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RMP-10, Instructions for Responding to SubpoenaJune 15, 1989
I. REFERENCES
1. California Business and Professions Code Sections 2900, 9040, 17800.
2. California Code of Civil Procedure Sections 1798.24(k), 1985, 1985.3,
1985.3(b), (c), (e), (k), (i), (j), 1985.4, 1985.5, 1985.6, 1987,
2020, 2020(b), (e).
3. California Evidence Code Sections 1010(a), (b), 1024, 1040, 1560,
1560(b), 1561, 1563, 1564.
4. California Government Code Section 68093.
5. California Penal Code Section 1330.
6. Administrative and Professional Staff Personnel Policy 154,
Administrative Leave with Pay, July 1, 1987.
7. Business and Finance Bulletin RMP-8, "Legal Requirements on Privacy
and Access to Information," December 10, 1985.
8. Staff Personnel Policy 425, Administrative Leave with Pay, November
1, 1980.
9. Federal Family Educational Rights and Privacy Act of 1974 (FERPA).
10. Management and Professional Program Personnel Policy 54,
Administrative Leave With Pay, July 1, 1986.
11. Executive Program Personnel Policy 16, Administrative Leave With
Pay, July 1, 1986.
II. INTRODUCTION
The purpose of Business and Finance Bulletin RMP-10, "Instructions for
Responding to Subpoena," is to provide an overview of the subject and
to offer general guidelines in handling subpoena. This Bulletin should
be used in conjunction with any campus or laboratory procedures on the
subject. Any questions regarding the propriety of a subpoena duces tecum
or the disclosure of documents requested therein should be directed to
the Office of General Counsel.
III. DEFINITIONS
A. Subpoena
A subpoena is a legal document requiring a specific person to
appear and testify in court as a witness.
B. Subpoena Duces Tecum
A subpoena duces tecum orders the person subpoenaed to produce books,
documents, or other records under his/her control at a specified
time and place. It may also require the person to accompany the
records and testify as a witness.
(Reference: California Code of Civil Procedure 1985)
C. Deposition Subpoena
A deposition subpoena requires a non-party to provide copies of
business records to, or appear, before a subpoenaing party. A
deposition subpoena differs from a subpoena duces tecum in that
production of and testimony regarding the records revolve around
the informal discovery process before trial, rather than around a
court hearing incident to a subpoena duces-tecum.
(Reference: California Code of Civil Procedure 2020)
IV. ISSUANCE AND SERVICE OF SUBPOENA DUCES TECUM
A subpoena, a subpoena duces tecum, or a deposition subpoena are issued
by an officer of the court or an attorney of record in the case and
served on a named individual, department, or office.
(Reference: California Code of Civil Procedure 1985, 2020(b))
V. ACCEPTING A SUBPOENA DUCES TECUM/DEPOSITION SUBPOENA
A. Authorization To Accept A Subpoena Duces Tecum
A subpoena duces tecum or a deposition subpoena are served upon the
custodian of the required records or upon the individual person named in
the subpoena. If the named person is unavailable, a 'person
obviously in charge' can accept service. The Office of General
Counsel should be consulted if a question about appropriate
acceptance arises.
If The Regents is named, the process server should be directed to the
Office of General Counsel for service.
B. Procedure For Acceptance
A party served with a subpoena duces tecum or a deposition subpoena is
allowed a reasonable time to respond to the request. The University
need not respond by providing demanded items immediately.
1. The deposition subpoena need not be accompanied by an affidavit or
declaration showing good cause for the production of business
records designated in it.
(Reference: California Code of Civil Procedure 2020)
2. Although it is not specifically required, you frequently will find
attached to the subpoena or subpoena duces tecum a copy of an
affidavit which:
a. shows good cause for the production of the records described
in the subpoena;
b. specifies the exact records to be produced;
c. fully details the relevance of the records requested to the
issues involved in the case; and
d. states that the witness has the desired records in his/her
possession or under his/her control.
