How Can I Subpoena Consumer or Employee Records?
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.
A “subpoena” 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.” The court form to use for this in small claims cases is the same as the form used to subpoena witnesses.
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.” (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. You cannot mail the subpoena to the record keeper, or use any other form of service.
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. 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 for more information or consider consulting with a private attorney.