BILL NUMBER: AB 1143 AMENDED
BILL TEXT
AMENDED IN SENATE JULY 2, 2003
AMENDED IN ASSEMBLY MAY 20, 2003
AMENDED IN ASSEMBLY MAY 13, 2003
AMENDED IN ASSEMBLY APRIL 30, 2003
AMENDED IN ASSEMBLY APRIL 10, 2003
INTRODUCED BY Assembly Member Simitian
FEBRUARY 21, 2003
An act to amend Section 1985.3 of the Code of Civil Procedure,
relating to Internet communications.
LEGISLATIVE COUNSEL'S DIGEST
AB 1143, as amended, Simitian. Civil procedure: Internet
communications.
Existing law establishes the procedures by which a party may seek
to produce personal records maintained by certain professionals and
business entities in a civil action, as specified.
This bill would establish new procedures for the production by an
Internet interactive computer service
provider or of online
community host of identifying consumer
information regarding a consumer , as specified.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1985.3 of the Code of Civil Procedure is
amended to read:
1985.3. (a) For purposes of this section, the following
definitions apply:
(1) "Personal records" means the original, any copy of books,
documents, other writings, or electronic data pertaining to a
consumer or, in the case of an online subpoena, identifying
online consumer information, and which are
maintained by any "witness" who is a physician, dentist,
ophthalmologist, optometrist, chiropractor, physical therapist,
acupuncturist, podiatrist, veterinarian, veterinary hospital,
veterinary clinic, pharmacist, pharmacy, hospital, medical center,
clinic, radiology or MRI center, clinical or diagnostic laboratory,
state or national bank, state or federal association (as defined in
Section 5102 of the Financial Code), state or federal credit union,
trust company, anyone authorized by this state to make or arrange
loans that are secured by real property, security brokerage firm,
insurance company, title insurance company, underwritten title
company, escrow agent licensed pursuant to Division 6 (commencing
with Section 17000) of the Financial Code or exempt from licensure
pursuant to Section 17006 of the Financial Code, attorney,
accountant, institution of the Farm Credit System, as specified in
Section 2002 of Title 12 of the United States Code, telephone
corporation which is a public utility, as defined in Section 216 of
the Public Utilities Code, psychotherapist, as defined in Section
1010 of the Evidence Code, a private or public preschool, elementary
school, secondary school, or postsecondary school as described in
Section 76244 of the Education Code, or an Internet service
provider or online community host. interactive
computer service.
(2) "Consumer" means any individual, partnership of five or fewer
persons, association, or trust which has transacted business with, or
has used the services of, the witness or for whom the witness has
acted as agent or fiduciary.
(3) "Subpoenaing party" means the person or persons causing a
subpoena duces tecum to be issued or served in connection with any
civil action or proceeding pursuant to this code, but shall not
include the state or local agencies described in Section 7465 of the
Government Code, or any entity provided for under Article VI of the
California Constitution in any proceeding maintained before an
adjudicative body of that entity pursuant to Chapter 4 (commencing
with Section 6000) of Division 3 of the Business and Professions
Code.
(4) "Deposition officer" means a person who meets the
qualifications specified in paragraph (3) of subdivision (d) of
Section 2020.
(5) "Online subpoena" means a subpoena issued by the
subpoenaing party to compel an Internet service provider or online
community host to release identifying information of the consumer.
(6) "Identifying information" includes the following information
regarding a consumer:
(A) A first or last name.
(B) A pseudonym.
(C) A home or other physical address, including street name or
name of a city or town.
(D) An e-mail address.
(E) A telephone number.
(F) A social security number.
(G) A birth date.
(H) An Internet protocol (IP) address.
(I) Any other identifier or combination of information that
permits the physical or online contacting of a specific individual.
(7) "Internet service provider" means an entity offering the
transmission, routing, or providing of connections for digital online
communications, including, but not limited to, providers of online
services and network access, or the operator of those facilities.
(8) "Online community host" means the owner, moderator, or
operator of an online discussion forum.
(9) subpoenaing party to compel an interactive
computer service to release online information of the consumer.
(6) "Online information of the consumer" includes any or all of
the following information regarding a consumer:
(A) A first and last name.
(B) A pseudonym.
(C) A home or other physical address, including street name or
name of a city or town.
(D) An e-mail address.
(E) A telephone number.
(F) A social security number.
