SB 1087: Evidence: production of business records.
- Session Year: 2015-2016
- House: Senate
- Latest Version Date: 2016-07-22
Existing law provides that when a subpoena duces tecum is served upon the custodian of records or other qualified witness of a business in a criminal action in which the business is neither a party nor the place where any cause of action is alleged to have arisen, and the subpoena requires the production of all or any part of the records of the business, it is sufficient compliance therewith if the custodian or other qualified witness, within 5 days after the receipt of the subpoena or within a time otherwise agreed upon, delivers a copy of all the records described in the subpoena to the clerk of the court, the judge, or another person, as specified. Existing law requires that the records be accompanied with an affidavit from the custodian attesting to specified information.
Existing law also provides for the service of search warrants for the seizure of business records, as specified.
This bill would authorize a custodian of business records to comply with a search warrant for certain business records by delivering a true, legible, and durable copy of all of the records described in the search warrant to the law enforcement agency ordered to execute the search warrant, if the warrant provides for compliance in that manner. The bill would require that the records be delivered within 5 days of receipt of the search warrant or such other time as is specified in the search warrant. The bill would require that the records be accompanied by an affidavit of the custodian of records attesting to the same information that is required with respect to a subpoena duces tecum.
Existing law authorizes all reasonable costs, as specified, incurred by a nonparty witness to be charged against the party serving the subpoena duces tecum.
This bill would make technical, nonsubstantive changes to those provisions.
Existing law provides that when a subpoena duces tecum is served upon the custodian of records or other qualified witness of a business in a criminal action in which the business is neither a party nor the place where any cause of action is alleged to have arisen, and the subpoena requires the production of all or any part of the records of the business, it is sufficient compliance therewith if the custodian or other qualified witness, within 5 days after the receipt of the subpoena or within a time otherwise agreed upon, delivers a copy of all the records described in the subpoena to the clerk of the court, the judge, or another person, as specified. Existing law requires that the records be accompanied with an affidavit from the custodian attesting to specified information.
Existing law also provides for the service of search warrants for the seizure of business records, as specified.
This bill would authorize a custodian of business records to comply with a search warrant for certain business records by delivering a true, legible, and durable copy of all of the records described in the search warrant to the law enforcement agency ordered to execute the search warrant, if the warrant provides for compliance in that manner. The bill would require that the records be delivered within 5 days of receipt of the search warrant or such other time as is specified in the search warrant. The bill would require that the records be accompanied by an affidavit of the custodian of records attesting to the same information that is required with respect to a subpoena duces tecum.
Existing law authorizes all reasonable costs, as specified, incurred by a nonparty witness to be charged against the party serving the subpoena duces tecum.
This bill would make technical, nonsubstantive changes to those provisions.
Existing law provides that when a subpoena duces tecum is served upon the custodian of records or other qualified witness of a business in a criminal action in which the business is neither a party nor the place where any cause of action is alleged to have arisen, and the subpoena requires the production of all or any part of the records of the business, it is sufficient compliance therewith if the custodian or other qualified witness, within 5 days after the receipt of the subpoena or within a time otherwise agreed upon, delivers a copy of all the records described in the subpoena to the clerk of the court, the judge, or another person, as specified. Existing law requires that the records be accompanied with an affidavit from the custodian attesting to specified information.
Existing law also provides for the service of search warrants for the seizure of business records, as specified.
This bill would authorize a custodian of business records to comply with a search warrant for certain business records by delivering a true, legible, and durable copy of all of the records described in the search warrant to the law enforcement agency ordered to execute the search warrant, if the warrant provides for compliance in that manner. The bill would require that the records be delivered within 5 days of receipt of the search warrant or such other time as is specified in the search warrant. The bill would require that the records be accompanied by an affidavit of the custodian of records attesting to the same information that is required with respect to a subpoena duces tecum.
Existing law authorizes all reasonable costs, as specified, incurred by a nonparty witness to be charged against the party serving the subpoena duces tecum.
This bill would make technical, nonsubstantive changes to those provisions.
Existing law provides that when a subpoena duces tecum is served upon the custodian of records or other qualified witness of a business in a criminal action in which the business is neither a party nor the place where any cause of action is alleged to have arisen, and the subpoena requires the production of all or any part of the records of the business, it is sufficient compliance therewith if the custodian or other qualified witness, within five 5 days after the receipt of the subpoena or within a time otherwise agreed upon, delivers a copy of all the records described in the subpoena to the clerk of the court, the judge, or another person, as specified. Existing law requires that the records be accompanied with an affidavit from the custodian attesting to specified information.
Existing law also provides for the service of search warrants for the seizure of business records, as specified.
This bill would authorize a custodian of business records to comply with a search warrant for certain business records by delivering a true, legible, and durable copy of all of the records described in the search warrant to the law enforcement agency ordered to execute the search warrant, if the warrant provides for compliance in that manner. The bill would require that the records be delivered within 5 days of receipt of the search warrant or such other time as is specified in the search warrant. The bill would require that the records be accompanied by an affidavit of the custodian of records attesting to the same information that is required with respect to a subpoena duces tecum.
Existing law authorizes all reasonable costs, as specified, incurred by a nonparty witness to be charged against the party serving the subpoena duces tecum.
This bill would make technical, nonsubstantive changes to those provisions.
Existing law provides that when a subpoena duces tecum is served upon the custodian of records or other qualified witness of a business in a criminal action in which the business is neither a party nor the place where any cause of action is alleged to have arisen, and the subpoena requires the production of all or any part of the records of the business, it is sufficient compliance therewith if the custodian or other qualified witness, within five days after the receipt of the subpoena or within a time otherwise agreed upon, delivers a copy of all the records described in the subpoena to the clerk of the court, the judge, or another person, as specified. Existing law requires that the records be accompanied with an affidavit from the custodian attesting to specified information.
Existing law also provides for the service of search warrants for the seizure business records, as specified.
This bill would authorize a custodian of business records to comply with a search warrant for certain business records by delivering a true, legible, and durable copy of all of the records described in the search warrant to the law enforcement agency ordered to execute the search warrant, if the warrant provides for compliance in that manner. The bill would require that the records be delivered within 5 days of receipt of the search warrant or such other time as is specified in the search warrant. The bill would require that the records be accompanied by an affidavit of the custodian of records attesting to the same information that is required with respect to a subpoena duces tecum.
Existing law authorizes all reasonable costs, as specified, incurred by a nonparty witness to be charged against the party serving the subpoena duces tecum.
This bill would make technical, nonsubstantive changes to those provisions.
(a)As used in this article:
(1)Business includes every kind of business described in Section 1270.
(2)Record includes every kind of record maintained by a business.
(b)Except as provided in Section 1564, when a subpoena duces tecum is served upon the custodian of records or other qualified witness of a business in an action in which the business is neither a party nor the place where any cause of action is alleged to have arisen, and the subpoena requires the production of all or any part of the records of the business, it is sufficient compliance therewith if the custodian or other qualified witness delivers by mail or otherwise a true, legible, and durable copy of all of the records described in the subpoena to the clerk of the court or to another person described in subdivision (d) of Section 2026.010 of the Code of Civil Procedure, together with the affidavit described in Section 1561, within one of the following time periods:
(1)In any criminal action, five days after the receipt of the subpoena.
(2)In any civil action, within 15 days after the receipt of the subpoena.
(3)Within the time agreed upon by the party who served the subpoena and the custodian or other qualified witness.
(c)The copy of the records shall be separately enclosed in an inner envelope or wrapper, sealed, with the title and number of the action, name of witness, and date of subpoena clearly inscribed thereon; the sealed envelope or wrapper shall then be enclosed in an outer envelope or wrapper, sealed, and directed as follows:
(1)If the subpoena directs attendance in court, to the clerk of the court.
(2)If the subpoena directs attendance at a deposition, to the officer before whom the deposition is to be taken, at the place designated in the subpoena for the taking of the deposition or at the officers place of business.
(3)In other cases, to the officer, body, or tribunal conducting the hearing, at a like address.
(d)Unless the parties to the proceeding otherwise agree, or unless the sealed envelope or wrapper is returned to a witness who is to appear personally, the copy of the records shall remain sealed and shall be opened only at the time of trial, deposition, or other hearing, upon the direction of the judge, officer, body, or tribunal conducting the proceeding, in the presence of all parties who have appeared in person or by counsel at the trial, deposition, or hearing. Records that are original documents and that are not introduced in evidence or required as part of the record shall be returned to the person or entity from whom received. Records that are copies may be destroyed.
(e)As an alternative to the procedures described in subdivisions (b), (c), and (d), the subpoenaing party in a civil action may direct the witness to make the records available for inspection or copying by the partys attorney, the attorneys representative, or deposition officer as described in Section 2020.420 of the Code of Civil Procedure, at the witness business address under reasonable conditions during normal business hours. Normal business hours, as used in this subdivision, means those hours that the business of the witness is normally open for business to the public. When provided with at least five business days advance notice by the partys attorney, attorneys representative, or deposition officer, the witness shall designate a time period of not less than six continuous hours on a date certain for copying of records subject to the subpoena by the partys attorney, attorneys representative, or deposition officer. It shall be the responsibility of the attorneys representative to deliver any copy of the records as directed in the subpoena. Disobedience to the deposition subpoena issued pursuant to this subdivision is punishable as provided in Section 2020.240 of the Code of Civil Procedure.
(f)If a search warrant for business records is served upon the custodian of records or other qualified witness of a business in compliance with Section 1524 of the Penal Code regarding a criminal investigation in which the business is neither a party nor the place where any crime is alleged to have occurred, and the search warrant provides that the warrant will be deemed executed if the business causes the delivery of records described in the warrant to the law enforcement agency ordered to execute the warrant, it is sufficient compliance therewith if the custodian or other qualified witness delivers by mail or otherwise a true, legible, and durable copy of all of the records described in the search warrant to the law enforcement agency ordered to execute the search warrant, together with the affidavit described in Section 1561, within five days after the receipt of the search warrant or within such other time as is set forth in the warrant. This subdivision does not abridge or limit the scope of search warrant procedures set forth in Chapter 3 (commencing with Section 1523) of Title 12 of Part 2 of the Penal Code or invalidate otherwise duly executed search warrants.
SEC. 2.Section 1561 of the Evidence Code is amended to read:1561.(a)The records shall be accompanied by the affidavit of the custodian or other qualified witness, stating in substance each of the following:
(1)The affiant is the duly authorized custodian of the records or other qualified witness and has authority to certify the records.
(2)The copy is a true copy of all the records described in the subpoena duces tecum or search warrant, or pursuant to subdivision (e) of Section 1560, the records were delivered to the attorney, the attorneys representative, or deposition officer for copying at the custodians or witness place of business, as the case may be.
(3)The records were prepared by the personnel of the business in the ordinary course of business at or near the time of the act, condition, or event.
(4)The identity of the records.
(5)A description of the mode of preparation of the records.
(b)If the business has none of the records described, or only part thereof, the custodian or other qualified witness shall so state in the affidavit, and deliver the affidavit and those records that are available in one of the manners provided in Section 1560.
