The Subpoena Was Served. Where Are the Records?

Confirm What Was Served, and on Whom

Pull the subpoena, its attachments, and the proof of service, and check them against each other: the custodian or business named, the address, the date served, and the description of records. A subpoena to a business is served by delivering it to an officer, a director, the custodian of records, or an agent or employee the business has authorized to accept it (CCP § 2020.220(b)), so make sure the person who took the papers was one of those.

Then call the records department. Ask whether the subpoena was logged, who is handling it, and whether an outside copy service processes requests for that business. Get a reference number and a name. Hospital systems in particular often send subpoenas to a release-of-information vendor at a different address than the one you served.

Check the Production Date and the Notices

For a subpoena that asks only for business records, the production date can’t be earlier than 20 days after the subpoena is issued or 15 days after it’s served, whichever is later (CCP § 2020.410(c)). That’s a minimum, not a promise that the records will arrive that day.

If the subpoena asks for a consumer’s personal records or an employee’s employment records, the notice rules come first:

• The consumer or employee, or their attorney if they’re a party, must be served with a notice and a copy of the subpoena at least 10 days before the production date and at least 5 days before the subpoena is served on the custodian, with extra time when the notice is mailed (CCP §§ 1985.3(b), 1985.6(b)).
• Before producing, the custodian must receive proof of service of that notice, or a written authorization signed by the consumer or employee (§ 2020.410(d); § 1985.3(c)).

If either piece is missing, the custodian has good grounds to hold the records (§§ 1985.3(k), 1985.6(j)). Medical providers have another reason to wait for proof of notice: federal HIPAA rules let them answer a subpoena without a court order only with satisfactory assurance that the patient was given notice of the request or that a qualified protective order has been sought (45 C.F.R. § 164.512(e)(1)(ii)).

Find Out Whether an Objection Is Holding Things Up

Ask the custodian and the deposition officer directly whether they’ve received a motion to quash, a written objection, a protective order, or any instruction not to release. Ask for a copy, not a summary.

For consumer and employee records, the rules depend on who objects:

• A consumer or employee who is a party can move to quash or modify the subpoena, and must give the custodian and the deposition officer notice at least 5 days before the production date.
• A consumer or employee who isn’t a party can serve a written objection on the requesting party, the deposition officer, and the custodian any time before the production date.

After either one, the custodian and the deposition officer don’t have to produce without a court order or the agreement of everyone affected (§ 1985.3(g); § 1985.6(f)). After a nonparty’s objection, the party that issued the subpoena can move to enforce it within 20 days of service of the objection, after trying to work it out informally. Send any objection to the attorney on the case the same day you learn about it.

If It's Administrative, Get a Date

Most late productions aren’t legal problems. The records are in offsite storage, the date range is unclear, the request went to the wrong department, or the custodian is waiting to be paid. On that last point, a custodian can charge the reasonable costs allowed by Evidence Code § 1563(b) and can hold the records until it’s paid on delivery, but can’t require payment, or a deposit against an estimate, before the records are ready (§ 1563(b)(2)).

Ask for a specific next step and a date, confirm it in a short email, and put the follow-up on the calendar. Don’t let anyone change the scope informally. Narrowing the date range or adding a category is a change to the subpoena, and it may require new notices, so run it past the attorney first.

Track What’s Missing, Not Just “Outstanding”

One subpoena can cover several kinds of records: the chart, billing, imaging, and radiology reports. Partial productions are common, and once the first file arrives, the rest tends to drop off the tracker. For each custodian, keep:

• the categories and date range requested
• the service date and the production date
• any notice, objection, or authorization issue
• what has arrived and what is still missing
• the custodian’s explanation and promised date
• who follows up next, and when

If the custodian says there are no records, or only some, that belongs in the custodian’s declaration that comes with the production (Evid. Code § 1561(b)), not just in a phone call.

When the records do arrive, they go to the deposition officer with that declaration, sealed as the Evidence Code requires, and not before the production date unless the parties and the consumer agree in writing (CCP § 2020.430; Evid. Code § 1560). Check that the files open, the pages are legible, the records are for the right person and period, and the custodian’s declaration is there.

When It's Time to Escalate

If follow-up isn’t working, give the attorney a complete package: the subpoena, the proofs of service, the notices, any objections, the correspondence, any partial production, and a dated follow-up log. The options are theirs to weigh. They include another meet-and-confer, a motion to compel compliance (CCP § 2025.480, which has a 60-day deadline that can start sooner than people expect), and contempt or the $500 statutory forfeiture plus damages against a witness who disobeys a personally served subpoena (CCP §§ 2020.240, 1992). The longer follow-up drags on, the fewer of those options are left.

Direct Legal’s Records Retrieval Division prepares and serves records subpoenas and the required notices, follows up with custodians, and acts as deposition officer for medical, employment, and business records, with digital delivery of the production.

About This Article

Sources

• Code of Civil Procedure section 2020.410
• Code of Civil Procedure section 1985.3
• Code of Civil Procedure section 1985.6
• Code of Civil Procedure section 2020.430
• Code of Civil Procedure section 2025.480
• Judicial Council form SUBP-010, Deposition Subpoena for Production of Business Records
• Judicial Council form SUBP-025, Notice to Consumer or Employee and Objection
• Evidence Code section 1563

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