(G) An Internet protocol (IP) address.
(H) Any other identifier or combination of information that allows
for the identification of a consumer.
(7) The term "interactive computer service" means any information
service, system, or access software provider that provides or enables
computer access by multiple users to a computer service,
specifically including a service or system that provides access to
the Internet and similar systems operated or services offered by
libraries or educational institutions.
(8) "Online discussion forum" means an online bulletin
board, online newsgroup, chat room, Internet Relay Channel, message
board, listserv, discussion board, or other online discussion form.
(10)
(9) "Public posting" is a message or comment sent, posted,
or contributed to an online discussion forum and made available
through the online discussion forum to the general public or a
segment of the general public.
(b) Prior to the date called for in the subpoena duces tecum for
the production of personal records, the subpoenaing party shall serve
or cause to be served on the consumer whose records are being sought
a copy of the subpoena duces tecum, of the affidavit supporting the
issuance of the subpoena, if any, and of the notice described in
subdivision (e), or in the case of an online subpoena, served as
provided in paragraphs subdivisions (c)
and (d), and proof of service as indicated in paragraph (1) of
subdivision (c). This service shall be made as follows:
(1) To the consumer personally, or at his or her last known
address, or in accordance with Chapter 5 (commencing with Section
1010) of Title 14 of Part 3, or, if he or she is a party, to his or
her attorney of record. If the consumer is a minor, service shall be
made on the minor's parent, guardian, conservator, or similar
fiduciary, or if one of them cannot be located with reasonable
diligence, then service shall be made on any person having the care
or control of the minor or with whom the minor resides or by whom the
minor is employed, and on the minor if the minor is at least 12
years of age.
(2) Not less than 10 days prior to the date for production
specified in the subpoena duces tecum, plus the additional time
provided by Section 1013 if service is by mail.
(3) At least five days prior to service upon the custodian of the
records, plus the additional time provided by Section 1013 if service
is by mail.
(c) In the case of an online subpoena, service shall be made as
follows:
(1) Upon the Internet service provider or online community host
from whom identifying information is sought.
(2) At least 44 days prior to the date for production.
(3) With payment sufficient to cover postage for the Internet
service provider or online community host to mail one copy of the
served materials to the consumer, via first-class mail, return
receipt requested.
(4) In electronic and paper form.
(5) One electronic declaration and two paper copies of the
declaration containing the following information, of which the
Internet service provider or online community host has no duty to
review the sufficiency thereof:
(A) The communications that are the subject of the action, the
subpoena, or both.
(B) A statement of the cause of action.
(C) How or in what manner the identity of the consumer is
directly relevant to a core claim or defense.
(D) A statement that other reasonable efforts to identify the
anonymous communicator have proven fruitless, that the subpoena is
issued in good faith and not for an improper purpose, and that the
Internet service provider or online community host to whom the
subpoena is addressed is likely to have responsive information.
(E) The name of all courts in which complaints or motions relating
to this subpoena have been filed and all corresponding case numbers.
