The Different Types of Subpoenas:
In the California’s legal system, subpoenas typically fall into one of two broad categories: those compelling a party’s appearance and those compelling the production of documents, records, or other tangible forms of evidence. Unfortunately, it’s not as simple as selecting one or the other. There are several sub-categories, each with their own template form. While this in itself is not a complicated hurdle, when overlooked it can cause a significant headache. To simplify:
While not a comprehensive list of California’s various subpoena templates, this should serve to demonstrate that the process’ overall complexity, and how careful litigators ought to be when drafting their subpoenas.
Drafting Your Subpoena:
Once the correct form has been identified, the next step is to fill it out as necessary. This too can be fraught with complications. An overlooked box or mistyped address and will not result in a rejection from the court. It will instead result in a contestable or otherwise useless subpoena. If discovery is operating on a tight timeline, an ineffective subpoena can lead to the omission of crucial evidence or testimony, which itself can have an adverse effect on the case.
When subpoenaing records, attention to detail is doubly important. It is imperative to be as specific as possible by including things like dates or date ranges and document names, lest the subpoena be disputed or quashed on the grounds that the request is too vague.
Serving Your Subpoenas:
Contesting the service of a subpoena is oftentimes the easiest way to quash it entirely. As such, following the California Code of Civil Procedure to the letter when effectuating service is absolutely vital. While the code outlining the service of subpoenas (CCP §1987(a)) does not place any restrictions on who is eligible to serve (even parties to the case can serve subpoenas!), the importance of task all but necessitates the use of a third-party litigation support provider. Should a litigator attempt service on their own, there are a few key factors to consider.
The first is the type of service. In almost every instance, subpoenas must be served personally (CCP §1987(a)). For corporations or other business-form organizations, service must be effected on the entity’s registered agent. Unlike other circumstances, substitute service will not be considered acceptable and will be used as grounds to quash the subpoena.
The second factor to consider is time. Subpoenas must be served in a timely manner so as to allow the subpoenaed party enough time to prepare for their testimony and/or locate the documents requested. Notices to appear must be served at least ten (10) days prior to the hearing date. Notices to produce documents must be served as least twenty (20) days prior to the court date.
The third factor to consider is witness fees. If the subpoena seeks to compel the appearance of a party to the case, witness fees must be advanced upon service. Per CGC § 68093, witnesses must be provided with $35 for each day they will be required to appear, along with $0.20 per mile traveled both directions. Witness fees may also include the costs for copies, pages, and clerical work if the witness is required to provide documentary evidence as well. (CEC § 1563).
Conclusion
Subpoenas are a vital tool for litigators engaged in discovery, but they can also prove to be incredibly challenging. From start to finish, the process is fraught with complication, whether it’s selecting the correct template form, filling out said form, or effectuating service. Nevertheless, their utility necessitates that litigators learn the process inside and out, lest they disadvantage their own cases. In lieu of a comprehensive grasp of the subpoena process, litigators should identify knowledgeable attorney service providers to assist them from start to finish. An emerging alternative for large firms and solo practitioners alike, outsource subpoena services allow litigators to spare themselves the headache of navigating the subpoena process while focusing on the case at hand.
