Sent out repeatedly by all of the participants in the process, the subpoena for records is easily the most frequently used official document in workers’ compensation practice, yet it remains poorly understood and frequently misused. Understanding its essentials will prevent you from being a victim of modern-day highway robbery.

Who may issue a subpoena?
 

Kermit Sprang

To judge by the custom and practice in workers' compensation, the answer appears to be absolutely anyone who wants to. Not so. Code of Civil Procedure § 1985 states that a subpoena may be issued by “... an attorney at law who is the attorney of record in an action or proceeding, may sign and issue a subpoena.” Anyone else who wants to send out a subpoena must have it issued by the Clerk of the Superior Court.

The statutory language cited imposes a series of commonly ignored limitations:

The subpoena can only be issued by an “attorney at law.” Thus, claims adjusters and lien representatives, unless they are licensed to practice law in California, can never issue valid subpoenas. Claims adjusters who issue subpoenas in-house, rather than having counsel do so, risk having their subpoenas ignored or, even worse, being sanctioned for misuse of discovery.

The subpoena can only be issued by “... the attorney of record.” The attorney issuing the subpoena must have formally taken on the role of attorney for a party to a pending action. This means at least two things.

First, there must actually be a pending action. If no action has been commenced, i.e., if the subpoena’s case number is “unassigned,” it cannot be valid.

Second, the issuer of the subpoena must be a party to the action. For example, a lien claimant can only be deemed a “party” after the applicant’s claim has been resolved or the applicant has elected not to pursue a claim. A lien claimant may not validly issue a subpoena while the applicant’s claim is pending, and a claimant who has not filed a notice of lien may not issue a valid subpoena under any circumstances.

The issuing attorney must “... sign and issue” the subpoena. This means that the attorney must actually sign the subpoena for it to be valid. Thus, subpoenas issued by subpoena service companies that only have the name of the issuing attorney typed in, or omit it entirely, are not valid.

The affidavit

The next potential hurdle to issuing a valid subpoena concerns the affidavit, which must be included. This is the document setting forth the documents to be produced. Code of Civil Procedure § 1987.5 states “...the service of a subpoena duces tecum is invalid unless at the time of such service a copy of the affidavit upon which the subpoena is based is served on the person served with the subpoena.”

What constitutes an “affidavit” is set forth in Code of Civil Procedure § 2003: “An affidavit is a written declaration under oath ...” The effect of this statutory language is that for a subpoena to be valid the affidavit that accompanies it must include substantially the following language: “Signed under the penalty of perjury under the laws of the State of California,” and the affidavit must bear the actual signature of the issuing attorney.

The contents of the affidavit are also the subject of statute. Code of Civil Procedure § 1985(b) states that the affidavit must “specify the exact matters or things desired to be produced, setting forth in full detail the materiality thereof to the issues involved in the case.” Thus, omnibus, boilerplate demands for “all documents in your possession” are presumptively invalid.

A possible caveat is in order regarding the requirement for the use of the affidavit. Code of Civil Procedure § 2020.410 states that no affidavit is required if a subpoena demands only “business records.” Business records are not defined in this section. Code of Civil Procedure §§ 1985.3 and 1985.5 define “consumer records” and “employment records,” respectively. Arguably, by specially defining these categories of records, the Legislature’s intent was to distinguish both categories of records from “business records.” If so, this would mean that virtually all of the records customarily subpoenaed in workers' compensation cases are excluded from the reach of § 2020.410, and a subpoena for such records would require the use of an affidavit.

Notice to applicant?

There is one requirement for the issuance of subpoenas, generally which clearly does not apply to subpoenas in workers compensation practice: the “notice to consumer.” Code of Civil Procedure §§ 1985.3 and 1985.5 require that where “consumer records” or “employment records” are being subpoenaed, a “notice to consumer” be sent to the subject of the records in order to allow that person to object to the subpoena. However, both sections specifically exclude workers’ compensation litigation from this requirement.

