What is a Deposition Subpoena for Business Records?
When an organization that is not a party has records that you need, you obtain them by using a Deposition Subpoena for Business Records, Judicial Council form SUBP-010. It can be found online at: https://www.courts.ca.gov/forms.htm under the category Subpoena. With this subpoena, you can get bank records, employer records regarding wages, retirement benefits, stock options, etc. Despite the name of the form, there will be no deposition; you are only demanding a production of records (CCP §2020.410 - §2020.440).
Process for Using a Subpoena for Business Records
Using a Deposition Subpoena for Business Records is usually a two-part process:
1) If the records relate to a Consumer or Employee, you must have that person served with a "Notice to Consumer or Employee and Objection" (SUBP-025) and the subpoena, and gives them at least 10 days to object (CCP §1985.3(b)). If there are other parties in the case, they get served with copies of the Notice and Subpoena too. SUBP-025 can be found online at https://www.courts.ca.gov/forms.htm under the category Subpoena.
2) If the Consumer or Employee does not object, you then have the papers personally served on the Witness, and give them at least 15 days to respond. They should respond by sending you copies of the records you request. If the Consumer or Employee objects, the Witness cannot respond until the objection is resolved (CCP §1985.3(d) and CCP §2020.410(c)).
How to Serve the Notice to Consumer or Employee & Subpoena
Just as with all other paperwork in a legal case, you cannot serve the documents. The documents must be served by someone who is not a party to the action and over 18 years of age. The SUBP-010 and SUBP-025 forms actually contain a Proof of Service declaration at the end of each form, so an additional proof of service form is not required. The person performing the service must sign the Proof of Service on the form stating that they served the form, who it was served on, and the date of the service. For more information about service, see San Diego Law Library's guide entitled Service of Notice and Other Papers.
What is a Subpoena Duces Tecum?
A subpoena duces tecum is an order directing a third party witness to attend and produce specified documents at the trial or hearing. A subpoena is required to order a witness's attendance at a particular time and place to testify, and to produce documents. Documents that can be requested using a subpoena duces tecum include books, records, or other items in the witness's possession.
How to Prepare a Subpoena Duces Tecum
1. First obtain a blank Form SUBP-002 from either the clerk of the court or the judge (CCP §1985(c)). The form can also be obtained online from the California Courts website at https://www.courts.ca.gov/forms.htm under the category Subpoena.
2. Complete the Form SUBP-002; and
3. Complete the declaration on page two of SUBP-002, or complete a separate declaration and attach it to the subpoena form. When using Form SUBP-002, if you need more room for one of the sections, you can use Judicial Council Form MC-025 (Attachment to Judicial Council Form) and attach it to the subpoena. If you want to have your Declaration all in one document, follow the instructions below.
If you decide to complete a separate declaration and attach it to the Subpoena, the declaration must:
Example Subpoena Duces Tecum and Declaration
For an examples of a subpoena duces tecum and related declaration, see California Trial Practice: Civil Procedure During Trial (call number KFC1025 .C349), Ch. 4, Forms 4.55A and 4.56; and Litigation by the Numbers (call number KFC995 .G67 2007), Ch. 7, pgs. 7-20 to 7-23. Both titles are available at the Law Library.
How to Serve the Subpoena
Just as with all other paperwork in a legal case, you cannot serve the documents. The documents must be served by someone who is not a party to the action and over 18 years of age. The SUBP-002 form actually contains a Proof of Service declaration at the end of the form, so an additional proof of service form is not required. The person performing the service must sign the Proof of Service on the form stating that they served the form, who it was served on, and the date of the service. For more information about service, see San Diego Law Library's guide entitled Service of Notice and Other Papers.
What is a Notice to Attend Hearing or Trial (Notice in Lieu of Subpoena)?
