A Practical Approach to Responding to Subpoenas in California

If you are a long-term reader of Laughlin, Falbo, Levy & Moresi's The Workers' Compensation Newsletter, you may know that we have periodically provided guidance on the handling of a subpoena received by the claims examiner, typically requesting that a copy of the claim file be produced.

Due to the popularity of this feature, including a handy pull-out "Subpoena – Response Chart", what follows is an updated discussion and recommendations, focusing on the practical aspects involved in properly and timely complying with the subpoena, while legally protecting against the disclosure of documents that should be kept confidential, so as to avoid the potential devastating effects and embarrassment of "showing your hand" to your adversary.

What is a Subpoena?

Subpoenas (also known as "deposition subpoena" and "subpoena duces tecum") are the principal means by which parties to litigation before the Superior Court, the WCAB, or other judicial bodies, secure the production of records or documents from, and compel the attendance at depositions by, persons or entities who are not parties to the action or proceeding. In workers' compensation proceedings, subpoenas for these purposes may also be served on opposing parties, since the various other means of discovery available in Superior Court litigation do not exist.

What Rules Govern Subpoenas?

The rules governing the use of subpoenas are comprehensively set out in California Code of Civil Procedure section 1985 et seq. A subpoena can be issued by any attorney, using forms which are issued by the court in blank. Frequently, the subpoena is prepared and served using the assistance of a professional photocopy service. Although not issued directly by the court a subpoena has the same compulsory power as a court order, and a person required to respond to a subpoena ("the responder") who disobeys a subpoena may be punished for contempt (including a $500 monetary sanction, plus other expenses incurred due to the failure to comply) without the issuing party first having to obtain a court order compelling the responder to comply with it. Because the party issuing the subpoena does not need to obtain such an intermediate order, the responder must be particularly careful that the initial response is proper.

Received a Subpoena Requesting Records. What Do I Do?

1. Deal With It IMMEDIATELY!

The time allowed for responding to a subpoena is very limited, typically only a few days. Failure to respond appropriately and timely will result in a waiver as to critical objections, which could be devastating to the workers' compensation defense and/or any associated subrogation claim, including being forced to produce to your adversary your otherwise protected claim notes, investigation, communications with counsel, and reserve calculations.

2. Do I Send the Subpoena to Counsel?

If counsel has been assigned to this claim, or referral to counsel is imminent, advise your counsel immediately of the receipt of the subpoena, and fax or email a copy, with confirmation that counsel has received it. Do not forget that assigned counsel might include workers' compensation defense (including defense of Serious & Willful Misconduct or Labor Code section 132a issues) and/or for subrogation and/or for defense of Cal-OSHA citations against the employer.

3. Read the Subpoena.

Look at the caption on the subpoena. Determine which legal action is the basis of the subpoena. What party is seeking the records? Is it in a WCAB case, or in a Superior Court case? Does it involve a Cal-OSHA or other administrative proceeding? Is it from a co-defendant in a WCAB case? Is it relating directly to the date(s) of loss involved in the claim(s) you are adjusting, or possibly an earlier or later injury? Is the injured worker identified as a plaintiff in a civil case caption? Might there be previously unidentified subrogation potential, either for the subject workers' compensation claim, or for a subsequent injury for which you are paying benefits? Also look at the proof of service, which might provide information concerning representation of various parties to the action. Is the injured worker represented in that action?

4. Was it properly served?

CCP section 1987 requires that the subpoena be personally served. If it is not, the requesting party cannot enforce it. Confirm that it was properly served. If you are unsure, immediately contact the identified photocopy service or issuing attorney, and request a copy of the proof of personal service. If it was not properly served, it is recommended that an objection on that basis be timely presented to the issuing attorney, with a copy to the professional photocopy service, if applicable.

Please note that in the event that the subpoena is directed to an employer that also happens to be a health care provider, the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) may be applicable, requiring that before a patient's "protected health information" may be disclosed, the requesting party must provide assurances that the patient has been notified of the request and does not object to the disclosure. This requires that notice of the subpoena has been properly served on the injured worker. This article does not attempt to discuss the complexities involved in HIPAA compliance, but the subpoena recipient must be aware of the federal privacy mandates in this regard, when applicable.

