office of the city attorney responding to third party and workers' compensation civil...

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City and County of San Francisco Office of the City Attorney

Responding to Third Party and Workers' Compensation Civil Subpoenas for Personnel/ Employment Records in California Courts A STEP‐BY‐STEP GUIDE FOR DEPARTMENT PERSONNEL OFFICERS

PRIVILEGEDConfidential Attorney‐Client Communication

Attorney Work Product

Updated 9/7/12

2 PRIVILEGED ATTORNEY-CLIENT COMMUNICATION

ATTORNEY WORK PRODUCT

INTRODUCTION This Guide is intended to provide general information about subpoenas for employment records and to assist departments in responding to: (a) California state court civil subpoenas for employment records where the City is not a party to the lawsuit; and (b) Workers' Compensation subpoenas where the City is a party. This guide does not address subpoenas that do not seek employment records. A "third party subpoena" is a subpoena that requests documents (and sometimes testimony) in a lawsuit where the City is not a party to the case. These subpoenas are usually directed to the City and County of San Francisco (the "City"), a Department of the City, or to a custodian of Records for the City or one of its Departments. For example, a plaintiff may sue a defendant for injuries sustained in a car accident alleging wage loss. In the course of the case, the defendant may subpoena records from the plaintiff's employer, e.g. the City, seeking evidence related to the alleged wage loss. In fact, the majority of third party subpoenas received by the City request personnel records of current (or former) City employees maintained by the departments where the employee works (or worked). In addition to third party subpoenas, the City regularly receives Workers' Compensation subpoenas involving City employees who have filed Workers' Compensation claims. In these cases, the City is a party to the lawsuit, i.e., the City is not a third party. A subpoena is a court order. Failure to comply with a subpoena may result in a motion to compel, or an order to show cause regarding contempt. The court has the power to impose fines and imprisonment in appropriate cases. Therefore, the City must comply with all valid subpoenas and they must be handled promptly and properly. Following the step-by-step guidelines below will assist your department in complying with a subpoena, while also protecting the rights of the employees who are subject of the record requests. By statute, certain costs of responding to a subpoena may be collected from the party requesting the records. The costs that may be collected are discussed below. If you receive a criminal subpoena or a federal subpoena, please forward it to:

A - L: For cases where the defendant's last name begins with A-L, please contact Jane Montes-Hall at 415-554-3909 or [email protected].

M - Z: For cases where the defendant's last name begins with M-Z, please contact Eric Lach at 415-554-3871 or [email protected].

This Guide is not a substitute for specific legal advice. Any questions not answered here should be addressed to the General Counsel assigned by the City Attorney's Office to assist your department with more complex subpoena questions. STEP 1 – IS IT YOUR SUBPOENA? Check PeopleSoft to verify that the person whose records are sought is an employee who works or worked in your department. If not, please contact the appropriate department and forward the subpoena to it immediately. If the person is not found in PeopleSoft, you should forward the subpoena to your Client Services Analyst at the Department of Human Resources ("DHR"), or whoever DHR designates, so that he or she may respond on the City's behalf.



STEP 2 – HAS THE SUBPOENA BEEN SERVED CORRECTLY? Check the subpoena to make sure that the City has been served at: (1) the Mayor's Office, City Hall, Room 200, 1 Dr. Carlton B. Goodlett Place, San Francisco, CA 94102 or (2) another location where the City has agreed to accept service, e.g., MTA has agreed to accept subpoenas directly at its offices. Subpoenas directed to the City and its Custodians of Record must be served in this manner.

If the subpoena has not been served correctly, contact the Labor Team paralegals for advice on how to proceed. STEP 3 – THE LOG Keep a detailed log of your department's subpoenas, tracking when the subpoena was received and when it due. The due date is usually listed on the front of the subpoena. You will need this information if you are called upon to respond to a motion to compel or other related proceeding. Create an electronic folder on your computer with the case name (such as "Doe_Jane"), and place a PDF copy of the subpoena and related documents into the folder. This way the materials may be accessed for future use (such as establishing compliance). You should also keep both original and redacted copies of all documents produced in response to all subpoenas for six months after the subpoena has been issued. This can be done on the computer. Discuss with your manager where on your department's computer system the subpoena folders and subpoena log should be kept. (See Attachment A) STEP 4 – CHECK THE SUBPOENA TO SEE IF IT IS A CRIMINAL SUBPOENA, INVOLVES PEACE OFFICERS, OR COMES FROM FEDERAL COURT Criminal Subpoenas. If the case name has People v. [Name], then e-mail (or fax) a copy of the subpoena to the City Attorney's Office Labor Team paralegals immediately, and they will handle the response.

