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CalAttorney2, Attorney
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Experience:  Civil litigation attorney for individuals and businesses.
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State: California, Non-Party to a case. Last year I received

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State: California, Non-Party to a case. Last year I received a subpoena to produce records. I objected by ways of my attorney and served all parties involved. The bank released my records in error. The sealed records were received by a professional photocopier deposition officer. The bank tried to get the records back from the deposition officer, but the deposition officer stated they would not give the records back to the bank unless the bank sent a signed of it's request. I spent six months trying personally to get my records back, the deposition officer would not provide me with my records because "they just weren't sure what to do in this situation". The deposition officer assured me many times on the phone that the original records were kept in the original sealed envelope and would not be opened. I even sent a fax requesting the sealed records, but they did not respond.
I finally hired my attorney to deal with the issue and was given the records within 24 hours. However, when I received the records, they were opened! Someone had loosely paper clipped the records together and handed to me. The records were not in it's original sealed envelope, or any envelope or folder for that matter. Privacy was not a concern to the company. In California the deposition officer may not open the records without an order from the judge or written agreement by all parties. I was shocked since the deposition officer had said over the past six months that they knew to keep the records sealed in the original envelope. The deposition officer is buddy-buddy with the attorney seeking my records, but it can not be proved. What are my options towards the unlawful actions of this deposition officer? I have no idea who read or made copies of my bank records, that weren't suppose to be released in the first place! would my records be admissable in court? Would the deposition officer be responsible for any costs? Could a motion to dismiss the deposition officer take place? My biggest concern is that my records were open to any third party eyes and could have been copied by anyone!

William B. Esq. :

Dear Customer, I am sorry for the lengthy delay in getting a response to your question. I am sorry to learn of this unfortunate act by the deposition officer, fortunately it is not common. I will try to address your questions in series and give you some initial thoughts. You say that the deposition officer was a "professional photocopier" many deposition services are licensed or approved by various agencies (including "licensed photocopy services"). If you want to do so, you may report this deposition service provider to any of the agencies or departments that it holds itself out to be licensed by. Unfortunately, there is no requirement to be licensed, so there is no way to stop them from continuing to act as a deposition service in this case.

(1) As far as legal action against the deposition officer - you have a claim for negligence against the officer for any and all harm that is caused due to the release of your records outside of the litigation (meaning if your financial information is released to a third party and that is used fraudulently to your detriment - the deposition officer is responsible for it).

(2) Your records may be admissible in Court only if the other side can prove they were not produced absent fraud or other improper conduct (what happens in many cases such as this is that the party engaging in sneaky conduct actually harms itself by trying to get documents early, it otherwise would get in time, and then is not allowed to use them, even if they later get them properly). If the Court decides they are admissible, the other side would have to show they were received by means other than through the improper subpoena production.

(3) The deposition officer will not be responsible for any costs. However, the attorney for the other side may be (remember, the deposition officer is the agent for the other party). If it is shown that the acts by the other side caused unnecessary attorney's fees and costs to mitigate the issue they created, a court has discretion to award costs and fees (but remember, this is discretionary and not mandatory).

(4) You cannot dismiss a deposition officer (they are an agent for the other side in the course of litigation - see above).

(5) While the fact that your information may be irretrievably open to the parties in the case (there are options and motions that can be pursued above to mitigate this, but addressing this in the "worst case"), any information that may be disseminated to third parties could subject the deposition officer (as well as the attorney and the other party - as principals to the officer) to civil liability for any damages that may be caused from this information being leaked out.

William B. Esq. :

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