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socrateaser
socrateaser, Lawyer
Category: Legal
Satisfied Customers: 38563
Experience:  Retired (mostly)
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California Trial Subpoena for Appearance & Production of Docs & Things

Customer Question

Does the notice to consumer and notice of deposition rules apply to the trial subpoena for testimony and records as they would with an ordinary subpoena for testimony and records? The trial subpoena consists of three pages, and I understand how to fill that out. I need to know if I still have to send the notice to consumer along with a notice of deposition as I would for a deposition and/or production of records. Furthermore, I just need to confirm that all time limitations are applicable as well, as they would be for a deposition subpoena and/or for records.
Submitted: 8 years ago.
Category: Legal
Expert:  socrateaser replied 8 years ago.

Yes, same rules apply and so do the time limitations.

 

Example: If you intend to subpoena consumer records for the first day of trial (civil subpoena duces tecum):

  • Serve the consumer by mail at least 15 days before trial (CCP §1985.3(b)(2)) and at least 10 days before you serve the witness (CCP §1985.3(b)(3)), i.e., you could serve the witness 1 to 5 days before trial; but
  • You must also serve the witness in sufficient time to locate and produce the records (CCP §§1985.3(d), 2020.220, 2020.410(c)), and 1- to 5-days' notice to the witness might not be considered sufficient.
  • If you serve the witness on the 10th day before trial, serve the consumer by mail in California at least 20 days before trial, i.e.: 10 days from service on the witness until trial + 10 days before service on the witness, serve the consumer (5 days before the witness plus 5 days for mailing (CCP §1985.3(b)(3)) = 20 days.

 

 

Terms and Conditions: By your continuing in this conversation with me, or by your clicking "Accept", you are expressly agreeing to all of the following: (1) our communication is for entertainment purposes only; (2) you are not consulting me in my professional capacity as an attorney; (3) you do not seek to establish an attorney-client relationship with me, nor do I with you; (4) you will not rely on anything I say and you will obtain appropriate legal counsel via a traditional/office consultation with an attorney licensed to practice in the jurisdiction where your legal issue arises (and you may not use our communication to avoid taxpayer penalties imposed by the U.S. Dept. of Treasury); (5) by communicating with me in this public forum you are irrevocably waiving any right to privacy, confidentiality and attorney-client privilege concerning the matters discussed. You further separately declare that any payment made by you is not consideration for this contract, nor offered for any services rendered by me on your behalf, but rather is made in genuine admiration and respect for my desire to help others. If you do not agree with these terms and conditions, then you must advise me immediately.

Customer: replied 8 years ago.

Okay. Let me make sure I have this right. I understand all the time requirements, but here's the docs that need to be sent for a trial subpoena for appearance and production of docs:

1. Notice of Deposition (Actually, is this needed since it's a trial? This is usually required for a deposition for testimony and/or deposition for testimony and records.)

2. Notice to Consumer

3. Trial Subpoena

4. Proof of Service of Notice to Consumer and Subpoena

Expert:  socrateaser replied 8 years ago.

1. No. Civil Subpoena Duces Tecum is not the same as a Deposition Notice (which is only for a "party" to the case, and wouldn't be appropriate for a trial -- it would be a Notice to Appear).

 

2. Yes. This document must go to the consumer and to opposing counsel/party so that they have sufficient time to move to quash, if that's what they want to do.

 

3. Yes. And, the notice regarding the notice must be served on the witness so that he/she/it is aware that you have properly notified the consumer.

 

4. Yes. Have copies of all at trial in case you're challenged, or the witness doesn't show up. Otherwise, you won't be able to continue the trial.

 

Also, you should try to be as far out in front of trial as possible, because, for example if you are subpoenaing a large corporation, the custodian of records will always try to find a reason to not appear, and if anything is out of order, you will end up with a letter telling you "Sorry, try again."

 

Finally, it's usually a good idea to send a cover letter to the witness telling them where and when to be at trial and that you can keep the on call if they are willing to appear with 30 minutes notice and provide you with a phone number where they can be reached on the trial date. The idea is to make it as hospitable for a witness as possible -- otherwise you may end up with a hostile witness, which may be worse than no witness at all.

 

Even if the witness is hostile, it's good to make it seem to them like they're not.

 

 

Customer: replied 8 years ago.

Very good. I'm almost there. Please bear with me.

 

It's my understanding that when a subpoena for testimony or for testimony AND records is to be issued, a Notice of Deposition must be sent as well, regardless of whether the deponent is a party to the case. When the deponent is a party, however, the Notice of Deposition is in lieu of an all out subpoena and is sufficient to compel but, nonetheless, is still required along with the subpoena for nonparties.

 

So, my final clarification is if, in fact, a Notice to Appear, as you say, is required for a trial subpoena to a nonparty, or if this step is to be omitted altogether, as the trial subpoena is just different in that respect and doesn't need a notice, other than the notice to consumer.

 

Expert:  socrateaser replied 8 years ago.

Either a subpoena or a notice to attend (and produce evidence) may be used for a party. Not both.

 

A civil subpoena is required for a non-party. Not both.

 

Note: I had a brain fart. It's a notice to "attend" and produce evidence, in a civil action (CCP 1987(b)).

 

 

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Customer: replied 8 years ago.

I'm confident, however, that in a deposition subpoena for records and testimony (not civil subpoena for trial), or just for testimony, that a notice of deposition is still required along with the subpoena. You do agree on that, right? I'm positive on this one.

 

So, what you're saying is that, the civil subpoena is just a different beast and doesn't require both the subpoena and the notice of attendance?

Expert:  socrateaser replied 8 years ago.

No, that's not what I'm saying.

 

A "notice of deposition" or a subpoena may be used to require a party's attendance at a deposition. A "notice to attend" or a subpoena may be used to require a party's attendance at a trial.

 

A subpoena must be used to require a third-party witness to appear at either a deposition or trial.

 

A subpoena "duces tecum" or a "notice to attend and produce evidence" is used when the proponent wants the witness (or party) to bring evidence within the witness' custody and/or control to trial or deposition.

 

A consumer notice must be used wherever personal, health care or employment records are sought to be produced.

 

I recommend that you get a copy of "Handling Subpoenas," CEB, Regents of University of Southern California. That will clear up all your questions.

 

Terms and Conditions: By your continuing in this conversation with me, or by your clicking "Accept", you are expressly agreeing to all of the following: (1) our communication is for entertainment purposes only; (2) you are not consulting me in my professional capacity as an attorney; (3) you do not seek to establish an attorney-client relationship with me, nor do I with you; (4) you will not rely on anything I say and you will obtain appropriate legal counsel via a traditional/office consultation with an attorney licensed to practice in the jurisdiction where your legal issue arises (and you may not use our communication to avoid taxpayer penalties imposed by the U.S. Dept. of Treasury); (5) by communicating with me in this public forum you are irrevocably waiving any right to privacy, confidentiality and attorney-client privilege concerning the matters discussed. You further separately declare that any payment made by you is not consideration for this contract, nor offered for any services rendered by me on your behalf, but rather is made in genuine admiration and respect for my desire to help others. If you do not agree with these terms and conditions, then you must advise me immediately.