(F) The following notices:
NOTICE TO INTERNET SERVICE PROVIDER OR ONLINE COMMUNITY HOST
WITHIN 14 DAYS AFTER RECEIPT OF THIS SUBPOENA CALLING FOR
IDENTIFYING INFORMATION OF A CONSUMER, YOU ARE REQUIRED BY SECTION
1985.3 OF THE CODE OF CIVIL PROCEDURE TO MAIL ONE COPY OF THE
SUBPOENA AND ATTACHED SUPPLEMENTAL MATERIALS, BY, REGISTERED MAIL,
RETURN RECEIPT REQUESTED, TO THE CONSUMER WHOSE IDENTIFYING
INFORMATION IS THE SUBJECT OF THE SUBPOENA, IF YOU HAVE THE CONSUMER'
S MAILING ADDRESS ON FILE. A COPY OF THE SUBPOENA AND SUPPLEMENTAL
MATERIALS IS PROVIDED, ALONG WITH PAYMENT FOR POSTAGE. YOU MUST ALSO
NOTIFY THE CONSUMER VIA E-MAIL, IF YOU HAVE THE CONSUMER'S E-MAIL
ADDRESS ON FILE. IF NEITHER MAILING NOR E-MAIL ADDRESS IS ON FILE
FOR THE CONSUMER, YOU OR THE SUBPOENAING PARTY MAY, AT YOUR
DISCRETION, POST A NOTICE ON THE ONLINE BULLETIN BOARD WHERE THE
PUBLIC POSTING OCCURRED. AT ANY TIME PRIOR TO THE DATE ON WHICH
DISCLOSURE IS SOUGHT YOU MAY, BUT ARE NOT REQUIRED TO, FILE A WRITTEN
OBJECTION, MOTION TO QUASH, OR MOTION FOR A PROTECTIVE ORDER TO
PREVENT OR REGULATE THE DISCLOSURE. COPIES OF ANY OBJECTION OR
MOTION SHALL BE SERVED UPON THE PARTY INITIATING THE SUBPOENA, IF YOU
HAVE THE ADDRESS, AND UPON THE CONSUMER WHOSE IDENTIFYING
INFORMATION IS SOUGHT. IF YOU CHOOSE NOT TO OBJECT TO THE SUBPOENA,
YOU MUST ALLOW TIME FOR THE CONSUMER TO FILE HIS OR HER OWN
OBJECTION. THEREFORE, YOU MUST NOT RESPOND TO THE SUBPOENA ANY
EARLIER THAN THE DATE ON WHICH DISCLOSURE IS DUE, AND IN NO EVENT
SOONER THAN 40 DAYS AFTER THE SUBPOENA WAS PROPERLY SERVED UPON YOU
ABSENT A COURT ORDER DIRECTING YOU OTHERWISE. IF YOU RECEIVE NOTICE
THAT THE CONSUMER OR ANOTHER AFFECTED PARTY HAS FILED A WRITTEN
OBJECTION, MOTION TO QUASH, OR MOTION FOR A PROTECTIVE ORDER
REGARDING THE SUBPOENA, OR IF YOU FILE A WRITTEN OBJECTION, MOTION TO
QUASH, OR MOTION FOR A PROTECTIVE ORDER, DISCLOSURE PURSUANT TO THE
SUBPOENA MAY NOT BE MADE EXCEPT PURSUANT TO AN ORDER OF THE COURT.
NOTICE TO CONSUMER
THE ATTACHED PAPERS MEAN THAT (INSERT NAME OF SUBPOENAING PARTY)
HAS ISSUED A SUBPOENA ON (INSERT NAME OF INTERNET SERVICE PROVIDER OR
ONLINE COMMUNITY HOST) REQUIRING PRODUCTION OF INFORMATION REGARDING
YOUR IDENTITY. YOU HAVE THE RIGHT TO FILE A DETAILED WRITTEN
OBJECTION, MOTION TO QUASH THE SUBPOENA, OR MOTION FOR A PROTECTIVE
ORDER. YOU MAY ELECT TO CONTACT AN ATTORNEY TO REPRESENT YOUR
INTERESTS. UNLESS A WRITTEN OBJECTION, MOTION TO QUASH, OR MOTION FOR
A PROTECTIVE ORDER IS FILED IN ACCORDANCE WITH SECTION 1987.1 OF THE
CODE OF CIVIL PROCEDURE, THE INTERNET SERVICE PROVIDER OR ONLINE
COMMUNITY HOST WILL BE REQUIRED BY LAW TO RESPOND BY PROVIDING THE
REQUIRED INFORMATION. IF YOU CHOOSE TO FILE A MOTION UNDER SECTION
1987.1, YOU SHOULD FILE IT AT LEAST FIVE BUSINESS DAYS BEFORE THE
DATE ON WHICH DISCLOSURE IS DUE (LISTED IN THE SUBPOENA) AND AT THE
SAME TIME SERVE A COPY OF THAT OBJECTION OR MOTION UPON BOTH YOUR
INTERNET SERVICE PROVIDER OR ONLINE COMMUNITY HOST AND SUBPOENAING
PARTY. IF YOU WISH TO OPPOSE THE ATTACHED SUBPOENA, IN WHOLE OR IN
PART, YOU OR YOUR ATTORNEY MAY FILE A WRITTEN OBJECTION, MOTION TO
QUASH, OR MOTION FOR A PROTECTIVE ORDER. YOU MAY USE THE FORM BELOW:
(Name of Court Listed on Subpoena)
(Name of Party Seeking Information)
(Case No. ____)
SAMPLE OBJECTION TO SUBPOENA DUCES TECUM
I object to the Subpoena Duces Tecum addressed to ____ for the
following reasons:
(Set forth, in detail, all reasons why the subpoena should not be
complied with, including, but not limited to, the following: (1)
Whether the subpoena fails to allow a reasonable time for compliance,
and (2) whether the subpoena fails to comply with the requirements
of subdivision (c) or (d) of SECTION 1985.3.).