(c)If the records described in the subpoena were delivered to the attorney or his or her representative or deposition officer for copying at the custodians or witness place of business, in addition to the affidavit required by subdivision (a), the records shall be accompanied by an affidavit by the attorney or his or her representative or deposition officer stating that the copy is a true copy of all the records delivered to the attorney or his or her representative or deposition officer for copying.
SEC. 3.Section 1563 of the Evidence Code is amended to read:1563.(a)This article does not require tender or payment of more than one witness fee and one mileage fee or other charge, to a witness or witness business, unless there is an agreement to the contrary between the witness and the requesting party.
(b)All reasonable costs incurred in a civil proceeding by a witness who is not a party with respect to the production of all or any part of business records requested pursuant to a subpoena duces tecum shall be charged against the party serving the subpoena duces tecum.
(1)Reasonable costs, as used in this section, includes, but is not limited to, the following specific costs: ten cents ($0.10) per page for standard reproduction of documents of a size 81/2 by 14 inches or less; twenty cents ($0.20) per page for copying of documents from microfilm; actual costs for the reproduction of oversize documents or the reproduction of documents requiring special processing which are made in response to a subpoena; reasonable clerical costs incurred in locating and making the records available to be billed at the maximum rate of twenty-four dollars ($24) per hour per person, computed on the basis of six dollars ($6) per quarter hour or fraction thereof; actual postage charges; and the actual cost, if any, charged to the witness by a third person for the retrieval and return of records held offsite by that third person.
(2)The requesting party, or the requesting partys deposition officer, shall not be required to pay the reasonable costs or any estimate thereof before the records are available for delivery pursuant to the subpoena, but the witness may demand payment of costs pursuant to this section simultaneous with actual delivery of the subpoenaed records, and until payment is made, the witness is under no obligation to deliver the records.
(3)The witness shall submit an itemized statement for the costs to the requesting party, or the requesting partys deposition officer, setting forth the reproduction and clerical costs incurred by the witness. If the costs exceed those authorized in paragraph (1), or if the witness refuses to produce an itemized statement of costs as required by paragraph (3), upon demand by the requesting party, or the requesting partys deposition officer, the witness shall furnish a statement setting forth the actions taken by the witness in justification of the costs.
(4)The requesting party may petition the court in which the action is pending to recover from the witness all or a part of the costs paid to the witness, or to reduce all or a part of the costs charged by the witness, pursuant to this subdivision, on the grounds that those costs were excessive. Upon the filing of the petition the court shall issue an order to show cause and from the time the order is served on the witness the court has jurisdiction over the witness. The court may hear testimony on the order to show cause and if it finds that the costs demanded and collected, or charged but not collected, exceed the amount authorized by this subdivision, it shall order the witness to remit to the requesting party, or reduce its charge to the requesting party by an amount equal to, the amount of the excess. If the court finds the costs were excessive and charged in bad faith by the witness, the court shall order the witness to remit the full amount of the costs demanded and collected, or excuse the requesting party from any payment of costs charged but not collected, and the court shall also order the witness to pay the requesting party the amount of the reasonable expenses incurred in obtaining the order, including attorneys fees. If the court finds the costs were not excessive, the court shall order the requesting party to pay the witness the amount of the reasonable expenses incurred in defending the petition, including attorneys fees.
(5)If a subpoena is served to compel the production of business records and is subsequently withdrawn, or is quashed, modified, or limited on a motion made other than by the witness, the witness shall be entitled to reimbursement pursuant to paragraph (1) for all reasonable costs incurred in compliance with the subpoena to the time that the requesting party has notified the witness that the subpoena has been withdrawn or quashed, modified, or limited. If the subpoena is withdrawn or quashed, if those costs are not paid within 30 days after demand therefor, the witness may file a motion in the court in which the action is pending for an order requiring payment, and the court shall award the payment of expenses and attorneys fees in the manner set forth in paragraph (4).
(6)If records requested pursuant to a subpoena duces tecum are delivered to the attorney, the attorneys representative, or the deposition officer for inspection or photocopying at the witness place of business, the only fee for complying with the subpoena shall not exceed fifteen dollars ($15), plus the actual cost, if any, charged to the witness by a third person for retrieval and return of records held offsite by that third person. If the records are retrieved from microfilm, the reasonable costs, as defined in paragraph (1), applies.
(c)If the personal attendance of the custodian of a record or other qualified witness is required pursuant to Section 1564, in a civil proceeding, he or she shall be entitled to the same witness fees and mileage permitted in a case where the subpoena requires the witness to attend and testify before a court in which the action or proceeding is pending and to any additional costs incurred as provided by subdivision (b).
(a)As used in this article:
(1)Business includes every kind of business described in Section 1270.
(2)Record includes every kind of record maintained by a business.
(b)Except as provided in Section 1564, when a subpoena duces tecum is served upon the custodian of records or other qualified witness of a business in an action in which the business is neither a party nor the place where any cause of action is alleged to have arisen, and the subpoena requires the production of all or any part of the records of the business, it is sufficient compliance therewith if the custodian or other qualified witness delivers by mail or otherwise a true, legible, and durable copy of all of the records described in the subpoena to the clerk of the court or to another person described in subdivision (d) of Section 2026.010 of the Code of Civil Procedure, together with the affidavit described in Section 1561, within one of the following time periods:
(1)In any criminal action, five days after the receipt of the subpoena.
(2)In any civil action, within 15 days after the receipt of the subpoena.
(3)Within the time agreed upon by the party who served the subpoena and the custodian or other qualified witness.
(c)The copy of the records shall be separately enclosed in an inner envelope or wrapper, sealed, with the title and number of the action, name of witness, and date of subpoena clearly inscribed thereon; the sealed envelope or wrapper shall then be enclosed in an outer envelope or wrapper, sealed, and directed as follows:
(1)If the subpoena directs attendance in court, to the clerk of the court.
(2)If the subpoena directs attendance at a deposition, to the officer before whom the deposition is to be taken, at the place designated in the subpoena for the taking of the deposition or at the officers place of business.
(3)In other cases, to the officer, body, or tribunal conducting the hearing, at a like address.
(d)Unless the parties to the proceeding otherwise agree, or unless the sealed envelope or wrapper is returned to a witness who is to appear personally, the copy of the records shall remain sealed and shall be opened only at the time of trial, deposition, or other hearing, upon the direction of the judge, officer, body, or tribunal conducting the proceeding, in the presence of all parties who have appeared in person or by counsel at the trial, deposition, or hearing. Records that are original documents and that are not introduced in evidence or required as part of the record shall be returned to the person or entity from whom received. Records that are copies may be destroyed.
(e)As an alternative to the procedures described in subdivisions (b), (c), and (d), the subpoenaing party in a civil action may direct the witness to make the records available for inspection or copying by the partys attorney, the attorneys representative, or deposition officer as described in Section 2020.420 of the Code of Civil Procedure, at the witness business address under reasonable conditions during normal business hours. Normal business hours, as used in this subdivision, means those hours that the business of the witness is normally open for business to the public. When provided with at least five business days advance notice by the partys attorney, attorneys representative, or deposition officer, the witness shall designate a time period of not less than six continuous hours on a date certain for copying of records subject to the subpoena by the partys attorney, attorneys representative, or deposition officer. It shall be the responsibility of the attorneys representative to deliver any copy of the records as directed in the subpoena. Disobedience to the deposition subpoena issued pursuant to this subdivision is punishable as provided in Section 2020.240 of the Code of Civil Procedure.
(f)If a search warrant for business records is served upon the custodian of records or other qualified witness of a business in compliance with Section 1524 of the Penal Code regarding a criminal investigation in which the business is neither a party nor the place where any crime is alleged to have occurred, and the search warrant provides that the warrant will be deemed executed if the business causes the delivery of records described in the warrant to the law enforcement agency ordered to execute the warrant, it is sufficient compliance therewith if the custodian or other qualified witness delivers by mail or otherwise a true, legible, and durable copy of all of the records described in the search warrant to the law enforcement agency ordered to execute the search warrant, together with the affidavit described in Section 1561, within five days after the receipt of the search warrant or within such other time as is set forth in the warrant. This subdivision does not abridge or limit the scope of search warrant procedures set forth in Chapter 3 (commencing with Section 1523) of Title 12 of Part 2 of the Penal Code or invalidate otherwise duly executed search warrants.
SEC. 2.Section 1561 of the Evidence Code is amended to read:1561.(a)The records shall be accompanied by the affidavit of the custodian or other qualified witness, stating in substance each of the following:
(1)The affiant is the duly authorized custodian of the records or other qualified witness and has authority to certify the records.
(2)The copy is a true copy of all the records described in the subpoena duces tecum or search warrant, or pursuant to subdivision (e) of Section 1560, the records were delivered to the attorney, the attorneys representative, or deposition officer for copying at the custodians or witness place of business, as the case may be.
(3)The records were prepared by the personnel of the business in the ordinary course of business at or near the time of the act, condition, or event.
(4)The identity of the records.
(5)A description of the mode of preparation of the records.
(b)If the business has none of the records described, or only part thereof, the custodian or other qualified witness shall so state in the affidavit, and deliver the affidavit and those records that are available in one of the manners provided in Section 1560.
(c)If the records described in the subpoena were delivered to the attorney or his or her representative or deposition officer for copying at the custodians or witness place of business, in addition to the affidavit required by subdivision (a), the records shall be accompanied by an affidavit by the attorney or his or her representative or deposition officer stating that the copy is a true copy of all the records delivered to the attorney or his or her representative or deposition officer for copying.
SEC. 3.Section 1563 of the Evidence Code is amended to read:1563.(a)This article does not require tender or payment of more than one witness fee and one mileage fee or other charge, to a witness or witness business, unless there is an agreement to the contrary between the witness and the requesting party.
(b)All reasonable costs incurred in a civil proceeding by a witness who is not a party with respect to the production of all or any part of business records requested pursuant to a subpoena duces tecum shall be charged against the party serving the subpoena duces tecum.
(1)Reasonable costs, as used in this section, includes, but is not limited to, the following specific costs: ten cents ($0.10) per page for standard reproduction of documents of a size 81/2 by 14 inches or less; twenty cents ($0.20) per page for copying of documents from microfilm; actual costs for the reproduction of oversize documents or the reproduction of documents requiring special processing which are made in response to a subpoena; reasonable clerical costs incurred in locating and making the records available to be billed at the maximum rate of twenty-four dollars ($24) per hour per person, computed on the basis of six dollars ($6) per quarter hour or fraction thereof; actual postage charges; and the actual cost, if any, charged to the witness by a third person for the retrieval and return of records held offsite by that third person.
(2)The requesting party, or the requesting partys deposition officer, shall not be required to pay the reasonable costs or any estimate thereof before the records are available for delivery pursuant to the subpoena, but the witness may demand payment of costs pursuant to this section simultaneous with actual delivery of the subpoenaed records, and until payment is made, the witness is under no obligation to deliver the records.