(Reference: California Code of Civil Procedure 1985)
Any challenge to an affidavit lacking in the above must be
made in court through counsel. Acceptance of the subpoena
will not concede the adequacy of the affidavit or prejudice
the University's rights to refuse to disclose the documents
requested. If the custodian of the records believes that
the request has not been made in good faith or for good
cause, he or she should contact the General Counsel's Office
immediately.
3. If the subpoena is in order, the individual accepting it should
sign for it and enter the date and time of receipt on the copy
received.
(Reference: California Code of Civil Procedure 1985, 1985.3(b),
1985.5, 2020)
VI. RESPONDING TO A SUBPOENA DUCES TECUM
A. Personal Appearance Required
There are certain situations in which mailing copies of the requested
documents is not legally permissible and a personal appearance is
necessary. These situations occur when:
1. The subpoena duces tecum or deposition subpoena contains the
following clause:
"The personal attendance of the custodian or other qualified
witness and the production of the original records are required
by this subpoena. The procedure relating to production of
records authorized pursuant to subdivision (b) of Section 1560,
and Sections 1561 and 1562, of the Evidence Code will not be
deemed sufficient compliance with this subpoena."
(Reference: California Evidence Code 1564)
2. The University is a party to the action.
(Reference: California Evidence Code 1560)
3. The cause of action arose from an event which took place at the
University.
(Reference: California Evidence Code 1560)
4. The case is a criminal case.
(Reference: California Penal Code 1330)
B. Responding By Mail
If a personal appearance is not required but the subpoena requires
the production of University records and documents, the University
may comply with the request by mailing a copy of the records within
the specified time frame and accompanying the records with an
affidavit.
1. Criminal Action
In any criminal action, response must be made within five days
after receipt of the subpoena or within a time mutually agreeable
to both the serving party and the record custodian.
2. Civil Action
The University has either 15 days after service or 20 days after
issuance (whichever period is longer) to respond to a deposition
subpoena. Production of personal records (defined as documents
relating to a consumer and maintained by an organization
including a hospital) is required not earlier than 15 days from
the date the subpoena is issued. Any other records subpoenaed
are to be produced within the time frame disclosed on the
subpoena or pursuant to agreement with the subpoenaing
party.
(Reference: California Evidence Code 1560(b), California Code
of Civil Procedure 1987, 2020)
3. Affidavit Accompanying Records
Copies of the records must be accompanied by an affidavit of
the record custodian or other qualified witness which states
the following:
a. the affiant is the duly authorized custodian of the records
or other qualified witness and has authority to certify the
records;
b. the copy is a true copy of all records described in the
subpoena duces tecum; and
c. the records were prepared by personnel of the business in
the ordinary course of business at or near the time of the
act, condition, or event.
(Reference: California Evidence Code 1561)
C. Responding To Requests For Personal Records Of A Consumer
A request for University records pertaining to a "consumer" who
has used University services invokes special requirements for
responding to a subpoena duces tecum. Prior to the date of
production of the records, the subpoenaing party is required to
serve on the consumer whose records are being sought, a copy of
the subpoena duces tecum and supporting affidavit, and to
provide the University with either:
1. a written authorization from the consumer or his/her
attorney to release the records; or
2. a copy of a proof of service of the above-described notice
on the consumer whose records are being sought. The
certificate of service must indicate that the consumer was
served ten days before the date specified for document
production (fifteen days if served by mail) and five days
before service upon the custodian of records (ten days if
served by mail).
The consumer has a right to bring a legal action to "quash"
the subpoena. The University will receive notice of such
an action prior to the date of production of the records.
These requirements are inapplicable to subpoena duces
tecum which do not request the records of any particular
consumer and which require the custodian to delete
information which would identify the consumer whose
records are to be produced.
(Reference: California Code of Civil Procedure 1985.3)
D. Responding to Request for Records Exempt From Disclosure Under
The Public Records Act
Many of the University records requested by a subpoena duces
tecum are exempt from disclosure under the Public Records Act.