5. When is Production Required?

The face of the subpoena will indicate the date, time and location for production (also amounting to the date by which a proper objection and/or Motion to Quash must be filed). Do not take this date lightly. Calendar the date, and insure that your response is timely. Again, missing this deadline might be devastating to the claim. Accordingly, subpoenas must be reviewed by the individual who will be responding to the subpoena, and the process of responding to it put in motion at the earliest possible opportunity. Subpoenas are usually delivered in person by being handed to receptionists, mail room personnel, or other front line employees. These recipients must be made aware that a subpoena is not simply another piece of mail to be matched to the file and seen by the adjuster only when that file comes up for review.

Workers' compensation claim files are considered to be "business records" of the claim adjusting entity, but also "personal records" of the injured worker. A subpoena demanding their production must comply with the time requirements of Code of Civil Procedure sections 1985.3 and 2020.410. Such a subpoena must provide the responder at least 15 days from the date of service of the subpoena in which to respond. If the production date is less than 15 days from the date of service, object.

Furthermore, the records must not be produced earlier than the designated date for production, due to consumer notice requirements (see below). Note that it is not uncommon for professional photocopy services to begin contacting the subpoena recipient concerning compliance, and attempting to schedule for copying before the designated production date. Even if the records have been properly reviewed and are ready for copying, do not allow the records to be copied before the designated date.

6. Does the Subpoena Include a "Notice to Consumer?"

The fact that the claim file is considered to be "personal records," imposes an additional requirement upon the party serving the subpoena, except when the subpoena is issued in workers' compensation proceedings: a "Notice to Consumer" must be properly served on the employee whose file is being sought, at least 5 days prior to the service of the subpoena upon the responder, and at least 10 days prior if the "Notice to Consumer" is served on the employee by mail. A copy of this notice showing proof of service on the employee must be served on the responder along with the subpoena. If the employee is represented in the action in which the subpoena was issued, service by mail on the injured worker's counsel is adequate. This scenario might arise in a subrogation action filed by your counsel, but in which the employee has not intervened as a party. A subpoena which does not include a "Notice to Consumer" with the proof of service of that notice on the employee is invalid, and the records must not be produced.

The purpose of the "Notice to Consumer" is to allow the employee an opportunity to object to the subpoena, on privacy rights or otherwise, and if the responder receives a written objection from the employee prior to the date on which the response is to be made, no response to the subpoena should be made, absent a court order. The existence of the employee's right to object to the subpoena imposes a corresponding obligation on the responder not to "jump the gun" by responding to the subpoena prior to the statutory deadline.

The nature of the objection which the employee must make in order to prevent production of records differs, depending upon whether the employee is a party to the litigation in which the subpoena is issued. An employee who is a party to the action is required to file a Motion to Quash the subpoena, and the objection is valid so long as the motion is filed and served on the responder prior to the date set for production. If the employee is not a party, only a written objection to the responder is necessary, and it then becomes the obligation of the party that served the subpoena to obtain a court order authorizing production.

7. Analyze the Specific Language Describing the Records Sought

a. Is the Description Vague?

The party issuing a subpoena is obligated to identify the materials which the subpoena seeks to have produced "... by specifically describing each individual item or by reasonably particularizing each category of item ..." Code of Civil Procedure § 2020.410(a). If the request is for the "claims file," this requirement does not usually present a problem, as such a request is typically deemed to be sufficiently exact. A subpoena, however, which demands "all records which support your position in this action," or "all records relating to the injured worker," is likely to be deemed insufficiently precise. This problem most frequently arises when the subpoenaing party is unfamiliar with workers' compensation adjusting practices and makes vague demands because it does not really know what documents are available.

b. Are Documents in the Claim File Entitled to Protection From Disclosure?

Besides procedural "defects" in the subpoena, many business records are considered confidential and not subject to disclosure, assuming that proper and timely objections are asserted in order to maintain that status. The most common bases for objecting to disclosure of various claim file documents include (1) the attorney-client privilege, (2) the attorney work product doctrine, and (3) otherwise constituting an unreasonable or oppressive demand, or one requesting documents that are irrelevant to the issues, and not calculated to lead to the discovery of admissible evidence.