(3)The witness shall submit an itemized statement for the costs to the requesting party, or the requesting partys deposition officer, setting forth the reproduction and clerical costs incurred by the witness. If the costs exceed those authorized in paragraph (1), or if the witness refuses to produce an itemized statement of costs as required by paragraph (3), upon demand by the requesting party, or the requesting partys deposition officer, the witness shall furnish a statement setting forth the actions taken by the witness in justification of the costs.
(4)The requesting party may petition the court in which the action is pending to recover from the witness all or a part of the costs paid to the witness, or to reduce all or a part of the costs charged by the witness, pursuant to this subdivision, on the grounds that those costs were excessive. Upon the filing of the petition the court shall issue an order to show cause and from the time the order is served on the witness the court has jurisdiction over the witness. The court may hear testimony on the order to show cause and if it finds that the costs demanded and collected, or charged but not collected, exceed the amount authorized by this subdivision, it shall order the witness to remit to the requesting party, or reduce its charge to the requesting party by an amount equal to, the amount of the excess. If the court finds the costs were excessive and charged in bad faith by the witness, the court shall order the witness to remit the full amount of the costs demanded and collected, or excuse the requesting party from any payment of costs charged but not collected, and the court shall also order the witness to pay the requesting party the amount of the reasonable expenses incurred in obtaining the order, including attorneys fees. If the court finds the costs were not excessive, the court shall order the requesting party to pay the witness the amount of the reasonable expenses incurred in defending the petition, including attorneys fees.
(5)If a subpoena is served to compel the production of business records and is subsequently withdrawn, or is quashed, modified, or limited on a motion made other than by the witness, the witness shall be entitled to reimbursement pursuant to paragraph (1) for all reasonable costs incurred in compliance with the subpoena to the time that the requesting party has notified the witness that the subpoena has been withdrawn or quashed, modified, or limited. If the subpoena is withdrawn or quashed, if those costs are not paid within 30 days after demand therefor, the witness may file a motion in the court in which the action is pending for an order requiring payment, and the court shall award the payment of expenses and attorneys fees in the manner set forth in paragraph (4).
(6)If records requested pursuant to a subpoena duces tecum are delivered to the attorney, the attorneys representative, or the deposition officer for inspection or photocopying at the witness place of business, the only fee for complying with the subpoena shall not exceed fifteen dollars ($15), plus the actual cost, if any, charged to the witness by a third person for retrieval and return of records held offsite by that third person. If the records are retrieved from microfilm, the reasonable costs, as defined in paragraph (1), applies.
(c)If the personal attendance of the custodian of a record or other qualified witness is required pursuant to Section 1564, in a civil proceeding, he or she shall be entitled to the same witness fees and mileage permitted in a case where the subpoena requires the witness to attend and testify before a court in which the action or proceeding is pending and to any additional costs incurred as provided by subdivision (b).
(a)As used in this article:
(1)Business includes every kind of business described in Section 1270.
(2)Record includes every kind of record maintained by a business.
(b)Except as provided in Section 1564, when a subpoena duces tecum is served upon the custodian of records or other qualified witness of a business in an action in which the business is neither a party nor the place where any cause of action is alleged to have arisen, and the subpoena requires the production of all or any part of the records of the business, it is sufficient compliance therewith if the custodian or other qualified witness delivers by mail or otherwise a true, legible, and durable copy of all of the records described in the subpoena to the clerk of the court or to another person described in subdivision (d) of Section 2026.010 of the Code of Civil Procedure, together with the affidavit described in Section 1561, within one of the following time periods:
(1)In any criminal action, five days after the receipt of the subpoena.
(2)In any civil action, within 15 days after the receipt of the subpoena.
(3)Within the time agreed upon by the party who served the subpoena and the custodian or other qualified witness.
(c)The copy of the records shall be separately enclosed in an inner envelope or wrapper, sealed, with the title and number of the action, name of witness, and date of subpoena clearly inscribed thereon; the sealed envelope or wrapper shall then be enclosed in an outer envelope or wrapper, sealed, and directed as follows:
(1)If the subpoena directs attendance in court, to the clerk of the court.
(2)If the subpoena directs attendance at a deposition, to the officer before whom the deposition is to be taken, at the place designated in the subpoena for the taking of the deposition or at the officers place of business.
(3)In other cases, to the officer, body, or tribunal conducting the hearing, at a like address.
(d)Unless the parties to the proceeding otherwise agree, or unless the sealed envelope or wrapper is returned to a witness who is to appear personally, the copy of the records shall remain sealed and shall be opened only at the time of trial, deposition, or other hearing, upon the direction of the judge, officer, body, or tribunal conducting the proceeding, in the presence of all parties who have appeared in person or by counsel at the trial, deposition, or hearing. Records that are original documents and that are not introduced in evidence or required as part of the record shall be returned to the person or entity from whom received. Records that are copies may be destroyed.
(e)As an alternative to the procedures described in subdivisions (b), (c), and (d), the subpoenaing party in a civil action may direct the witness to make the records available for inspection or copying by the partys attorney, the attorneys representative, or deposition officer as described in Section 2020.420 of the Code of Civil Procedure, at the witness business address under reasonable conditions during normal business hours. Normal business hours, as used in this subdivision, means those hours that the business of the witness is normally open for business to the public. When provided with at least five business days advance notice by the partys attorney, attorneys representative, or deposition officer, the witness shall designate a time period of not less than six continuous hours on a date certain for copying of records subject to the subpoena by the partys attorney, attorneys representative, or deposition officer. It shall be the responsibility of the attorneys representative to deliver any copy of the records as directed in the subpoena. Disobedience to the deposition subpoena issued pursuant to this subdivision is punishable as provided in Section 2020.240 of the Code of Civil Procedure.
(f)If a search warrant for business records is served upon the custodian of records or other qualified witness of a business in connection with an action or compliance with Section 1524 of the Penal Code regarding a criminal investigation in which the business is neither a party nor the place where any cause of action crime is alleged to have arisen, occurred, and the search warrant provides that the warrant will be deemed executed if the business causes the delivery of records described in the warrant to the law enforcement agency ordered to execute the warrant, it is sufficient compliance therewith if the custodian or other qualified witness delivers by mail or otherwise a true, legible, and durable copy of all of the records described in the search warrant to the law enforcement agency ordered to execute the search warrant, together with the affidavit described in Section 1561, within five days after the receipt of the search warrant or within such other time as is set forth in the warrant. This subdivision does not abridge or limit the scope of search warrant procedures set forth in Chapter 3 (commencing with Section 1523) of Title 12 of Part 2 of the Penal Code or invalidate otherwise duly executed search warrants.
SEC. 2.Section 1561 of the Evidence Code is amended to read:1561.(a)The records shall be accompanied by the affidavit of the custodian or other qualified witness, stating in substance each of the following:
(1)The affiant is the duly authorized custodian of the records or other qualified witness and has authority to certify the records.
(2)The copy is a true copy of all the records described in the subpoena duces tecum or search warrant, or pursuant to subdivision (e) of Section 1560, the records were delivered to the attorney, the attorneys representative, or deposition officer for copying at the custodians or witness place of business, as the case may be.
(3)The records were prepared by the personnel of the business in the ordinary course of business at or near the time of the act, condition, or event.
(4)The identity of the records.
(5)A description of the mode of preparation of the records.
(b)If the business has none of the records described, or only part thereof, the custodian or other qualified witness shall so state in the affidavit, and deliver the affidavit and those records that are available in one of the manners provided in Section 1560.
(c)If the records described in the subpoena were delivered to the attorney or his or her representative or deposition officer for copying at the custodians or witness place of business, in addition to the affidavit required by subdivision (a), the records shall be accompanied by an affidavit by the attorney or his or her representative or deposition officer stating that the copy is a true copy of all the records delivered to the attorney or his or her representative or deposition officer for copying.
SEC. 3.Section 1563 of the Evidence Code is amended to read:1563.(a)This article does not require tender or payment of more than one witness fee and one mileage fee or other charge, to a witness or witness business, unless there is an agreement to the contrary between the witness and the requesting party.
(b)All reasonable costs incurred in a civil proceeding by a witness who is not a party with respect to the production of all or any part of business records requested pursuant to a subpoena duces tecum shall be charged against the party serving the subpoena duces tecum.
(1)Reasonable costs, as used in this section, includes, but is not limited to, the following specific costs: ten cents ($0.10) per page for standard reproduction of documents of a size 81/2 by 14 inches or less; twenty cents ($0.20) per page for copying of documents from microfilm; actual costs for the reproduction of oversize documents or the reproduction of documents requiring special processing which are made in response to a subpoena; reasonable clerical costs incurred in locating and making the records available to be billed at the maximum rate of twenty-four dollars ($24) per hour per person, computed on the basis of six dollars ($6) per quarter hour or fraction thereof; actual postage charges; and the actual cost, if any, charged to the witness by a third person for the retrieval and return of records held offsite by that third person.
(2)The requesting party, or the requesting partys deposition officer, shall not be required to pay the reasonable costs or any estimate thereof before the records are available for delivery pursuant to the subpoena, but the witness may demand payment of costs pursuant to this section simultaneous with actual delivery of the subpoenaed records, and until payment is made, the witness is under no obligation to deliver the records.
(3)The witness shall submit an itemized statement for the costs to the requesting party, or the requesting partys deposition officer, setting forth the reproduction and clerical costs incurred by the witness. If the costs exceed those authorized in paragraph (1), or if the witness refuses to produce an itemized statement of costs as required by paragraph (3), upon demand by the requesting party, or the requesting partys deposition officer, the witness shall furnish a statement setting forth the actions taken by the witness in justification of the costs.
(4)The requesting party may petition the court in which the action is pending to recover from the witness all or a part of the costs paid to the witness, or to reduce all or a part of the costs charged by the witness, pursuant to this subdivision, on the grounds that those costs were excessive. Upon the filing of the petition the court shall issue an order to show cause and from the time the order is served on the witness the court has jurisdiction over the witness. The court may hear testimony on the order to show cause and if it finds that the costs demanded and collected, or charged but not collected, exceed the amount authorized by this subdivision, it shall order the witness to remit to the requesting party, or reduce its charge to the requesting party by an amount equal to, the amount of the excess. If the court finds the costs were excessive and charged in bad faith by the witness, the court shall order the witness to remit the full amount of the costs demanded and collected, or excuse the requesting party from any payment of costs charged but not collected, and the court shall also order the witness to pay the requesting party the amount of the reasonable expenses incurred in obtaining the order, including attorneys fees. If the court finds the costs were not excessive, the court shall order the requesting party to pay the witness the amount of the reasonable expenses incurred in defending the petition, including attorneys fees.
(5)If a subpoena is served to compel the production of business records and is subsequently withdrawn, or is quashed, modified, or limited on a motion made other than by the witness, the witness shall be entitled to reimbursement pursuant to paragraph (1) for all reasonable costs incurred in compliance with the subpoena to the time that the requesting party has notified the witness that the subpoena has been withdrawn or quashed, modified, or limited. If the subpoena is withdrawn or quashed, if those costs are not paid within 30 days after demand therefor, the witness may file a motion in the court in which the action is pending for an order requiring payment, and the court shall award the payment of expenses and attorneys fees in the manner set forth in paragraph (4).
