UCLA Polcy 020

UCLA Procedure 120.1:

Producing Records Under Subpoena Duces

Tecum and Deposition Subpoenas

Issuing Officer: Administrative Vice Chancellor

Responsible Dept: Records Management & Information Practices

Effective Date: April 23, 1999

Supersedes: UCLA Procedure 020.1, dated 9/1/1977

REFERENCES

II.

DEFINITIONS

III.

BACKGROUND

IV.

PROCEDURES

ATTACHMENTS

I. REFERENCES

1. State of California, Code of Civil Procedure, Sections 416.50; 1013, 1985, 1986, 1987, 1992, and

2020; California Evidence Code 1561, 1563, 1564 and 1565;

2. UCLA Policy 120, Legal Processes – Summonses, Complaints, and Subpoenas, 04/23/1999;

3. UC Business & Finance Bulletin RMP-10 Instructions for Responding to a Subpoena Duces Tecum,

6/15/1989.

II. DEFINITIONS

Custodian of Records: University administrator responsible for the safekeeping of the records for their

department. When served with a Subpoena, the Custodian of Records should contact the designated Legal

Process Coordinator for employment, medical or student records who will ensure that all legal requirements

are fulfilled.

Declaration of Authenticity: Affidavit signed by the Custodian of Records certifying the authenticity of the

business records. The declaration should be stapled to the outside of the sealed envelope which contains

copies of the records used for evidence in the case. (See Attachment A.)

Deposition Officer: A professional photocopier employed by an attorney who will provide copies of the

records to be used as evidence. The records should not be released to the Deposition Officer prior to the Due

Date listed on the Subpoena. Deposition Subpoenas include the following statement: “Do not release the

requested reocrds to the Deposition Officer prior to the date and time stated above.”

Deposition Subpoena: An order for a non-party to appear at a depostiion before a Subpoenaing Party and

produce business records listed in the Subpoena for copying.

Due Date: The date required by the Subpoena for the witness to appear and/or provide the records. The

production of records shall not be less than 15 days from the date the Subpoena is issued. The Subpoenaing

Party is required by law to serve the Named Individual a Notice to the Consumer (See Attachment B) not less

than 10 days prior to the date for the production of records, plus the additional time provided in Section 1013

of the Code of Civil Procedure if service is by mail. The Subpoena should be served in sufficient time to

allow the witness a reasonable time to locate and produce the records or copies thereof.

Legal Process Coordinator: Designated administrators in various campus departments who facilitate the

processing of the Subpoenas to ensure that the requests for records are complied with in accordance with the

policies and procedures of the University as well as the laws of the State of California. Records Management

UCLA Procedure 120.1 Page 2 of 5

& Information Practices has been designated to receive and process Subpoenas for the University pertaining

to requests for employment and payroll records. (Please see UCLA Policy 120, Attachment A for a list of

Legal Process Coordinators who deal specifically with medical and student records.)

Motion to Quash: In accordance with Section 1987.1 Code of Civil Procedure, the consumer or Named

Individual whose records are being Subpoenaed may, prior to the date for production of their records, bring a

Motion to Quash or modify the Subpoena; and this notice shall be given to the Custodian of Record (or Legal

Process Coordinator) and the Deposition Officer prior to production. Except upon order of the court, the

custodian or Deposition Officer will no longer be required to produce the records.

Notice to Consumer: The Subpoenaing Party is required to send a copy of the Subpoena to the Named

Individual (or their attorney) not less than 10 days prior to the date for production of the records, plus

additional time if service is by mail in accordance with Section 1985.3 of the California Evidence Code. (See

Attachment B.)

Process Server: City officials (including employees of the FBI, Secret Service, police or sheriff’s

department); or persons employed by an attorney or attorney service who serve a Subpoena who are also

known as Deposition Officers.

Proof of Service: An affidavit setting forth the exact title of the document served and filed in the cause,

showing the name and residence or business address of the person making the service, showing that he or she

is a resident of or employed in the county where the mailing occurred, over the age of 18 and not a party to the

cause, and showing the date and place where mailed, the name and address of the person served as shown on

the envelope, that the envelope was sealed and deposited in the mail with the postage prepaid. (See

Attachment C.)

Subpoena: A writ or order directed to a person requiring their attendance to appear at a particular time and

place to testify as a witness, which may also require that the witness bring with them specified records. (The

appearance of a witness may not always be required so long as they produce the specified records at the time

and place indicated on the Subpoena.)