(Name and address of Internet service provider or online community
host).
(Enter e-mail nickname, pseudonym, or other alias used to whom the
subpoena is addressed).
(d) In the case of an online subpoena, within 14 days after
receipt of the subpoena and materials required in subdivision (c),
the Internet service provider or online community host shall provide
notice to the consumer as follows:
(1) If an e-mail address is on file with the Internet service
provider or online community host, an e-mail shall be dispatched to
the consumer stating that the subpoena has been received and
enclosing or attaching the subpoena and materials required in
subdivision (c).
(2) If the e-mail address bounces and a mailing address is on file
with the Internet service provider and that provider bills the
consumer for services, one copy of the subpoena and materials
required by subdivision (c) shall be dispatched by certified or
registered mail or commercial delivery service, return receipt
requested, to the consumer.
(3) If the basis for seeking the identifying information relates
to a public posting on an online discussion forum identified by the
subpoenaing party under paragraph (5) of subdivision (c), and if
neither the e-mail address nor mailing address is on file , the
Internet service provider described in paragraph (2) receives notice
that both the onfile e-mail and onfile mailing address are incorrect
or out-of-date, such as via a returned mailing or bounced e-mail, or
the Internet service provider or online community host described in
paragraph (1) receives notice that the onfile e-mail address is
incorrect or out-of-date, such as via a bounced e-mail, then the
Internet service provider or online community host shall do either of
the following:
(A) Post on the online bulletin board where the posting was made
the subpoena and materials in subdivision (c).
(B) Notify the subpoenaing party that the conditions contained in
paragraph (3) have been met and that the subpoenaing party must now
post the subpoena and materials in subdivision (c) on the online
bulletin board where the posting was made. If the Internet service
provider or online community host chooses to use this provision, it
shall provide the subpoenaing party with access to make the posting,
as needed, which shall be at the same cost governing others seeking
to post.
(e) In the case of an online subpoena, the Internet service
provider or online community host from whom information has been
subpoenaed shall bill the subpoenaing party for the reasonably
necessary and directly incurred costs associated with searching for,
assembling, reproducing, or otherwise providing the records or notice
required under this section. These reimbursable costs shall include
any costs incurred due to the necessary disruption of normal
operations while complying with the subpoena. The subpoenaing party
shall pay the bill in full within 30 days of receipt. The
subpoenaing party may make a motion to the court to reduce these
fees.
(1) If the subpoenaing party has an e-mail address but no postal
address for the consumer, the subpoenaing party shall e-mail a copy
of the subpoena duces tecum and the declaration required under
paragraph (3) to the consumer not less than 30 days prior to the date
of production. If the subpoenaing party has a postal address for
the consumer, the subpoenaing party shall mail a copy of the subpoena
duces tecum and the declaration required under paragraph (3), to the
consumer personally, or at his or her last known address, or serve
them in accordance with Chapter 5 (commencing with Section 1010) of
Title 14 of Part 2, not less than 10 days prior to the date for
production specified in the subpoena duces tecum, plus the additional
time provided by Section 1013 if service is by mail, and at least
five days prior to service upon the interactive computer service of
the online consumer information. If the subpoenaing party receives
notice of a delivery failure, such as via a returned mailing or
bounced e-mail after attempting service under paragraph (2), the
subpoenaing party shall issue an amended date for response to reflect
the requirement therein of 44 days notice.
(2) If the subpoenaing party has neither an e-mail nor postal
address for the consumer, or if the subpoenaing party receives notice
of a delivery failure, such as via a returned mailing or bounced
e-mail after attempting service as required under paragraph (1), the
subpoena and declaration required under paragraph (3) shall be served
upon the interactive computer service from whom online consumer
information is sought, along with a declaration, under oath, alleging
that service under paragraph (1) is not possible or has failed, the
interactive computer service shall execute service on the interactive
computer service, as follows:
(A) Not less than 44 days prior to the date for production.
(B) Two paper copies of the subpoena, two paper copies of the
declaration required under paragraph (3), and an electronic copy of
that declaration on a CD-ROM or in another electronic format as
directed by the interactive computer service.
