Quashing a subpoena duces tecum in California

Quashing a subpoena duces tecum in California is the topic of this blog post.

Quashing a subpoena duces tecum in California requires the filing of a motion requesting that the court quash the subpoena duces tecum.

Law that authorizes quashing a subpoena duces tecum in California.

This procedure is authorized by the provisions of Code of Civil Procedure section 1987.1 and may be filed on several grounds including but not limited to, the grounds that,

(1) The subpoena duces tecum fails to include a declaration containing a sufficient statement of materiality as required by Code of Civil Procedure section 1985(b);

(2) The subpoena duces tecum does not comply with the provisions of Code of Civil Procedure section 1985.3(d) in that it was not served in sufficient time to allow the witness to locate and produce the records or copies in that the subpoena demands production less than 20 days after the issuance and less than 15 days after service of the subpoena duces tecum, and 

(3) The subpoena duces tecum contains unreasonable and oppressive demands for documents and that unless the motion to quash is granted the moving party will suffer unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.

The moving party can also request that sanctions be awarded on a motion to quash a subpoena duces tecum in California pursuant to the provisions of Code of Civil Procedure section 1987.2(a) on the grounds that the moving party has made reasonable good faith efforts to reach an informal resolution of this matter without the need for judicial intervention but the other party has refused to meet and confer.

Code of Civil Procedure § 1987.1 states that,“(a) If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.

(b) The following persons may make a motion pursuant to subdivision (a):

(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.

(c) Nothing in this section shall require any person to move to quash, modify, or condition any subpoena duces tecum of personal records of any consumer served under paragraph (1) of subdivision (b) of Section 1985.3 or employment records of any employee served under paragraph (1) of subdivision (b) of Section 1985.6.”

Code of Civil Procedure § 1987.2 states in part that,

“(a) Except as specified in subdivision (c), in making an order pursuant to motion made under subdivision (c) of Section 1987 or under Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney's fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.

The California Supreme Court has stated in a published case that a declaration of materiality in support of a subpoena duces tecum must identify the desired books, papers and documents and it must clearly show that they contain competent and admissible evidence which is material to the issues to be tried. It cannot simply rely on the legal conclusion, stated in general terms, that the desired documentary evidence is relevant and material.

Code of Civil Procedure § 1985.3(d) states in pertinent part that a subpoena duces tecum for the production of personal records "shall be served in sufficient time to allow the witness a reasonable time, as provided in Section 2020.410, to locate and produce the records or copies thereof." "Reasonable time" means the subpoena shall command compliance "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." Code of Civil Procedure § 2020.410(c).

The moving party must make a reasonable and good faith effort to meet and confer before filing a motion to quash a subpoena duces tecum in California in order to avoid sanctions.

Attorneys or parties in California that would like to view a portion of an 18 page sample motion to quash a subpoena duces tecum in California containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service by mail sold by the author can use the link below.

Sample Motion to Quash Subpoena Duces Tecum in California by Stan Burman on Scribd

 

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.  For licensed attorneys and law firms that need assistance with any California or Federal litigation matters, Mr.  Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

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DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.