Who, What, Why?
WHAT is a subpoena?
A legally binding court order requiring an individual or entity to testify as a witness, produce documents, or provide tangible evidence for a legal proceeding
Three types of deposition subpoenas
(1) Only the attendance and testimony of the deponent (“testimony only” subpoena);
(2) Only the production of business records for copying (“business records” subpoena);
(3) The attendance and testimony of the deponent, and the production of business records, other documents, electronically-stored information, and tangible things (“records and testimony” subpoena, officially called “deposition subpoena for personal appearance and production of documents and things”; formerly called a “subpoena duces tecum”)
How do you serve a subpoena?
Personal service
WHO can be served a subpoena?
Witnesses not a party to the suit
What is a "testimony only" subpoena?
A deposition commanding the witness to appear and testify
Where can a subpoena be served?
If the deponent is a California resident, service may be made anywhere in the state.
WHAT types of subpoena are we not covering? (specific statutes)
§§ 1985.3, 1985.6
What is a "business records" subpoena?
A deposition subpoena that commands the production of business records for copying—without attendance at a deposition.
Who can serve a subpoena? What is a potential caveat?
Anyone. However, persons under age 18 or who are parties to the action may serve a deposition subpoena. But their declarations of service and/or testimony might be given less weight if the deponent denies service.
WHY would you serve a subpoena?
It is risky to rely on a nonparty witness' promise to appear voluntarily, without subpoena. If the nonparty witness fails to appear for any reason, the court may impose a monetary sanction against the party noticing the deposition to reimburse other parties for their expenses, including attorney fees, in showing up for the aborted deposition.
What are the requirements for "testimony only" subpoenas?
(1) time and place where the deponent is commanded to appear
(2) summary of (1) the nature of a deposition; (2) the deponent's rights and duties; and (3) the penalties for disobedience to a deposition subpoena
(3) if the deposition is to be video-recorded, audio-recorded, or conducted using instant digital display
(4) If the deponent is a corporation or other entity, both a description “with reasonable particularity” of the matters on which examination is requested, and a statement of its duty to designate its “most qualified” officers or employees to testify
When must a subpoena be served by? ("testimony only" subpoena versus "records and testimony" subpoenas versus "business records" subpoena)
Where personal appearance is required (i.e., “testimony only” or “records and testimony” subpoenas), service must be effected a “reasonable time” before the deposition.
A “business records” subpoena must be served at least 15 days before the date set for production of the records.
WHAT should you do if a witness lives beyond the court's subpoena power?
You would have to obtain a subpoena from a court where the witness resides.
What is the difference between a business records subpoena and an inspection demand?
Business records subpoena requires production more quickly.
15 day service versus 30 day service
What is a "reasonable time" regarding serving a subpoena?
The subpoena must be served “a sufficient time in advance of the deposition to provide the deponent a reasonable opportunity to locate and produce any designated business records, documents, electronically stored information, and tangible things … and … a reasonable time to travel to the place of deposition.”