Chapter 2. Means of Production - California Code of Civil Procedure Section 1985.3
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California Laws > Code of Civil Procedure > Chapter 2. Means of Production - California Code of Civil Procedure Section 1985.3
1985.3. (a) For purposes of this section, the following definitions
(1) "Personal records" means the original, any copy of books,
documents, other writings, or electronically stored information
pertaining to a consumer and which are maintained by any "witness"
which is a physician, dentist, ophthalmologist, optometrist,
chiropractor, physical therapist, acupuncturist, podiatrist,
veterinarian, veterinary hospital, veterinary clinic, pharmacist,
pharmacy, hospital, medical center, clinic, radiology or MRI center,
clinical or diagnostic laboratory, state or national bank, state or
federal association (as defined in Section 5102 of the Financial
Code), state or federal credit union, trust company, anyone
authorized by this state to make or arrange loans that are secured by
real property, security brokerage firm, insurance company, title
insurance company, underwritten title company, escrow agent licensed
pursuant to Division 6 (commencing with Section 17000) of the
Financial Code or exempt from licensure pursuant to Section 17006 of
the Financial Code, attorney, accountant, institution of the Farm
Credit System, as specified in Section 2002 of Title 12 of the United
States Code, or telephone corporation which is a public utility, as
defined in Section 216 of the Public Utilities Code, or
psychotherapist, as defined in Section 1010 of the Evidence Code, or
a private or public preschool, elementary school, secondary school,
or postsecondary school as described in Section 76244 of the
(2) "Consumer" means any individual, partnership of five or fewer
persons, association, or trust which has transacted business with, or
has used the services of, the witness or for whom the witness has
acted as agent or fiduciary.
(3) "Subpoenaing party" means the person or persons causing a
subpoena duces tecum to be issued or served in connection with any
civil action or proceeding pursuant to this code, but shall not
include the state or local agencies described in Section 7465 of the
Government Code, or any entity provided for under Article VI of the
California Constitution in any proceeding maintained before an
adjudicative body of that entity pursuant to Chapter 4 (commencing
with Section 6000) of Division 3 of the Business and Professions
(4) "Deposition officer" means a person who meets the
qualifications specified in Section 2020.420.
(b) Prior to the date called for in the subpoena duces tecum for
the production of personal records, the subpoenaing party shall serve
or cause to be served on the consumer whose records are being sought
a copy of the subpoena duces tecum, of the affidavit supporting the
issuance of the subpoena, if any, and of the notice described in
subdivision (e), and proof of service as indicated in paragraph (1)
of subdivision (c). This service shall be made as follows:
(1) To the consumer personally, or at his or her last known
address, or in accordance with Chapter 5 (commencing with Section
1010) of Title 14 of Part 3, or, if he or she is a party, to his or
her attorney of record. If the consumer is a minor, service shall be
made on the minor's parent, guardian, conservator, or similar
fiduciary, or if one of them cannot be located with reasonable
diligence, then service shall be made on any person having the care
or control of the minor or with whom the minor resides or by whom the
minor is employed, and on the minor if the minor is at least 12
years of age.
(2) Not less than 10 days prior to the date for production
specified in the subpoena duces tecum, plus the additional time
provided by Section 1013 if service is by mail.
(3) At least five days prior to service upon the custodian of the
records, plus the additional time provided by Section 1013 if service
is by mail.
(c) Prior to the production of the records, the subpoenaing party
shall do either of the following:
(1) Serve or cause to be served upon the witness a proof of
personal service or of service by mail attesting to compliance with
(2) Furnish the witness a written authorization to release the
records signed by the consumer or by his or her attorney of record.
The witness may presume that any attorney purporting to sign the
authorization on behalf of the consumer acted with the consent of the
consumer, and that any objection to release of records is waived.
(d) 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.
(e) Every copy of the subpoena duces tecum and affidavit, if any,
served on a consumer or his or her attorney in accordance with
subdivision (b) shall be accompanied by a notice, in a typeface
designed to call attention to the notice, indicating that (1) records
about the consumer are being sought from the witness named on the
subpoena; (2) if the consumer objects to the witness furnishing the
records to the party seeking the records, the consumer must file
papers with the court or serve a written objection as provided in
subdivision (g) prior to the date specified for production on the
subpoena; and (3) if the party who is seeking the records will not
agree in writing to cancel or limit the subpoena, an attorney should
be consulted about the consumer's interest in protecting his or her
rights of privacy. If a notice of taking of deposition is also
served, that other notice may be set forth in a single document with
the notice required by this subdivision.
(f) A subpoena duces tecum for personal records maintained by a
telephone corporation which is a public utility, as defined in
Section 216 of the Public Utilities Code, shall not be valid or
effective unless it includes a consent to release, signed by the
consumer whose records are requested, as required by Section 2891 of
the Public Utilities Code.
(g) Any consumer whose personal records are sought by a subpoena
duces tecum and who is a party to the civil action in which this
subpoena duces tecum is served may, prior to the date for production,
bring a motion under Section 1987.1 to quash or modify the subpoena
duces tecum. Notice of the bringing of that motion shall be given to
the witness and deposition officer at least five days prior to
production. The failure to provide notice to the deposition officer
shall not invalidate the motion to quash or modify the subpoena duces
tecum but may be raised by the deposition officer as an affirmative
defense in any action for liability for improper release of records.
Any other consumer or nonparty whose personal records are sought
by a subpoena duces tecum may, prior to the date of production, serve
on the subpoenaing party, the witness, and the deposition officer, a
written objection that cites the specific grounds on which
production of the personal records should be prohibited.
No witness or deposition officer shall be required to produce
personal records after receipt of notice that the motion has been
brought by a consumer, or after receipt of a written objection from a
nonparty consumer, except upon order of the court in which the
action is pending or by agreement of the parties, witnesses, and
The party requesting a consumer's personal records may bring a
motion under Section 1987.1 to enforce the subpoena within 20 days of
service of the written objection. The motion shall be accompanied by
a declaration showing a reasonable and good faith attempt at
informal resolution of the dispute between the party requesting the
personal records and the consumer or the consumer's attorney.
(h) Upon good cause shown and provided that the rights of
witnesses and consumers are preserved, a subpoenaing party shall be
entitled to obtain an order shortening the time for service of a
subpoena duces tecum or waiving the requirements of subdivision (b)
where due diligence by the subpoenaing party has been shown.
(i) Nothing contained in this section shall be construed to apply
to any subpoena duces tecum which does not request the records of any
particular consumer or consumers and which requires a custodian of
records to delete all information which would in any way identify any
consumer whose records are to be produced.
(j) This section shall not apply to proceedings conducted under
Division 1 (commencing with Section 50), Division 4 (commencing with
Section 3200), Division 4.5 (commencing with Section 6100), or
Division 4.7 (commencing with Section 6200), of the Labor Code.
(k) Failure to comply with this section shall be sufficient basis
for the witness to refuse to produce the personal records sought by a
subpoena duces tecum.
(l) If the subpoenaing party is the consumer, and the consumer is
the only subject of the subpoenaed records, notice to the consumer,
and delivery of the other documents specified in subdivision (b) to
the consumer, is not required under this section.
Last modified: February 16, 2015