How to Get Business Records for Litigation
Disclaimer: This guide is intended as general information only. Your case may have factors requiring different procedures or forms. The information and instructions are provided for use in the Sacramento County Superior Court. Please keep in mind that each court may have different requirements. If you need further assistance, consult a lawyer.
Click here to download this guide as a pdf.
Parties in a lawsuit can use "business records subpoenas" to obtain records and information from third parties, such as banks, employers, or police departments. Special requirements apply if the records are "consumer" or "employee" records. Warning! The process can take up to 30 days even if everything goes smoothly, so plan ahead.
This packet includes:
Step 1. Decide Whether the Documents You Need are "Consumer" or "Employee" Records
If they are, you need to add about two weeks to the process.
- "Consumer records" are records sought from health care and related providers, schools, banks and financial services providers, telephone companies, attorneys, or accountants (California Code of Civil Procedure (CCP) 1985.3(a)(1)).
- An "employee" is individual who is or has been employed by a witness whose records are sought. "Employee records" include books, documents, other writings or electronic data pertaining to employment of any employee or former employee. (CCP §1985.6).
Once you determine whether you are seeking consumer/employee records, you can determine what steps to take and how far in advance you need to start.
Step 2. Set a Date and Location for Production
Select your date: at least 15 days away for non-consumer/employee records, or at least 30 days away if the records are consumer/employee records.
Tip: A Worksheet to Determine Dates of Service is at the end of this Guide.
Contact a copy service in your area to see if they handle document subpoenas; the service you hire to do this is called the "deposition officer." You may need to contact several to find one that provides this service.
Step 3. Complete the Required Forms
You will need two forms to subpoena business records:
NOTE: When you issue a Deposition Subpoena for Production of Business Records, there are three options for production in the first paragraph of the first page.
Option "a" requests that the witness mail copies of the business records to the deposition officer. This is typically used for bank records and other fairly routine records that are readily copied.
Option "b" requests that the witness produce copies of the business records to the deposition officer at the witness's address.
Option "c" requests that the witness allow you to inspect and copy the records at the witness's address during the specified time during regular business hours. Be advised that the witness is not required to make the copies for you, or provide any support services, so anticipate bringing your own scanner or portable photocopier, unless you have made arrangements in advance with the witness to use the witnesses copying equipment.
Production at the witness's address is frequently used for medical records, or other records that should not leave the witness's address.
Step 4. Take the Subpoena to Court for the Clerk to "Issue" It
Take the subpoena to the court where your case is pending. Ask the court clerk to issue the subpoena (by stamping it). When the clerk stamps it with the court's seal, it becomes an official court order. Make several copies of the stamped subpoena. You don't need to file anything now.
Step 5. If the Records are NOT Consumer or Employee Records, Skip to Step 10
Step 6. Extra Steps if You Need "Consumer" or "Employee" Records.To protect people's privacy, subpoenas of consumer and employee records require an extra procedure to give the consumer/employee time to object. This adds up to two weeks to the process. The consumer/employee must be served at least 20 days before the date of production (25 if you serve by mail) (CCP §2020.410) and 5 days (10 if you serve by mail) before you serve the witness. CCP §1985.3(b)(3).
Step 7. Complete the Additional Required Form
In addition to the forms from Step 3, fill out:
Make several copies of all forms.
Step 8. Serve the Consumer/Employee with the Deposition Subpoena and Notice to Consumer or Employee
Serve the consumer/employee with a copy of the "Deposition Subpoena" (plus Attachment 3), and the original "Notice to Consumer or Employee." You can have this served personally, or by mail to the consumer's last known address. Have the server sign the proof of service on the back of a copy of the Notice.
The person who is serving your papers for you must complete a proof of service form, typically, either a Proof of Personal Service form or a Proof of Service by First Class Mail form. For more information on these Proofs of Service, see the guides on our website at http://www.saclaw.org/pages/personal-service.aspx and http://www.saclaw.org/pages/pos-mail.aspx, respectively.
Step 9. Serve the Other Party or Parties
Have copies of the Deposition Subpoena (plus Attachment 3) and the "Notice to Consumer or Employee" (with the signed proof of service on the back) served on all parties by mail (if they have attorneys, serve the attorneys instead). Keep the original proof(s) of service.
Wait at least 10 calendar days (5 if you have the consumer personally served) before moving on to Step 10, Service of the Witness.
The consumer/employee's deadline to object is 5 days before the production date. A non-party consumer/employee just needs to fill out the objection on the "Notice to Consumer or Employee." A consumer/employee who is a party needs to file a motion to quash the subpoena in court.
If the consumer/employee objects (if he/she is not a party in the case) or files a motion to quash (if he/she is a party in the case), the Witness is not permitted to respond to your subpoena. You may make a motion to compel production (deadline: 20 days after service of the written objection), or file an opposition to the motion to quash, as appropriate. Motions to compel production and motions to quash subpoenas are not covered in this guide; see our step-by-step guide on Motions to Compel Discovery Responses (http://www.saclaw.org/pages/motion-to-compel.aspx).