Although the “notice to consumer” requirement does not apply in workers' compensation, I believe that there remains a privacy issue, derived from the California Constitution, which requires that at least some notice be given to the subject of a subpoena where medical or employment records are being subpoenaed. Thus, if an applicant has already settled his or her claim and is therefore no longer a party to the action, and the applicant’s records are subpoenaed by a lien claimant, I believe that some form of notice of that subpoena must be given to the applicant.

Limitations on documents to be produced

There are several categories of records that, for one reason or another, cannot be reached by subpoena, either by certain issuers or at all.

The ability of lien claimants to obtain medical records is specifically limited by Labor Code § 4903.6(d). Claimants other than physicians may not obtain medical records without a prior order from a judge. That order must specify the records to be produced and include a finding that the information to be produced is relevant to the proof of the matter for which the information is sought. This requirement appears to necessarily imply that the lien claimant’s petition seeking the order must include facts specific to the action sufficient to establish these matters, and that a “boilerplate” declaration not specifically directed to the claim at issue is not adequate.

More generally, the attorney-client and attorney work-product privileges limit access to certain categories of information, regardless of whom issues the subpoena. The most important protected categories are:

Correspondence or communications between an attorney and client. This would include letters, emails and summaries of conversations or telephone calls. However, in order to preserve this privilege, the communications cannot be shared or divulged to third parties. Before you send your email to “reply all,” consider who will be getting it.

Witness statements or reports prepared for transmission to the attorney may be privileged. Investigation and sub rosa reports are privileged so long as no further use is to be made of them. However, if the intention is to later use them in the litigation, i.e, sub rosa videos, care should be taken that a claim of privilege today doesn’t bar their use tomorrow.

There are important limitations on the reach of these privileges. The attorney-client privilege only applies between the attorney and client; communications with the employer are probably not covered. Nor are the client’s internal communications, so internal emails or notes placed in the claims file by the adjuster are generally not going to be covered.

There is an additional privilege that may offer the client protection when the traditional privileges do not. Civil Code § 3426 et. seq., is the “Uniform Trade Secrets Act.” Civil Code § 3426(d) defines a trade secret as information that has independent economic value from not being generally known to persons who could obtain economic value from its disclosure or use, and is the subject of reasonable efforts to maintain its secrecy. Arguably, this would include an insurance company’s internal evaluations of an applicant’s claim and setting of reserves. The act specifically authorizes the holder of a trade secret to obtain an injunction to prevent the disclosure of the information. Presumably, it could object to disclosure through discovery as well.

Time deadlines for pesponse

The time limitations for response to a subpoena are quite short, but rarely enforced. A subpoena for records only must grant the respondent a minimum of 15 days after the service of the subpoena. However, in practice this time deadline is universally ignored. So long as the subpoena service is advised that production will be made, it will usually take no further action, and motions to compel response are extremely rare.

How to respond to a subpoena

All of the above procedures and limitations are of no value if the recipient of the subpoena is unaware of them. Thus, it is critical that the client and employer understand what to do when a subpoena arrives. Whenever possible, the client and employer should be told how to respond to a subpoena before it arrives.

The directions to be given to the client or employer are entirely straightforward and should be included in the initial letters to both. When a subpoena is received, the recipient should immediately notify counsel and should forward all documents responsive to the subpoena to counsel for review as quickly as possible. Under no circumstances should the recipient send documents in response to the subpoena directly to, or communicate directly with, the issuer or its subpoena service company.

On receiving notification of the subpoena, counsel should immediately send letters to the subpoena service company and to the issuing attorney advising them that counsel will be responding to the subpoena, and that all further communications regarding the subpoena should be directed to counsel rather than to the client or employer. When the documents are received from the recipient of the subpoena, and the review of them is completed, the appropriate documents can then be sent out in response.

Reimbursement for subpoenas

The first thing an applicant’s attorney customarily does when opening a new claim is to send subpoenas to the employer and insurer. If he does so, however, he is doing it on his own dime. Labor Code § 5307.9 states that the applicant’s attorney will not be reimbursed for a subpoena sent to the employer or carrier if an informal request for the records has not been sent out a minimum of 30 days prior to the issuance of the subpoena.