(C) With payment sufficient to cover postage for the interactive
computer service to mail one copy of the subpoena and declaration to
the consumer, via first-class mail, return receipt requested.
(3) A declaration, without attachments or exhibits, shall be
served pursuant to paragraphs (1) and (2), containing all the
following information:
(A) The communications that are the subject of the action, the
subpoena, or both; and whether the communications are available as
public posting information together with directions reasonably
sufficient to locate them.
(B) A statement of the cause of action.
(C) How or in what manner the online consumer information is
directly relevant to a core claim or defense.
(D) A statement that other reasonable efforts to identify the
anonymous communicator have proven fruitless, that the subpoena is
issued in good faith and not for an improper purpose, and that the
interactive computer service to whom the subpoena is addressed is
likely to have responsive information.
(E) The name of all courts in which complaints or motions relating
to this subpoena have been filed and all corresponding case numbers.
(F) The date of production.
(G) The following notices:
If served on the consumer under paragraph (1), the "NOTICE TO
CONSUMER." If served on an interactive computer service under
paragraph (2), the "NOTICE TO THE INTERACTIVE COMPUTER SERVICE" and
the "NOTICE TO CONSUMER."
(i) "NOTICE TO CONSUMER:
"THE ENCLOSED OR ATTACHED DECLARATION MEANS THAT (insert name of
subpoenaing party) HAS ISSUED A SUBPOENA ON (insert name of
interactive computer service) REQUIRING PRODUCTION OF INFORMATION
REGARDING YOUR IDENTITY. YOU HAVE THE RIGHT TO FILE, WITH (insert
name of court), A WRITTEN OBJECTION, MOTION TO QUASH THE SUBPOENA,
MOTION FOR A PROTECTIVE ORDER, OR OTHER MOTION TO PREVENT, LIMIT, OR
STAY THIS DISCLOSURE. BY FILING WITH (insert name of court), YOU
SUBMIT YOURSELF TO THE COURT'S JURISDICTION. YOU MAY ELECT TO
CONTACT AN ATTORNEY TO REPRESENT YOUR INTERESTS. UNLESS A WRITTEN
OBJECTION, MOTION TO QUASH, MOTION FOR A PROTECTIVE ORDER, OR OTHER
MOTION TO PREVENT, LIMIT, OR STAY THIS DISCLOSURE IS FILED, THE
(insert name of interactive computer service) WILL BE REQUIRED BY LAW
TO DISCLOSE THE REQUIRED INFORMATION. IF YOU CHOOSE TO FILE SUCH A
MOTION, YOU SHOULD FILE IT AT LEAST FIVE BUSINESS DAYS BEFORE THE
DATE OF PRODUCTION (CONTAINED IN THE SUBPOENA AND DECLARATION) AND
SERVE A COPY OF IT UPON BOTH (insert name of interactive computer
service) AND (insert name of subpoenaing party)."
(ii) "NOTICE TO INTERACTIVE COMPUTER SERVICE:
WITHIN 14 DAYS AFTER RECEIPT OF THIS SUBPOENA CALLING FOR ONLINE
CONSUMER INFORMATION, YOU ARE REQUIRED BY SECTION 1985.3 OF THE CODE
OF CIVIL PROCEDURE TO SERVE ONE COPY OF THE DECLARATION, AND IN SOME
CASES THE SUBPOENA, ON THE CONSUMER WHOSE INFORMATION IS SOUGHT. A
COPY OF THE DECLARATION IS PROVIDED BOTH IN PAPER AND DIGITAL FORM,
ALONG WITH PAYMENT FOR POSTAGE. AT ANY TIME PRIOR TO THE DATE OF
PRODUCTION, YOU MAY, BUT ARE NOT REQUIRED TO, FILE A WRITTEN
OBJECTION, MOTION TO QUASH, OR MOTION FOR A PROTECTIVE ORDER TO
PREVENT OR REGULATE THE DISCLOSURE. THE CONSUMER HAS THE RIGHT TO
FILE HIS OR HER OWN OBJECTION. YOU MAY NOT DISCLOSE THE ONLINE
CONSUMER INFORMATION ANY EARLIER THAN THE DATE OF PRODUCTION, AND IN
NO EVENT SOONER THAN 44 DAYS AFTER THE SUBPOENA WAS PROPERLY SERVED
UPON YOU, ABSENT A COURT ORDER DIRECTING YOU OTHERWISE OR WRITTEN
NOTICE OF AN AGREEMENT BETWEEN THE SUBPOENAING PARTY AND THE
CONSUMER. IF YOU RECEIVE NOTICE THAT THE CONSUMER OR ANOTHER
AFFECTED PARTY HAS FILED A WRITTEN OBJECTION, MOTION TO QUASH, MOTION
FOR A PROTECTIVE ORDER, OR OTHER MOTION TO PREVENT, LIMIT, OR STAY
THIS DISCLOSURE, OR IF YOU FILE A MOTION TO QUASH, MOTION FOR A
PROTECTIVE ORDER, OR OTHER MOTION, PRODUCTION MAY NOT BE MADE EXCEPT
PURSUANT TO AN ORDER OF THE COURT."
