CaliIt is common practice for applicant attorneys to issue subpoenas for records from the defendant in the case. Is this valid? What are the pitfalls associated with complying with a subpoena issued for records from a party to the action?

The California Code of Civil Procedure allows for one party to obtain discovery from another party by use of request for production of documents. A subpoena for records is used to obtain records by a person who is not a party to the action. Therefore, there is at least an argument that a subpoena issued by an applicant’s attorney for records in the possession of a defendant is not a valid form of discovery. It should be noted that the Workers’ Compensation Appeals Board does not apply the entire California Code of Civil Procedure to discovery in a Workers’ Compensation case. However, the use of subpoena by one party to obtain discovery from another party should be challenged due to the potential pitfalls associated with simply complying with an applicant’s attorney’s subpoena.

It is quite common to see a defendant or employer arrange for and have records copied once a subpoena is received. Has the person compiling the documents examined them to determine whether a valid claim of privilege exists? For instance, if a defendant is producing a personnel file via subpoena, they may be producing correspondence that would qualify for the attorney-client privilege. There may also be grounds for a protective order to be issued by the court where some of the records to be produced contain sensitive information regarding the operations of that particular employer. The records should be reviewed by an attorney to determine whether there is a privilege to assert and to take the steps necessary to protect sensitive information.

Another potential pitfall in simply copying records to comply with a subpoena is that the records are not properly marked or numbered in such a way that it can be verified which records were actually produced. The failure to properly mark the records may result in some documents being deemed inadmissible by a judge. If an applicant’s attorney claims that a particular document was not contained in the set of records produced pursuant to the subpoena, then a judge could rule that document inadmissible since it was not previously disclosed or served. Without proper identification of the records, such as a bates stamp, there is no way to definitively prove which records were actually provided to the other party.

A better practice is for the employer or third party administrator to immediately provide a copy of the subpoena to their attorney in sufficient time to allow an inspection of the records to occur. That attorney would then arrange to properly identify and mark the records to avoid the potential pitfall noted above. Lastly, the copy service would then be required to obtain the records from at the attorney’s office rather than directly from the defendant or employer’s location.