It should be noted, however, that this statute does not render the subpoena invalid; it declares only that the cost of the subpoena does not have to be paid by the carrier. Response to the subpoena is still required.

Responding to duplicative subpoenas

It is not unusual for a carrier or employer to receive multiple subpoenas for the same records, or to receive a subpoena after it has already voluntarily sent the subpoenaed records to applicant’s counsel. This commonly occurs, for example, when the applicant changes attorneys and the new attorney, rather than obtaining the records from the former attorney, simply sends out all new subpoenas.

In such a case there is no obligation for the employer or carrier to re-send all of the records previously sent. Instead, counsel should prepare a declaration for execution by the recipient of the subpoena declaring that all records have previously been submitted. Service of a signed copy of the declaration on the issuer should suffice as a response.

Duplicative subpoenas are also customarily served on other sources; i.e, the applicant’s medical providers. The only way to prevent the entities receiving these subpoenas from responding to them is to file a petition to quash. As a practical matter, however, the carrier should not care whether the duplicative subpoena is issued, only whether it will be required to pay for it. In such cases letters sent to the issuer and to the subpoena service company pointing out that the subpoena is duplicative, and objecting to any claim for reimbursement, should be sufficient to establish the carrier’s position in the face of any subsequent demand for payment.

To whom should we send subpoenas?

Up to now my focus has primarily been on responding to subpoenas. However, defense counsel also send out subpoenas, and the question necessarily arises: To whom should subpoenas be issued? In general, I advocate sending out subpoenas to everyone who has any connection to the applicant: current and former medical providers, including any medical health plans; former employers; carriers on former claims involving the applicant, whether workers' compensation or civil; and the WCAB regarding any former actions.

It may seem that issuing subpoenas so broadly will result in substantial subpoena costs, but I believe that declining to issue subpoenas for this reason is “penny-wise, pound-foolish,” for two reasons.

First, in every workers' compensation case one of the central issues must be whether the injuries that the applicant is claiming were the result of factors other than the applicant’s employment with the insured employer. Finding such information can mean the difference between paying for the entirety of an applicant’s claim and being able to take advantage of substantial apportionment. Indeed, in some cases it can result in the wholesale rejection of the claim.

The records obtained from subpoenas are almost always the only basis available to establish such a defense. The applicant can be counted on to deny, or minimize, any non-industrial factor. The independent medical evaluator will need the subpoenaed records on which to hang his hat in order to justify issuing a medical report finding apportionment.

The problem, of course, is that you can never know in advance where the smoking gun that will establish apportionment will be found. If just one of the sets of records subpoenaed produces that critical information, the entire effort will have been justified. Indeed, even if nothing is found, making the effort will go a long way toward persuading the employer that due diligence was performed regarding the claim.

Second, declining to issue the subpoenas in order to save money is necessarily based on the assumption that if we don’t issue the subpoena it will not be issued at all. In fact, however, applicant’s attorney’s subpoena services such as MedLegal can be relied upon to scour the records looking for sources to which subpoenas can be sent, and if the defense does not do so first, it certainly will. The carrier will have to pay for the first subpoena served on a source, so the real question is which subpoena it would prefer to pay for — the subpoena issued by a service which it has under contract, or MedLegal.

Conclusion

Used properly, the subpoena can be a powerful discovery weapon. Knowing the requirements for its issuance can mean the difference between mastering the technique, both in issuing the subpoena and in responding to it, and being the victim of a holdup by the other side.

Kermit N. Sprang is Partner in Bradford & Barthel’s Anaheim office. Mr. Sprang has practiced law in California for the past 40 years. He has worked with some of the largest workers’ compensation firms in California. His practice has included the defense of Workers’ Compensation, Serious & Willful and Labor Code §132a actions, workers’ compensation and property/casualty subrogation, as well as the defense of civil liability claims.