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socrateaser
socrateaser, Lawyer
Category: Family Law
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Experience:  Retired (mostly)
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Customer Did my subpoena question get to you? The website

Customer Question

Customer Did my subpoena question get to you? The website complained about some problem when I submitted my question and I am not sure if it made it to you after all that typing....
Submitted: 1 year ago.
Category: Family Law
Expert:  socrateaser replied 1 year ago.
Hello,

I've received nothing other than your question here. Please feel free to ask again in this Q&A.
Customer: replied 1 year ago.

I need clarification on subpoenas. I want to subpoena my ex's schwab account where she is hiding AAPL shares from her FL-150 to show the Judge that she has plenty of undisclosed funds.


 


Do I subpoena her schwab accounts with her SSN? I dont have the account numbers. Please clarify the custodian of records. Is that Apple Computer managing AAPL? Do I subpoena them instead and reference my Ex-wifes SSN?


 


2. I want to subpoena opposing counsel's Skype phone account to show he initiated a call cited in my RFO. Do I subpoena Skype and reference his phone number to produce the documents?


 


3. I want to subpoena my ex-wifes ATT cellular records to show certain TEXT messages. Do I subpoena ATT or is there a custodian of records?


 


I am looking at form SUBP02 which is not for this...please advise

Expert:  socrateaser replied 1 year ago.

I need clarification on subpoenas. I want to subpoena my ex's schwab account where she is hiding AAPL shares from her FL-150 to show the Judge that she has plenty of undisclosed funds.


Do I subpoena her schwab accounts with her SSN?


A: Yes. A subpoena is not filed with the court, so there is no disclosure of confidential information, because Schwab already has your spouse's SSN.


I dont have the account numbers. Please clarify the custodian of records. Is that Apple Computer managing AAPL?


A: You don't need account numbers. The person's name and SSN is sufficient.

 

"Custodian of Records" is a generic name used to obtain records from any business entity. Most large business organizations actually have an employee (or several employees) officially named "custodian of records." All subpoenas go to that employee, and he/she is responsible for either opposing or satisfying the subpoena request.

 

Businesses that are provided with a properly issued subpoena for business records will respond by sending the records to the courthouse in a sealed envelope that can be opened by the clerk at the hearing, where all parties are present, and in doing so, there can be no doubt as to the authenticity of the records produced.

 

Do I subpoena them instead and reference my Ex-wifes SSN?


A: Originally, I suggested that you subpoena Apple, Inc. directly, because I thought you did not have your spouse's account location. Apple has a log of every owner of its securities, so it can definitively disclose that your spouse owns APPL stock, regardless of the investment house in which the securities are held. But, if you know that the stock is held at Schwab, then you can subpoena Schwab to get the same records.

 

2. I want to subpoena opposing counsel's Skype phone account to show he initiated a call cited in my RFO. Do I subpoena Skype and reference his phone number to produce the documents?

A: Yes. Custodian of Records, account holder name and phone number will be sufficient to permit Skype to identify the information requested.

3. I want to subpoena my ex-wifes ATT cellular records to show certain TEXT messages. Do I subpoena ATT or is there a custodian of records?


A: Same as above.


I am looking at form SUBP02 which is not for this...please advise.

 

A: SUBP-002, Section 3 b. is what you would use to obtain the records without requiring appearance of the custodian of records.

 

Hope this helps.

Customer: replied 1 year ago.

Are you sure?


 


I thought there was another form just to subpoena documents..


 


A: SUBP-002, Section 3 b. is what you would use to obtain the records without requiring appearance of the custodian of records.

Expert:  socrateaser replied 1 year ago.
SUBP-010 is used to obtain records during the discovery period prior to trial. But, if you want to have the documents produced directly to the court for the trial itself, then it's SUBP-002 and Section 3 b. (plus SUBP-025, if consumer records are requested -- and they are).

Hope this helps.
Customer: replied 1 year ago.

ok so just to make sure:


 


1. For the Skype phone call to show at trial I will need the SUBP-002 and Section 3 b. AND form SUBP-025?


 


2. Just to find out info for the case I need to use SUBP-010 and I take it that the results produced from this CAN NOT be used as evidence for trial. Right?

Expert:  socrateaser replied 1 year ago.

1. For the Skype phone call to show at trial I will need the SUBP-002 and Section 3 b. AND form SUBP-025?

A: Yes.

2. Just to find out info for the case I need to use SUBP-010 and I take it that the results produced from this CAN NOT be used as evidence for trial. Right?

 

A: Wrong. Discovery produced by a deposition subpoena (SUBP-010) is admissible evidence at trial, because both you and the other party have equal access prior to trial to the same information. But, you have to hire a third party professional photocopier to receive the documents and then produce them to you and the other party. An added step that may or may not be necessary.

 

Also, a deposition subpoena can be more general. Your requests can be broad and the witness must make efforts to produce everything that falls reasonably within the scope of your request. Whereas a trial subpoena (SUBP-002) must be precise. You must ask for the exact documents you require, or the witness can refuse to comply.

 

Finally, a deposition subpoena must be accompanied by a declaration from the custodian of records as to the trustworthiness, and mode of preparation of the documents. See Evidence Code 1561(a). The same is required of the trial subpoena, however the subpoena states on its face that the custodian must produce the declaration, whereas the affidavit does not.

 

Standard practice is for the subpoenaing attorney to provide a form declaration for the custodian to fill out, and a cover letter stating that the custodian is not to use its own form, but rather the form provided. That way, there is no mistake about the necessary documents to make the evidence admissible.

 

Note: there is no Judicial Council form declaration -- you'll have to make one yourself, based upon Evidence Code 1561 -- or find one at the law library -- or buy the book that I keep suggesting.

 

 

Hope this helps.

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