California subpoenas: without the affidavit, the subpoena duces tecum is invalid

California's subpoena statutes are older and more specific than the Rule 45 most states adopted. Two features account for most of the trouble people have with them: a document that has to travel with the subpoena, and a notice that has to reach someone who is not a party to the case.

The affidavit is a condition of valid service

Code of Civil Procedure § 1987.5:

The service of a subpoena duces tecum is invalid unless at the time of such service a copy of the affidavit upon which the subpoena is based is served on the person served with the subpoena.

Not defective — invalid. And § 1985(b) says what the affidavit has to contain:

A copy of an affidavit shall be served with a subpoena duces tecum issued before trial, showing good cause for the production of the matters and things described in the subpoena, specifying the exact matters or things desired to be produced, setting forth in full detail the materiality thereof to the issues involved in the case, and stating that the witness has the desired matters or things in his or her possession or under his or her control.

Four elements: good cause, the exact matters or things, materiality in full detail, and a statement that the witness actually has them.

For a deposition subpoena duces tecum there is a second delivery obligation. The subpoena "shall not be valid unless a copy of the affidavit upon which the subpoena is based and the designation of the materials to be produced, as set forth in the subpoena, is attached to the notice of taking the deposition served upon each party or its attorney."

Section 1987.5 also supplies the remedy for getting it wrong:

If matters and things are produced pursuant to a subpoena duces tecum in violation of this section, any other party to the action may file a motion for, and the court may grant, an order providing appropriate relief, including, but not limited to, exclusion of the evidence affected by the violation, a retaking of the deposition notwithstanding any other limitation on discovery proceedings, or a continuance.

Exclusion of the evidence is on that list, which is why this is not a technicality to fix later.

Two more duties follow: the party who served the subpoena "shall retain the original affidavit until final judgment in the action," and files it only on reasonable request by a party or affected witness.

One important carve-out: § 1987.5 "does not apply to deposition subpoenas commanding only the production of business records for copying" under the Civil Discovery Act's own business-records article.

Consumer records: ten days to the consumer, five before the custodian

Section 1985.3 governs "personal records" — a long list that reaches medical providers, banks, credit unions, insurers, escrow agents, attorneys, accountants, telephone utilities, psychotherapists and schools. Before those records are produced, the subpoenaing party must serve the consumer with the subpoena, the affidavit and a prescribed notice, and the timing has two limbs:

(2) Not less than 10 days prior to the date for production specified in the subpoena duces tecum, plus the additional time provided by Section 1013 if service is by mail. (3) At least five days prior to service upon the custodian of the records, plus the additional time provided by Section 1013 if service is by mail.

Ten days before production, and five days before the custodian is served. Both, not either — so the sequence starts with the consumer, not the record holder.

The notice served on the consumer is prescribed in substance by § 1985.3(e) and must be "in a typeface designed to call attention to the notice." It tells the consumer that records are being sought, that an objection has to be filed or served before the production date, and that if the subpoenaing party will not agree in writing to cancel or limit the subpoena, "an attorney should be consulted about the consumer's interest in protecting his or her rights of privacy."

Before production, the subpoenaing party must also either serve the witness with proof of service on the consumer, or furnish "a written authorization to release the records signed by the consumer or by his or her attorney of record."

An objection stops production without a court order

Section 1985.3(g) gives the consumer two routes and the custodian one instruction. A consumer who is a party may move to quash under § 1987.1, with notice "to the witness and deposition officer at least five days prior to production." A consumer who is not a party may instead serve "a written objection that cites the specific grounds on which production of the personal records should be prohibited." Then:

No witness or deposition officer shall be required to produce personal records after receipt of notice that the motion has been brought by a consumer, or after receipt of a written objection from a nonparty consumer, except upon order of the court in which the action is pending or by agreement of the parties, witnesses, and consumers affected.

That is unusual and worth stating plainly: a non-party's letter stops the production. No motion, no order, no hearing. The burden shifts to the party that wants the records.

That party's route back is time-limited:

The party requesting a consumer's personal records may bring a motion under Section 1987.1 to enforce the subpoena within 20 days of service of the written objection. The motion shall be accompanied by a declaration showing a reasonable and good faith attempt at informal resolution of the dispute between the party requesting the personal records and the consumer or the consumer's attorney.

Twenty days, and a meet-and-confer declaration.

Section 1985.3(k) gives the record holder its own protection: "Failure to comply with this section shall be sufficient basis for the witness to refuse to produce the personal records sought by a subpoena duces tecum."

Two narrower rules sit alongside. Records held by a telephone corporation are not reachable at all without "a consent to release, signed by the consumer whose records are requested." And where the subpoenaing party is the consumer and the only subject of the records, the notice requirements do not apply.

Employment records run on the same track

Section 1985.6 builds a parallel regime for "employment records" — books, documents and electronically stored information about an employee held by a current or former employer, or by a labor organization that represents or has represented the employee.

