Bill Text: CA SB937 | 2021-2022 | Regular Session | Introduced
Bill Title: Subpoenas: business records.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Engrossed - Dead) 2022-06-07 - June 14 set for first hearing canceled at the request of author. [SB937 Detail]
Download: California-2021-SB937-Introduced.html
CALIFORNIA LEGISLATURE—
2021–2022 REGULAR SESSION
Senate Bill
No. 937
| Introduced by Senator Ochoa Bogh |
February 07, 2022 |
An act to amend Sections 1987 and 2020.410 of the Code of Civil Procedure, and Section 1560 of the Evidence Code, relating to civil actions.
LEGISLATIVE COUNSEL'S DIGEST
SB 937, as introduced, Ochoa Bogh.
Subpoenas: business records.
Existing law requires that subpoenas be served by delivering a copy personally, except as specified.
This bill would additionally allow deposition subpoenas that command only the production of business records to be served by overnight delivery, facsimile transmission, or electronic means, as specified.
Existing law provides that, except as specified, when a subpoena deuces tecum is served upon the custodian of records of a business and the subpoena requires the production of all or any part of the records of the business, it is sufficient compliance with the subpoena if the custodian delivers by mail or otherwise a true, legible, and durable copy of all of the records described in the subpoena to the clerk of the court or to another authorized person, as specified, together with the required affidavit,
within 15 days after the receipt of the subpoena.
This bill would extend the time period for compliance by two additional court days if a subpoena is served by overnight delivery, facsimile transmission, or electronic means.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: NO Local Program: NOBill Text
The people of the State of California do enact as follows:
SECTION 1.
Section 1987 of the Code of Civil Procedure is amended to read:1987.
(a) Except as provided in Section 2020.410, and Sections 68097.1 to 68097.8, inclusive, of the Government Code, the service of a subpoena is made by delivering a copy, or a ticket containing its substance, to the witness personally, giving or offering to the witness at the same time, if demanded by(b) In the case of the production of a party to the record of any civil action or proceeding or of a person for whose immediate benefit an action or proceeding is prosecuted or defended or of anyone who is an officer, director, or managing agent of any such party or person, the service of a subpoena upon any such witness is not required if written notice requesting the witness to attend before a court, or at a trial of an issue therein, with the time and place thereof, is served upon the attorney of that party or person. The notice shall be served at least 10 days before the time required for attendance unless the court prescribes a shorter time. If entitled thereto, the witness, upon demand, shall be paid witness fees and mileage before being required to testify. The giving of the notice shall have the same effect as service of a subpoena on the witness, and the parties shall have
those rights and the court may make those orders, including the imposition of sanctions, as in the case of a subpoena for attendance before the court.
(c) If the notice specified in subdivision (b) is served at least 20 days before the time required for attendance, or within any shorter period of time as the court may order, it may include a request that the party or person bring with him or her them books, documents, electronically stored information, or other things. The notice shall state the exact materials or things desired and that the party or person has them in his or her their
possession or under his or her their control. Within five days thereafter, or any other time period as the court may allow, the party or person of whom the request is made may serve written objections to the request or any part thereof, with a statement of grounds. Thereafter, upon noticed motion of the requesting party, accompanied by a showing of good cause and of materiality of the items to the issues, the court may order production of items to which objection was made, unless the objecting party or person establishes good cause for nonproduction or production under limitations or conditions. The procedure of this subdivision is alternative to the procedure provided by Sections 1985 and 1987.5 in the cases herein provided for, and no subpoena duces tecum shall be required.
Subject to this subdivision, the notice provided in this subdivision shall have the same effect as is provided in subdivision (b) as to a notice for attendance of that party or person.
SEC. 2.
Section 2020.410 of the Code of Civil Procedure is amended to read:2020.410.
(a) A deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item, and shall specify the form in which any electronically stored information is to be produced, if a particular form is desired.(b) Notwithstanding subdivision (a), specific information identifiable only to the deponent’s records system, like a policy number or the date when a consumer interacted with the witness, is not required.
(c) (1) A deposition subpoena that commands only the production of business records for copying need not be accompanied by an affidavit or declaration showing good cause for the production of the business records designated in it. It
(2) The deposition subpoena shall be directed to the custodian of those records or another person qualified to certify the records. It records, and may be served by any of the following methods:
(A) By delivering a copy personally.
(B) By overnight delivery if the business, as described in Section 1270 of the Evidence Code, expressly consents in writing to accept service via overnight delivery.
(C) By facsimile transmission if the business, as described in Section 1270 of the Evidence Code, expressly consents in writing to accept service via facsimile transmission.
(D) By electronic means if the business, as described in Section 1270 of the Evidence Code, expressly consents in writing to accept service via electronic means.