(4) The interactive computer service has no duty to review the
sufficiency of the declaration or any information provided by, or
actions taken by, the subpoenaing party.
(5) If contacted by the consumer or his or attorney, the
subpoenaing party shall provide copies of the subpoena and
declaration within two calendar days.
(d) In the case of an online subpoena served upon an interactive
computer service under paragraph (2) of subdivision (c), the
interactive computer service shall provide the declaration to the
consumer no more than 14 days after receipt of the subpoena and
declaration required in paragraph (3) of subdivision (c), as follows:
(1) If the consumer is a paid subscriber and a mailing address is
on file with the interactive computer service, one copy of the
declaration and subpoena required under paragraph (3) of subdivision
(c) shall be dispatched by registered mail or commercial delivery
service, return receipt requested, to the consumer.
(2) If the consumer is not a paid subscriber, or is a paid
subscriber and no mailing address is on file, and an e-mail address
is on file with the interactive computer service, an e-mail shall be
dispatched to the consumer stating that the subpoena has been
received and enclosing or attaching the declaration required under
paragraph (3) of subdivision (c).
(3) If the basis for seeking online consumer information relates
to a public posting on an online discussion forum identified by the
subpoenaing party under subparagraph (A) of paragraph (3) of
subdivision (c), and if neither the e-mail address nor mailing
address of the consumer is on file, then the interactive computer
service shall do either of the following:
(A) Post on the online community host identified in paragraph (3)
of subdivision (c) the declaration provided by the subpoenaing party
under paragraph (3) of subdivision (c) and the Notice to Consumers
contained in paragraph (2) of subdivision (c).
(B) Notify the subpoenaing party that the conditions contained in
this paragraph have been met and that the subpoenaing party is now
required to post the declaration required under paragraph (3) of
subdivision (c) and the Notice to Consumers on the online bulletin
board where the posting was made. If the interactive computer
service chooses to use this provision, it shall provide the
subpoenaing party with access to make the posting, as needed, at the
same cost governing others seeking to post information.
(e) In the case of an online subpoena, the interactive computer
service from whom online consumer information is subpoenaed, shall
bill the
subpoenaing party for the reasonably necessary and directly incurred
costs associated with searching for, assembling, reproducing, or
otherwise providing the records or notice required under this
section. These reimbursable costs shall include any costs caused by
the unavoidable disruption of normal operations while complying with
the subpoena. The subpoenaing party shall pay the bill in full
within 30 days of receipt, or make a motion to the court to reduce
the costs payable based on the unreasonableness of the costs claimed.
The interactive computer service may make a motion to the court to
compel the payment of any costs provided for in this subdivision; and
shall be entitled to recover reasonable attorney's fees and costs
from the subpoenaing party if it prevails in that motion.
(f) Prior to the production of the records, the subpoenaing party
shall do either of the following, or in the case of an online
subpoena, follow the procedure under subdivisions (c) and (d):
(1) Serve or cause to be served upon the witness a proof of
personal service or of service by mail attesting to compliance with
subdivision (b).
(2) Furnish the witness a written authorization to release the
records signed by the consumer or by his or her attorney of record.
The witness may presume that any attorney purporting to sign the
authorization on behalf of the consumer acted with the consent of the
consumer, and that any objection to release of records is waived.
(g) A subpoena duces tecum for the production of personal records
shall be served in sufficient time to allow the witness a reasonable
time, as provided in paragraph (1) of subdivision (d) of Section
2020, to locate and produce the records or copies thereof.