(6)If records requested pursuant to a subpoena duces tecum are delivered to the attorney, the attorneys representative, or the deposition officer for inspection or photocopying at the witness place of business, the only fee for complying with the subpoena shall not exceed fifteen dollars ($15), plus the actual cost, if any, charged to the witness by a third person for retrieval and return of records held offsite by that third person. If the records are retrieved from microfilm, the reasonable costs, as defined in paragraph (1), applies.
(c)If the personal attendance of the custodian of a record or other qualified witness is required pursuant to Section 1564, in a civil proceeding, he or she shall be entitled to the same witness fees and mileage permitted in a case where the subpoena requires the witness to attend and testify before a court in which the action or proceeding is pending and to any additional costs incurred as provided by subdivision (b).
(a)As used in this article:
(1)Business includes every kind of business described in Section 1270.
(2)Record includes every kind of record maintained by a business.
(b)Except as provided in Section 1564, when a subpoena duces tecum is served upon the custodian of records or other qualified witness of a business in an action in which the business is neither a party nor the place where any cause of action is alleged to have arisen, and the subpoena requires the production of all or any part of the records of the business, it is sufficient compliance therewith if the custodian or other qualified witness delivers by mail or otherwise a true, legible, and durable copy of all of the records described in the subpoena to the clerk of the court or to another person described in subdivision (d) of Section 2026.010 of the Code of Civil Procedure, together with the affidavit described in Section 1561, within one of the following time periods:
(1)In any criminal action, five days after the receipt of the subpoena.
(2)In any civil action, within 15 days after the receipt of the subpoena.
(3)Within the time agreed upon by the party who served the subpoena and the custodian or other qualified witness.
(c)The copy of the records shall be separately enclosed in an inner envelope or wrapper, sealed, with the title and number of the action, name of witness, and date of subpoena clearly inscribed thereon; the sealed envelope or wrapper shall then be enclosed in an outer envelope or wrapper, sealed, and directed as follows:
(1)If the subpoena directs attendance in court, to the clerk of the court.
(2)If the subpoena directs attendance at a deposition, to the officer before whom the deposition is to be taken, at the place designated in the subpoena for the taking of the deposition or at the officers place of business.
(3)In other cases, to the officer, body, or tribunal conducting the hearing, at a like address.
(d)Unless the parties to the proceeding otherwise agree, or unless the sealed envelope or wrapper is returned to a witness who is to appear personally, the copy of the records shall remain sealed and shall be opened only at the time of trial, deposition, or other hearing, upon the direction of the judge, officer, body, or tribunal conducting the proceeding, in the presence of all parties who have appeared in person or by counsel at the trial, deposition, or hearing. Records that are original documents and that are not introduced in evidence or required as part of the record shall be returned to the person or entity from whom received. Records that are copies may be destroyed.
(e)As an alternative to the procedures described in subdivisions (b), (c), and (d), the subpoenaing party in a civil action may direct the witness to make the records available for inspection or copying by the partys attorney, the attorneys representative, or deposition officer as described in Section 2020.420 of the Code of Civil Procedure, at the witness business address under reasonable conditions during normal business hours. Normal business hours, as used in this subdivision, means those hours that the business of the witness is normally open for business to the public. When provided with at least five business days advance notice by the partys attorney, attorneys representative, or deposition officer, the witness shall designate a time period of not less than six continuous hours on a date certain for copying of records subject to the subpoena by the partys attorney, attorneys representative, or deposition officer. It shall be the responsibility of the attorneys representative to deliver any copy of the records as directed in the subpoena. Disobedience to the deposition subpoena issued pursuant to this subdivision is punishable as provided in Section 2020.240 of the Code of Civil Procedure.
(f)If a search warrant for business records is served upon the custodian of records or other qualified witness of a business in connection with an action or investigation in which the business is neither a party nor the place where any cause of action is alleged to have arisen, and the search warrant provides that the warrant will be deemed executed if the business causes the delivery of records described in the warrant to the law enforcement agency ordered to execute the warrant, it is sufficient compliance therewith if the custodian or other qualified witness delivers by mail or otherwise a true, legible, and durable copy of all of the records described in the search warrant to the law enforcement agency ordered to execute the search warrant, together with the affidavit described in Section 1561, within five days after the receipt of the search warrant or within such other time as is set forth in the warrant. This section subdivision does not abridge or limit the scope of search warrant procedures set forth in Chapter 3 (commencing with Section 1523) of Title 12 of Part 2 of the Penal Code or invalidate otherwise duly executed search warrants.
SEC. 2.Section 1561 of the Evidence Code is amended to read:1561.(a)The records shall be accompanied by the affidavit of the custodian or other qualified witness, stating in substance each of the following:
(1)The affiant is the duly authorized custodian of the records or other qualified witness and has authority to certify the records.
(2)The copy is a true copy of all the records described in the subpoena duces tecum or search warrant, or pursuant to subdivision (e) of Section 1560, the records were delivered to the attorney, the attorneys representative, or deposition officer for copying at the custodians or witness place of business, as the case may be.
(3)The records were prepared by the personnel of the business in the ordinary course of business at or near the time of the act, condition, or event.
(4)The identity of the records.
(5)A description of the mode of preparation of the records.
(b)If the business has none of the records described, or only part thereof, the custodian or other qualified witness shall so state in the affidavit, and deliver the affidavit and those records that are available in one of the manners provided in Section 1560.
(c)If the records described in the subpoena were delivered to the attorney or his or her representative or deposition officer for copying at the custodians or witness place of business, in addition to the affidavit required by subdivision (a), the records shall be accompanied by an affidavit by the attorney or his or her representative or deposition officer stating that the copy is a true copy of all the records delivered to the attorney or his or her representative or deposition officer for copying.
SEC. 3.Section 1563 of the Evidence Code is amended to read:1563.(a)This article does not require tender or payment of more than one witness fee and one mileage fee or other charge, to a witness or witness business, unless there is an agreement to the contrary between the witness and the requesting party.
(b)All reasonable costs incurred in a civil proceeding by a witness who is not a party with respect to the production of all or any part of business records requested pursuant to a subpoena duces tecum shall be charged against the party serving the subpoena duces tecum.
(1)Reasonable costs, as used in this section, includes includes, but is not limited to, the following specific costs: ten cents ($0.10) per page for standard reproduction of documents of a size 81/2 by 14 inches or less; twenty cents ($0.20) per page for copying of documents from microfilm; actual costs for the reproduction of oversize documents or the reproduction of documents requiring special processing which are made in response to a subpoena; reasonable clerical costs incurred in locating and making the records available to be billed at the maximum rate of twenty-four dollars ($24) per hour per person, computed on the basis of six dollars ($6) per quarter hour or fraction thereof; actual postage charges; and the actual cost, if any, charged to the witness by a third person for the retrieval and return of records held offsite by that third person.
(2)The requesting party, or the requesting partys deposition officer, shall not be required to pay the reasonable costs or any estimate thereof before the records are available for delivery pursuant to the subpoena, but the witness may demand payment of costs pursuant to this section simultaneous with actual delivery of the subpoenaed records, and until payment is made, the witness is under no obligation to deliver the records.
(3)The witness shall submit an itemized statement for the costs to the requesting party, or the requesting partys deposition officer, setting forth the reproduction and clerical costs incurred by the witness. If the costs exceed those authorized in paragraph (1), or if the witness refuses to produce an itemized statement of costs as required by paragraph (3), upon demand by the requesting party, or the requesting partys deposition officer, the witness shall furnish a statement setting forth the actions taken by the witness in justification of the costs.
(4)The requesting party may petition the court in which the action is pending to recover from the witness all or a part of the costs paid to the witness, or to reduce all or a part of the costs charged by the witness, pursuant to this subdivision, on the grounds that those costs were excessive. Upon the filing of the petition the court shall issue an order to show cause and from the time the order is served on the witness the court has jurisdiction over the witness. The court may hear testimony on the order to show cause and if it finds that the costs demanded and collected, or charged but not collected, exceed the amount authorized by this subdivision, it shall order the witness to remit to the requesting party, or reduce its charge to the requesting party by an amount equal to, the amount of the excess. If the court finds the costs were excessive and charged in bad faith by the witness, the court shall order the witness to remit the full amount of the costs demanded and collected, or excuse the requesting party from any payment of costs charged but not collected, and the court shall also order the witness to pay the requesting party the amount of the reasonable expenses incurred in obtaining the order, including attorneys fees. If the court finds the costs were not excessive, the court shall order the requesting party to pay the witness the amount of the reasonable expenses incurred in defending the petition, including attorneys fees.
(5)If a subpoena is served to compel the production of business records and is subsequently withdrawn, or is quashed, modified, or limited on a motion made other than by the witness, the witness shall be entitled to reimbursement pursuant to paragraph (1) for all reasonable costs incurred in compliance with the subpoena to the time that the requesting party has notified the witness that the subpoena has been withdrawn or quashed, modified, or limited. If the subpoena is withdrawn or quashed, if those costs are not paid within 30 days after demand therefor, the witness may file a motion in the court in which the action is pending for an order requiring payment, and the court shall award the payment of expenses and attorneys fees in the manner set forth in paragraph (4).
(6)If records requested pursuant to a subpoena duces tecum are delivered to the attorney, the attorneys representative, or the deposition officer for inspection or photocopying at the witness place of business, the only fee for complying with the subpoena shall not exceed fifteen dollars ($15), plus the actual cost, if any, charged to the witness by a third person for retrieval and return of records held offsite by that third person. If the records are retrieved from microfilm, the reasonable costs, as defined in paragraph (1), applies.
(c)If the personal attendance of the custodian of a record or other qualified witness is required pursuant to Section 1564, in a civil proceeding, he or she shall be entitled to the same witness fees and mileage permitted in a case where the subpoena requires the witness to attend and testify before a court in which the action or proceeding is pending and to any additional costs incurred as provided by subdivision (b).
(a)As used in this article:
(1)Business includes every kind of business described in Section 1270.
(2)Record includes every kind of record maintained by a business.
(b)Except as provided in Section 1564, when a subpoena duces tecum is served upon the custodian of records or other qualified witness of a business in an action in which the business is neither a party nor the place where any cause of action is alleged to have arisen, and the subpoena requires the production of all or any part of the records of the business, it is sufficient compliance therewith if the custodian or other qualified witness delivers by mail or otherwise a true, legible, and durable copy of all of the records described in the subpoena to the clerk of the court or to another person described in subdivision (d) of Section 2026.010 of the Code of Civil Procedure, together with the affidavit described in Section 1561, within one of the following time periods:
(1)In any criminal action, five days after the receipt of the subpoena.
(2)In any civil action, within 15 days after the receipt of the subpoena.
(3)Within the time agreed upon by the party who served the subpoena and the custodian or other qualified witness.