Step 10. Serve the Witness (the Company or Agency With the Business Records) by Personal Service at Least 15 Days before Production Date
If the documents are not consumer or employee records, have the witness personally served with:
If the documents are consumer/employee records, have the witness (the company with the records you need) personally served with:
Serve these documents at least 15 days before the production date. (CCP §2020.410(c).) If the witness is an organization, any officer, director, custodian of records, or any agent or employee authorized by the organization to accept service of a subpoena can be served on behalf of the organization. (CC P § 2020.220).
Requirements for personal service: The person who does the service must be over the age of 18 and not a party to your action. For instructions on how to fill out the Proof of Service by Personal Service, complete with sample forms, see the "Personal Service of Court Documents" Step-by-Step guide on our website at http://bit.ly/HWPySO.
Fees paid to the witness:
If you are requesting copies of the documents to be mailed to the deposition officer (you checked box "1(a)" or 1(b) the witness may demand payment of reasonable costs prior to providing the documents to the deposition officer. These costs include (California Evidence Code §1563(b)(1)):
a) $0.10 per page for documents 8 ½" x 14" or less;
b) $0.20 per page for copying documents from microfilm;
c) Actual costs for oversize documents or documents requiring special processing;
a) Clerical costs of $24 per hour per person;
b) Actual postage costs; and
c) Costs for necessary services of third persons, including retrieval from microfilm.
These costs are paid when the witness delivers the business records and an itemized statement listing costs ((California Evidence Code §1563(b)(2) and ) §1563(b)(3)).
If you requested to inspect the original documents at the witness's location, the witness is entitled to a fee of $15 ((California Evidence Code §1563(b)(6))), so write a check for the server to take along.
Step 11. Serve the Other Party or Parties
Skip this step if you completed steps 6-9, Notice to Consumer or Employee. If you did, the service in Step 9 is sufficient.
Serve the other all parties by mail (if they have attorneys, serve the attorneys instead). The server must be over the age of 18 and not a party to your action. For instructions on how to fill out the Proof of Service by Mail, complete with sample forms, see the "Proof of Service by Mail" Step-by-Step guide on our website at at http://www.saclaw.org/pages/pos-mail.aspx.
Step 12. Wait for the Documents
You're done for now. The documents should arrive at the copy service by your chosen date. The copy service should pay any costs (and bill you for them later).
If your subpoena is ignored, or you get nothing but a written objection, you may need to file a motion in court to force ("compel") the Witness to produce the documents. Motions to compel production are not covered in this guide; see a reference librarian for more information on this process.
For assistance with the business records subpoena, you may want to contact a professional photocopier service to act as Deposition Officer. In some cases they will do the entire process (forms, service, and copying) for you for a fee. Call a local law office and ask who they use, or look under "Copying and Duplicating Services" or "Photo Copying" in the Yellow Pages.
FOR MORE INFORMATION
On the Web:
The "Deposition Subpoena – Business Records" (SUBP-010) and "Notice to Consumer or Employee" (SUBP-025) forms are available from the Judicial Council's website at http://www.courts.ca.gov/forms.htm.
You can learn more about discovery in general at Nolo.com: http://www.nolo.com/legal-encyclopedia/formal-discovery-gathering-evidence-lawsuit-29764.html.
Information about preparing evidence for admission in a court trial or hearing can be found on the Judicial Council's website at: http://www.courts.ca.gov/xbcr/partners/getting-evidence.pdf.
At the Law Library:
The following books have information about preparing business records subpoenas:
How to Solve Divorce Problems in California, pp. 174-181. KFC 126 .S55 (Self-Help)
Litigation by the Numbers Chap.5, Discovery, Sec. 5.3.5. KFC 995 .G67
For examples of the types of documents you may want to request in different types of cases, see:
Deposition Checklists and Strategies KF 8900 .S33
This book is divided into chapters by type of case (vehicular liability, premises liability, medical malpractice, etc). Each chapter has a section on "Documents and Exhibits" which lists the types of documents that may be useful in that type of case.
Information on consumer/employee objections can be found in:
California Points and Authorities KFC 1010. B4 (Ready Reference)
Vol. 8, Chap. 81, Sec. 240-254
IF YOU HAVE QUESTIONS ABOUT THIS GUIDE, OR NEED HELP FINDING OR USING THE MATERIALS LISTED, PLEASE ASK A REFERENCE LIBRARIAN.
Business Records Subpoena: Worksheet to Determine Dates for Service
Work backwards from the date you want to receive the documents (Date of Production).
1. Choose the date for production of documents.
2. Count backwards 15 days. If the 15th day is a holiday or weekend, keep going until you reach a workday. This is the last day the Witness can be served. (It is a good idea to serve it a few days early, in case of problems with the service.)
3. If you are requesting consumer/employee records: Choose the date you expect to actually serve the Witness (on or before the date in step 2).
4. Count backwards 10 days from the date you expect to actually serve the Witness. Again, if the 10th day is a holiday or weekend, keep counting backwards until you reach a workday. This is the last day the Consumer/Employee can be served by mail.
If you are short on time, you can save a few days by having the Consumer/Employee personally served. In this case, you only have to count back 5 days from the date you expect to serve the Witness.