Common examples of such records include personnel, medical, or
similar files (consult Business and Finance Bulletin RMP-8,
"Legal Requirements on Privacy of and Access to Information,"
pages 7-9 for a complete list of University records which are
exempt from disclosure under the Public Records Act).
Consequently, before those records can be copied and produced,
the law requires that the following steps must be taken in
order to protect the privacy of the individual whose records
are subpoenaed.
1. Proof of Service and Authorization
a. Subpoena/Subpoena Duces Tecum
Prior to the production date for records specified in
the subpoena, the subpoenaing party must serve the
employee (note: the law refers only to "employee" and
not "student" in this context) whose records are being
sought, with a copy of the subpoena duces tecum, the
supporting affidavit, and the notice. Service must be
made to the employee or his/her attorney of
record at least ten days prior to the production date
specified in the subpoena duces tecum, plus additional
time if served by mail. Note that service on the
employee must be at least five days prior to service upon
the University or custodian of records, plus additional
time if served by mail.
Prior to production of the records, the University must
receive from the subpoenaing party:
(1) proof of personal service or service by mail to the
employee whose records are being sought; or
(2) a written authorization to release the records,
signed by the employee or his/her attorney of record.
(Reference: California Code of Civil Procedure
1985.3(b)(c), 1985.4)
In addition, the University must reasonably attempt
to notify the individual to whom the records
pertain that they have been subpoenaed,
unless such notification is prohibited by law.
(Reference: California Code of Civil Procedure
1798.24(k))
b. Deposition Subpoena
Service of a deposition subpoena for records exempt
from public disclosure shall be accompanied by a copy
of proof of service of a notice to the employee whose
records are sought, or by written authorization from
the employee to release the records.
(Reference: California Code of Civil Procedure 2020(e))
2. Facts Affecting Production Date
A subpoena duces tecum or deposition subpoena for the
production of personal records must be served in sufficient
time to allow the University "reasonable time" to locate,
produce, and copy the records. Except for records
subpoenaed for a criminal proceeding or during a
trial, a subpoena duces tecum requiring records from more
than one location must be served at least ten days prior to
the date specified for production, unless good cause is
shown justifying earlier production.
3. Notice To Employee
Copies of the subpoena duces tecum and affidavit served on
an employee or his/her attorney in accordance with the above
rules must be accompanied by a notice indicating that:
a. records about the employee are being sought;
b. objections to the University furnishing the papers must
be filed with the court prior to when the records are
to be produced;
c. if the party seeking the records will not agree in
writing to cancel or limit the subpoena, an attorney
should be consulted about protecting the employees'
interests and rights of privacy.
(Reference: California Code of Civil Procedure SS
1985.3(e))
4. Quashing or Modifying a Subpoena Duces Tecum
An employee whose personal records are sought by a subpoena
duces tecum may (prior to the date they are to be produced)
bring a motion to quash or modify the subpoena duces
tecum. Notice of this motion must be given to the
University prior to production of the records. After
receiving notice of a motion to quash or modify, the
University is not required to produce the personal records,
except upon a court order or agreement among the parties,
University and affected employee, to do so.
5. Restriction on Application of Above Steps
Requirements outlined in Sections 1-4 above apply only to
records which ordinarily are exempt from disclosure under
the Public Records Act. They do not apply to record
requests which require the University to delete all
information which could identify the employee whose records
are to be produced. The requirements also do not apply to
proceedings conducted under specified divisions of the
Labor Code. Consult the Office of General Counsel when
these circumstances apply.
(Reference: California Code of Civil Procedure 1985.3(i)(j))
VII. CONFIDENTIAL RECORDS
In most cases the University will be obligated fully to comply with
subpoena duces tecum and deposition subpoena served upon it. However,
in certain circumstances a particular document may be subject to a
privilege which does not permit the University to disclose information
without obtaining permission of the holder of the privilege or unless
that person has waived the privilege (see Section B below). Moreover,
failure to assert a privilege not to disclose confidential information
could subject the University to liability for invasion of privacy or
breach of a confidential relationship. Whenever it appears to the
custodian of the records that a privilege for official information may
apply, the Office of General Counsel should be informed immediately.