Subpoena Duces Tecum: An order for a witness to appear at court and bring with them copies of records

listed in the Subpoena.

Subpoenaing Party: The person or persons causing a Subpoena to be issued or served in connection with

any civil action requiring a witness to appear or records to be produced. The Subpoenaing Party is usually the

attorney employed by the plaintiff or defendant in the case.

Witness Fees: Fees paid to individuals required to respond to a subpoena. For information concerning fees

paid to individuals required to respond to a subpoena, such as witness mileage reimbursement, document

reproduction costs, etc., contact UCLA Records Management & Information Practices, Subpoena Services at

(310) 794-8960. Fees for the production of business records may not be required in criminal cases, or when

the University is a party to the action (for example, cases titled “Named Individual vs. The Regents of the

University of California”).

III. BACKGROUND

A. California law provides for the furnishing of copies of business records by mail in lieu of personal

appearance with the original records, unless:

1. The Subpoena Duces Tecum contains the following statement on its face:

“You are ordered to appear in person.”

“You are ordered to appear in person and to produce the records described in the accompanying

affidavit. The personal appearance of the custodian or other qualified witness and the production

of the original records is required by this Subpoena. The procedure authorized by the subdivision

UCLA Procedure 120.1 Page 3 of 5

(b) section 1560, and sections 1561 and 1562 of the California Evidence Code will not be deemed

sufficient compliance with this Subpoena.”

2. It is a criminal case titled, “The People vs. Named Individual.”

3. The University is a party to the action (with the exception of Workers’ Compensation cases).

4. The case arose from an event which took place on campus.

In the above instances, a personal appearance is still necessary. Employees served with a Subpoena

which requests them to appear as a witness may not attempt to avoid the necessity of personal

appearance by making private arrangements with attorneys or Process Servers to deliver Subpoenaed

records in advance (see Witness Fees). Where the records are confidential, this is a violation of

University policy, and is manifestly unfair to the other party in litigation who has no notice or

opportunity to object to the production of these records in this manner. Therefore, the records should not

be released to the Deposition Officer earlier than the date listed on the Subpoena due to the fact that the

Named Individual may file a Motion to Quash which would legally prevent the University from

providing the records (pending the court’s decision).

B. The designated Legal Process Coordinator for employment, medical and student records as well as the

Custodians of Records for the University are responsible for complying with subpoenas and legal

requests. See UCLA Policy 120, Attachment A for a list of coordinators.

C. Records Management & Information Practices (Records Management) is the department generally

responsible for receiving Subpoenas. When served with a Subpoena, please contact Subpoena Services

in Records Management for advice. If The Regents is the named party, the Process Server should be

directed to the Office of the General Counsel for service. Campus personnel are not authorized to accept

Subpoenas on behalf of The Regents. The Process Server should be directed to:

General Counsel of The Regents

Office of the General Counsel of The Regents

1111 Franklin Street, 8th Floor

Oakland, California 94607-5200

If a Subpoena is addressed to The Regents but asks for records that are held locally, please contact the

Subpoena Services in Records Management.

UCLA Procedure 120.1 Page 4 of 5

IV. PROCEDURES

RESPONSIBILITY ACTION

Custodian of Records If necessary, contacts the Subpoena Services in Records Management

when served with a Subpoena for business records or attendance as a

witness.

1. Places a copy of the records listed in the Subpoena, with confidential

portions deleted, in a sealed envelope. (Original records must never be

provided in this manner.)

Note: Do not exclude records considered "confidential" without seeking legal

advice. (For example, the definition of records considered “confidential” in UCLA

Policy 120 is different from the definition in UCLA Policy 603, Privacy of & Access

to Information (Legal Requirements) and the information Practices Act of 1977.)

2. Attaches to the sealed envelope a Declaration of Authenticity which is to

certify the authenticity of the business records. (See Attachment A)

3. Places the sealed envelope, with the declaration attached, into an

envelope addressed to: Subpoena Services in Records Management (if so

instructed), who will provide the records to the attorney or court on your

behalf.

Subpoena Services is legally obligated to comply by the Due Date listed on

the Subpoena; therefore it is imperative that the Custodians provide the

records as soon as possible. However, if the attorney has employed an

attorney service, the custodian may request that the records be copied by

the attorney service who will provide the records for a deposition. Attorney

services may only copy and provide records for depositions and not court

cases. It is the responsibility of the Custodians of Records to copy records

which must go directly to the court. If an attorney service is being utilized,

the Deposition Officer may not copy the records before the Due Date listed

on the Subpoena.