(c)The copy of the records shall be separately enclosed in an inner envelope or wrapper, sealed, with the title and number of the action, name of witness, and date of subpoena clearly inscribed thereon; the sealed envelope or wrapper shall then be enclosed in an outer envelope or wrapper, sealed, and directed as follows:
(1)If the subpoena directs attendance in court, to the clerk of the court.
(2)If the subpoena directs attendance at a deposition, to the officer before whom the deposition is to be taken, at the place designated in the subpoena for the taking of the deposition or at the officers place of business.
(3)In other cases, to the officer, body, or tribunal conducting the hearing, at a like address.
(d)Unless the parties to the proceeding otherwise agree, or unless the sealed envelope or wrapper is returned to a witness who is to appear personally, the copy of the records shall remain sealed and shall be opened only at the time of trial, deposition, or other hearing, upon the direction of the judge, officer, body, or tribunal conducting the proceeding, in the presence of all parties who have appeared in person or by counsel at the trial, deposition, or hearing. Records that are original documents and that are not introduced in evidence or required as part of the record shall be returned to the person or entity from whom received. Records that are copies may be destroyed.
(e)As an alternative to the procedures described in subdivisions (b), (c), and (d), the subpoenaing party in a civil action may direct the witness to make the records available for inspection or copying by the partys attorney, the attorneys representative, or deposition officer as described in Section 2020.420 of the Code of Civil Procedure, at the witness business address under reasonable conditions during normal business hours. Normal business hours, as used in this subdivision, means those hours that the business of the witness is normally open for business to the public. When provided with at least five business days advance notice by the partys attorney, attorneys representative, or deposition officer, the witness shall designate a time period of not less than six continuous hours on a date certain for copying of records subject to the subpoena by the partys attorney, attorneys representative, or deposition officer. It shall be the responsibility of the attorneys representative to deliver any copy of the records as directed in the subpoena. Disobedience to the deposition subpoena issued pursuant to this subdivision is punishable as provided in Section 2020.240 of the Code of Civil Procedure.
(f)If a search warrant for business records is served upon the custodian of records or other qualified witness of a business in connection with an action or investigation in which the business is neither a party nor the place where any cause of action is alleged to have arisen, and the search warrant provides that the warrant will be deemed executed if the business causes the delivery of records described in the warrant to the law enforcement agency ordered to execute the warrant, it is sufficient compliance therewith if the custodian or other qualified witness delivers by mail or otherwise a true, legible, and durable copy of all of the records described in the search warrant to the law enforcement agency ordered to execute the search warrant, together with the affidavit described in Section 1561, within five days after the receipt of the search warrant or within such other time as is set forth in the warrant. This section does not abridge or limit the scope of search warrant procedures set forth in Chapter 3 (commencing with Section 1523) of Title 12 of Part 2 of the Penal Code or invalidate otherwise duly executed search warrants.
SEC. 2.Section 1561 of the Evidence Code is amended to read:1561.(a)The records shall be accompanied by the affidavit of the custodian or other qualified witness, stating in substance each of the following:
(1)The affiant is the duly authorized custodian of the records or other qualified witness and has authority to certify the records.
(2)The copy is a true copy of all the records described in the subpoena duces tecum or search warrant, or pursuant to subdivision (e) of Section 1560 the records were delivered to the attorney, the attorneys representative, or deposition officer for copying at the custodians or witness place of business, as the case may be.
(3)The records were prepared by the personnel of the business in the ordinary course of business at or near the time of the act, condition, or event.
(4)The identity of the records.
(5)A description of the mode of preparation of the records.
(b)If the business has none of the records described, or only part thereof, the custodian or other qualified witness shall so state in the affidavit, and deliver the affidavit and those records that are available in one of the manners provided in Section 1560.
(c)Where If the records described in the subpoena were delivered to the attorney or his or her representative or deposition officer for copying at the custodians or witness place of business, in addition to the affidavit required by subdivision (a), the records shall be accompanied by an affidavit by the attorney or his or her representative or deposition officer stating that the copy is a true copy of all the records delivered to the attorney or his or her representative or deposition officer for copying.
SEC. 3.Section 1563 of the Evidence Code is amended to read:1563.(a)This article shall not be interpreted to does not require tender or payment of more than one witness fee and one mileage fee or other charge, to a witness or witness business, unless there is an agreement to the contrary between the witness and the requesting party.
(b)All reasonable costs incurred in a civil proceeding by any a witness which who is not a party with respect to the production of all or any part of business records the production of which is requested pursuant to a subpoena duces tecum may shall be charged against the party serving the subpoena duces tecum.
(1)Reasonable cost, costs, as used in this section, shall include, but not be limited to, includes the following specific costs: ten cents ($0.10) per page for standard reproduction of documents of a size 81/2 by 14 inches or less; twenty cents ($0.20) per page for copying of documents from microfilm; actual costs for the reproduction of oversize documents or the reproduction of documents requiring special processing which are made in response to a subpoena; reasonable clerical costs incurred in locating and making the records available to be billed at the maximum rate of twenty-four dollars ($24) per hour per person, computed on the basis of six dollars ($6) per quarter hour or fraction thereof; actual postage charges; and the actual cost, if any, charged to the witness by a third person for the retrieval and return of records held offsite by that third person.
(2)The requesting party, or the requesting partys deposition officer, shall not be required to pay those the reasonable costs or any estimate thereof prior to the time before the records are available for delivery pursuant to the subpoena, but the witness may demand payment of costs pursuant to this section simultaneous with actual delivery of the subpoenaed records, and until payment is made, the witness is under no obligation to deliver the records.
(3)The witness shall submit an itemized statement for the costs to the requesting party, or the requesting partys deposition officer, setting forth the reproduction and clerical costs incurred by the witness. Should If the costs exceed those authorized in paragraph (1), or if the witness refuses to produce an itemized statement of costs as required by paragraph (3), upon demand by the requesting party, or the requesting partys deposition officer, the witness shall furnish a statement setting forth the actions taken by the witness in justification of the costs.
(4)The requesting party may petition the court in which the action is pending to recover from the witness all or a part of the costs paid to the witness, or to reduce all or a part of the costs charged by the witness, pursuant to this subdivision, on the grounds that those costs were excessive. Upon the filing of the petition the court shall issue an order to show cause and from the time the order is served on the witness the court has jurisdiction over the witness. The court may hear testimony on the order to show cause and if it finds that the costs demanded and collected, or charged but not collected, exceed the amount authorized by this subdivision, it shall order the witness to remit to the requesting party, or reduce its charge to the requesting party by an amount equal to, the amount of the excess. In the event that If the court finds the costs were excessive and charged in bad faith by the witness, the court shall order the witness to remit the full amount of the costs demanded and collected, or excuse the requesting party from any payment of costs charged but not collected, and the court shall also order the witness to pay the requesting party the amount of the reasonable expenses incurred in obtaining the order, including attorneys fees. If the court finds the costs were not excessive, the court shall order the requesting party to pay the witness the amount of the reasonable expenses incurred in defending the petition, including attorneys fees.
(5)If a subpoena is served to compel the production of business records and is subsequently withdrawn, or is quashed, modified, or limited on a motion made other than by the witness, the witness shall be entitled to reimbursement pursuant to paragraph (1) for all reasonable costs incurred in compliance with the subpoena to the time that the requesting party has notified the witness that the subpoena has been withdrawn or quashed, modified, or limited. In the event If the subpoena is withdrawn or quashed, if those costs are not paid within 30 days after demand therefor, the witness may file a motion in the court in which the action is pending for an order requiring payment, and the court shall award the payment of expenses and attorneys fees in the manner set forth in paragraph (4).
(6)Where the If records requested pursuant to a subpoena duces tecum are delivered to the attorney, the attorneys representative, or the deposition officer for inspection or photocopying at the witness place of business, the only fee for complying with the subpoena shall not exceed fifteen dollars ($15), plus the actual cost, if any, charged to the witness by a third person for retrieval and return of records held offsite by that third person. If the records are retrieved from microfilm, the reasonable cost, costs, as defined in paragraph (1), shall also apply. applies.
(c)When If the personal attendance of the custodian of a record or other qualified witness is required pursuant to Section 1564, in a civil proceeding, he or she shall be entitled to the same witness fees and mileage permitted in a case where the subpoena requires the witness to attend and testify before a court in which the action or proceeding is pending and to any additional costs incurred as provided by subdivision (b).
|
Date
|
Status
|
|---|---|
| Apr 21, 2016 | Read third time. Passed. (Ayes 39. Noes 0.) Ordered to the Assembly. |
| Jul 22, 2016 | Chaptered by Secretary of State. Chapter 85, Statutes of 2016. |
| Jul 22, 2016 | Approved by the Governor. |
| Jul 13, 2016 | Enrolled and presented to the Governor at 4 p.m. |
| Jun 30, 2016 | Assembly amendments concurred in. (Ayes 37. Noes 0.) Ordered to engrossing and enrolling. |
| Jun 30, 2016 | Assembly amendments concurred in. (Ayes 37. Noes 0. Page 4653.) Ordered to engrossing and enrolling. |
| Jun 22, 2016 | Ordered to special consent calendar. |
| Jun 16, 2016 | Read third time. Passed. Ordered to the Senate. |
| Jun 16, 2016 | In Senate. Concurrence in Assembly amendments pending. |
| Jun 13, 2016 | Read second time. Ordered to consent calendar. |
| Jun 9, 2016 | From committee: Do pass. Ordered to consent calendar. (Ayes 9. Noes 0.) (June 8). |
| May 26, 2016 | From committee with author's amendments. Read second time and amended. Re-referred to Com. on JUD. |
| May 5, 2016 | Referred to Com. on JUD. |
| Feb 17, 2016 | Introduced. Read first time. To Com. on RLS. for assignment. To print. |
| Apr 21, 2016 | Read third time. Passed. (Ayes 39. Noes 0. Page 3631.) Ordered to the Assembly. |
| Apr 21, 2016 | In Assembly. Read first time. Held at Desk. |
| Apr 19, 2016 | Read second time and amended. Ordered to consent calendar. |
| Apr 18, 2016 | From committee: Do pass as amended. Ordered to consent calendar. (Ayes 6. Noes 0.) (April 12). |
| Apr 18, 2016 | From committee: Do pass as amended. Ordered to consent calendar. (Ayes 6. Noes 0. Page 3520.) (April 12). |
| Apr 1, 2016 | Set for hearing April 12. |
| Mar 29, 2016 | From committee: Do pass and re-refer to Com. on JUD. with recommendation: To consent calendar. (Ayes 7. Noes 0.) (March 29). Re-referred to Com. on JUD. |
| Mar 29, 2016 | From committee: Do pass and re-refer to Com. on JUD. with recommendation: To consent calendar. (Ayes 7. Noes 0. Page 3314.) (March 29). Re-referred to Com. on JUD. |
| Mar 15, 2016 | Set for hearing March 29. |
| Feb 25, 2016 | Referred to Coms. on PUB. S. and JUD. |
| Feb 18, 2016 | From printer. May be acted upon on or after March 19. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Jun 30, 2016 | Special Consent # SB1087 Anderson | Senate Floor |
Passed |
|
| Jun 16, 2016 | SB 1087 Anderson Consent Calendar Second Day Regular Session | Assembly Floor |
Passed |
|
| Jun 8, 2016 | Do pass. To Consent Calendar. | Assembly Standing Committee on Judiciary |
Passed |
|
| Apr 21, 2016 | Consent Calendar 2nd SB1087 Anderson | Senate Floor |
Passed |
|
| Apr 12, 2016 | Do pass as amended, and be ordered to the Consent Calendar | Senate Standing Committee on Judiciary |
Passed |
|
| Mar 29, 2016 | Do pass, but first be re-referred to the Committee on [Judiciary] with the recommendation: To Consent Calendar | Senate Standing Committee on Public Safety |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| Advanced Energy Economy | * Against Unless Amend | Jun 25, 2018 |
| California Association Of Realtors | * Support | Jun 25, 2018 |
| California Bankers Association | * Support | Jun 25, 2018 |
| California Credit Union League | * Support | Jun 25, 2018 |
| California News Publishers Association | * Support | Jun 25, 2018 |
| Kp Public Affairs | * Support | Jun 25, 2018 |
| Ygrene Energy Fund, Inc. | * Against Unless Amend | Jun 25, 2018 |
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | SB |
UNFINISHED BUSINESS
Bill No: SB 1087
:
SENATE PUBLIC SAFETY COMMITTEE: 7-0, 3/29/16
AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone
SENATE JUDICIARY COMMITTEE: 6-0, 4/12/16
AYES: Jackson, Moorlach, Hertzberg, Leno, Monning, Wieckowski
NO VOTE RECORDED: Anderson
SENATE FLOOR: 39-0, 4/21/16 (Consent)
AYES: Allen, Anderson, Bates, Beall, Berryhill, Block, Cannella, De León, Fuller, Gaines, Galgiani, Glazer, Hall, Hancock, Hernandez, Hertzberg, Hill, Hueso, Huff, Jackson, Lara, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning, Moorlach, Morrell, Nguyen, Nielsen, Pan, Pavley, Roth, Stone, Vidak, Wieckowski, Wolk
NO VOTE RECORDED: Runner
ASSEMBLY FLOOR: 78-0, 6/16/16 (Consent) - See last page for vote
SOURCE: California District Attorneys Association
DIGEST: This bill provides for the admissibility of business documents produced by search warrant.