- The Attorney-Client Privilege

Communications among counsel, the claims adjuster, and/or the employer, including documents memorializing those written or verbal communications, are strictly protected from disclosure, as those communications may include strategy, recommendations, advice and evaluation of both the compensation and civil claims. The privilege extends to the attorney's staff members, as well as the adjuster's staff members. Rather than attempting to determine whether the particular communication contains privileged information, it is the preferred practice to exclude all communications with counsel (including fax cover sheets, letters transmitting other documents, and the like). However, note that if the communication was published to a third party, such as another attorney representing adverse interests, or a doctor (other than a QME, wherein the correspondence has not been copied to the opposing attorney), the privilege is lost, as there was no expectation of confidentiality.

- The Attorney Work Product Doctrine

The attorney work product doctrine protects from disclosure documents (1) prepared at the request of counsel, (2) in anticipation of litigation, and (3) for risk management purposes. This basis for objecting to a subpoena, and for excluding those documents from production, is sometimes referred to as "limited privilege," which differs from the "absolute" attorney-client privilege. The doctrine is derived from the rationale that a party's efforts to thoroughly investigate and prepare its case should be protected from disclosure to the opposing party. Furthermore, public policy encourages the thorough investigation of accidents, in order to attempt to determine a cause, and to help avoid another similar incident. If those involved in the investigation cannot be candid and thorough, including discussing possible fault and opinions concerning liability, for fear that those impressions will be disclosed to potential adverse parties, the "chilling effect" would possibly result in further similar injuries.

It is important to understand that the first requirement, that the document be prepared at the request of counsel, is not limited to counsel retained in the subject claim, in our opinion. In fact, it is rare, for example, that initial investigation concerning an industrial injury, including witness statements and employer's supervisor reports concerning the incident, would be performed after retention of counsel. Rather, the initial investigation, incident reports and witness statements are prepared immediately, because presumably an attorney representing the employer and/or carrier (possibly including general counsel) has conveyed instructions to thoroughly investigate accidents, possibly many years prior to the incident, and this may well be a strictly mandated risk management procedure of the company.

Documents that may be subject to protection from disclosure under the attorney work product doctrine may include the Employer's First Report (if opinions concerning fault are included), investigation reports (including summaries of witness statements and summaries of surveillance videos), witness statements (written or recorded statements of parties to the action are discoverable), letters written to Qualified Medical Examiners, if the opposing counsel was not required to be copied, and consultant/expert communications.

It should be noted that the attorney work product doctrine is the subject of considerable case law due to discovery disputes, and the exact nature of the document must be examined in relation to that case law. Furthermore, while the civil courts may tend to uphold valid claims that certain documents should be protected from disclosure, a WCAB judge may tend to be less restrictive, and, for example, require disclosure of certain investigation materials for "good cause" on the basis that it would be unduly burdensome and costly for the applicant to conduct similar investigation. Therefore, if it is important to prevent disclosure of various documents relying on the attorney work product doctrine, serious consideration should be given to retaining counsel to litigate the issue. In any case, if the "protected" documents will be used in trial, they will need to be disclosed in advance to the other parties to the action.

- Other Protection Bases

A subpoena requesting the "entire claim file" would technically include not only documents subject to protection by the attorney-client privilege and the attorney work product doctrine, but also those physical and electronically-stored documents that consist of internal communications and communications to the employer relating to claim handling, Claim Activity Notes, reserve calculations, Unit Stat Reports and legal billings. Some of these might arguably fall within the attorney work product doctrine, but some may merely be irrelevant to the issues involved in the case, and not calculated to lead to the discovery of admissible evidence. Others may constitute an unreasonable or oppressive demand. In any case, these documents should not be produced, and efforts to protect them from disclosure should be made.

8. How Do I Object to a Subpoena?

If the subpoenaing party violates either the procedural rules concerning subpoenas, or it is determined that there are, in fact, documents that are entitled to protection from disclosure, it is incumbent upon you to timely object to the subpoena in its entirety, or on a limited basis.

