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How Can I Subpoena Consumer or Employee Records?

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In California, you can ask the court to make someone other than the opposing party send it documents that might help prove the truth of your case.

If you request consumer or employee records – for example, for bank, medical, insurance or education records – the consumer or employee has the right to know about the request.  He or she also has the right to ask the court to not allow, or to limit, your request.

To let the consumer or employee know about your request for these records, send a copy of the request to him or her at least 10 days before you send the actual request to the record keeper who has the records. See below.

A “subpoena Opens new window is a court order.  A specific subpoena that requires someone (other than the opposing party) to take or send documents or records to the court is called a subpoena duces tecum.” Opens new window The court form to use for this in small claims cases is the same as the form used to subpoena witnesses.


To subpoena consumer or employee records

Step 1. Get and fill out your court form. Use:

  • Small Claims Subpoena for Personal Appearance and Production of Documents and Things at Trial or Hearing and Declaration (Form SC-107) Opens new window

Page 1 of Form SC-107:

  • Check 4a – if you want the person (record keeper) to appear at the hearing and bring the documents you need with him or her. 
  • Check 4b – if you want the record keeper to send the documents only.
     

Page 2 – This page is called “Declaration in Support of Small Claims Subpoena for Personal Appearance and Production of Document and Things at Trial or Hearing.”  Fill in the whole page.

  • You need to know which documents or things you want the organization to send to the court or have taken to your hearing. 
  • You need to know who is in charge of the documents or things you want produced in court.

    • It may take a few phone calls to find the correct person. However, if you list someone on the Subpoena who has nothing to do with the documents, you may not get them. Contact the Small Claims Advisor Opens new window in your area for more information on naming the correct person. 

Page 3 – Leave this blank for now. You will fill it in later.


Step 2.  File Opens new window the form with the court.

Take the Subpoena (Form SC-107) to the court filing window.  The clerk will look at the form and may ask you a few questions.  If everything is in order, the clerk will sign and stamp the form and give it back to you.

Make 3 copies of the completed pages.  Make one copy for your files, one copy for the consumer or employee about whom the records are requested, and one copy for the record keeper.


Step 3. Give a copy (not the original) of the form (SC-107) to the consumer or employee about whom the records are requested BEFORE you serve the subpoena on the record keeper.

  • if by mail - at least 20 days before the court hearing. 
  • if in person - at least 15 days before the court hearing.

In addition to the form, you must include a written Notice Opens new window that you are asking for these records. Here is a sample of a notice:

“Notice to Consumer (or Employee):

     “I am asking for records from the record keeper named on the Subpoena Duces Tecum (Form SC-107, page 2), who holds consumer (or employee) records about you. Your records may be protected by a right of privacy. If you object to the record keeper’s providing those records to the court, you may file papers with the court, at least 5 days before the hearing date, to stop the subpoena (a ‘motion to quash”) or to limit the documents requested (a “motion to modify”).

     “If you ask me to cancel or change my subpoena and I don’t agree in writing to do so, you should consider consulting an attorney about your privacy rights.”


If the consumer or employee objects to these records being given to the court as you are requesting, he or she will have to file a motion (a request) to have your subpoena stopped. This is called filing a “Motion to Quash.” Opens new window  (Or they may file a “Motion to Modify” to limit the documents released to the court.) He or she will serve this Motion on you.

The court may have a separate hearing before the trial to decide whether or not the person or organization being subpoenaed has to bring or send the documents or items you requested on the day of the trial. Or, the court may make a decision without scheduling a separate hearing. The court will let you and the other side know in writing.

 


If the consumer or employee did not file a “Motion to Quash” (or a Motion to Modify) within 10 days after you served Form SC-107 on him or her (call the court clerk to find out), or if the court denied the Motion to Quash, then you may serve the subpoena to the keeper of the customer or employee records.


Step 4. Give a copy (not the original) of the form to the record keeper at least 10 days before the court hearing.

Any adult – even you -- can hand the subpoena to the person who has possession of the documents. However, it must be by personal service. Opens new window You cannot mail the subpoena to the record keeper, or use any other form of service. Opens new window

NOTE 1:  At the time you serve the subpoena, you have to pay the copying fees -- $25 per hour, plus $0.10 per copy for the documents you are asking for.  Make a receipt for the record keeper to sign, if possible.

NOTE 2:  If you are asking for records from a corporation or a limited liability company, you will name the record keeper on 4a or 4b of Form SC-107, but you may need to serve the Agent for Service Process. Opens new window  To learn what an Agent for Service of Process is, click here.


Step 5. Inform the court that the subpoena was given.

After the subpoena has been given to the person who has the documents, have the server (you or someone else) fill out page 3 of Form SC-107. This page is called: “Proof of Service of Small Claims Subpoena for Personal Appearance and Production of Documents and Things at Trial or Hearing and Declaration.”

Make a copy of page 3 for your files.

Mail or take this “Proof of Service” to the court for filing at least 5 days before your hearing.

NOTE:  If the record keeper is being asked to appear in court, he or she can ask for $35 a day, plus 20¢ a mile each way, at the time you serve the subpoena – the same as any other witness.  Be prepared to pay these fees.  Make a receipt for the record keeper to sign, if possible. 

  • Form SC-107 lets the record keeper know that they have a right to these fees, which must be paid when you serve the subpoena. 
  • In small claims court, the hearings only last one day.  So if the record keeper asks for the money and you don’t pay it, then the record keeper does not have to show up at your hearing. 
  • If you win the case, you may be able to recover the fees you paid the record keeper from the other side. You will have to ask the court at the end of the hearing to order the losing side to pay these fees.


This is a complicated process.  If you need help, contact your Small Claims Advisor Opens new window for more information or consider consulting with a private attorney.


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