(3) The deposition subpoena shall command compliance in accordance with Section 2020.430 on a date that is no earlier than 20 days after the issuance, or 15 days after the service, of the deposition subpoena, whichever date is later. If the subpoena is served by overnight delivery, facsimile transmission, or electronic means, the time period for
compliance after service is extended by two additional court days.
(d) If, under Section 1985.3 or 1985.6, the one to whom the deposition subpoena is directed is a witness, and the business records described in the deposition subpoena are personal records pertaining to a consumer, the service of the deposition subpoena shall be accompanied either by a copy of the proof of service of the notice to the consumer described in subdivision (e) of Section 1985.3, or subdivision (b) of Section 1985.6, as applicable, or by the consumer’s written authorization to release personal records described in paragraph (2) of subdivision (c) of Section 1985.3, or paragraph (2) of subdivision (c) of Section 1985.6, as applicable.
SEC. 3.
Section 1560 of the Evidence Code is amended to read:1560.
(a) As used in this article:(1) “Business” includes every kind of business described in Section 1270.
(2) “Record” includes every kind of record maintained by a business.
(b) Except as provided in Section 1564, when a subpoena duces tecum is served upon the custodian of records or other qualified witness of a business in an action in which the business is neither a party nor the place where any cause of action is alleged to have arisen, and the subpoena requires the production of all or any part of the records of the business, it is sufficient compliance therewith if the custodian or other qualified witness delivers by mail or otherwise a
true, legible, and durable copy of all of the records described in the subpoena to the clerk of the court or to another person described in subdivision (d) of Section 2026.010 of the Code of Civil Procedure, together with the affidavit described in Section 1561, within one of the following time periods:
(1) In any criminal action, five days after the receipt of the subpoena.
(2) In any civil action, within 15 days after the receipt of the subpoena. subpoena, except this time period is extended by two additional court days if the subpoena is served by overnight delivery, facsimile transmission, or electronic means.
(3) Within the
time agreed upon by the party who served the subpoena and the custodian or other qualified witness.
(c) The copy of the records shall be separately enclosed in an inner envelope or wrapper, sealed, with the title and number of the action, name of witness, and date of subpoena clearly inscribed thereon; the sealed envelope or wrapper shall then be enclosed in an outer envelope or wrapper, sealed, and directed as follows:
(1) If the subpoena directs attendance in court, to the clerk of the court.
(2) If the subpoena directs attendance at a deposition, to the officer before whom the deposition is to be taken, at the place designated in the subpoena for the taking of the deposition or at the officer’s place of business.
(3) In other cases, to the officer,
body, or tribunal conducting the hearing, at a like address.
(d) Unless the parties to the proceeding otherwise agree, or unless the sealed envelope or wrapper is returned to a witness who is to appear personally, the copy of the records shall remain sealed and shall be opened only at the time of trial, deposition, or other hearing, upon the direction of the judge, officer, body, or tribunal conducting the proceeding, in the presence of all parties who have appeared in person or by counsel at the trial, deposition, or hearing. Records that are original documents and that are not introduced in evidence or required as part of the record shall be returned to the person or entity from whom received. Records that are copies may be destroyed.
(e) As an alternative to the procedures described in subdivisions (b), (c), and (d), the subpoenaing party in a civil action may direct the
witness to make the records available for inspection or copying by the party’s attorney, the attorney’s representative, or deposition officer as described in Section 2020.420 of the Code of Civil Procedure, at the witness’ business address under reasonable conditions during normal business hours. Normal business hours, as used in this subdivision, means those hours that the business of the witness is normally open for business to the public. When provided with at least five business days’ advance notice by the party’s attorney, attorney’s representative, or deposition officer, the witness shall designate a time period of not less than six continuous hours on a date certain for copying of records subject to the subpoena by the party’s attorney, attorney’s representative, or deposition officer. It shall be the responsibility of the attorney’s representative to deliver any copy of the records as directed in the subpoena. Disobedience to the deposition subpoena issued pursuant to this subdivision is punishable
as provided in Section 2020.240 of the Code of Civil Procedure.
(f) If a search warrant for business records is served upon the custodian of records or other qualified witness of a business in compliance with Section 1524 of the Penal Code regarding a criminal investigation in which the business is neither a party nor the place where any crime is alleged to have occurred, and the search warrant provides that the warrant will be deemed executed if the business causes the delivery of records described in the warrant to the law enforcement agency ordered to execute the warrant, it is sufficient compliance therewith if the custodian or other qualified witness delivers by mail or otherwise a true, legible, and durable copy of all of the records described in the search warrant to the law enforcement agency ordered to execute the search warrant, together with the affidavit described in Section 1561, within five days after the receipt of the search
warrant or within such other time as is set forth in the warrant. This subdivision does not abridge or limit the scope of search warrant procedures set forth in Chapter 3 (commencing with Section 1523) of Title 12 of Part 2 of the Penal Code or invalidate otherwise duly executed search warrants.