The structure mirrors § 1985.3: advance service on the employee, a prescribed notice, and the employee's right to object or move to quash. If you are subpoenaing a personnel file, the analysis is the same one, under a different section number.

Section 1985.4 extends the § 1985.3 procedures again, to personal information held by state and local agencies.

Journalists get five days, and their publishers get notice first

Section 1986.1 sets two notice requirements, and the second runs before the subpoena issues at all:

a journalist who is subpoenaed in any civil or criminal proceeding shall be given at least five days' notice by the party issuing the subpoena that his or her appearance will be required.

And where the records of a journalist are sought from a third party, notice goes "to the journalist and the publisher of the newspaper, magazine, or other publication or station operations manager of the broadcast station that employs or contracts with the journalist, as applicable, at least five days prior to issuing the subpoena." That notice must include, at a minimum:

an explanation of why the requested records will be of material assistance to the party seeking them and why alternate sources of information are not sufficient to avoid the need for the subpoena.

Both requirements yield only in circumstances posing "a clear and substantial threat to the integrity of the criminal investigation" or "an imminent risk of death or serious bodily harm."

For a party, a notice can replace the subpoena

Section 1987(b) offers a route that avoids service altogether where the witness is a party, someone for whose immediate benefit the action is prosecuted or defended, or an officer, director or managing agent of either:

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.

"The giving of the notice shall have the same effect as service of a subpoena," including the availability of sanctions.

Documents can ride along, on a longer clock. Under § 1987(c), a notice served at least 20 days before attendance may request books, documents, electronically stored information or other things, stating "the exact materials or things desired and that the party or person has them in his or her possession or under his or her control." The recipient has five days to serve written objections with a statement of grounds, after which the requesting party may move, "accompanied by a showing of good cause and of materiality of the items to the issues."

The subsection ends by making the point explicit: this procedure is an alternative to §§ 1985 and 1987.5, "and no subpoena duces tecum shall be required."

Who can move to quash

Section 1987.1(b) lists five categories, and the last is the newest:

(1) A party. (2) A witness. (3) A consumer described in Section 1985.3. (4) An employee described in Section 1985.6. (5) A person whose personally identifying information, as defined in subdivision (b) of Section 1798.79.8 of the Civil Code, is sought in connection with an underlying action involving that person's exercise of free speech rights.

The court may quash entirely, modify, or direct compliance "upon those terms or conditions as the court shall declare, including protective orders," and may make any other order "to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person."

Section 1987.1(c) preserves the point made above: nothing in it "shall require any person to move to quash" a subpoena for consumer or employment records. The written objection is enough.

Two smaller provisions worth knowing

A trial subpoena must carry a specific notice under § 1985.2, in a typeface designed to call attention to it, telling the witness to contact the requesting attorney before the date "if you have any question about the time or date for you to appear, or if you want to be certain that your presence in court is required."

And § 1985.1 lets a subpoenaed person agree with the requesting party to appear at another time. Failure to appear under that agreement "may be punished as a contempt by the court issuing the subpoena," and the agreement may be proved "by an affidavit of any person having personal knowledge of the facts."

A short checklist

If you are issuing one:

1. Serve the affidavit with the subpoena duces tecum. Without it, service is invalid.
2. Attach the affidavit and the designation to the deposition notice as well.
3. Serve the consumer 10 days before production and 5 days before the custodian, with the prescribed notice.
4. Retain the original affidavit until final judgment.
5. If a journalist is involved, give five days' notice — before issuing, where records are sought from a third party.
6. Consider the § 1987 notice route for a party or its managing agent; it needs no subpoena at all.

If you have been served, or your records have:

1. A written objection stops production if you are a non-party consumer or employee. A motion is not required.
2. Give the deposition officer notice of any motion to quash, at least five days before production.
3. Diary 20 days after your objection — that is the window for a motion to enforce.
4. Check for the affidavit. If none was served with a subpoena duces tecum, the service was invalid.

Where these rules live

• Cal. Civ. Proc. Code § 1985 — Subpoena; affidavit
• Cal. Civ. Proc. Code § 1985.1 — Agreement to appear
• Cal. Civ. Proc. Code § 1985.2 — Notice on a trial subpoena
• Cal. Civ. Proc. Code § 1985.3 — Consumer records
• Cal. Civ. Proc. Code § 1985.6 — Employment records
• Cal. Civ. Proc. Code § 1986.1 — Journalists
• Cal. Civ. Proc. Code § 1987 — Service; notice in lieu of subpoena
• Cal. Civ. Proc. Code § 1987.1 — Motion to quash
• Cal. Civ. Proc. Code § 1987.5 — Affidavit required for valid service
• California depositions
• California requests for production
• California discovery cutoff

This page explains what the rules say. It isn't legal advice, and the Civil Discovery Act's separate business-records subpoena procedure is not covered here.