The most common privileges to arise in a University setting are the
physician-patient privilege, the psychotherapist-patient privilege, the
official information privilege, and the attorney-client privilege. Each
of these privileges is discussed below.
A. Confidential Privileges
1. Physician-Patient Privilege
A physician why has received or made a communication subject
to this privilege must claim the privilege whenever the
communication is sought to be disclosed, unless he/she is
otherwise instructed by the patient. Communications of this
sort include records regarding alcohol and drug abuse.
Failure to assert this privilege in response to a
subpoena duces tecum might subject the University to a
possible claim for damages for violation of the patient's
right of privacy.
Under certain circumstances the patient may waive the
privilege. If any of the following exceptions apply, the
privilege of physician-patient cannot be invoked:
a. Patient-litigant exception: the patient waives his/her
right to claim the privilege if he/she is a party to the
suit and has tendered an issue concerning his physical
condition.
b. Criminal cases: there is no privilege in a criminal
proceeding or in a civil action to recover damages based
on criminal conduct.
c. Commitment or similar proceeding.
d. Proceeding to establish competence: when a patient has
placed his/her mental condition in issue by instituting a
proceeding to establish his/her competence, he/she is not
permitted to withhold vital medical evidence.
1 "Confidential communication between patient and
physician" defined: Confidential communication includes
information obtained by an examination of the patient
and "includes a diagnosis made and the advice given by a
physician in the course of the relationship." According
to this statutory definition, an uncommunicated
diagnosis is fully protected by privilege.
2. Psychotherapist-Patient Privilege
a. Distinct Privilege
As is the case with the physician-patient privilege,
although the patient is the holder of the privilege, the
psychotherapist is required to claim the privilege
unless he/she is otherwise instructed by the
patient. Protected communications include records
relating to counseling for alcohol and drug abuse.
Because the psychotherapist-patient privilege is a
privilege distinct from the physician-patient privilege,
the latter may be waived without waiver of the former.
This distinction becomes very important when a patient's
physical and psychotherapeutic records are both
subpoenaed. While the University (or custodian of the
records) may be compelled to submit copies of the
physical medical records, the psychotherapist-patient
privilege may still be applicable to protect the
psychiatric records. (If this should be the case, when
copies of the patient's medical records are submitted in
response to a subpoena duces tecum, the person copying
the records should render illegible or delete all parts
which refer to psychiatric treatment. This issue is
discussed more fully below.)
b. Definition of "Psychotherapist"
(1) A person authorized, or reasonably believed by the
patient to be authorized, to practice medicine in any
state or nation who devotes, or is reasonably believed
by the patient to devote, a substantial portion
of his/her time to the practice of psychiatry;
(2) A person licensed as a psychologist under Chapter 6.6
(commencing with section 2900) of Division 2 of the
Business and Professions Code;
(3) A person licensed as a clinical social worker under
Article 4 (commencing with section 9040) of Chapter 17
of Division 3 of the Business and Professions Code,
when he/she is engaged in applied psychotherapy of a
nonmedical nature;
(4) A person who is serving as a school psychologist and
holds a credential authorizing such service issued by
the State.
(5) A person licensed as a marriage, family and child
counselor under Chapter 4 (commencing with section
17800) of Part 3, Division 5 of the Business and
Professions Code.
c. Common Exceptions to the Privilege
While most of the exceptions to the physician-patient
privilege are relevant to the psychotherapist-patient
privilege, the situations creating exceptions to the
latter are more narrowly construed. The confidentiality of
communications is waived under the following circumstances:
(1) Patient-litigant exception:
The courts tend to intrude as little as possible into
psychotherapeutic records, particularly in cases which
entail primarily physical evidence. Therefore, the
patient-litigant exception to the privilege allows only
a limited inquiry into the confidences of
psychotherapist-patient relationship, compelling
disclosure of only those matters directly
relevant to the nature of the specific emotional or
mental condition which the patient has voluntarily
disclosed and tendered in his pleadings or in an
answer to discovery inquiries. (In re Lifschutz
(1970) 2 Cal.3d 415.)
