Is This Subpoena Valid?

Duane Tyler, Head of Litigation at Moore Brewer Wolfe Jones Tyler & North.  

Parties to litigation have a right to engage in “pretrial discovery” to obtain documents and testimony that might be relevant to their claims and defenses. Relevant discovery often includes the assets of one of the parties. 

When a party in litigation wants to obtain documents or information from a third party, such as a credit union, the procedure – whether in state or federal court – is to serve a subpoena on the credit union. Different rules apply to a state court and federal court subpoena. The party issuing the subpoena must comply with all applicable rules governing the type of subpoena served. Failure to comply with such requirements renders the subpoena unenforceable, and a credit union that produces documents in response to a defective subpoena risks violating their member’s privacy rights.  It is, therefore, important to understand the differences between a state court and federal court subpoena and the rules to govern them. 

State Court Subpoena for a Case Pending in California

State court subpoenas are governed by the California Code of Civil Procedure.  State court subpoenas for actions pending in California are the most common subpoenas served on credit unions.  Such subpoenas can be served anywhere within California, but if the subpoena requests testimony as well as the production of documents, the witness cannot be forced to travel more than 75 miles from the credit union’s principal business office.

A subpoena must provide at least 15 days for production of documents after the date of service.  More importantly, when seeking the “personal records” of a credit union member (which are broadly defined to include “any copy of books, documents, or other writings … pertaining to the consumer”) the party seeking the records must personally serve on the credit union member whose records are sought a Notice to Consumer five days before the subpoena is served on the credit union.  The attorney must include a copy of the Notice to Consumer and a proof of service thereof along with the subpoena.  Production of documents where the subpoenaing attorney fails to comply with the Notice to Consumer requirements would be a violation of the member’s privacy rights.

State Court Subpoena for a Case Pending Outside California

Occasionally, a party in a lawsuit pending in another state will seek discovery from a credit union in California.  A subpoena issued by the state court in which the lawsuit is pending is NOT valid in California, just as a California state court subpoena is not valid in another state.   Such a subpoena should never be honored as production of documents in response to it will violate the credit union member’s privacy rights.

The procedures for obtaining discovery in California for use in a lawsuit outside California are contained in the Interstate and International Depositions and Discovery Act.  It is a streamlined procedure intended to make such discovery somewhat easy and inexpensive.  The subpoenaing attorney must obtain a subpoena from the state court in which the lawsuit is pending, and then file an application for a California subpoena in a California court based on the out of state subpoena.  The California court will then issue a California subpoena.  

While these procedures differ from a subpoena for a lawsuit pending in California, once the California court issues the subpoena based on the out of state subpoena, the attorney must then comply with the Notice to Consumer procedures discussed above.  

Federal Court Subpoenas 

 Unlike state court issued subpoenas which are effective only within a state’s boundaries, federal court subpoenas can be served anywhere within the United States.  In addition to this geographical difference, it appears a federal court subpoena does not require a Notice to Consumer, which is a creature of California state law.  While no court has specifically addressed this issue in a published opinion, general federalism concepts, including the supremacy clause, appear to negate the need for a state law required Notice to Consumer for a federal subpoena.

Finally, whichever type of subpoena you receive, the subpoena will often seek a large volume of documents, including deposit slips, checks and other withdrawal documents, etc.  Very often the subpoena gives only 15 days to produce the documents.  In such a case, it is a good practice to contact the attorney that issued the subpoena to negotiate its scope.  For example, one reasonable request is to ask the attorney to accept the production of account statements first, subject to an agreement to produce additional documents without another subpoena for any line items the attorney believes are relevant.    

Article by Duane Tyler, Head of Litigation at Moore Brewer Wolfe Jones Tyler & North.  

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