Within the wonderful world of Worker’s Compensation, there lurks a tool that when utilized will require you to show up, answer questions and even makes you bring documents with you. This is known as a Subpoena for the Production of Documents, also known as the Subpoena Duces Tecum (hereinafter SDT).
Subpoenas
Governed by the Code of Civil Procedure § 1985 (hereinafter CCP), a subpoena is a “writ or order directed to a person and requiring the person’s attendance at a particular time and place to testify as a witness”. It requires an individual who is not a party to the lawsuit to present themselves at a certain date and time for the purposes of acquiring their testimony.
In addition to requesting that the specified individual present, a subpoena can also order that the individual “bring any books, documents, electronically stored information, or other things under the witness’s control which the witness is bound by law to produce in evidence”. This language creates a subpoena for the production of documents, also known as an SDT.
Within the Worker’s Compensation field, an SDT may also be served upon an opposing party. Unlike within civil law, the various other discovery procedures are unavailable. A subpoena can also be issued by an attorney, using blank forms that are issued by the court, and have the same effect as a court order. A responding party to the SDT who fails to comply may be punished for contempt even though the issuing party did not first obtain a court order compelling the individual to comply. Therefore, make sure your response is proper.
Fortunately, the SDT still must comply with the CCP § 1985 to be deemed enforceable. Within CCP § 1985 (b), it states that a copy of an affidavit, a written declaration under oath (defined by CCP § 2003), must show “good cause for the production of the matters or things desired to be produced, setting forth in full detail the materiality thereof to the issues involved in the case, and stating the witness has the matters or things in his or her possession or under his or her control.” CCP § 1985 (b).
Addressing Subpoena Defects
Once a SDT is received, the first thing to establish is whether it was properly served. As required by CCP § 1987, a subpoena must be served by “delivering a copy or a ticket containing its substance, to the witness personally”. Therefore, the individual can and should request the proof of personal service which will determine if the subpoena may be enforceable.
Another potential issue is whether the subpoena addresses when the production is required. The SDT should clearly state the date, time and location where production should be made. This is also the date by which a proper objection or a Motion to Quash must be made. However, as many services often copy earlier, objections should be made as soon as possible.
It is key to note that when a SDT requests the Worker’s Compensation claim files, these files are not only considered as “business records” of the claims adjusting entity but are also considered “personal records” of the injured worker. Therefore, if a SDT seeks production of such documents, it must comply with requirements put forth by the Code of Civil Procedure § 1985.3 and § 2020.410. The date of compliance cannot be any earlier than 20 days from the issuance of the SDT or 15 days after its service, whichever is later.
Once the above issues are addressed and if the subpoena passes those hurdles, the issue of objecting is now prime. If the individual identified in the subpoena is not a party to the lawsuit, then a written objection sent to the propounding party is sufficient. It then becomes the obligation of the affiant to obtain a court order authorizing its production. However, if the individual is a party to the action, then a Motion to Quash the SDT must be filed and served on the affiant prior to the date set for production.
Potential Objections
Once you have reviewed the SDT and addressed the issues above, you can then address whether or not the SDT in substance is valid.
The most pertinent and litigated objection is whether the SDT is compliance with the Code of Civil Procedure § 1986 (b). The affiant “cannot rely merely upon the legal conclusion, stated in general terms, that the desired documentary evidence is relevant and material” and that “’a mere allegation that the records are material,…constitutes a conclusion of law which does not meet the requirements’ of section 1985.” Johnson v. Superior Court (1968) 258 Cal.App.2d 829, 835-836 [66 Cal.Rptr.134]. Therefore, in order “to secure discovery by use of a subpoena duces tecum, there must be a showing or more than a wish for the benefit of all the information in the adversary’s files, and that the trial court must be afforded the factual data by the required affidavit to enable it to make an informed ruling on the issues of materiality and good cause. Id @ 837. The affidavit must state sufficient facts not based solely on information and belief, in order for the SDT to survive scrutiny.
If the SDT has complied with Code of Civil Procedure § 1985 (b), it is still not a foregone conclusion that it will not be quashed. The responding party can object on the grounds that the documents are privileged. The most common privilege assertions are attorney client-privilege and the attorney work-product privilege. Evidence subject to the attorney-client privilege include communications among counsel, the claims adjuster, as well and the employer. It also includes documents which memorialize those communications. The attorney work-product doctrine can be invoked for documents that were prepared in anticipation of litigation, prepared at the request of counsel, and for risk management purposes.
There are other common objections which are utilized to prevent disclosure aside from those stated above. One such potential objection is whether the language used is vague and ambiguous. Does the language sufficiently articulate what information is being sought?
Another objection would be if the request is unreasonable and overbroad in that it requests such copious amounts of documentation that it will not produce relevant information and/or is not reasonably calculated to lead to the discovery of admissible evidence.
Additional objections to note would be whether evidence requested is readily available to affiant or whether information has already been produced to them. These objections are utilized when the affiant requests the same information more than once or when the affiant can obtain the evidence without seeking it through the subpoena.
Conclusion
The information above is merely a cursory view of the intricacies that are within the SDT and the potential responses to them. If one was to receive such a request, it is extremely important to thoroughly review it and deal with it immediately as the issues involved are time sensitive. It is difficult, time consuming, and sometimes foreboding to deal with subpoenas. They are crucial in the discovery process and have potential pitfalls such as waiving rights, as well as disclosing privileged information.
It is our hope that you have found this article informative but it is by no means a complete guideline as to how do deal with a subpoena. We at Bradford & Barthel, LLP wish to pass on our knowledge to help those in need get a grasp of their situation. We wish you the best and thank you for reaching out to us.
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