4. Advises supervisor of above actions.

Legal Process

Coordinator

1. Receives legal requests for records and facilitates University policy and

procedures in compliance with the laws of the state of California.

2. Notifies Named Individual in writing prior to release of their records at their

last known home address.

3 . Instructs Custodian of Records to produce records listed in the request in

accordance with the Due Date listed on the Subpoena; and provides the

custodian with a copy of the Subpoena as well as a Declaration of

Authenticity which the Custodian of Records must complete and sign.

4. Receives fees for the production of business records and ensures that the

University is reimbursed for providing the photocopied records in

accordance with Section 1563 of the California Evidence Code. (see

Witness Fees)

5. Provides the records to the Deposition Officer no earlier than the Due Date

listed on the Subpoena unless a Motion to Quash is filed or a written

objection stating that a Motion to Quash will be filed is provided by the

Named Individual or their attorney.

Sends the records to the court at least five (5) days prior to the Due Date

listed on the Subpoena, ensuring that the records will arrive on time; but

also ensuring that the named individual received reasonable notification

prior to release of their records. (If a Motion to Quash is received prior to

the Due Date listed on the Subpoena and the records have already been

sent to the court, the Named Individual or their attorney may still object to

the records being used as evidence or file a Motion to Quash up until the

actual Due Date so that the records will not be released by the Clerk of the

Court pending the court’s decision.)

UCLA Procedure 120.1 Page 5 of 5

V. ATTACHMENTS

A. Declaration of Authenticity - per section 1561 of the California Evidence Code, should be stapled to

the sealed envelope containing copies of the records.

B. Notice to the Consumer - per Section 1985.3, 1985.4 and/or 1985.6 of the California Code of Civil

Procedure.

C. Proof of Service - per Section 1013 of the California Code of Civil Procedure.

Issuing Officer

/s/ Peter W. Blackman

Administrative Vice Chancellor

Questions concerning this policy or procedure should be referred to

the Responsible Department listed at the top of this document.

APP 120.1-A

Declaration of Authenticity

Plaintiff

Case No.

vs.

Declaration Certifying the

Authenticity of Business Records

Evidence Code §1561

Defendant

I, _____________________________________, declare:

(Custodian’s Name)

I am an employee of the University of California, Los Angeles and am a duly authorized and

qualified witness to certify the authenticity of the attached business records for the University.

The copies of the business records of the University which are enclosed within the attached sealed

envelope are true copies of all records maintained by this office as described in the subpoena.

These records were prepared by personnel of the University in the ordinary course of business at or

near the time of the acts, conditions or events described in the records.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on ________________________________, at Los Angeles, California.

(Today’s Date)

By: _________________________________

(Signature)

Title: _________________________________

Department: _________________________________

Enclosures

cc: UCLA Records Management

APP 120.1-B

Notice to Consumer

Plaintiff

Case No.

vs.

Notice to Consumer/Employee

Pursuant to CCP §1985.6

Defendant

(1) Records about the Consumer/Employee, are being sought from the Witness named on the

subpoena from:

UCLA

(2) The Consumer/Employee records may be protected by a Right of Privacy.

(3) If the Consumer/Employee objects to the Witness furnishing the records to the party seeking

the records, the Consumer/Employee must file papers with the court prior to the Date

specified for production of the subpoena.

(4) 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/Employee’s interest in

protecting his or her rights of privacy.

Dated: ________________________________.

(Name of Attorney Issuing Subpoena)

By: _________________________________

(Signature)

Title: _________________________________

APP 120.1-C

Proof of Service

I am a citizen of the United States and employed in the County of_______________, California; I

am over the age of eighteen years and not a party of this action; my business address is

_____________________________________________________________________________.

On ____________________________________, I served the within Notice to

Consumer/Employee pursuant to CCP S1985.6 on the parties herein, by placing a true copy

thereof enclosed in a sealed envelope with postage thereon fully prepaid in the United Sates mail at

_________________________, California, addressed as follows:

Name:

__________________________

Address:

__________________________

City, State:

__________________________

Zip Code:

__________________________

I declare under penalty of perjury that the foregoing is true and correct.

Executed on________________________, at_________________________________________.

(Today’s Date) (City, State)

By: _________________________________

(Signature)

Title: _________________________________