• A process server working for a
specialized company will likely
deliver the subpoena to the
reception area.
• All subpoenas should be referred to
an individual who has been
designated for acceptance or
rejection.
• Refusing to accept a proper
subpoena could be interpreted as
evasion of service.
Designated Person
• The City should designate one
individual to be responsible for
accepting, evaluating, and
processing subpoenas.
• All personnel should be notified of
who the Designated Person is,
and asked to coordinate all
subpoena handling through them.
• If the organization is required to
designate a custodian of records,
it should likely be this same
individual.
Initial Handling Procedures
• Ensure subpoena is
served on the Designated
Person.
• Await further directions
from counsel, such as:
– Identifying deponent and/or
location of documents.
– Preserving relevant material,
especially digital files such
as emails, to prevent routine
destruction.
Processing the Subpoena
• If the subpoena is in order (i.e., served properly with the
appropriate witness fees), then the Designated Person should
(1) sign for it; (2) enter the date and time of receipt on the copy
received; and (3) forward the subpoena to counsel.
• When questions arise, timely consult with counsel.
Benefits of Consulting with Counsel
• Certain documents may be
objectionable or exempt from
disclosure absent a court order.
• Accidental disclosure of certain
confidential information may subject
your organization to lawsuits or
regulatory difficulties.
• Your attorney may take action on the
subpoena, including:
– Advising the impacted employee
or department;
– Forwarding the subpoena to a
different attorney involved in the
litigation.
Objecting to a Subpoena
• A subpoena may be
objectionable for a number of
reasons.
–
–
–
–
Improper document categories
Improper deposition categories
Geographic limitations
Time limitations
• Depending upon which
objections are made, it is
possible that your attorney may
recommend not producing
documents.
Improper Document Categories
• Unduly burdensome requests.
– “All communications between you and Jon Smith
between 1985 and today.”
• Vague and ambiguous requests.
– “Documents regarding the injury.”
Privileged or Confidential Records
• A City should consult with its counsel prior to disclosing
the following types of documents:
– Attorney-client communications
– Medical records
– Personnel records
Attorney-Client Communications &
Attorney Work Product
• Under California law, communications
between a client and its attorney are
not generally discoverable.
• There are several exceptions,
including communications for which a
third-party is present.
• An attorney’s work product is not
generally discoverable, although there
are exceptions.
• Documents prepared in anticipation of
litigation are not discoverable in
federal court.
Confidentiality of Medical Information Act
• The CMIA is a California Law that prohibits
disclosure of medical information regarding a
patient without first obtaining an
authorization. (See Civil Code Section 56.10,
et seq.)
• Although the CMIA appears at first glance to
only govern the disclosure by health care
providers, under Section 56.13, the CMIA
also regulates disclosure by recipients of
individually identifiable medical information.
• Recipients of health care information are not
permitted to further disclose such information
absent a new authorization.
Physician – Patient Privilege
• Under California law, patients have a
privilege to refuse to disclose and to
prevent others from disclosing confidential
communications with physicians.
• If this privilege is timely raised, then
consult with counsel prior to the deadline
for production of records.
• One option is to timely assert in writing
that the physician-patient privilege has
been raised and that the City is not
permitted to produce the records absent
an order from the Court.
Personnel Records
• California Courts have recognized that
public employees have a constitutionally
protected interest in their personnel files.
However, this privilege is not absolute.
• Recent decisions from the California
Supreme Court have determined that
public employees do not have a
reasonable expectation of privacy in their
names and salary information and their
dates of employment.
• Courts frequently engage in a balancing
test in which the employee’s privacy
interests are weighed against the
requesting party’s interests in disclosure.
Notices to Consumer
• A subpoena that seeks personal
information or records must be
accompanied by proof that a
copy of the subpoena was
provided to the impacted person
before the subpoena was served.
(See Code Civ. Proc. §§ 1985.3,
1985.6).
• Such proof is called a “Notice to
Consumer” and will typically be
served on the consumer by the
attorney issuing the subpoena.
Notice to Consumer Example
Sending party and
related court.
Impacted person.
Directions on how
to object.
Statement of objection.
Impact of Notice To Consumer
• The person whose records
are sought has until 5 days
prior to the date of
production to file a motion
to quash or modify the
subpoena.
• As a result, the City should
not generally produce the
records prior to the date of
production.
Quashing a Subpoena
• The person whose records
are being sought may move
to quash the subpoena,
effectively cancelling it.
• If you receive notice of such
a motion, do not respond to
the subpoena until you
receive further instructions.