(2) Criminal proceedings:
There is no privilege unless the psychotherapist is a
person described in subdivision (a) or (b) of SS 1010
of the Evidence Code. (See Section b. above.)
(3) Proceeding to determine the sanity of a criminal
defendant: no privilege is permitted.
(4) Patient dangerous to himself/herself or others:
The statute states that there is no privilege "if the
psychotherapist has reasonable cause to believe that
the patient is in such mental or emotional condition
as to be dangerous to himself/herself or to the
person or property of another and that disclosure of
the communication is necessary to prevent the
threatened danger."
(Reference: California Evidence Code SS 1024)
d. Proceeding to establish competence: no privilege.
3. Privilege for Official Information
Under section 1040 of the Evidence Code, official information is
information received in confidence by a public employee in the
course of his her duty which has not been open or officially
disclosed to the public prior to the claim of privilege. The
University has the privilege of refusing to disclose any such
information if:
a. disclosure is specifically forbidden by State or federal
law; or
b. disclosure is against the public interest because there is a
necessity for preserving the confidentiality of the
information that outweighs the necessity for disclosure in
the interests of justice.
The official information privilege is similar to the
physician-patient privilege or lawyer-client privilege,
but unlike those privileges it belongs to the University
and can be asserted only by the University. The effect of
this privilege is that even in a legal proceeding a
witness cannot be compelled to testify or to produce
records which would yield privileged official information.
There are a number of different kinds of public records
not open generally to public inspection, however, which
are nevertheless subject to being produced in court.
A student's records in the Registrar's Office, for
example, would almost always fall in this latter category
and thus should be produced in response to a valid
subpoena. However, federal and State law now require
that the student be notified about the subpoena.
Confidential evaluations of faculty members, on the other
hand, have been treated by California courts as falling
under the official privilege and thus subject to a
qualified privilege, so at the present time, they are not
subject to subpoenas.
Whenever it appears to the custodian of the records that
the privilege for official information may be applicable,
the Office of General Counsel should be informed
immediately.
4. Lawyer-client Privilege
Communications from General Counsel's Office should not be sent
without first contacting General Counsel.
5. Privilege to Withhold Information Relating to Patients Committed
Under the Lanterman-Petris-Short Act.
The law states that disclosure of information and records of
such patients is required only pursuant to a court order such
as a subpoena. However, a doctor would be required to resist
production of confidential documents by invoking either the
physician-patient or psychotherapist-patient privilege.
B. When Is A Privilege Waived?
1. Disclosure to third parties usually waives a privilege. If
the person who holds the privilege voluntarily discloses a
significant part of the privileged communication to a third
party or consents to such disclosure, he/she is deemed to have
waived his/her privilege. For example, if a client consents
to disclosure of certain information by the attorney, the
client has waived his/her privilege to keep that communication
confidential in future legal proceedings. Recent cases have
held that the client and patient are the primary holders of
the privilege. Therefore, while an attorney or a doctor are
required to claim the privilege on behalf of the client or
patient, they cannot withhold the confidential information if
the client or patient instructs them to release that
information.
Waiver of a confidentiality privilege by a psychiatric patient
is somewhat more complicated because the question may arise as
to whether the patient is sufficiently competent to decide to
waive his/her rights. In such cases the physician would
probably wish to consult the patient's lawyer and family (as
well as the Office of General Counsel) before releasing any
documents.
2. Certain Disclosures Permitted
Privilege is not waived by disclosure of confidential materials
to another person who has a confidential relationship with the
client. The disclosure of confidential information to a
person's attorney or physician in order to allow them to carry
out their jobs is permitted and is not viewed as a waiver of
the privilege. (Moreover, an attorney is specifically allowed
to get his client's medical records if the client has
authorized him to do so.)
