responding to third-party and workers' compensation civil subpoenas for personnel...

A Step-By-Step Guide for Department Personnel Officers

Responding to Third-Party and Workers' Compensation

Civil Subpoenas for Personnel/Employment Records in

California Courts

CONFIDENTIAL - Attorney/Client Communication1

A third party subpoena is a subpoena that requests documents (and sometimes testimony) in a case where the City is not a party to the lawsuit.


Is it your Subpoena?

� Check PeopleSoft to verify that the employee works in your department.

� If the employee does not work in your department, but does work elsewhere in the City, please contact the DHR Subpoena Coordinator immediately.

� If the person is not found in PeopleSoft at all, meaning they were never a City employee, return a signed Custodian’s Declaration of No Records to the subpoena service.


Was the Subpoena Properly Served?

Was the person who accepted service empowered to do so?•The Mayor’s Office is the default agent for service of process in the City.

How was the subpoena served? •Service by email or fax is only acceptable by prior agreement with subpoena services.


Keep a Detailed Log� Create an online folder with the matter name with the case

name and place a PDF of the subpoena and related documents into the folder. This way it may be accessed for future use.

� You should also keep pristine and redacted copies of all documents produced in response to subpoenas for six months after the subpoena has been issued.


Civil or Criminal Case? � Criminal subpoenas will continue to be processed and

responded to by the City Attorney's Office.

� How can you tell if it is a criminal subpoena? Look for this title format: People v. [Name]

� With criminal subpoenas, DO NOT RELEASE ANY WITNESS CONTACT INFORMATION


Does the Subpoena Involve Peace Officers?Does the Subpoena Involve Peace Officers?Does the Subpoena Involve Peace Officers?Does the Subpoena Involve Peace Officers?

� Notify the your General Counsel if you receive a subpoena for Peace Officer records.

� The definition of "peace officer" not only includes officers in the San Francisco Police Department, but also officers in the Sheriff, Animal Control, District Attorney, and Adult and Juvenile Probation Departments.



Federal Subpoenas

� Federal Subpoenas will continue to be handled by the City Attorney’s Office.

� The subpoena will indicate that the case is pending in United States District Court (“USDC”). Federal subpoenas served on the City are rare and require Deputy City Attorney review.

� If a subpoena is from the USDC, email a copy of the subpoena to the City Attorney's Office Labor Team paralegals as soon as possible .

Notices of Appearance � A Notice for Appearance, which may be included in a

subpoena, is an order to a non-party in a case to appear for deposition or appearance at trial.

� Notices to Appear must be processed and responded to by the City Attorney's Office before the hearing date listed on the subpoena.

� DO NOT RELEASE ANY WITNESS CONTACT INFORMATION

� Contact your General Counsel.


Workers’ Compensation Subpoenas

� A subpoena for Workers’ Compensation records 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 telling you that not having a case number is "the way Workers’ Compensation cases are done."


Notice to Consumer and Proof of ServiceNotice to Consumer and Proof of ServiceNotice to Consumer and Proof of ServiceNotice to Consumer and Proof of Service

� A consumer notice and proof of service must accompany all California civil subpoenas that seek personal records, such as employment records.

� Check the proof of service to ensure that the appropriate attorney and/or party has received the Notice to Consumer.

� If you are concerned that the consumer may not have received a consumer notice, you can call the attorney listed on the proof of service to make sure they received a copy of the subpoena.


Statutory Deadlines

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


Statutory Deadlines (continued)

� A custodian may not comply with a 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))


Statutory Deadlines (continued)

� The subpoena must be served with “sufficient time in advance” to give the custodian “a reasonable opportunity” to locate and produce documents. (CCP § 2020.220)

� Ask the subpoena service for more time if needed, and it will very often be granted with good cause.