Deposition Subpoena
• Used to elicit testimony only.
• If the subpoena is served on
an entity, the subpoena must
set forth categories that will be
covered in the deposition.
• Subpoenaed entity will then
produce a “Person Most
Qualified” to testify to these
categories.
Geographic Limitations – Individual
Code Civ. Proc. § 2025.250(a)
• A deposition of a natural
person must take place
either:
– Within 75 miles of the
deponent's residence, or;
– within the county where
the action is pending and
within 150 miles of the
deponent's residence.
Geographic Limitations – Organization
Code Civ. Proc. § 2025.250(c)
A deposition of an
organization’s
representative must take
place within 75 miles of
the organization’s
principal executive or
business office in
California.
Time Limitations
Code Civ. Proc. § 2020.220
• The subpoena must be served
in “sufficient time” to allow the
witness to travel to the
deposition location and obtain
the requested documents.
• The law provides no definition
of “sufficient time,” so unless
there is considerable travel or
an unusually large list of
requested documents, it is
usually reasonable to allow for
at least 10-15 days.
Improper Deposition Categories
• Vague and ambiguous
categories.
– “All actions taken in
response to claims.”
• Categories seeking privileged
information.
– “All actions taken by your
attorneys in response to
the Smith lawsuit.”
• An unduly burdensome
number of categories.
The Deposition
• Testifying under oath in an office
setting.
• Attorney will be asking you
questions, and everything will be
recorded by a stenographer and
possibly via video.
• Your attorney may be present to
ensure questioning is not
improper.
• Attorneys from the underlying
lawsuit will likely be present as
well.
Deposition Tips
• Answer only what is asked.
– “Do you know the time?” “Yes.”
• Do not guess or speculate. “I don’t
know” is an acceptable answer
when accurate.
• Wait for the question to end, and
allow your attorney a chance to
object, prior to responding.
• Follow your attorney’s advice.
After the Deposition
• You will have a chance to
review your testimony and
make any changes.
• Be careful when making
changes, substantive
changes may be used to
damage your credibility.
• Incorrectly transcribed or
misheard testimony
should be corrected to
ensure a clean record.
Witness Fees
Code Civ. Proc. § 2020.230; Gov. Code §§ 68093, 68096.1
• If you are required to appear for
a deposition or at trial in a civil
case, you are entitled to $35 per
day.
• You are also entitled to mileage
traveled both ways at $0.20 per
mile.
• The City is entitled to $275 per
day up front, and must be
reimbursed for paying the salary
and traveling expenses of the
deponent.
Tracking Public Entity Expenses
• The witness fee paid by the
subpoenaing party is a deposit
against the actual costs incurred by
the public entity in complying with the
subpoena.
• In order for the public entity to
recover those expenses, it is
important for the employee to keep
track of his or her time spent
preparing to testify and for the related
costs of his or her appearance.
• Employees should forward this
information to their supervisor.
Reimbursement
•
If the actual costs to the public
entity are more than $275.00 per
day, it may charge the subpoenaing
party.
•
If the actual costs to the public
entity are less than $275, then it
must reimburse the subpoenaing
party.
•
Since the public entity continues to
pay the witness’ salary and travel
expenses incurred as a result of
the subpoena, all reimbursement
amounts collected belong to the
public entity, not the employee.
Exceptions to Payment Requirements
•
The subpoenaing party is relieved of
tendering a witness fee in criminal
matters.
– A criminal subpoena is easily
distinguished from a civil subpoena by
the caption area which will always state:
“The People of California v. (person’s
name).”
•
The subpoenaing party may be relieved
of the duty to pay witness fees by a
court.
– Fees should be demanded in a civil
matter unless the subpoenaing party can
show proof of a court waiver.
Avoid Improper Subpoena Handling
• Failing to timey respond to a
subpoena waives your right to
object.
• Critical to protecting interests
of organization, its employees,
and the people it serves.
• Familiarize yourself with
internal subpoena handling
procedures.
Planning Your Response
• Service of a subpoena
should be met with
appropriate policies and
structures that have been set
forth in writing and
communicated to all
necessary employees ahead
of time.
• This is required to keep what
should be a routine
occurrence from turning into
a problem.
Failure to Comply
• The court has broad discretion to
determine an appropriate punishment
given the circumstances presented.
• Generally, a hearing will be held
where the party charged with
noncompliance has an opportunity to
explain its side of the story.
• Most likely, the court will issue an
order to comply, coupled with an
award of attorneys’ fees to the party
that had to initiate the contempt
proceedings.
