A party to the lawsuit may file a motion to quash if their consumer records, employment records, or “personally identifying information” are contained in the documents sought by the subpoena.
By Brad Nakase, Attorney
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In California, a Deposition Subpoena for the Production of Business Records serves as an essential tool in the discovery phase for gathering evidence. Governed by the California Code of Civil Procedure § 2020 et seq., it can be issued to any natural person or to an agent designated by an organization to receive subpoenas. This type of subpoena is particularly effective for securing documents from third parties, aiding in the revelation of evidence that may strengthen or weaken a legal claim. In some cases, a motion to quash the subpoena may be filed if the requested documents are deemed irrelevant or overly burdensome. When utilizing the Deposition Subpoena for the Production of Business Records, it is directed towards the individual who will supply the necessary documents.
Additionally, if the situation warrants, a notice to consumer or employee, along with an objection notice, is also dispatched. This notice may prompt the involved parties to consider a motion to quash if they believe the request violates privacy rights or legal procedures. This allows the consumer or employee a designated period to raise objections to the subpoena. Following this, the deposition officer, or the designated photocopying agent, assumes the responsibility of acquiring copies of the records from the individual in question. A motion to quash can be a strategic response to protect sensitive information from being disclosed. This process typically involves either a direct, in-person collection and photocopying of documents on the specified production date, or the acquisition of certified copies through mail.
Once the documents are obtained, the deposition officer then delivers these copies to the party that requested them. When a motion to quash is successful, it makes a subpoena invalid, preventing the acquisition of the requested documents. In scenarios where no relevant records are found, the deposition officer must secure an affidavit of no records from the record custodian of the individual or entity being subpoenaed. The successful quashing of a subpoena can often lead to such affidavits, as it makes a subpoena invalid and nullifies its demands. This comprehensive process ensures that all necessary and relevant business records are accurately and lawfully obtained for the case at hand.
The seven ways to challenge a subpoena Attachment 3 in the subpoena specifies in detail the documents that the party issuing the subpoena seeks to obtain. It is common for opposing counsel to employ standardized language in these requests, aiming to acquire a broad range of documents. An objection to quash subpoena may be raised against such overreaching requests. This tactic might stem from the assumption that many attorneys will not contest the subpoena, potentially enabling them to access extra documents that could negatively impact the Plaintiff’s case. Frequently, the wording in such requests is excessively broad and not strategically designed to yield evidence that is admissible in court. Moreover, these requests often infringe upon the Plaintiff’s rights to privacy. Therefore, it’s not uncommon to see a motion to quash these subpoenas based on privacy grounds. It is crucial to actively prevent opposing counsel from obtaining these records, ensuring that the subpoena requests remain fair and respect privacy norms.
Fishing expedition
The California Code of Civil Procedure § 2017 permits a party to gather discovery on any matter that is not privileged and to obtain evidence that is reasonably likely to lead to the discovery of admissible evidence. However, this statute does not authorize opposing counsel to engage in an indiscriminate search through various consumers, employees, and providers in pursuit of evidence. If multiple subpoenas are issued that do not target any medical provider referenced in the plaintiff’s deposition or discovery responses, it could indicate that the opposing counsel is conducting a fishing expedition. The plaintiff can then move to quash the subpoena on the basis that it constitutes a fishing expedition, which makes a subpoena invalid. The California Supreme Court in Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 384-85, discussed the concept of improper fishing expeditions in
civil discovery, highlighting tactics such as poorly identifying the requested information, attempting to shift the burden and cost of information gathering, or imposing an excessive burden relative to the value of the information sought. These scenarios often provide ample grounds to quash a subpoena.
Prior insurance records
Subpoenas that demand access to entire insurance files risk encompassing information that is protected under attorney-client privilege and attorney work product doctrine. This can be a compelling reason to file a motion to quash such subpoenas. Such requests may include recorded statements, interviews, and investigations conducted in preparation for litigation, all of which are protected. Furthermore, insurance companies have a responsibility to assert the relevant privileges when they receive such subpoenas, as affirmed in Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal.App.4th 263, 272-83. A quash subpoena motion is often necessary to ensure these protections are upheld. It is essential to ensure that these subpoenas are challenged and that a reminder is sent to the insurance company about their obligation to safeguard their insured’s privacy interests. This proactive approach helps to ensure that sensitive and privileged information remains confidential and provides grounds to quash a subpoena when necessary.
Personnel records
Personnel records encompass a range of documents related to an employee, including but not limited to their eligibility for employment, promotions, termination, disciplinary actions, evaluations, and reports on character. A motion to quash may be necessary if a subpoena unjustly seeks these sensitive records. A sweeping request for such personnel records often includes documents irrelevant to the plaintiff’s claim, infringing upon the plaintiff’s privacy rights. Such overreach provides grounds to quash a subpoena. Personnel documents and confidential communications to an employer are safeguarded under the employee’s constitutional right to privacy, as established in Board of Trustees v. Superior Court, 119 Cal.App.3d 516, 174 Cal.Rptr. 160 (1981). The overbroad nature of such requests often makes a subpoena invalid, leading to a motion to quash.
