What makes a subpoena invalid in California? As every legal practitioner knows, a subpoena is a critical legal instrument in the judicial system.
Simply put, a subpoena serves two primary purposes in civil litigation: compelling someone to produce evidence or to give testimony at a deposition or court hearing – sometimes both.
As we’ll discuss below, the validity of a subpoena hinges on its adherence to specific procedural and content-related requirements.
These requirements cannot be overlooked because ultimately, subpoenas are instrumental in ensuring that relevant and necessary evidence is accessible during litigation.
Fortunately, there are a lot of good resources out there concerning the proper procedures for issuing subpoenas within the Golden State.
In this article, I’m going to flip that old familiar script a bit – focusing on things you can do to screw up a subpoena.
To kick things off, I’ll share one of the biggest (and most hilarious) mistakes I made as a young California attorney.
You might be surprised how seemingly simple mistakes can interfere with this important – albeit routine – procedure. So, sit back, relax, and let’s talk subpoenas.
California civil subpoenas and the laws that govern them
Before we dive too deep into our screw-up analysis, I want to first give you a road map to the basic rules that apply to issuing subpoenas in California. Sure, I could summarize them for you, but you know as well as I do that every practitioner must read and understand the rules themselves. So, here’s where the meat of today’s analysis comes from:
- Scope of discovery: California Code of Civil Procedure (CCP) § 2017.010
- Nonparty discovery: CCP §§ 2020.010 to 2020.510
- Subpoenas generally: CCP §§ 1985 to 1997
- Motions to compel answers or produce documents (deposition subpoena): § CCP 2025.480
Pro-tip: You don’t need to reinvent the wheel
Now that we’ve got the rules under our belts, I’d like to tell you a story. It all started when I was a brand new lawyer, excitedly taking on new assignments at my first law firm.
I’d been a bit of an overachiever in law school and had the attitude that every legal document had to be an original work of stellar prose. Only lazy lawyers, I thought, would rely on canned forms for something as important as compelling someone to testify and produce evidence.
So, when I was asked to prepare my first subpoena, I set out to learn all the relevant statutes and then planned to create the most original, best-written subpoena of all time. That couldn’t have been a worse idea.
You see, the California Judicial Council provides a plethora of pre-approved forms that attorneys and litigants can use for everything from adoption requests to traffic violation agreements.
And guess what? There’s a whole page of forms dedicated to “Discovery and Subpoenas.” Guess what else? You’re really lame if you don’t use them.
(I’d like to give a decades-late thank you to the paralegal who pointed this out to me before I handed in nonsense to my managing partner – Kathy, you’re the best).
Now let’s talk about the ways you might screw up a subpoena if you hadn’t happened upon this article today.
What makes a subpoena invalid in California?
In California, subpoenas can be invalidated for reasons such as improper signatures, issuing the wrong type, incorrect service, insufficient notice, failure to pay witness fees, mishandling experts or government workers, and incorrect treatment of out-of-state witnesses.
Compliance with the stringent procedural and content-related requirements outlined in the California Code of Civil Procedure is essential to ensure the validity of subpoenas.
Let’s go over some common mistakes legal professionals make and how you can inadvertently make a subpoena invalid in California.
Mistake #1: Failure to have the subpoena properly signed
Try to remember that subpoenas are serious and official documents that often strike fear in the people who receive them. Because of this (and other reasons), they have to be properly issued by an officer of the court. This means that any valid subpoena must be signed by either:
- An attorney of record in the case; or
- The clerk or a judge.
Some courts (like the Superior Court of Orange County) offer subpoena forms that are pre-signed by the Clerk of the Court. This is good to keep in mind if you’re a paralegal and need to issue a subpoena for the attorneys you’re working with at a time when they are unavailable to sign.
Mistake #2: Issuing the wrong type of subpoena
California makes it so easy not to screw this up, but some of you are still going to issue document subpoenas when you want a live witness and witness subpoenas when all you really want is documents! This is a one-way trap to an invalid subpoena in California.