Assembly Amendments make technical changes.
ANALYSIS:
Existing law:
- Provides that if the original records would be admissible in evidence if the custodian or other qualified witness had been present and testified in matters stated in an affidavit accompanying copies of business records then the affidavit is admissible as evidence of the matters state therein and are presumed to be true. (Evidence Code § 1562)
- Provides that when a subpoena duces tecum is served upon the custodian of records of a business in an action in which the business is neither a party nor the place where the action is alleged to have taken place, it is sufficient compliance if the custodian delivers by mail or otherwise a true, legible and durable copy of all the records described in the subpoena to the clerk of the court together with an affidavit within five days of receipt. (Evidence Code §1560)
- Provides what shall be in an affidavit accompanying records submitted by a business in response to a subpoena duces tecum. (Evidence Code §1561)
This bill in addition provides that if a search warrant for business records is served upon the custodian of records in an action or investigation in which the business is neither a party nor the place where any cause of action is alleged to have arisen, the warrant will be deemed executed if the business cause the delivery of records described in the warrant to the law enforcement agency if the custodian delivers by mail or otherwise a true, legible, and durable copy of all the records described in the search warrant, together with an affidavit within five days or within such other time as set forth in the warrant.
Background
Business records that are submitted in a case pursuant to a subpoena duces tecum and accompanied by the appropriate affidavit are admissible in the criminal or civil case for which they were requested. However, since a subpoena duces tecum can only be used once a case is filed, law enforcement will use a search warrant to seek documents while in the investigative stage of the case and those documents are not admissible under existing law, even though their veracity is identical to those submitted by subpoena. Because they are inadmissible, law enforcement must either get the custodian of record to testify in court as to the veracity of the documents or make a second request for the same documents with a subpoena duces tecum and thereby get another copy of the documents with the appropriate affidavit. This bill provides that documents submitted in response to a search warrant, with the appropriate affidavit, are admissible in the same manner as those documents submitted in response to a subpoena duces tecum.
FISCAL EFFECT: Appropriation: Fiscal Com.: Local:
California District Attorneys Association (source)
Alameda County District Attorney’s Office
California Police Chiefs Association
Santa Clara District Attorney
OPPOSITION: (Verified 6/17/16)
None received
ASSEMBLY FLOOR: 78-0, 6/16/16
AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker, Bigelow, Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Rendon
NO VOTE RECORDED: Brough, Roger Hernández
Prepared by: Mary Kennedy / PUB. S. /
6/17/16 15:03:59
**** END ****
Date of Hearing: June 8, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
SBPCA Bill Id:SB 1087
Author:(Anderson) – As Amended Ver:May 26, 2016
PROPOSED CONSENT
SENATE VOTE: 39-0
SUBJECT: EVIDENCE: PRODUCTION OF RECORDS
KEY ISSUE: sHOULD BUSINESS RECORDS THAT ARE CERTIFIED AS ORIGINAL BY THE CUSTODIAN OF THOSE RECORDS AND PRODUCED IN RESPONSE TO A SEARCH WARRANT, SIMILAR TO RECORDS PRODUCED IN RESPONSE TO A SUBPOENA DUCES TECUM, BE ADMITTED INTO EVIDENCE WITHOUT THE NECESSITY OF A LIVE WITNESS APPEARING IN COURT TO VERIFY THE AUTHENTICITY OF THE RECORDS?
SYNOPSIS
This bill, sponsored by the California District Attorneys Association, seeks to address a procedural problem faced by prosecutors who obtain records needed in a criminal prosecution via search warrant prior to criminal charges being filed. According to the author, when a prosecuting office is doing a criminal investigation, most business records are obtained via search warrant because there is very limited ability to obtain business records prior to criminal charges being filed. While a subpoena duces tecum, which requires the custodian of records to send records to the court with an affidavit of authenticity and allows those records to be admitted into evidence, can be issued after a civil or criminal case is filed, a search warrant can be used prior to a case being filed. However, current law does not allow business records that are copied and produced in response to a search warrant to be admitted into evidence with an affidavit, requiring prosecutors to request (and businesses to copy and provide) records again via a subpoena duces tecum prior to trial, which is a waste of time and resources. This bill would allow this same procedure to be used for the production of records pursuant to a search warrant and would make other clarifying changes throughout these sections.
This bill would leave in place the current distinction in the law between costs for copying and producing records that are reimbursed when the records are produced via subpoena in civil cases, but not reimbursed when the records are produced via subpoena or search warrant in criminal cases. But as a practical matter, the bill could have a positive impact on businesses because they should only have to copy and provide records one time: when they receive a search warrant for the records. Also, recent amendments clarify that this bill does not expand the legal basis for issuance of a search warrant. This bill is supported by Alameda County District Attorney Nancy O’Malley and has no known opposition.
SUMMARY: Authorizes a custodian of business records to comply with a search warrant for certain business records in the same manner as a subpoena duces tecum. Specifically, this bill:
- Provides that if a search warrant for business records is served upon the custodian of records or other qualified witness of a business in compliance with Section 1524 of the Penal Code regarding a criminal investigation in which the business is neither a party nor the place where any crime is alleged to have occurred, it is sufficient compliance with the subpoena for the custodian or other qualified witness to deliver by mail a copy of all of the records described in the search warrant to the law enforcement agency ordered to execute the search warrant, together with the affidavit regarding the authenticity of the records, within five days after the receipt of the search warrant or within such other time as is set forth in the warrant.
- Makes the copies produced in response to the subpoena admissible in court to the same extent as the original records.
EXISTING LAW:
- Specifies certain circumstances that allow for issuance of a search warrant, including (1) When the property was stolen or embezzled, and (2) When the property or things were used as the means of committing a felony, among others. (Penal Code Section 1524 (a).)
- Provides that when a subpoena duces tecum (SDT) is served upon the custodian of records of a business in an action in which the business is neither a party, nor the place where the action is alleged to have taken place, it is sufficient compliance with the SDT for the custodian or other qualified witness to deliver a true, legible and durable copy of all the records described in the SDT to the clerk of the court together with an affidavit within a specified time period:
- In any criminal action, five days after the receipt of the subpoena.
- In any civil action, within 15 days after the receipt of the subpoena.
- Within the time agreed upon by the party who served the subpoena and the custodian or other qualified witness. (Evidence Code Section 1560. All further statutory references are to the Evidence Code, unless otherwise indicated.)
- Requires the records to be accompanied by an affidavit of the custodian or other qualified witness, stating certain information, including all of the following:
- The affiant is the duly authorized custodian of the records or other qualified witness and has authority to certify the records.
- The copy is a true copy of all the records described in the subpoena duces tecum or, pursuant to specified law, the records were delivered to the attorney, the attorney’s representative, or deposition officer for copying at the custodian’s or witness’ place of business.
- The records were prepared by the personnel of the business in the ordinary course of business at or near the time of the act, condition, or event. (Section 1561 (a).)
- Provides that if the original records would be admissible in evidence if the custodian or other qualified witness were present and testified in matters stated in an affidavit accompanying copies of business records, then the affidavit is admissible as evidence of the matters stated therein and those matters are presumed to be true; and states that the presumption established is a presumption affecting the burden of producing evidence. (Section 1562.)
FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.
COMMENTS: According to the author, this bill seeks to address a procedural problem faced by prosecutors who obtain records needed in a criminal prosecution via search warrant prior to criminal charges being filed:
When a prosecuting office is doing a criminal investigation, most business records are obtained via search warrant because there is very limited subpoena power until criminal charges are actually filed. These records are often voluminous and not stored indefinitely by the entity that produces them. In fact, it’s not uncommon for records to be destroyed between the date the search warrant is executed and the time charges are eventually filed.
Business records, whether produced pursuant to a subpoena or search warrant, are usually provided with an accompanying affidavit intended to comply with Evidence Code sections 1560-1562. If the records were produced in response to a subpoena, these sections govern admissibility of the records at trial without live testimony from the custodian of record.
Unfortunately, since sections 1560 and 1561 only refer to the admissibility of documents obtained by subpoena and not by search warrant, the search warrant records may not be admitted at trial without testimony by the custodian of records – even if the exact same records are produced, and even if they are provided with the exact same affidavit.
Prosecutors then face two choices. They can rely on EC 1560 et seq for admissibility, which requires them, after filing criminal charges, to subpoena the exact same records we obtained via search warrant. If these records still exist, they must be re-copied, re-sent, and re-discovered. This is a significant expenditure of material and human resources on the part of the court, the attorneys, and the target entities of the subpoena.
Alternatively, or if the records have been destroyed in the intervening period, they must procure live testimony from the custodian of records in order to make the records received in response to the search warrant admissible. This requires the target entity to incur the cost and inconvenience of sending a live witness to testify.