A - L: For cases where the defendant's last name begins with A-L, please contact Jane Montes-Hall at 415-554-3909 or [email protected].

M - Z: For cases where the defendant's last name begins with M-Z, please contact Eric Lach at 415-554-3871 or [email protected].

A response to criminal subpoenas must be made before the hearing date listed on the subpoena. Our office will work with you to supply necessary documents and to prepare a timely response. With criminal subpoenas, DO NOT RELEASE ANY WITNESS CONTACT INFORMATION TO THE REQUESTING ATTORNEY. (See Attachment B) Peace Officer Records. Peace officer records are entitled to special protection under the law (Penal Code §832.7). The definition of "peace officer" includes members of:

San Francisco Police Department, Sheriff Deputies, Institutional Police, District Attorney Investigators, Welfare Fraud Investigators, Adult and Juvenile Probation officers and



Juvenile Hall Counselors. If you receive a subpoena requesting peace officer records and are not familiar with the procedures governing peace officer personnel records, contact the City Attorney's Office Labor Team paralegals immediately and they will give you guidance about handling the subpoena response. Federal Subpoenas. You should also be on the lookout for subpoenas from federal court cases. The subpoena will indicate that the case is pending in United States District Court. The City Attorney's Office will handle the response to such subpoenas. Federal subpoenas served on the City are somewhat rare. (See Attachment C) However, they often involve specific federal statutes and regulations that require review by an attorney. If a federal subpoena comes to you, email (or fax) a copy of the subpoena to the City Attorney's Office Labor Team paralegals:

A - L: For cases where the plaintiff's last name begins with A-L, please contact Jane Montes-Hall at 415-554-3909, or [email protected].

M - Z: For cases where the plaintiff's last name begins with M-Z, please contact Eric Lach at 415-554-3871, or [email protected].

STEP 4.1 – CHECK THE SUBPOENA TO SEE IF IT REQUIRES AN APPEARANCE Some subpoenas require a non-party in the case to appear for deposition or trial, as well as requesting production of records. (See Attachment D) As with criminal subpoenas, email (or fax) a copy of the subpoena to the City Attorney's Office Labor Team paralegals immediately.



When the subpoena requires a person to appear for deposition or trial, the City Attorney's Office needs to process the subpoena before the deposition or hearing date listed on the subpoena. As with criminal subpoenas, DO NOT RELEASE ANY WITNESS CONTACT INFORMATION TO THE REQUESTING ATTORNEY. STEP 4.2 – CHECK WHETHER WORKERS' COMPENSATION CASE SUBPOENAS HAVE A CASE NUMBER A subpoena for records in a Workers' Compensation matter is not valid unless it has a case number. If there is no case number, then the case has not been filed, jurisdiction has not been established and the filing party has no power of subpoena. Attorneys may try to gloss over their lack of subpoena power by writing "unassigned" where the case number should be, or by stating that not having a case number is "the way Workers' Compensation cases work." Do not respond to a Workers' Compensation subpoena without a case number. If an attorney writes a letter asking for his client's Workers' Compensation file and includes a signed release or authorization from the client, we typically honor it because the employee has



waived his or her right to privacy consistent with the scope of the release. These files must still be redacted per STEP 11 below. STEP 5 – NOTICE TO CONSUMER AND PROOF OF SERVICE A consumer notice and proof of service must accompany all California state court civil subpoenas. Otherwise, the subpoena is deficient. (See Attachment E) Check the proof of service to ensure that the appropriate attorney, party and/or person whose records are being requested has been served with the Notice to Consumer. If you are concerned that the person whose records are being requested may not have received notice, and if that person is a party in the case, you can call his or her counsel listed on the proof of service to make sure counsel received a copy of the subpoena. (See Attachment F) The following statement can be sent to the subpoena service if the Notice to Consumer is missing:

The City will not produce employee documents without a notice to consumer. The City will only produce the documents after receipt of a valid subpoena with a consumer notice so the employee has the opportunity to object to the disclosure.

