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Unzipped Apparel, LLC v. Bader

Court of Appeal of California, Second Appellate District, Division One

October 17, 2007, Filed




MALLANO, Acting P. J.—In civil litigation, discovery may be obtained from a nonparty only through a “deposition subpoena.” (Code Civ. Proc., § 2020.010, subd. (b); section references are to the Code of Civil Procedure unless otherwise indicated.) The Civil Discovery Act (Act) (§ 2016.010 et seq.) authorizes a nonparty's “oral deposition,” “written deposition,” and “deposition for [the] production of business records” (§ 2020.010, subd. (a)(1)–(3)).

A deposition subpoena for business records directs a nonparty's “custodian of records” to deliver a copy of the requested documents  [***2] to a “deposition officer” or to make the original documents available to the subpoenaing party for inspection and copying. (§§ 2020.410, subd. (c), 2020.430, subds. (a)–(e).) The Act refers to the custodian of records as the “deponent.” (§§ 2025.280, subd. (b), 2020.230, subd. (b)).

If a deponent fails to produce a requested document under his or her control, the subpoenaing party may bring a motion to compel production “no later than 60 days after the completion of the record of the deposition.” (§ 2025.480, subd. (b), italics added.)

The question on appeal is whether this 60-day limit applies to a subpoena for business records as distinguished from a subpoena for an oral or written deposition. Here, in response to a subpoena for business records, the nonparties served timely objections and did not produce any documents. The trial court granted a motion to compel brought more than 60 days after the objections were received, stating that, because no “deposition” had been taken, the time limit was not applicable. We [**113]  reverse, concluding that the 60-day limit applies because a response to a business records subpoena, namely, objections, is a “record of the deposition.”


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156 Cal. App. 4th 123 *; 67 Cal. Rptr. 3d 111 **; 2007 Cal. App. LEXIS 1721 ***

UNZIPPED APPAREL, LLC, Plaintiff and Respondent, v. GARY BADER, Defendant; HIPPIE JEANS, LLC, et al., Objectors and Appellants.

Prior History:  [***1] Superior Court of Los Angeles County, No. BS100330, James R. Dunn, Judge.


subpoena, deposition, business record, nonparty, records, discovery, documents, deponent, motion to compel, deposition subpoena, notice, trial court, oral deposition, parties, reasonable time, requested documents, subdivision, inspection, responding, deadline, grant a motion, refers, serves

Civil Procedure, Appeals, Standards of Review, De Novo Review, Governments, Legislation, Interpretation, Discovery, Misconduct During Discovery, Motions to Compel, Discovery & Disclosure, General Overview, Federal & State Interrelationships, Choice of Law, Methods of Discovery, Subpoenas, Depositions, Oral Depositions