Objectionable subpoenas are most efficiently dealt with by contacting the issuing attorney by telephone, and discussing the objectionable aspects of the subpoena immediately. If there is a service issue, an issue of inadequate time between the service date and the production date, or the lack of a required and proper Notice to Consumer, it is likely that the issuing attorney will agree that the defect needs to be cured. In the event of service defects, you may simply be able to agree that service will be considered effective on a particular date, and that the production date will be extended. Be certain to agree only to "respond" by the new date, and not necessarily to "produce" the documents by that date, as you do not want to allow an interpretation that objections are waived. In the event of an absent or defective Notice to Consumer, insist on proper reissuance and service, to include the required Notice to Consumer, with proof of service of the same. Assuming an agreement is reached with the issuing attorney, confirm the agreement in writing, with a copy to other parties served with the subpoena, as well as a copy to the professional photocopy service. That way, they will know not to begin contacting you concerning compliance.

If the objectionable aspects of the subpoena have to do with the specific language of the request, whether based on the attorney-client privilege, the attorney work product doctrine, or otherwise, some negotiations concerning language clarification and limiting the scope of the subpoena will be necessary. Frequently, just asking if the attorney meant to include all of the privileged documents in the request will result in a resounding "no." In that event, confirm in writing that the scope of the subpoena was limited by your verbal telephone agreement that documents subject to protection from disclosure are not to be included in the production. Sometimes the attorney will claim to be entitled to the entire file, privileged documents included. However, he will accept production of limited documents, as long as it is accompanied by a "privilege log" which identifies the general nature of each document claimed to be entitled to protection, with a brief basis of the reason for non-disclosure. Again, confirm the agreement in writing.

In the event that the issuing attorney wishes to obtain a judge's ruling on whether or not you are entitled to protect any particular documents, he will file the appropriate motion, and you will have the opportunity to file an opposition. You may want to consult counsel to assist in this regard. In the event that an agreement cannot be reached with the issuing attorney regarding the defects or privilege issues, or there simply is not enough time before the production date, you have the option of filing an immediate Motion to Quash the subpoena in order to obtain a ruling from the court. However, if the responder is not a party to the action in which the subpoena is issued, you may also simply serve on the subpoenaing party a written objection to the subpoena, and it then becomes the subpoenaing party's obligation to seek a court order if it wishes to compel compliance with the subpoena. Unzipped Apparel LLC v. Bader (2007) 156 Cal.App.4th 123. In the event that the party receiving the subpoena is a party to the action in which the subpoena was issued, the only option is the timely filing of a Motion to Quash the subpoena.

9. How Do I Produce Records Pursuant to Subpoena?

Once an agreement has been reached with the issuing attorney, or a judge has ordered compliance, the discoverable records should be made available to the professional copy service, if one is involved, or a copy of the records forwarded to the issuing attorney, with copies to the parties listed on the proof of service, if a professional photocopy service is not involved. If the records are voluminous, and a copy service is not involved, you may wish to ask the issuing attorney to send over her preferred copy service to deal with the copying. Otherwise, you may wish to obtain an agreement from the parties who are to receive a copy that they will reimburse the expense of in-house copying. If the copying is not done by a copy service, the produced records should be forwarded with a cover letter advising that the enclosed records are in compliance with the subpoena, and a proof of service should be attached.

The produced documents should be accompanied by the executed Declaration (or Affidavit) of Custodian of Records, which should have been a part of the subpoena package. In addition, the privilege log should accompany the records, if one was necessary.

It is also recommended that a record be kept indicating which records were produced.

Conclusion

Responding to a subpoena for records may be a relatively daunting task, subject to potential pitfalls, primarily related to the possibility of waiving rights to protect certain documents from disclosure in discovery proceedings. Failing to timely and properly object and/or file a Motion to Quash may well result in your adversary "seeing your hand," by obtaining confidential information, including litigation strategy and reserve information. Failure to timely comply with a subpoena may also result in contempt sanctions issued by a judge.

Hopefully, the procedures and recommendations discussed above emphasize the importance of promptly dealing with subpoenas, but also help to reduce anxiety relating to subpoena compliance. The attached Subpoena – Response Chart is intended to serve as a helpful general guideline for the claims professional (recognizing that the details of the various privileges and doctrines discussed constitute hundreds of pages of law school texts, statutes and case law).

Laughlin, Falbo, Levy & Moresi's civil/subrogation department routinely assists clients with subpoena compliance issues.

© Copyright 2008 by Laughlin Falbo Levy & Moresi. All rights reserved. Reprinted with permission. This article was written by James B. Knezovich of the Sacramento office.