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Enforcing a deposition subpoena in California

Enforcing a deposition subpoena in California is the topic of this blog post.   The law in California states in pertinent part that a party may serve a deposition subpoena for the production of business records on a nonparty prior to trial. See Code of Civil Procedure section 2020.410

A deposition subpoena for production of business records can require both the attendance of the witness and the production of specified business records on any nonparty who would be considered a percipient witness or may have possession of documents that may lead to the discovery of admissible evidence.

If the nonparty served with the deposition subpoena fails to comply it can be enforced by the filing of a motion to compel. This post will specifically discuss a situation where the nonparty was duly served with a deposition subpoena but failed to make any appearance at the deposition or produce the requested business records.

A California Court of Appeal ruled in a published case over 15 years ago that the provisions of section 2025 of the Code of Civil Procedure apply to deposition subpoenas. As a result any motion to compel must comply with the various requirements found in section 2025.

Code of Civil Procedure section 2025.480 states in pertinent part that,

“(a) If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.

(b) This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.”

I want to stress that the moving party must show the court that they have made a reasonable effort to meet and confer to resolve the issue before filing their motion to compel and the motion must include a meet and confer declaration detailing the efforts to resolve the issue informally. If the moving party fails to do so the motion to compel may be denied, or the moving party themselves may be subject to sanctions for failure to meet and confer.

The moving party may also seek sanctions for their expenses incurred in connection with both the refusal to comply with the deposition subpoena and the preparation and filing of the motion to compel.

It is well settled in California that the scope of permissible discovery is very broad and that any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Any doubts regarding relevance are generally resolved in favor of allowing the discovery.

In a published case a California Court of Appeal recently ruled that although the trial court has discretion in deciding whether to grant or deny a discovery motion it is obligated to construe the discovery statutes liberally in favor of disclosure and that the broad scope of discovery includes the discovery of information from a nonparty.

A fundamental principle of the common law is that “`”the public … has a right to every man’s evidence.” Trammel v. United States (1980) 445 U.S. 40, 50, 100 S.Ct. 906, 63 L.Ed.2d 186).

Under California law, if good cause has been shown for the production of a writing in a legal proceeding, no person has a right to refuse production of the writing in the absence of a statutory privilege permitting such refusal. “Except as otherwise provided by statute: [¶] . . . [¶] (b) No person has a privilege to refuse to disclose any matter or to refuse to produce any writing, object, or other thing.” Evidence Code section 911 subdivision (b).

Attorneys or parties in California that would like to view a portion of a 16 page sample motion to compel compliance with a deposition subpoena for attendance at deposition and for production of business records containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service sold by the author can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit Free weekly newsletter for more information.

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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.

 

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