California Public Records Act
• Under Government Code Section
6250, et seq., state and local
agencies are required to produce
public records for inspection.
• The term ‘local agency’ is defined
to include cities. (See Gov’t Code
Section 6252).
• California’s Public Records Act is
similar to the Freedom of
Information Act (“FOIA”), which
permits inspection of federal
records.
Who Can Make a Request?
• Any person or entity,
including the media, forprofit businesses and
other public entities.
• A person who lives in a
different city, county or
state can access records
under the CPRA.
• Public officials do not have
any special status in
making CPRA requests.
Public Records
•
•
Broadly defined to include “any writing
containing information relating to the
conduct of a public’s business prepared,
owned, used or retained by any state or
local agency regardless of physical form
or characteristic.”
A writing is defined as “any handwriting,
typewriting, printing, photostating,
photographing, photocopying, transmitting
by electronic mail or facsimile, and every
other means of recording upon any form
of communication or representation ... and
any record thereby created, regardless of
the manner in which the record has been
stored.”
“Retention”
• Generally understood to
mean records in the physical
custody of a public entity.
• In many cases, responsive
records may be in the
possession of a contractor.
• A reasonable search for
requested records may
require communication to
such contractors to
determine whether they are
in possession of the
requested records.
How to Respond
• If an agency receives a request to
inspect an identifiable, disclosable
record, the agency must promptly
make the record available.
• The CPRA covers requests for
electronic and computer data; and
public records that are stored in an
electronic format must generally
be made available in such
electronic format if so requested.
Permissible Responses
• If the search yields no
responsive records,
inform the requester.
• If responsive records
are found, you must
determine whether to:
– disclose the record;
– disclose the record in
redacted form; or
– withhold the record.
Exemptions to the Public Records Act
• There are numerous exemptions to the Public Records Act,
including the following:
–
–
–
–
–
–
–
–
Attorney client communications
Most law enforcement records
Some personnel records
Workers Compensation Benefits
Medical records
Official Information Privilege
Pending litigation or claims
Deliberative Process Privilege
Withholding or Redacting Records
• Respond in writing and
identify the name and title of
each official responsible for
the decision.
• If access to a record is
denied in whole or in part,
the denial notification must
cite the specific exemption
under the CPRA or other
state or federal law.
Failure to Comply
• If an agency improperly
withholds records, a
member of the public may
seek a court order to
enforce the right to inspect
or copy the records sought.
• The Court is permitted to
order payment of court costs
and attorney’s fees.
Conclusion
• Consistently follow your City’s
plan for responding to
subpoenas.
• Timely respond to all
subpoenas. When necessary,
ask for an extension of time to
respond.
• Consult with counsel when
questions arise.
Flowchart for Handling Subpoenas
The City is a party
to the case
Serve the City Clerk
If photocopying service will make
copies onsite, then $15. If City
makes copies, then $.10 /page
plus $24/hour.
Demand for Production. Notice
needed: 30 days to produce, +5
days if mailed (CCP 2031.030)
The City is not a
party to the case
Serve the City Clerk
If photocopying service will make
copies onsite, then $15. If City
makes copies, then $.10 /page
plus $24/hour.
Notice needed: 30 days before trial or
20 days after subpoena issued
(employment records subpoena must
provide notice to employee per CCP
1985.3 and 1985.6)
Subpoena for
Records and
Personal
Appearance at
Trial or
Deposition
The City is a party
to the case
Serve the City Clerk
No witness fee
Notice needed: Reasonable time,
usually 10 days. Officers, directors,
and managing agents get 20 days if
documents are requested (CCP 1987).
The City is not a
party to the case
Must personally
serve the individual
named
$275 witness fee deposit for each
day. After appearance, calculate
salary and expenses, then refund
or request the difference.
Notice needed: Reasonable
time (usually 10 days) (CCP
2020.220(a)).
Subpoena for
Personal
Appearance at
Trial or
Deposition
Only
The City is a party
to the case
Serve the City Clerk
No witness fee
Notice needed: Reasonable time,
usually 10 days. Officers,
directors, and managing agents
get at least 10 days (CCP 1987).
The City is not a
party to the case
Must personally
serve the individual
named
$275 witness fee deposit for each
day. After appearance, calculate
salary and expenses, then refund
or request the difference.
Notice needed: Reasonable
time (usually 10 days) (CCP
2020.220(a)).
Subpoena for
Records Only
(Custodian of
Records)
THANK YOU!