(h) Every copy of the subpoena duces tecum and affidavit, if any,
served on a consumer or his or her attorney in accordance with
subdivision (b) shall be accompanied by a notice, in a typeface
designed to call attention to the notice, indicating that (1) records
about the consumer are being sought from the witness named on the
subpoena; (2) if the consumer objects to the witness furnishing the
records to the party seeking the records, the consumer must file
papers with the court or serve a written objection as provided in
subdivision (i) prior to the date specified for production on the
subpoena; and (3) if the party who is seeking the records will not
agree in writing to cancel or limit the subpoena, an attorney should
be consulted about the consumer's interest in protecting his or her
rights of privacy. If a notice of taking of deposition is also
served, that other notice may be set forth in a single document with
the notice required by this subdivision.
(i) A subpoena duces tecum for personal records maintained by a
telephone corporation which is a public utility, as defined in
Section 216 of the Public Utilities Code, shall not be valid or
effective unless it includes a consent to release, signed by the
consumer whose records are requested, as required by Section 2891 of
the Public Utilities Code.
(j) Any consumer whose personal records or identifying
online consumer information are sought by a
subpoena duces tecum and who is a party to the civil action in which
this subpoena duces tecum is served may, prior to the date for
production, bring a motion under Section 1987.1 to quash or modify
the subpoena duces tecum or other motion that stays discovery
. Notice of the bringing of that motion shall be given to the
witness and deposition officer or interactive computer service
at least five days prior to the date for production.
The failure to provide notice to the deposition officer
shall not invalidate the motion to quash or modify the subpoena duces
tecum but may be raised by the deposition officer as an affirmative
defense in any action for liability for improper release of records.
Any other consumer or nonparty whose personal records or
identifying information are sought by a subpoena duces tecum may,
prior to the date of production, serve on the subpoenaing party, the
witness, and the deposition officer, a written objection that cites
the specific grounds on which production of the personal records
should be prohibited.
No witness or deposition officer shall be required to produce
personal records or identifying information after receipt of notice
that the motion has been brought by consumer, or after receipt of a
written objection from a nonparty consumer, except upon order of the
court in which the action is pending or by agreement of the parties,
witnesses, and consumers affected.
The party requesting a consumer's personal records or identifying
information may bring a motion under Section 1987.1 to enforce the
subpoena within 20 days of service of the written objection. The
motion shall be accompanied by a declaration showing a reasonable and
good faith attempt at informal resolution of the dispute between the
party requesting the personal records and the consumer or the
consumer's attorney.
(k) When considering a written objection, motion to quash, or
motion for a protective order to prohibit the disclosure of
identifying information in the case of an online subpoena, the court
shall examine whether the subpoenaing party and the Internet service
provider or online community host have substantially complied with
the requirements set forth in this chapter and all of the following
factors as reflected in the pleadings as well as the evidence
submitted by any party to the proceeding:
(1) The First Amendment rights of the anonymous speaker.
(2) The probability that the plaintiff will prevail on the claim.
(3) The necessity for disclosure of the consumer's identity. If
the court determines that these elements weigh in favor of the
consumer, the court shall quash the subpoena. A prevailing Internet
user, Internet service provider, online community host, or other
affected party on a written objection, motion to quash, or motion for
a protective order pursuant to this chapter shall be entitled to
recover attorney's fees and costs from the subpoenaing party.
(l) Upon good cause shown and provided that the rights of
witnesses and consumers are preserved, a subpoenaing party shall be
entitled to obtain an order shortening the time for service of a
subpoena duces tecum or waiving the requirements of subdivision (b),
(c), or (d) where due diligence by the subpoenaing party has been
shown.
(m) Nothing contained in this section shall be construed to apply
to any subpoena duces tecum which does not request the records of any
particular consumer or consumers and which requires a custodian of
records to delete all information which would in any way identify any
consumer whose records are to be produced.
(n) This section shall not apply to proceedings conducted under
Division 1 (commencing with Section 50), Division 4 (commencing with
Section 3200), Division 4.5 (commencing with Section 6100), or
Division 4.7 (commencing with Section 6200) of the Labor Code, or to
a subpoena issued by or on behalf of a licensee or owner of
copyrighted work seeking the identity of an individual pursuant to
the Digital Millennium Copyright Act (P.L. 105-304).
