A “subpoena” is a writ or an order that compels a witness to either show up and testify or produce something. CCP §1985(a). You can use a subpoena in discovery or in a civil trial or hearing. Here’s a look at which type of subpoena to use in common situations.
When to use a subpoena during discovery:
- To depose a nonparty. Use a Deposition Subpoena for Personal Appearance (Judicial Council Form SUBP-015) to compel nonparty witness attendance and testimony at a deposition. CCP §2020.310.
Example: Eyewitness to car accident appears at deposition and answers questions about what she saw.
- To depose and get documents from a nonparty. Use a Deposition Subpoena for Personal Appearance and Production of Documents and Things (Judicial Council Form SUBP-020) to compel nonparty witness attendance, testimony, and production of records and things at a deposition. CCP §2020.510.
Example: Eyewitness to car accident appears at deposition, produces photographs she took of the accident, and answers questions.
- To get nonparty’s business records. Use a Deposition Subpoena for Production of Business Records (Judicial Council Form SUBP-010) to compel production of nonparty business records produced for copying only, by custodian of records who need not attend or testify. CCP §2020.410. A notice to consumer may also be required because, under CCP §1985.3(a)(2), a consumer is an individual who has transacted business with, or has used the services of, the witness or for whom the witness has acted as agent or fiduciary. Make sure to give the custodian a Certificate of Custodian of Records or similar affidavit to be signed under penalty of perjury by the affiant to authenticate the records produced and provide relevant details related to their production at the time of their production.
Example: A hospital produces for copying medical records of person injured in a car accident.
When to use a subpoena at trial:
- To get a witness to testify at trial. Use a Civil Subpoena for Personal Appearance at Trial or Hearing (Judicial Council Form SUBP-001) to compel either a party or nonparty witness to attend and testify at trial or other nondeposition proceeding. CCP §§1985, 1985.1, 1985.2.
Example: An eyewitness testifies at trial.
- To get a witness to testify and bring documents to the trial. Use a Civil Subpoena (Duces Tecum) for Personal Appearance and Production of Documents, Electronically Stored Information, and Things at Trial or Hearing and Declaration (Judicial Council Form SUBP-002) to compel either a party or nonparty witness to attend and testify at trial or other nondeposition proceeding and to produce records and things (subpoena duces tecum) at the hearing or trial. CCP §1985. Keep in mind that a civil subpoena duces tecum requires an affidavit to be served along with it, including but not limited to a showing of “good cause” for the items requested to be produced, as well as of the “materiality” of the items to the issues in the case. See CCP §1985(b). A declaration consisting of the full requirements of the affidavit is currently part of the Judicial Council form. A separate affidavit or declaration may also be attached to the civil subpoena duces tecum.
Example: An eyewitness testifies at trial and produces photographs of the accident.
- To get a witness’s records for trial. Under a Records Production Only (Subpoena Duces Tecum), the custodian of records or other qualified witness, who need not attend or testify, must produce records and things at trial or other nondeposition proceeding. CCP §1987.3; Evid C §§1560-1566. A notice to consumer may also be required because, under CCP §1985.3(a)(2), a consumer is an individual who has transacted business with, or has used the services of, the witness or for whom the witness has acted as agent or fiduciary. Keep in mind that, to be admissible at trial over a hearsay objection, the documents must qualify as business records under Evid C §1271. To qualify the records as business records, without the testimony of the custodian, you have to get a stipulation from opposing counsel or prepare an affidavit that complies with Evid C §§1560, 1561, 1562, and 1271. (See Judicial Council Form SUBP-002, item 3.b.).
Example: A hospital produces plaintiff’s billing records for use at trial, but no one from the hospital is required to appear and testify.
For step-by-step guidance on preparing these types of subpoenas with links to the appropriate forms and a sample Certificate of Custodian of Records, turn to CEB’s Handling Subpoenas (Action Guide).
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