Count the DaysSunday Monday Tuesday Wednesday Thursday Friday Saturday

1 2 3 4

Notice to

Consumer

MAILED

5 6 7

8 9 10

Extra 5 Days

for mailing

11 12 13 14

15

Custodian

served

Subpoena

16 17 18 19 20 21

22 23 24 25 26 27 28

29 30 31

EARLIEST DAY

TO ANSWER

SUBPOENA


Witness Fee Check� Make sure the party issuing the subpoena provides a check

for the $15 witness fee, plus costs such as the cost of paying non-City personnel to retrieve documents kept off-site.

� You are entitled to fee even if you never produce records. The fee is for searching.

� Make sure check is made payable to your department, or to the "City and County of San Francisco."

� Release no records without proper payment!


Determining Scope of Subpoena� Review the scope of the documents requested.

� Most ask for payroll and personnel records.

� SometimesWorkers’ Compensation files and other personnel records are requested.

� Occasionally non-personnel documents are requested in the subpoena such as videos, radio logs, claims against CCSF, and contract documents. Contact your General Counsel for these documents.

� Notify your General Counsel if you receive subpoenas requesting Peace Officer records.


Collecting the Documents

� Carefully gather all the responsive documents from inside and outside your department.


Custodian’s Affidavit

� A Custodian’s Affidavit is required for each category of documents provided, e.g., payroll, personnel, Workers’ Compensation.

� An affidavit is a formal sworn statement signed by the Custodian of Records verifying the authenticity of the documents, and the thoroughness of the document search.

� If there are no records responsive to the subpoena, then a Declaration of No Records (DNR), also called a Certificate of No Records (CNR), is issued.


Redacting Documents

� Redaction is the “careful editing of a document, especially to remove confidential references,” according to Black’s Law Dictionary, 7th Edition (1999).


Redacting Documents (continued)

� Document redactions can be accomplished electronically using Adobe Acrobat Professional.

� Our office strongly 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.

� See Pages 7-8 (Step 11), Third Party Subpoena Response Guide.


What Do You Redact?� Social Security numbers (Be sure to check your

department or agency's internal Employee ID numbers because they are often based on SSNs.)

� Financial information (bank routing numbers, credit card accounts, etc.)

� Drug and alcohol records (such as DUIs)


What Do You Redact? (continued)

� Mental health and substance abuse records

� Third-party medical information

� City Attorney-client and City Attorney-work product privileged information


WITHHOLDING RECORDS

� First Reports of Injury (Form 5020)

� Identify withheld documents in a cover letter.

� Contact General Counsel for guidance.


Producing Redacted Documents� Unless the party issuing the subpoena has asked for delivery

in a specific format, we recommend that you produce the documents on disc to save paper.

� Keep a copy of what is produced, disc or hard copy paper, for your files. (Burn 2 discs!)

� To save money on postage, we also recommend that when the documents are ready to go, you call the requesting party, or their subpoena service, and tell them to come and pick them up.


In Review� Check if the subpoena goes to your Department

� From the beginning:

� Log all subpoenas

� Track due dates, and

� Keep pristine and redacted copies of all documents

� Make sure the subpoena does not concern a criminal or federal matter. If so, contact the appropriate CAO Labor Team paralegal.


In Review (continued)

� Check to make sure the subpoena is not for a Notice to Appear

� Make sure there is a $15 witness fee check plus costs such as payment for off-site retrievals

� Review scope of requested documents


In Review (continued)In Review (continued)In Review (continued)In Review (continued)

� Collect documents

� Get signed Declaration or Affidavit of Custodian of Records covering each category of documents requested

� Redact documents

� Produce documents electronically on disc


Who Do You Call for Help?� If you have any questions about the legality of a subpoena or

what is requested, please contact:

� Jane Montes-Hall at 415-554-3909 ([email protected]) for cases where the plaintiff's last name begins with A-L; or

� Eric Lach at 415-554-3871 ([email protected]) for cases where the plaintiff's last name begins with M-Z.

� We are here to support you.
