One of the most powerful tools in a defense attorney or claims examiner’s arsenal is the subpoena for production of records.

Michael P. Burns

This tool allows defendants to obtain medical records, employment records and documentary evidence that allows critical issues, such as apportionment and causation, to be fully and accurately addressed during litigation. However, though subpoenas served within California rarely present problems, the enforcement of subpoenas outside of the state can.

In 2024, 18% of Californians were born outside of the state, and 27% percent of its residents — the highest percentage in the country — were born outside of the United States. This presents unique problems to the California claims examiner when attempting to obtain records from locations outside of the state or country.

Understanding the limits of the subpoena power, as well as understanding alternatives to subpoenas, allows defendants to navigate this process and obtain records from facilities outside of California.

As a general rule, subpoenas requesting records, also called subpoena duces tecum, ask the responding party to produce documents sought in the subpoena, such as medical or employment records. Once produced, the custodian of records affirms under oath that the records have been produced.

In most cases, medical records requested from in-state medical providers are often produced without difficulty. Professional copy services handle service of subpoenas, collection and retention of records, and by and large, operate independent of the claims examiner or attorney. In the event that there is a dispute concerning enforcement of a subpoena, the Workers' Compensation Appeals Board has jurisdiction to enforce and compel the production of records. The WCAB has the power to sanction and hold in contempt nonresponsive entities.

Subpoenas are limited, however, to witnesses and facilities that are domiciled in the state of California. Code of Civil Procedure section 1989 expressly states that a witness is not obliged to attend to a subpoena unless he is a resident within the state of California at the time of service. In other words, a subpoena compelling a witness to appear must be a resident of California at the time of service, or else it cannot be enforced.

The process for enforcing a California subpoena outside of the state is complex and expensive. The process, called domesticating, is governed by the Uniform Interstate Depositions and Discovery Act, in which California is a participant. This provides a process for converting out-of-state subpoenas into an enforceable local subpoena. Under this process, a California subpoena can be converted into a subpoena in a participating state. It typically involves obtaining counsel to file a petition at the trial court in the participating state. This process is rarely, if ever, used in the California workers’ compensation system due to its complexity, time-consuming nature and likelihood of failure.

Similarly, subpoenas issued in California can be converted to enforceable subpoenas outside of the United States under the Uniform Foreign Depositions Act, though this process is similarly rarely used.

However, a claims examiner can request that the applicant voluntarily provide a release for authorization of records. Evidence Code Section 1158 requires a medical provider to release records upon request by a patient.

The WCAB may also compel an applicant to provide a release to defendant. Accordingly, if an out-of-state medical provider refuses to honor a California subpoena, a defendant may file a petition to compel applicant to provide a release for the records that are sought. This petition should identify with specificity the location to be subpoenaed, the records that are needed and a compelling argument as to why they are relevant to the case. Typically, issues such as causation and apportionment are in dispute, and medical records are almost always relevant to the complete determination of these issues.

If the applicant refuses to provide a release for out-of-state records, and the WCAB refuses to compel a release, a defendant can also request that an adverse inference be drawn from the refusal to comply with a reasonable discovery request. Defendant should request that the trier of fact determine an issue against the applicant in light of the failure to cooperate in discovery. For example, if the applicant refuses to allow medical records to be produced, the WCAB can be asked to draw an adverse inference on issues such as causation and apportionment. Although the WCAB may be reluctant to do so, the possibility of such action being taken at trial may persuade a reluctant applicant to cooperate with a discovery request.

The subpoena is a powerful tool and should be used aggressively by defendants to obtain relevant records and conduct meaningful discovery. Although a subpoena is not without its limitations, it can be used effectively in nearly all litigated cases.

Michael P. Burns is a partner at Bradford & Barthel’s San Jose location. This entry from Bradford & Barthel's blog appears with permission.