STEP 6 – CHECK DEADLINES

The Notice to Consumer described in Step 5 must be served at least five (5) days before you (custodian of records) are served with the records subpoena, plus an additional five (5) days if served by regular mail. (CCP § 1985.3(b))

The subpoena must be served on the City with sufficient time in advance to give you

(custodian) a reasonable opportunity to locate and produce documents. (CCP § 2020.220)

You (custodian) may not comply with the records subpoena earlier than 20 days after the issuance of the subpoena, or earlier than 15 days after service of the subpoena, whichever date is later. (CCP § 2020.410(c)) The issue date is the date listed at the bottom of the subpoena. (See Attachment B)

If the requesting counsel threatens to file, or files, a motion to compel or an application for the issuance of an order to show cause regarding contempt, contact the City Attorney's Office Labor Team paralegals immediately.



STEP 7 – WITNESS FEE CHECK Make sure the party issuing a third party subpoena provides a check for the $15 witness fee made payable to your department or to the "City and County of San Francisco." The $15 witness fee payment is required by law for locating and providing subpoenaed records when the City is not a party to the lawsuit. No records should be released without proper payment. Additional amounts may be charged as follows under Evidence Code § 1563(b)(6), which states:



Where the records are delivered to the attorney, the attorney's representative, or the deposition officer for inspection or photocopying at the [Department's] 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 [Department] 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 ... shall also apply.

Please note that in Workers' Compensation cases where the City is a party, a $15 witness fee is not required.

STEP 8 – DETERMINE THE SCOPE OF THE DOCUMENTS REQUESTED Review the description of the documents requested. Most subpoenas request payroll and personnel records. They may also include requests for Workers Compensation files, and other employment-related records. Occasionally, subpoenas request records unrelated to employment, such as videos, radio logs, contract documents, and claims against the City, etc. Please contact your assigned City Attorney's Office General Counsel for assistance in responding to subpoenas that call for non-personnel/non-employment documents. In addition, if the subpoena calls for peace officer records or records regarding claims made against the City, please contact the City Attorney's Office Labor Team paralegals per Step 4 above. STEP 9 – GATHERING THE DOCUMENTS Gather the documents described in the subpoena from your appropriate departments: payroll, personnel, Workers' Compensation, EEO, etc. Your search must be thorough. If you are required to pay a service to retrieve responsive documents in storage, you may charge the requesting party for that cost. (See Step 13.) For departments with multiple locations, the subpoena requires you to gather all responsive documents regardless of location. Records kept in the field are covered by a subpoena as well as those records kept at the Department's office, City Hall or other City buildings. For MTA, make sure to contact the division office where the employee currently is assigned, especially if the subpoena requests records about complaints, reprimands, or discipline of an employee. Passenger Service Reports (PSRs) are generally kept in the division files. You are required to produce documents in your agency's possession no matter where they are located. STEP 10 – AFFIDAVIT OR DECLARATION OF NO RECORDS An affidavit or declaration is a formal sworn statement signed under penalty of perjury by the Custodian of Records verifying the authenticity of the documents and the thoroughness of the document search. A Custodian of Records is a person who has possession, custody, or control of those documents. In the case of personnel files, the custodian of records includes the departmental personnel officer for the Department where the personnel file is located. The



custodian may also be the manager of the department or division where the documents are located. In many cases, appearance or testimony is not required if the City provides such an affidavit or declaration instead. Affidavits are required for each category of document, such as payroll, personnel, and workers comp, being provided by the City. (Evidence Code §§1560, 1561.) This might mean one affidavit for all the documents, or alternatively, separate affidavits for each document type, e.g., one for payroll, another for personnel. Ideally, the Custodian of Records is a department manager who oversees all the documents and therefore can sign one affidavit for them all. If there are no records responsive to the subpoena, then a Declaration of No Records (DNR), also called an Affidavit or Certificate of No Records, is issued. The DNR is usually in the same affidavit form with a check mark placed in the no-records section. QUESTIONS REGARDING YOUR RESPONSIBILITY IN SIGNING AFFIDAVITS AS CUSTODIAN OF RECORDS SHOULD BE DIRECTED TO THE GENERAL COUNSEL ASSIGNED TO YOUR DEPARTMENT BY THE CITY ATTORNEY'S OFFICE. (See Attachment G) STEP 11 – REDACTING DOCUMENTS Some information on requested documents must be blocked out, or "redacted," before the document can be produced. For example, social security numbers or other private information should be redacted. Document redactions can be accomplished electronically using Adobe Acrobat Professional. Our office recommends that document redactions be done in this manner. Redactions using a black marker will have to be copied again so that the information cannot be seen on the produced copies. You should redact the following information:

Social Security numbers (California Civil Code Section 1798.80 et seq.) Be sure to check your department or agency's internal Employee ID numbers as these are often based on Social Security numbers. If they are, redact them as well.