The Code of Civil Procedure § 2017.020(a) asserts that discovery should be limited if it is determined that the burden, expense, or intrusiveness of the discovery significantly outweighs the probability of the information leading to the discovery of admissible evidence. In such cases, the plaintiff has valid grounds to quash a subpoena for these records. There are less intrusive methods available for opposing counsel to gather the necessary information, often achieved during the plaintiff’s deposition. It is imperative to prevent opposing counsel from indiscriminately infringing upon the privacy rights of the plaintiff and third parties, especially in pursuit of exhaustive details of the plaintiff’s entire employment history. This approach ensures a balanced and respectful discovery process, which may include a motion to quash subpoenas that are overly broad or intrusive.
W2s, financial documents, and tax returns
When a plaintiff files a claim for lost wages, it’s common for the opposing counsel to request the plaintiff’s employment records. In such cases, payroll or attendance records are typically discoverable to substantiate claims of lost wages or diminished earning capacity. However, documents intended for tax purposes, such as tax returns, W-2s, W-4s, partnership tax documents, employment tax documents, or corporate tax documents, are considered privileged and thus protected from disclosure. This often provides the plaintiff with grounds to quash a subpoena targeting such tax documents. The court in Brown v. Superior Court (1977) 71 Cal.App.3d 141, 143-44, affirmed that W-2 forms, being necessary attachments to state and federal income tax returns, are an essential part of the tax return. As such, they fall under the category of information contained in the returns and are therefore shielded by taxpayer privilege. A motion to quash based on taxpayer privilege is a common response to such subpoenas. This privilege exists to promote effective tax enforcement by encouraging taxpayers to provide complete and honest information in their returns, without the fear of such information being disclosed or used against them for unrelated purposes, as outlined in Webb v. Standard Oil (1957) 49 Cal.2d 509, 513.
To verify claims of lost wages or reduced earning capacity, opposing counsel can rely on non-privileged items such as payroll or check stubs. If a subpoena overreaches, a motion to quash can be filed, arguing that it makes the subpoena invalid. In scenarios where there are no alternative means to support the plaintiff’s claim, a possible solution might be to agree on a stipulation that mandates the destruction of the documents after the lawsuit concludes. Such agreements can be an alternative to filing a motion to quash or challenging a quash subpoena. This approach provides a balance, allowing for the necessary verification of claims while respecting the confidentiality and privileged nature of certain documents.
Pre-mature expert reports
Public policy favors the encouragement of settlement offers to potentially resolve disputes without court intervention, as noted in Zhou v. Unisource Worldwide, Inc. (2007) 157 Cal.App.4th 1471, 1475. It’s common for a draft report from an expert to accompany a demand letter sent to opposing counsel. Under the Evidence Code § 1154, the expert’s report is protected when shared as part of settlement discussions. However, the expert’s identity is not similarly protected, and opposing counsel may issue a subpoena for the report or other related communications, including a signed declaration from the custodian of records. The parties may consider using a motion to quash to challenge such a subpoena, arguing that it makes the subpoena invalid as it encroaches on protected settlement discussions. Without proper objection, this could inadvertently lead to the disclosure of privileged communications between you and your expert, such as attorney insights and case strategies.
Despite this, the identity and initial findings of the expert remain confidential and are safeguarded by the attorney work product doctrine, irrespective of whether the expert has been officially designated. Additionally, as per Evidence Code § 1152, and Code of Civil Procedure section 2034.210, there are specific guidelines governing the exchange of expert information. This includes the timing and method for the simultaneous exchange of such information, the parameters for making demands, the types of reports and writings that are discoverable, authorized individuals for issuing demands, and the necessary language for these demands. If a subpoena seeking such information is issued prematurely, it can be argued that this makes a subpoena invalid and a motion to quash is warranted. Any effort to procure an expert’s report before the timeline set by the Code would be a violation of these statutory procedures, and such actions should be carefully monitored to maintain the integrity of the process and protect privileged information.
Overbroad medical records
The Plaintiff is protected by a statutory physician-patient privilege regarding their medical records, as outlined in the Evidence Code §§ 990 & 1014. Additionally, the California Constitution, Article 1 § 1, guarantees the Plaintiff an “inalienable right of privacy.” In personal injury cases, it’s a common strategy for opposing counsel to attempt to acquire all of the plaintiff’s medical records. However, a quash subpoena motion can be filed to protect such overreaching attempts. However, these requests often exceed reasonable bounds, seeking records from over ten years prior to the incident and encompassing all body parts, not just those relevant to the injury claim. Such broad requests intrude upon the plaintiff’s constitutional right to privacy. These records are generally not entitled to opposing counsel, as they may provide unwarranted grounds for attributing the plaintiff’s alleged injuries to other causes.