Let’s make it even easier by giving you the links you need:
- If you want to issue a civil subpoena for a witness to personally appear at trial or at a hearing, use this form.
- If you want a witness to produce documents, electronically stored information, or other things at trial or a hearing, use this form.
- If you want to summon a witness to appear for a deposition and produce documents at that deposition, use this form.
- If you want a witness to appear for a deposition without documents, use this form.
- If you want a witness to produce business records without appearing for a deposition, use this form.
Mistake #3: Improper service
Generally speaking, CCP §1987(a) requires that subpoenas be served personally.
Of course, there are exceptions to this rule (such as when you’re serving a minor or an officer of a corporation). Those can also be found in the statute. Regardless of who you’re serving, however, it’s always best to use a professional process server to get the job done correctly. That way, even if you try to screw something up, the professionals will be there to make sure everything is done properly.
Mistake #4: Not giving enough notice
No matter how badly you want to take a deposition, you still have to give your witnesses enough time so they have a “reasonable opportunity” to travel, prepare for their testimony, and/or find the documents you want them to produce. If you’re asking for records, for example, this means you must serve a subpoena at least 15 days before the production date (and 20 days from the date the subpoena is issued).
Sure, you can always try to get witnesses, parties, and opposing counsel to agree to a tighter timeframe, but absent an express agreement, it’s wise to just wait it out.
Mistake #5: Failure to pay witness fees
Remember that old saying, “Talk ain’t cheap”? Well, that is particularly true when it comes to taking depositions or eliciting trial testimony. CCP §1987(a) allows witnesses to demand payment at the time they are served with the subpoena (note, however, that the relevant Judicial Council Form suggests the witness can demand that fee at any time before the appearance).
Don’t know how much to pay? Don’t worry; the California Government Code has answers.
Specifically, Section 68093 says: “Except as otherwise provided by law, witness’ fees for each day’s actual attendance, when legally required to attend a civil action or proceeding in the superior courts, are thirty-five dollars ($35) a day and mileage actually traveled, both ways, twenty cents ($0.20) a mile.”
What a bargain.
But wait, there’s more. You may also need to pay your witness “reasonable costs,” which, according to California Evidence Code section 1563, include things like ten cents per copy for regular documents, twenty cents per page for documents created from microfilm, clerical costs at $24 per person/per hour, and actual postage costs.
Mistake #6: Treating experts or government workers like civilians
Just in case you think you can get expert testimony for a mere $35/day, think again. California Government Code section 68092.5 requires that you pay experts their actual professional fee. If you think that fee is unreasonable, this statute allows you to move for an order setting aside the expert’s compensation but you have to try to resolve the payment issue with opposing counsel before you get the court involved.
As an additional twist, if you plan on issuing a subpoena to a local government employee, their agency has to pay them their regular salary for attending and you have to pay the agency $275 per day for the pleasure of speaking with their employee. Plan accordingly.
Mistake #7: Treating out-of-state witnesses like Californians
I’m going to throw you another bone and give you the text of the relevant statute here (CCP §1989):
“A witness, including a witness specified in subdivision (b) of Section 1987, is not obliged to attend as a witness before any court, judge, justice or any other officer, unless the witness is a resident within the state at the time of service.”
I don’t care how good your process server is; a California subpoena is meaningless to a witness served in another state. Want to know how to serve someone located outside of California? Check out the Interstate Depositions and Discovery Act, make sure your witness can be located in a state that has enacted that law, and have at it.
After diving back into all the various rules and regulations surrounding subpoenas, I’m surprised they don’t get screwed up more often. Whatever you do, consult the rules, follow them to the letter, and ask for help when you need it. Good luck out there.
Conclusion
The issuance of subpoenas is a vital element in civil litigation, requiring strict adherence to procedural guidelines outlined in the California Code of Civil Procedure.
There are several errors, including improper signatures, issuing the wrong type of subpoena, and insufficient service or notice, that can lead to an invalid subpoena in California.
Specific nuances, such as handling expert witnesses or out-of-state individuals, are important to remember, and legal pros must have meticulous attention to detail, remain in statutory compliance, and seek guidance when necessary.