Financial information (bank routing numbers, credit card accounts, etc.). Drug and alcohol records in accordance with 49 C.F.R. §§40.321 and 40.323. Mental health records (Welfare and Institutions Code §5328) including HIV/AIDS status

(Civil Code §56.31 and Health and Safety Code §§120975, 121025(d)) and substance abuse records (Health and Safety Code §11977).

Medical information of individuals other than the employee whose records are being subpoenaed (e.g., FMLA certification relating to employee's parent or child).

City Attorney-client and City Attorney-work product privileged information and documents. These usually include communications with the City Attorney's Office, documents referring to such communications, and material prepared by the City Attorney's Office. Please contact your Department's assigned General Counsel for assistance in assessing attorney-client privilege or attorney work product.



Personal1 and confidential2 information on DMV records, including DMV Traffic Collision Report (also known as TCRs or DMV 555 Reports);

References to alcohol or drug use of individuals in DMV printouts or alerts (Vehicle Code Section 1808.5); and

Unrelated documents not called for by the subpoena which may have been misfiled or mixed in with documents that are within the scope of the subpoena.

Finally, you should withhold entirely First Reports of Injury (Form 5020) because they contain information relating to employee health that must be protected to the greatest extent possible. (California Code of Regulations Title 8, Section 14300 et seq.) STEP 12 – PRODUCING THE REDACTED DOCUMENTS Unless the party issuing the subpoena has asked for delivery in a specific format, we recommend producing the documents on disc to save paper. Keep a copy of what is produced, disc or hard copy paper, for your files. To save money on postage, your department or agency may prefer to request that the party issuing the subpoena pick up the records. In our experience, the requesting party is usually willing to do so. When the documents are ready, call the requesting party, or their subpoena service, and ask that person to come and pick up the records. If the requesting party prefers that you mail the records, you are entitled to recover the cost of mailing. Sometimes the party whose records are being requested (e.g., the employee whose personnel file has been subpoenaed) may object to the production of the records and/or file a motion with the court to quash the subpoena or for a protective order. If you receive an objection or motion to quash/motion for protective order regarding a subpoena duces tecum, do not produce documents and instead contact



1 Personal information is defined as "information that identifies or describes an individual, including, but not limited to, his or her name, social security number, physical description, home address, home telephone number, education, financial matters, and medical or employment history." 2 Confidential information includes, but is not limited to, "an individual's home address (California Vehicle Code Section 1808.21), home telephone number (Government Code Section 6254.3), physical/mental information (California Vehicle Code Section 1808.5), social security number (California Vehicle Code Section 1653.5), and photograph (California Vehicle Code Sections 12800.5 and 13005.5)."



STEP 13 – COLLECTION OF COSTS When responding to a subpoena, the City is allowed to recover some of the costs of collecting and copying subpoenaed records. Your department is entitled to the following costs when an itemized statement of charges is presented to the subpoenaing party:

$.10 per page for standard copies; $.20 per page for microfilm copies; actual costs of reproduction of oversized documents or other documents requiring special

handling; reasonable clerical costs incurred in locating and making the records available (maximum

of $24 per hour, with quarter hour minimum increments); actual postage charges; and the actual cost, if any, charged by a third person for retrieval and return of records stored

offsite.

WHO ARE YOU GOING TO CALL FOR HELP? If you have any questions about the legality of a subpoena or what it requires you to do, please contact: (a) Jane Montes-Hall at 415-554-3909 ([email protected]) for cases where the plaintiff's last name begins with A-L; or (b) Eric Lach at 415-554-3871 ([email protected]) for cases where the plaintiff's last name begins with M-Z. You may also contact the General Counsel assigned to your department.



CHECK LIST

For Handling Third-Party Subpoenas Check to see if the subpoena is for your Department. If not, refer to the correct Department. Getting started

o Log all subpoenas o Track due dates, and o Keep redacted and original copies of all documents

Make sure the subpoena does not concern a criminal or federal case, or involve peace

officer personnel records. If it does, contact the appropriate labor team paralegal. Check to make sure the subpoena does not require a personal appearance (deposition or trial). If it does, contact appropriate labor team paralegal, or the General Counsel assigned to your department. Make sure there is a $15 witness fee check (not applicable to Workers Compensation subpoenas) Review description of requested documents. If scope goes beyond employee or personnel records, contact the City Attorney's Office General Counsel assigned to your department. Collect documents Get signed declaration or Affidavit of Custodian of Records from a person who has knowledge of the location of each category of documents requested, e.g., payroll, personnel, Workers' Compensation, etc. Redact documents Produce redacted documents on disc. (May withhold until charges are paid.) Recover costs by presenting the subpoenaing party with an itemized statement of charges



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Document available in editable form upon request.

