Coleman & Horowitt Client Memorandum

1 Coleman & HorowittClient Memorandum Discussing Issues of Interest to our ClientsColeman & Horowitt , LLP, 499 West Shaw Avenue, Suite 116, Fresno, CA 93704 (209) 248-4820 SUBPOENAS: WHAT THEY ARE AND HOW TO RESPOND TO THEMBy: Darryl J. HorowittEvery day, in almost every city, and inalmost every state, a business is served with asubpena. Your business may have received onein the past or may receive one soon. For thosewho are not regular participants in lawsuits,subpoenas are a mysterious document which youshould know about. The purpose of this article is to discusswhat a subpena is and how you should respondto a subpena if you are served with is a SubpenaGenerally speaking, a subpena is a formalrequest that you either attend a court hearing(whether it be a deposition, court hearing or trial)or to produce documents in conjunction with alawsuit or administrative proceeding.

2 InCalifornia, subpoenas are governed by the Codeof Civil Procedure (Code of Civil Procedure 1285, et seq.), while in Federal Court actions,subpoenas are governed by the Federal Rules ofCivil Procedure (FRCP Rule 45).Federal and state laws also permitlegislative and administrative bodies to servesubpoenas to compel attendance at hearings orto produce documents, and arbitration tribunals(such as the American Arbitration, etc.) are alsoauthorized to issue California, subpoenas are issued eitherthrough the courts, legislative body oradministrative body, or self issued, meaning thatan attorney will obtain an approved form from thecourt and will issue it by signing it, in which caseit is issued by the attorney rather than by thecourt.

3 [Code of Civil Procedure 1986.]What to do if You Receive a SubpenaThe first step you should take if youreceive a subpena is to determine if it wasproperly served upon you. Generally, asubpena must be personally served, meaningthat you must personally receive it. [Code of CivilProcedure 1987(a).] If you are a business, thatmeans that an authorized representative of yourcompany must actually be handed the subpena;giving it to a receptionist or secretary, who maynot realize the importance of the document, is notsufficient. Nevertheless, subpoenas are oftendelivered in this a subpena is not properly served, youmay not have an obligation to respond to it. Youshould not, however, ignore the subpena. That isbecause failure to respond to a subpena isconsidered to be contempt of court, and the courtmay impose sanctions ( , a civil penalty) and,in extreme circumstances, may also jail you forfailure to comply with the subpena.

4 Therefore, if you are not personallyserved with the subpena, we recommend thatyou contact your attorney, who will notify theparty that it was improperly served. Sinceresponding to a subpena may be a minorinconvenience, early contact with the party thatserved the subpena may ultimately save you timeand expense. It may also allow you to avoidhaving to respond to the subpena that the subpena is properlyserved, the next step is to determine if it is2properly prepared. Oftentimes, subpoenas areprepared by individuals who are representingthemselves or by inexperienced attorneys whofail to properly complete the subpena. In thisregard, the subpoenas must properly identify theperson to respond to the subpena.

5 Merely askingfor a corporate representative to respond isinsufficient; you must designate either a specificindividual or the custodian of records of acompany. If the name of custodian of records isnot known, merely stating the title custodian ofrecords or a particular officer of the companymay be sufficient. In addition, if the subpena requests thatyou attend a court hearing or deposition, thedate, time, and location of the event must be setforth with specificity in the subpena. Failing toidentify the date, time, or place may render thesubpena so vague that it is incapable of beingenforced. Again, if there is information left out,you should contact your attorney, who may beable to work out a solution with the party servingthe subpena.

6 Similarly, if the subpena requests that youproduce documents, the subpena mustspecifically identify the documents to beproduced and the category of documentsrequested must be sufficiently narrow to allowyou to determine which documents need beproduced. For example, a request that all lettersyou sent to or received from party xxx sufficientlyallows you to identify that certain letters arerequested. However, a subpena which requeststhat you produce all documents relating tocompany xxx may be so broad as to make itdifficult to respond to the subpena. If you believe that the category ofdocuments requested is overly broad, contactyour attorney to prepare a proper , even if it appears that the subpena isimpermissibly over broad, you should take stepsto respond to it so that you can avoid a request tohold you in contempt of court.

7 You should also review the subpena tosee if you have been given sufficient notice. Ifyou are requested to attend a hearing ordeposition, you must be served with the subpenawithin a reasonable time. [Code of CivilProcedure 1987(a).] If you are requested toproduce documents, you must be served with thesubpena at least 20 days before the documentsare to be produced, unless the court provides ashorter time. [Code of Civil Procedure 1987(c).]More time may also be required, as service of thesubpena must be made so as to allow thewitness a reasonable time for preparation andtravel to the place of attendance. [Code of CivilProcedure 1987(a).] In addition to determining whether or notthe subpena itself is proper, and was properlyserved, determine whether or not the proper witness fees have been delivered to you, or atleast offered.

8 Generally, when a subpena isserved, the witness is entitled to receive witnessfees and anticipated mileage to and from court.[Code of Civil Procedure ] If documentsare requested, the witness is also entitled toreceive the reasonable costs of compiling andphotocopying the documents requested. [Ibid;Evidence Code 1560, 1563.] The reasonablecost for photocopying records is 10 per pageand 20 per page of documents for microfilm, theactual cost of reproducing oversize documentsand documents such as x-rays; the clerical costin locating and making records available is amaximum of $ per hour per person to bebilled in increments per $ per quarter hour,actual postage costs and actual costs incurred inhaving a third party retrieve the documents.

9 [Evidence Code 1563.] These costs are to bepaid before any witnesses are required to attendand before any documents need to be physicallyproduced. If you have received a subpena as an expert witness, you are entitled to receive areasonable rate for your services in traveling toand attending the hearing. [Code of CivilProcedure 2034.]Again, it is important to determine exactlywhat is being requested of you because, in manyinstances, you will receive a document entitled Deposition Subpena Business Records Only. This document generally merely requests thatyou produce documents at a certain place andtime. If the party requesting the documents is an3attorney, the attorney may request that youproduce documents to a photocopy service.

10 Thephotocopy service will pay you a $ fee(authorized by Evidence Code 1563), and youwill merely present the documents to thephotocopy service so that they may is important that before you produce anydocuments, you determine whether or not thedocument may be considered personal records. Personal records are defined as recordsmaintained by a physician, chiropractor,veterinarian, veterinary hospital, veterinary clinic,pharmacy, hospital, state or national bank, stateor federal association, state or federal creditunion, trust company, anyone authorized by thestate to make or arrange loans that are securedby real property, security brokerage firm,insurance company, title insurance company,underwritten title company, escrow agent.