Background. In 1959, to alleviate the burden on businesses to provide an officer or employee to testify in court regarding the authenticity of business records, the California Legislature authorized a new procedure whereby a business could introduce a copy of the subpoenaed record, with an affidavit of authenticity, in lieu of authenticating testimony. (See Section 1560 et seq.; see also 2 Witkin, Cal. Evidence, Documentary Evidence (5th ed. 2012), Sec. 51, p. 191.) While the procedure generally applies in any proceeding in which testimony can be compelled (Evid. Code Sec. 1566), it is not available if the business is a party to the action or is the place where a cause of action is alleged to have arisen (Section 1560 (b)).
Under the Section 1560 procedure, upon service of a subpoena duces tecum (a writ by the court generally ordering a witness to appear and to bring specified documents, records, or things), unless the personal attendance of the custodian and production of the original records is specifically required, the custodian of records or other qualified witness may deliver to the clerk (or to the judge if there is no clerk, or to the officer taking a deposition) a true, legible and durable copy of all the records described. (Section 1560 (b).) The records must also be accompanied by an affidavit of the custodian or other qualified witness, stating the facts essential to the foundation, including, among other things, that the copy is a true copy of all records described in the subpoena duces tecum or that the records were delivered to the attorney, the attorney’s representative, or a deposition officer for copying at the custodian’s or witness’s place of business pursuant to specified law. (Section 1561(a).) This bill would allow this same procedure to be used for the production of records pursuant to a search warrant and make other clarifying changes throughout these sections.
Existing rules regarding reimbursement to businesses of their expenses is not affected by this bill. Current law provides that all “reasonable costs” incurred in a civil proceeding by any witness with respect to the production of all or any part of business records the production of which is requested pursuant to a subpoena duces tecum shall be reimbursed by the party serving the subpoena duces tecum. (Section 1563 (b)(6).) Current law also specifies the fee for records that are delivered to the attorney, the attorney’s representative, or the deposition officer for inspection or photocopying at the witness’ place of business. (Section 1563 (b)(6).) However, current law does not provide for a similar reimbursement right when business records are prepared and delivered in response to either a criminal subpoena, or a search warrant.
This bill would leave in place the current distinction in the law between the costs for copying and producing records that are reimbursed when the records are produced in civil cases, but not reimbursed when the records are produced in criminal cases. But as a practical matter, the bill is unlikely to have a significant negative fiscal impact on businesses, even if more search warrants are issued for business records. In fact, it could have a positive impact because it is likely to reduce the necessity for businesses to duplicate their efforts by preparing and sending the same records twice (once in response to a search warrant issued before criminal charges are filed, and again in response to a subpoena duces tecum issued after charges are filed). Under this bill, businesses should only have to copy and provide those records one time: when they receive a search warrant for their records.
Recent amendments clarify that this bill does not expand the legal basis for issuance of a search warrant. The original wording of the bill’s most substantive provision, adding a new subdivision (f) to Section 1560, was very similar to the wording of subdivision (b) of that section, regarding subpoenas duce tecum (in both civil and criminal matters). However, the language was not appropriate when describing a search warrant that would only be issued in a criminal matter. Also, it could be argued that the bill created a new basis for issuance of a search warrant (for business records), which is not the intent of the author or the purpose of the bill. In order to address those concerns, recent amendments (May 26, 2016) update the language to refer to criminal matters. The May 26th amendments also state that a search warrant must be issued “in compliance with Section 1524 of the Penal Code” in order to clarify that the bill does not create a new basis for issuance of a search warrant.
PAST SIMILAR LEGISLATION. AB 794 (Corbett, Chapter 444, Statutes of 1999) addressed issues of access to personal and employment records required to be made available pursuant to a subpoena duces tecum and made technical changes to various codes dealing with subpoenas.
AB 2842 (Harman, Chapter 1068, Statutes of 2002) amended the deposition statutes to reflect that technology other than tapes are used for audio and video storage media; allowed non-party deponents to obtain a copy of their testimony, and clarified the circumstances under which the deposition officer may go off the record.
AB 3081 (Committee on Judiciary, Chapter 182, Statutes of 2004) reorganized the civil discovery statutes by dividing the statutes into short sections grouped in chapters according to subject matter and made conforming changes in cross-references to the discovery statutes in other code sections.
REGISTERED SUPPORT / OPPOSITION:
Support
California District Attorneys Association (sponsor)
Alameda County District Attorney Nancy O’Malley
Opposition
None on file
Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | SB |
CONSENT
Bill No: SB 1087
:
SENATE PUBLIC SAFETY COMMITTEE: 7-0, 3/29/16
AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone
SENATE JUDICIARY COMMITTEE: 6-0, 4/12/16
AYES: Jackson, Moorlach, Hertzberg, Leno, Monning, Wieckowski
NO VOTE RECORDED: Anderson
SOURCE: California District Attorneys Association
DIGEST: This bill provides for the admissibility of business documents produced by search warrant.
Existing law:
- Provides that if the original records would be admissible in evidence if the custodian or other qualified witness had been present and testified in matters stated in an affidavit accompanying copies of business records then the affidavit is admissible as evidence of the matters state therein and are presumed to be true. (Evidence Code § 1562)
- Provides that when a subpoena duces tecum is served upon the custodian of records of a business in an action in which the business is neither a party nor the place where the action is alleged to have taken place, it is sufficient compliance if the custodian delivers by mail or otherwise a true, legible and durable copy of all the records described in the subpoena to the clerk of the court together with an affidavit within five days of receipt. (Evidence Code §1560)
- Provides what shall be in an affidavit accompanying records submitted by a business in response to a subpoena duces tecum. (Evidence Code §1561)
This bill in addition provides that if a search warrant for business records is served upon the custodian of records in an action or investigation in which the business is neither a party nor the place where any cause of action is alleged to have arisen, the warrant will be deemed executed if the business cause the delivery of records described in the warrant to the law enforcement agency if the custodian delivers by mail or otherwise a true, legible, and durable copy of all the records described in the search warrant, together with an affidavit within five days or within such other time as set forth in the warrant.
Background
Business records that are submitted in a case pursuant to a subpoena duces tecum and accompanied by the appropriate affidavit are admissible in the criminal or civil case for which they were requested. However, since a subpoena dusces tecum can only be used once a case is filed, law enforcement will use a search warrant to seek documents while in the investigative stage of the case and those documents are not admissible under existing law, even though their veracity is identical to those submitted by subpoena. Because they are inadmissible, law enforcement must either get the custodian of record to testify in court as to the veracity of the documents or make a second request for the same documents with a subpoena duces tecum and thereby get another copy of the documents with the appropriate affidavit. This bill provides that documents submitted in response to a search warrant, with the appropriate affidavit, are admissible in the same manner as those documents submitted in response to a subpoena duces tecum.
FISCAL EFFECT: Appropriation: Fiscal Com.: Local:
California District Attorneys Association (source)
Alameda County District Attorney’s Office
California Police Chiefs Association
Santa Clara District Attorney
OPPOSITION: (Verified 4/20/16)
None received
4/20/16 16:06:02
**** END ****
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
Bill No: SB 1087 (Author:Anderson)
Version: February 17, 2016
Hearing Date: April 12, 2016
Fiscal: No
Urgency: No
Consultant: RD
SUBJECT
Evidence: production of business records
DESCRIPTION
Existing law provides for a simplified procedure by which a party can produce business records pursuant to a subpoena duces tecum and allows for the recovery of reasonable costs by a nonparty witness who produces such records accordingly. This bill would additionally authorize a custodian of business records to comply with a search warrant for certain business records in the same manner as a subpoena duces tecum and would also require that the production of those records be accompanied by a specified affidavit attesting to the same information that is currently required for records produced pursuant to a subpoena duces tecum. This bill would also make various changes to the provision relating to the recovery of reasonable costs incurred by nonparty witnesses producing records pursuant to a subpoena duces tecum.
BACKGROUND
In 1959, to alleviate the burden on businesses to provide an officer or employee to testify in court to the authenticity of a business record, the California Legislature authorized a simpler procedure for the ordinary case whereby a business could introduce a copy of the subpoenaed record, with an affidavit in lieu of authenticating testimony. (See Evid. Code Sec. 1560 et seq.; see also 2 Witkin Cal. Evidence, Documentary Evidence, Sec. 50.) While the special procedure generally applies in any proceeding in which testimony can be compelled (Evid. Code Sec. 1566), it is not available if the business is a party to the action or is the place where a cause of action is alleged to have arisen (Evid. Code Sec. 1560(b)).
Under this special procedure, on service of a subpoena duces tecum (a writ by the court generally ordering a witness to appear and to bring specified documents, records, or things), unless the personal attendance of the custodian and production of the original records is specifically required, the custodian of records or other qualified witness may deliver to the clerk (or to the judge if there is no clerk) or to the officer taking a deposition, by mail or otherwise, a true, legible and durable copy of all the records described. (Evid. Code Sec. 1560(b).) The records must also be accompanied by an affidavit of the custodian or other qualified witness, stating the facts essential to the foundation, including, among other things, that the copy is a true copy of all records described in the subpoena duces tecum or that the records were delivered to the attorney, the attorney’s representative, or a deposition officer for copying at the custodian’s or witness’s place of business pursuant to specified law. (Evid. Code Sec. 1561(a).) Relatedly, California law authorizes a nonparty witness to recover all reasonable costs incurred in producing business records pursuant to a subpoena duces tecum from the party that served the subpoena duces tecum for those records.
This bill would now add simplified procedures for the production of records pursuant to a search warrant that would be substantially similar to the simplified procedures that currently exist for the production of records pursuant to a subpoena duces tecum, and makes other clarifying changes throughout these sections, including the section allowing for the recovery of reasonable costs by a nonparty witness who complies with a subpoena duces tecum.
This bill was heard by the Senate Public Safety Committee on March 29, 2016, and was passed out on a vote of 7-0.
CHANGES TO EXISTING LAW
1. Existing law, in relevant part, provides that the process by which a witness’s attendance is required is the subpoena, which is a writ or order directed to a person, requiring his or her attendance at a particular time and place to testify as a witness. The subpeona may require a witness to bring any books, documents, electronically stored information, or other things under the witness’s control which the witness is bound by law to produce in evidence. Existing law further provides that a copy of an affidavit shall be served with a subpoena duces tecum issued before trial, showing good cause for the production of the matters and things described in the subpoena and specifying certain information. (Code Civ. Proc. Sec. 1985(a), (b).)
Existing law provides that, except where personal attendance of the custodian or other qualified witness and production of the original records is required, when a subpoena duces tecum is served upon the custodian of records or other qualified witness of a business in an action in which the business is neither a party nor the place where any cause of action is alleged to have arisen and the subpoena requires the production of all or any part of the records of the business, the custodian or other qualified witness may deliver by mail or otherwise a true, legible, and durable copy of all of the records described in the subpoena to the clerk of the court or to another person authorized under law, together with the required affidavit, as specified, within certain time periods. (Evid. Code Sec. 1560(b), (c).)