C. Subpoena of Confidential (Or Possibly Confidential) Documents
1. Contact the Office of General Counsel so that the particular
circumstances of the situation can be examined. Never respond
to a request for documents if you believe that a legal
privilege should be invoked, since the University could be
liable for a claim to damages based on violation of privacy.
2. If an individual doctor or psychotherapist who is a University
employee is personally subpoenaed to appear, he or she should
contact this office at once in order to be advised of the
extent to which he or she should answer questions.
3. Once the Office of General Counsel is notified of the request
for confidential information, it can move to quash the
subpoena. (In practical terms, however, the requesting
attorney should be contacted by the campus or General Counsel
and an accommodation worked out with him/her if possible.)
D. Psychiatric Records
As already noted, if both physical and psychiatric medical records
are requested, the psychiatric records alone might be protected by
a privilege. Should this be the situation, all parts of the
copies of medical records referring to psychiatric treatment
should be rendered illegible or deleted. In the affidavit which
accompanies such records, the respondent should state that the
copies are a true copy of all records described in the subpoena
"except for such psychotherapeutic records."
Whenever psychiatric records, alcohol or drug abuse records, or
confidential academic peer review records are demanded in a subpoena
duces tecum, the custodian of records or University employee upon
whom the subpoena is served should confer with General Counsel
regarding an appropriate response.
VIII. WITNESS AND PRODUCTION FEES
A. Witness Fees In Civil Cases
If the witness is required to personally accompany the documents
requested in a subpoena duces tecum for a deposition or trial in a
civil action, the witness is entitled to all normal allowable daily
fees plus mileage actually traveled, both ways, at the prevailing
rate, and any additional costs incurred. (Reference: California
Government Code S 68093)
B. Witness Fees In Criminal Cases
When a witness is required to personally accompany documents
requested by a subpoena duces tecum in a criminal case, the
witness is entitled to any fees normally paid by that court.
C. Payment For University Employee Who Is A Witness
When a full-time employee in a career position is served with a
subpoena which compels the employee's presence as a witness, the
employee shall be granted leave with pay for actual time spent at
the proceeding and in related travel.
A part-time employee in a career position shall be granted leave
with pay for time spent at the proceedings and in related travel
which occur during the employee's regularly scheduled working
hours.
(References: Academic and Professional Staff Personnel Policy 154,
Administrative Leave With Pay; Staff Personnel Policy 425,
Administrative Leave With Pay; Management and Professional
Program Personnel Policy 54, Administrative Leave With Pay;
Executive Program Personnel Policy 16, Administrative Leave With
Pay.)
D. Fees For Production Of Business Records
1. The University is entitled to all reasonable costs incurred for
producing business records in response to a subpoena duces
tecum.
2. "Reasonable costs" include, but are not limited to:
a. ten cents ($0.10) per page for standard reproduction of
documents of a size 8-1/2 x 14 inches or less;
b. twenty cents ($0.20) per page for copying documents from
microfilm;
c. actual costs for the reproduction of oversize documents
or the reproduction of documents requiring special
processing which are made in response to a subpoena;
d. reasonable clerical costs incurred in locating and making
the records available to be billed at the maximum rate of
sixteen dollars ($16) per hour per person, computed on
the basis of four dollars ($4) per quarter hour or
fraction thereof;
e. actual costs, if any, charged to the University by a
third person for the retrieval and return of records held
by that third person.
The requesting party is not required to pay production
costs PRIOR to delivery of the records; however, the
University may demand payment of costs AT THE TIME
subpoenaed records are delivered. Until such payment
is made, the University is under no obligation to deliver
the records.
If the requesting party demands it, the University must
furnish an itemized statement describing the actions
taken to justify the costs.
If the subpoena duces tecum is subsequently withdrawn,
quashed, or modified by a party other than the
University, the University is entitled to reimbursement
for reproduction costs incurred up to the time
the University is notified of such an action.
(Reference: California Evidence Code SS 1563)
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