SUBP-010 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address): FOR COURT USE ONL Y

--.1ACK R. BLACK. SBN 156019 BLACK, PERRY & ROLNICK 1234 LAWRENCE LANE6 NEWCASTLE, CALIF. 90123

TELEPHONE NO.: ( 56 2) 43 -1298 FAX NO.:

E·MAILADDRESS: [email protected] ATTORNEY FOR (Name): John Smith

SUPERIOR COURT OF CALIFORNIA, COUNTY OF San Francisco STREET ADDRESS: 400 MCALLISTER ST. MAILING ADDRESS:

CITY AND ZIP CODE: SAN FRANCISCO, CA 94102 BRANCH NAME: SAN FRANCISCO SUPERIOR COURT

PLAINTIFF/PETITIONER: John Smith

DEFENDANT/RESPONDENT: Samuel Jones

DEPOSITION SUBPOENA CASE NUMBER:

FOR PRODUCTION OF BUSINESS RECORDS CGC-12-518513

THE PEOPLE OF THE STATE OF CALIFORNIA, TO (name, address, and telephone number of deponent, if known):

CITY & COUNTY OF SAN FRANCISCO, 30 VAN NESS AVE., SAN FRANCISCO, CA 94102 1. YOU ARE ORDERED TO PRODUCE THE BUSINESS RECORDS described in item 3, as follows:

To (name of deposition officer): COMPEX LEGAL SERVICES On (date) : 10/15/1962 At (time): 7:30 AM Location (address): 1824 TRIBUTE ROAD SACRAMENTO CA 95815

Do not release the requested records to the deposition officer prior to the date and time stated above.

a. D by delivering a true, legible, and durable copy of the business records described in item 3, enclosed in a sealed inner wrapper with the title and number of the action, name of witness, and date of subpoena clearly written on it. The inner wrapper shall then be enclosed in an outer envelope or wrapper, sealed, and mailed to the deposition officer at the address in item 1.

b. D by delivering a true, legible, and durable copy of the business records described in item 3 to the deposition officer at the witness's address, on receipt of payment in cash or by check of the reasonable costs of preparing the copy, as determined under Evidence Code section 1563(b).

c. [{] by making the original business records described in item 3 available for inspection at your business address by the attorney's representative and permitting copying at your business address under reasonable conditions during normal business hours.

2. The records are to be produced by the date and time shown in item 1 (but not sooner than 20 days after the issuance of the deposition subpoena, or 15 days after service, whichever date is later). Reasonable costs of locating records, making them available or copying them, and postage, if any, are recoverable as set forth in Evidence Code section 1563(b). The records shall be accompanied by an affidavit of the custodian or other qualified witness pursuant to Evidence Code section 1561.

3. The records to be produced are described as follows (if electronically stored information is demanded, the form or forms in which each type of information is to be produced may be specified):

PERSONNEL & PAYROLL RECORDS OF SAMUEL JONES, SSN 456-23-1345

[ZJ Continued on Attachment 3.

4.IF YOU HAVE BEEN SERVED WITH THIS SUBPOENA AS A CUSTODIAN OF CONSUMER OR EMPLOYEE RECORDS UNDER CODE OF CIVIL PROCEDURE SECTION 1985.3 OR 1985.6 AND A MOTION TO QUASH OR AN OBJECTION HAS BEEN SERVED ON YOU, A COURT ORDER OR AGREEMENT OF THE PARTIES, WITNESSES, AND CONSUMER OR EMPLOYEE AFFECTED MUST BE OBTAINED BEFORE YOU ARE REQUIRED TO PRODUCE CONSUMER OR EMPLOYEE RECORDS.

DISOBEDIENCE OF THIS SUBPOENA MAY BE PUNISHED AS CONTEMPT BY THIS COURT. YOU WILL ALSO BE LIABLE FOR THE SUM OF FIVE HUNDRED DOLLARS AND ALL DAMAGES RESULTING FRO

Date issued: AUGUST 15, 1962 JACK R. BLACK

(TYPE OR PRINT NAME)

(Proof of service on reverse)

Form Adopted for Mandatory Use Judicial Council of California

SUBP-010 [Rev. January 1, 2012]

DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS

(TITLE) Page 1 of 2

Code of Civil Procedure, §§ 2020.410-2020.440; Government Code, § 68097.1

www.courts.ca.gov

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Attachment H

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