Subpoena language should be strictly confined to medical records from ten years before the incident and should exclude any records about body parts not involved in the lawsuit. As established in Hale v. Superior Court (1994) 28 Cal.App.4th 1421, 1424, even when a part of a medical condition is relevant to a case, it doesn’t imply a waiver of privilege for unrelated aspects of the plaintiff’s medical history or conditions unrelated to the incident at hand. In such scenarios, a party can argue that a motion to quash makes a subpoena invalid due to its overreach and invasion of privacy. It’s crucial to ensure subpoenas are appropriately narrow to protect the plaintiff’s rights and privacy.
Unrelated medical records
In personal injury lawsuits, when a plaintiff alleges injuries to certain body parts, the physician-patient privilege related to those specific body parts is considered waived. However, the plaintiff retains their right to privacy concerning physical and mental conditions that are not related to the claimed injury. The case of Britt v. Superior Court (1978) 20 Cal.3d 844, 863-64, elucidates this principle, stating that plaintiffs are not required to forfeit all aspects of their privacy to seek justice for a specific physical or mental injury. This principle is often cited in arguments to quash subpoenas that overreach into unrelated medical areas. They cannot withhold information related to any condition they have made relevant by filing the lawsuit, but they are entitled to keep confidential any unrelated medical or psychotherapeutic treatments they have received.
Furthermore, claiming “pain and suffering and emotional distress” in a personal injury lawsuit does not automatically make a plaintiff’s overall mental condition a subject of the claim, nor does it waive their privacy rights. This was established in Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1116-17. The responsibility falls on the party seeking constitutionally protected information to prove its direct relevance to the case. Mere conjecture that parts of the medical records might be pertinent is insufficient. Unless the plaintiff alleges an emotional injury more severe than the typical distress associated with personal injury cases, psychiatric records remain protected under the plaintiff’s right to privacy and are not deemed likely to lead to the discovery of admissible evidence. Thus, a motion to quash is often necessary when a subpoena fails to respect these nuanced legal distinctions. This balance aims to protect the plaintiff’s privacy while allowing for relevant disclosures essential to the litigation process.
A Motion to Quash a Subpoena for the Production of Documents must be served and noticed to the opposing counsel at least five days before the scheduled document production date, as stipulated by Code of Civil Procedure, § 1985.3. Although a court may grant a motion to quash even after this deadline, as seen in Slage v. Superior Court (1982) 211 Cal.App.3d 1909, 1313, it’s crucial to start reviewing subpoenas and initiating meet-and-confer discussions well before the Motion to Quash date. Delay in responding can impact the grounds to quash a subpoena, reducing the likelihood of a successful motion. The earliest a witness is required to produce documents is twenty days after the issuance of the deposition subpoena, or fifteen days after service, whichever is later.
In practice, there are often subpoenas with a production date set over sixty days in the future, with opposing counsel pressuring the deposition officer to acquire the records much earlier. This could be challenged by a motion to quash, as it makes a subpoena invalid due to premature enforcement. This results in documents being obtained well ahead of the scheduled production date, and by the time a meet-and-confer letter is sent, it’s often too late to prevent this. Therefore, understanding the proper timing and grounds to quash a subpoena is crucial in these situations.
Meet and Confer, Object
The initial step for the plaintiff should be to dispatch a detailed meet-and-confer letter to the opposing counsel. This letter can lay out the reasons and legal basis for a potential motion to quash the subpoena. This letter should outline the subpoenas in question and include all relevant legal arguments. A copy should also be sent to the deposition officer to prevent premature document acquisition by opposing counsel. Failing to meet and confer can weaken the grounds to quash a subpoena. Subsequently, an objection on formal pleading paper should be mailed to the witness to deter them from providing documents before the production date.
After the meet-and-confer letter, it’s vital to have a tentative date to reserve for the Motion to Quash hearing. If the opposing counsel remains unyielding, refusing to narrow the subpoena scope, exclude certain documents, retract the subpoena, or agree to destroy specific documents after the lawsuit, continue the meet-and-confer process either in writing or via phone. In case of an impasse, reserve a hearing date and issue a Notice of Motion to Quash to the opposing counsel. This step is critical in establishing the legal grounds to quash a subpoena. Meanwhile, it’s beneficial to informally contact the witness to request document copies, allowing for a more informed approach to challenging the subpoena or deciding to permit the records’ production.
Maintaining Civility Throughout the Process
Despite the array of tools available to protect the plaintiff’s privacy and claim, maintaining civility throughout this process is crucial. Upon receiving a subpoena, reach out to the opposing counsel with a phone call or propose a face-to-face meeting, possibly over coffee or at the courthouse. Often, a simple conversation can resolve issues more effectively than formal emails or letters. Establishing a professional relationship with the opposing counsel can be invaluable, so don’t hesitate to be civil when discussing motion to quash a subpoena in California.
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By: Brad Nakase, Attorney