A Notice to Attend Hearing or Trial is written notice, on pleading paper, that can be used to compel a party to appear at a hearing or trial. It cannot be used for a third-party, only a party to the case, and the other party MUST be a California Resident. The Notice to Attend Hearing or Trial has the same effect as a subpoena, but easier. The Notice to Attends' are used ONLY for hearings or trials. If you want to compel an appearance at a deposition, that will require a subpoena form.
A subpoena is a court form and can also be used to compel a party to attend a hearing or trial and/or bring documents, as an alternative to using a Notice to Attend. The advantage of the Notice to Attend is that it can be served on the party's attorney by mail and does not require a supporting affidavit, so it is somewhat easier to draft and serve. However, it requires more notice than a subpoena - at least 15 days before the court date for a Notice to Attend. A subpoena can be used on shorter notice (the CCP only requires "reasonable notice") and therefore can be used if a need for a witness or documents is discovered close in time to the trial or hearing. The subpoena must be personally served on the party and have a supporting affidavit.
*The Notice to Appear and Subpoena can both be used after the discovery cut off, which distinguishes them from a Request for Production/Request for Admission, which must be done at an earlier stage of the case and before the discovery cut off which is usually 30 days before trial.
How to Prepare a Notice to Attend Hearing or Trial
1. First, you will need to prepare and complete the Notice to Attend Hearing or Trial. (See sample template below)
2. Make 3 copies.
How to Serve a Notice to Attend Hearing or Trial
1. You cannot serve the documents; they must be served by someone who is not a party to the action and over 18 years of age. The person performing the service must sign a proof of service form stating what they served, who it was served on, and the date of the service. Family law forms regarding proof personal service and service by mail can be found at the links below.
2. If the person serving the Notice to Attend Hearing or Trial mails the notice to the other party or other party's lawyer, the notice MUST be mailed AT LEAST 15 days before the hearing date. If the person serving the Notice to Attend a Hearing or Trial is personally serve the other party or other party’s lawyer, the notice MUST be personally served AT LEAST 10 days before the court date.
3. Make at least 2 copies of the proof of service.
4. Lastly, file the Notice to Attend and Proof of Service with the court BEFORE the hearing. You can also take the Notice to Attend and Proof of Service with you to the hearing.
*For more information on "Notice to Attend Hearing and Subpoenas" check out the California Courts website, here.
Example of a Notice to Attend Hearing or Trial (Notice in Lieu of Subpoena):
What is a Notice to Attend Hearing or Trial and Bring Documents?
A Notice to Attend Hearing or Trial and Bring Documents, is the same as a Notice to Attend Hearing or Trial (please see above), BUT you are also requesting that the other party bring specific documents with them to the hearing or trial.
How to Prepare a Notice to Attend Hearing or Trial and Bring Documents
1. First, you will need to prepare and complete the Notice to Attend Hearing or Trial. (See sample template below)
2. Make 3 copies.
How to Serve a Notice to Attend Hearing or Trial and Bring Documents
1. You cannot serve the documents, they must be served by someone who is not a party to the action and over 18 years of age. The person performing the service must sign a proof of service form stating what they served, who it was served on, and the date of the service. Family law forms regarding proof personal service and service by mail can be found at the links below.
2. If the person serving the Notice to Attend Hearing or Trial mails the notice to the other party or other party's lawyer, the notice MUST be mailed AT LEAST 25 days before the hearing date. If the person serving the Notice to Attend a Hearing or Trial is personally serve the other party or other party’s lawyer, the notice MUST be personally served AT LEAST 20 days before the court date.
3. Make at least 2 copies of the proof of service.
4. Lastly, file the Notice to Attend and Proof of Service with the court BEFORE the hearing. You can also take the Notice to Attend and Proof of Service with you to the hearing.
For more information on "Notice to Attend Hearing and Subpoenas" check out the California Courts website, here.
Example of a Notice to Attend Hearing or Trial and Bring Documents:
Click on this image to access the court form:
Click on this image to access the court form:
Click on this image to access the court form:
If you have been served with a subpoena and you would like to object, there are a few resources below that you may find helpful.