Litigation is filled with discovery, the process of obtaining information from the opposing party and/or third-parties that may possess information pertaining to the opposing party. Most people understand that when they initiate a lawsuit, or are sued, they have a right to propound discovery. However, some people are shocked that information can be obtained from third-parties. So how do you get the information from third-parties? How do you fight that information from being disclosed? This article will give a general overview of a deposition subpoena for business records, and the proper motion to fight a subpoena that has been served.
What is a Deposition Subpoena for Business Records?
First things, first, a deposition subpoena is the other party’s attempt to get information about you from a third party. The third party can be your employer, bank, or even credit applications for your car/credit card/apartment, etc. There are a number of third parties that possess information that may be directly relevant to the claims made in the lawsuit.
So, how do you properly propound a deposition subpoena for business records? First, you want to review and make you sure you abide by the law governing deposition subpoenas. For the sake of this article, let’s assume you have read and understood the law. The first thing you need to do after reading the law is to prepare the subpoena. Make sure each and every part of the form is filled out. In addition, most attorneys use “Attachment 3” which is a full description of the documents you are requesting from the third-party. This is simply a separate sheet of paper labeled “Attachment 3” with a thorough description of the documents.
Next, you will want to prepare a notice to consumer. When you are requesting documents from a third party you MUST serve a notice to consumer on the person who the documents pertain. Once you have completed this form, you MUST serve it on the consumer at least five days prior to the service of the subpoena on the third party. Additionally, if you are serving by mail there is another five days, for a total of ten days if served by mail. This step is VITAL to the procedure relating to subpoenas. I have argued and won motions to quash subpoenas for violation of this procedure a number of times. Sometimes the third party will reject the subpoena if not served with the notice to consumer, but do not leave it up to the third party to reject. You should take a proactive approach, which is discussed below.
Finally, once you have prepared the subpoena, served the subpoena AND the notice to consumer on the party to whom the documents relate, you can serve the subpoena on the third party. Once service is rendered, it is up to the opposing party to object to the subpoena or allow the production to take place.
How Do You Fight a Subpoena?
The best way to prevent a third party from producing requested documents is to file a motion to quash, which is a motion filed with the court that states why the production should not be allowed. This motion must be filed ten days prior to the date of production called for in the subpoena.
A motion to quash may be based on a number of different grounds. It could be that the procedure was incorrect. As stated above, if no notice to consumer was served that is a ground to quash the subpoena. Another argument for a motion to quash, is that the information sought would violate the party’s privacy rights or privacy rights of a third person. Many people believe that once you file a lawsuit that your entire life is open for discovery. However, this is not true. A party only waives its privacy rights for discovery that is directly relevant to the plaintiff’s claims and essential to a fair resolution of the lawsuit. Vinson v. superior Court, (1987) 43 Cal.3d 833, 842. A final argument to quash a subpoena would be that the information sought would violate a privilege. The privilege could be the attorney client privilege, the doctor patient privilege (if it is not a medical claim), etc. This is not an exhaustive list of objections to a subpoena, but it is a good start.
When you are involved in a lawsuit be prepared, but do not be scared, to be served a deposition subpoena for business records. It is a normal avenue to obtain information regarding the claims set forth, or the defenses alleged. There are procedural steps each party must abide by when propounding a subpoena and when filing a motion to quash. The discussion in this article is very general and does not begin to touch the iceberg that is under the water’s surface. If you have been served with a subpoena, or believe that serving a subpoena will be beneficial in your case, then please contact an attorney to discuss the matter.
All information provided in this article is for educational purposes only, and does not constitute legal advice. Each situation is dependent on the specific facts and must be evaluated on a case-by-case basis. If you’d like to discuss the specifics of your situation, please call our office at (213) 784-3640.