Existing law requires the records to be accompanied by an affidavit of the custodian or other qualified witness, stating in substance certain information, such as:
- the affiant is the duly authorized custodian of the records or other qualified witness and has authority to certify the records;
- the copy is a true copy of all the records described in the subpoena duces tecum or, pursuant to specified law, the records were delivered to the attorney, the attorney’s representative, or deposition officer for copying at the custodian’s or witness’ place of business, as the case may be; and
- the records were prepared by the personnel of the business in the ordinary course of business at or near the time of the act, condition, or event. (Evid. Code Sec. 1561(a).)
This bill would, in addition, provide that if a search warrant for business records is served upon the custodian of records or other qualified witness of a business in connection with an action or investigation in which the business is neither a party nor the place where any cause of action is alleged to have arisen and the search warrant provides the warrant will be deemed executed if the business causes the delivery of records described in the warrant to the law enforcement agency executing the warrant, then the custodian or other qualified witness may deliver by mail or otherwise a true, legible, and durable copy of all of the records described in the search warrant to that law enforcement agency, together with the affidavit required, above, within certain time periods. This bill would specify that this authorization does not abridge or limit the scope of specified Penal Code search warrant procedures or invalidate otherwise duly executed search warrants.
This bill would make conforming changes to the information that must be contained in the accompanying affidavit, above, to ensure that the affidavit reflects whether the copy is a true copy of all the records described in the search warrant.
2. Existing law provides that all “reasonable costs” incurred in a civil proceeding by any nonparty witness with respect to the production of all or any part of business records requested pursuant to a subpoena duces tecum may be charged against the party serving the subpoena duces tecum. “Reasonable costs” for these purposes shall include, but not be limited to, the following specific costs:
- $0.10 per page for standard reproduction of documents of a specified size;
- $0.20 per page for copying of documents from microfilm;
- actual costs for the reproduction of oversize documents or the reproduction of documents requiring special processing which are made in response to a subpoena;
- reasonable clerical costs incurred in locating and making the records available to be billed at the maximum rate of $24 per hour per person, computed on the basis of $6 per quarter hour or fraction thereof;
- actual postage charges; and
- the actual cost, if any, charged to the witness by a third person for the retrieval and return of records held offsite by that third person. (Evid. Code Sec. 1563(b), (b)(1).)
Existing law prescribes a specified fee for records that are delivered to the attorney, the attorney’s representative, or the deposition officer for inspection or photocopying at the witness’ place of business. (Evid. Code Sec. 1563(b)(6).)
This bill would, instead, provide that all reasonable costs incurred in a civil proceeding by any nonparty witness with respect to the production of all or any part of business records requested pursuant to a subpoena duces tecum shall be charged against the party serving the subpoena duces tecum. This bill would further clarify that the records referenced above are the records requested pursuant to a subpoena duces tecum (i.e., not a search warrant).
This bill would also make other technical and clarifying changes to these provisions.
COMMENT
1. Stated need for the bill
According to the author:
When a prosecuting office is doing a criminal investigation, most business records are obtained via search warrant because there is very limited subpoena power until criminal charges are actually filed. In fact, it’s not uncommon for records to be destroyed between the date the search warrant is executed and the time charges are eventually filed.
Business records, whether produced pursuant to a subpoena or search warrant, are usually provided with an accompanying affidavit intended to comply with Evidence Code sections 1560-1562. If the records were produced in response to a subpoena, these sections govern admissibility of the records at trial without live testimony from the custodian of record.
Unfortunately, since sections 1560 and 1561 only refer to the admissibility of documents obtained by subpoena and not by search warrant, the search warrant records may not be admitted at trial without testimony by the custodian of records—even if the exact same records are produced and even if they are provided with the exact same affidavit. [ . . . ]
SB 1087 seeks to solve this problem by amending the Evidence Code to refer to documents obtained by search warrants as well as subpoena. This would remove an artificial barrier to admissibility, promote trial efficiency by eliminating an otherwise unnecessary witness (and a hearing on the subpoena), and save resources for the court as well as the businesses that comply with records requests.
2. Bill clarifies that reasonable costs can be recovered by the nonparty witness when producing records pursuant to a subpoena duces tecum, but not a search warrant
Existing law provides for a simplified procedure by which a party can produce business records pursuant to a subpoena duces tecum and authorizes all reasonable costs incurred by a nonparty witness producing records pursuant to a subpoena duces tecum in a civil proceeding to be charged to the party serving the subpoena duces tecum, as specified. This bill would now additionally authorize a custodian of business records to comply with a search warrant for certain business records in the same manner as a subpoena duces tecum. This bill would also clarify that the “records” for which reasonable costs can be recovered are those records produced pursuant to a subpoena duces tecum—not records produced pursuant to a search warrant.
3. Suggested amendments
The following technical amendments would address (1) a drafting error and (2) ensure that the list of reasonable costs is not exhaustive:
Technical amendments:
(1) On page 4, line 15, strike “section” and insert “subdivision”
(2) On page 5, line 21, strike “includes” and insert “includes, but is not limited to”
Support: California Police Chiefs Association
Opposition: None Known
HISTORY
Source: California District Attorneys Association
Related Pending Legislation: None Known
Prior Legislation: None Known
Prior Vote: Senate Public Safety Committee (Ayes 7, Noes 0)
**************
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 1087 Hearing Date: March 29, 2016
Author: | Anderson | ||
Version: | February 17, 2016 | ||
Urgency: | No | Fiscal: | No |
Consultant: | MK | ||
Subject: Evidence: Production of Business Records
HISTORY
Source: California District Attorneys Association
Prior Legislation: None
Support: California Police Chiefs Association
Opposition: None known
PURPOSE
The purpose of this bill is to provide for the admissibility of business documents produced by search warrant.
Existing law provides that if the original records would be admissible in evidence if the custodian or other qualified witness had been present and testified in matters stated in an affidavit accompanying copies of business records then the affidavit is admissible as evidence of the matters state therein and are presumed to be true. (Evidence Code § 1562)
Existing law provides that when a subpoena duces tecum is served upon the custodian of records of a business in an action in which the business is neither a party nor the place where the action is alleged to have taken place, it is sufficient compliance if the custodian delivers by mail or otherwise a true, legible and durable copy of all the records described in the subpoena to the clerk of the court together with an affidavit within five days of receipt. (Evidence Code §1560)
This bill would in addition provide that if a search warrant for business records is served upon the custodian of records in an action or investigation in which the business is neither a party nor the place where any cause of action is alleged to have arisen, the warrant will be deemed executed if the business cause the delivery of records described in the warrant to the law enforcement agency if the custodian delivers by mail or otherwise a true, legible, and durable copy of all the records described in the search warrant, together with an affidavit within five days or within such other time as set forth in the warrant.
Existing law provides what shall be in an affidavit accompanying records submitted by a business in response to a subpoena duces tecum. (Evidence Code §1561)
This bill provides that this section shall also apply to affidavits accompanying records submitted by a business in response a search warrant.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized legislation referred to its jurisdiction for any potential impact on prison overcrowding. Mindful of the United States Supreme Court ruling and federal court orders relating to the state’s ability to provide a constitutional level of health care to its inmate population and the related issue of prison overcrowding, this Committee has applied its “ROCA” policy as a content-neutral, provisional measure necessary to ensure that the Legislature does not erode progress in reducing prison overcrowding.
On February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:
- 143% of design bed capacity by June 30, 2014;
- 141.5% of design bed capacity by February 28, 2015; and,
- 137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as “of December 9, 2015, 112,510 inmates were housed in the State’s 34 adult institutions, which amounts to 136.0% of design bed capacity, and 5,264 inmates were housed in out-of-state facilities. The current population is 1,212 inmates below the final court-ordered population benchmark of 137.5% of design bed capacity, and has been under that benchmark since February 2015.” (Defendants’ December 2015 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One year ago, 115,826 inmates were housed in the State’s 34 adult institutions, which amounted to 140.0% of design bed capacity, and 8,864 inmates were housed in out-of-state facilities. (Defendants’ December 2014 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison population, the state must stabilize these advances and demonstrate to the federal court that California has in place the “durable solution” to prison overcrowding “consistently demanded” by the court. (Opinion Re: Order Granting in Part and Denying in Part Defendants’ Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14). The Committee’s consideration of bills that may impact the prison population therefore will be informed by the following questions:
- Whether a proposal erodes a measure which has contributed to reducing the prison population;
- Whether a proposal addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy;
- Whether a proposal addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction;
- Whether a proposal corrects a constitutional problem or legislative drafting error; and
- Whether a proposal proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
When a prosecuting office is doing a criminal investigation, most business records are obtained via search warrant because there is very limited subpoena power until criminal charges are actually filed. In fact, it’s not uncommon for records to be destroyed between the date the search warrant is executed and the time charges are eventually filed.
Business record, whether produced pursuant to a subpoena or search warrant, are usually provided with an accompanying affidavit intended to comply with Evidence Code sections 1560-1562. If the records were produced in response to a subpoena, these sections govern admissibility of the records at trial without live testimony from the custodian of record.
Unfortunately, since sections 1560 and 1561 only refer to the admissibility of documents obtained by subpoena and not by search warrant, the search warrant records may not be admitted at trial without testimony by the custodian of records—even if the exact same records are produced and even if they are provided with the exact same affidavit.
Prosecutors then face two choices. They can rely on EC 1560 et seq for admissibility, which requires them, after filing criminal charges, to subpoena the exact same records we obtained via search warrant. If these records still exist, they must be re-copied, re-sent, and re-discovered. This is a significant expenditure of material and human resources on the part of the court, the attorneys, and the target of entities of the subpoena.
Alternatively, or if the records have been destroyed in the intervening period, they must procure live testimony from the custodian of records in order to make the records received in response to the search warrant admissible. This requires the target entity to incur the cost and inconvenience of sending a live witness to testify.
SB 1087 seeks to solve this problem by amending the Evidence Code to refer to documents obtained by search warrants as well as subpoena. This would remove an artificial barrier to admissibility, promote trial efficiency by eliminating an otherwise unnecessary witness (and a hearing on the subpoena), and save resources for the court as well as the businesses that comply with records requests.
2. Admissibility of Business Records
As stated in the author’s statement, business records that are submitted in a case pursuant to a subpoena duces tecum and accompanied by the appropriate affidavit are admissible in the criminal or civil case for which they were requested. However, since a subpoena dusces tecum can only be used once a case is filed, law enforcement will use a search warrant to seek documents while in the investigative stage of the case and those documents are not admissible under existing law, even though their veracity is identical to those submitted by subpoena. Because they are inadmissible, law enforcement must either get the custodian of record to testify in court as to the veracity of the documents or make a second request for the same documents with a subpoena duces tecum and thereby get another copy of the documents with the appropriate affidavit. This bill provides that documents submitted in response to a search warrant, with the appropriate affidavit, are admissible in the same manner as those documents submitted in response to a subpoena duces tecum.
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Discussed in Hearing
7MIN
Assembly Standing Committee on Banking and Finance
Bill Author
Bill Co-Author(s):