(o) Failure to comply with this section shall be sufficient basis
for the witness to refuse to produce the personal records sought by a
subpoena duces tecum.
(p) In the case of an online subpoena, a consumer may bring a
civil action against the subpoenaing party in a court for damages
caused by the release of identifying information that, as a result of
the willful and intentional action of the subpoenaing party, fails
to comply with subdivisions (c) and (d). The court shall award the
following to the consumer:
(1) Actual attorney's fees and other litigation costs incurred.
(2) Actual damages, including economic loss.
(3) Statutory damages. Minimum statutory damages of five thousand
dollars ($5,000) shall be imposed upon the subpoenaing party for
failure to comply with subdivisions (c) and (d).
(q) A consumer may bring a civil action against an Internet
service provider or online community host for actual damages and
actual attorneys' fees and other litigation costs incurred caused by
a willful and intentional failure to provide notice or release of
identifying information in violation of subdivision (d). The
prevailing party in that action shall be awarded actual attorney's
fees and costs.
(r) The rights and remedies provided in this section are
nonexclusive and are in addition to all those rights and remedies
that are otherwise available under any provision of law.
failure to provide notice to the deposition officer or
interactive computer service does not invalidate a motion to quash or
modify the subpoena duces tecum or other motion, but may be raised
by the deposition officer or an interactive computer service as an
affirmative defense in any action for liability for improper release
of records.
Any other consumer or nonparty whose personal records or online
consumer information are sought by a subpoena duces tecum may, prior
to the date of production, serve on the subpoenaing party, the
witness, and the deposition officer or interactive computer service,
a written objection that cites the specific grounds on which
production of the personal records or online consumer information
should be prohibited.
No witness, deposition officer, or interactive computer service
may be required to produce personal records or online consumer
information after receipt of notice that such a motion has been
brought by any other consumer, or after receipt of a written
objection from a nonparty consumer, except upon order of the court in
which the action is pending or by agreement of the parties,
witnesses, and consumers affected.
The party requesting a consumer's personal records or online
consumer information may bring a motion under Section 1987.1 to
enforce the subpoena within 20 days of service of the written
objection. The motion shall be accompanied by a declaration showing
a reasonable and good faith attempt at informal resolution of the
dispute between the party requesting the personal records and the
consumer or the consumer's attorney.
(k) When considering a written objection, motion to quash, motion
for a protective order, or other motion to prohibit the disclosure of
online consumer information in the case of an online subpoena, the
court shall examine whether the subpoenaing party and the interactive
computer service have substantially complied with the requirements
set forth in this chapter, as well as all of the following factors,
as reflected in the pleadings as well as in the evidence submitted by
any party to the proceeding:
(1) The First Amendment rights of the anonymous speaker.
(2) The probability that the claimant will prevail on the merits.
(3) The necessity for disclosure of the online consumer
information.
If the court determines that these elements weigh in favor of the
consumer, the court shall quash the subpoena. A prevailing consumer,
interactive computer service, or other affected party on a written
objection, motion to quash, or motion for a protective order pursuant
to this chapter shall be entitled to recover reasonable attorney's
fees and costs from the subpoenaing party.
(l) Upon good cause shown, and provided that the rights of
witnesses and consumers are preserved, a subpoenaing party shall be
entitled to obtain an order shortening the time for service of a
subpoena duces tecum or waiving the requirements of subdivision (b),
(c), or (d), so long as due diligence by the subpoenaing party has
been shown. In the case of an online subpoena, if the consumer whose
online consumer information is sought is the defendant and if a
subpoenaing party is granted a temporary restraining order or
preliminary injunction to protect an intellectual property interest
on state law grounds, the notice provisions of subdivisions (c) and
(d) shall be waived, and, instead, the subpoenaing party shall serve
the notice of entry and temporary restraining order or preliminary
injunction on the interactive computer service concurrent with the
subpoena for online consumer information. The declaration required
under paragraph (3) of subdivision (c) shall be served on the
defendant concurrent with the notice of entry and the temporary
restraining order or preliminary injunction.
(m) Nothing contained in this section may be construed to apply to
any subpoena duces tecum that does not request the records of any
particular consumer or consumers, and that requires a custodian of
records to delete all information which would in any way identify any
consumer whose records are to be produced.
(n) This section does not apply to any proceedings conducted under
Division 1 (commencing with Section 50), Division 4 (commencing with
Section 3200), Division 4.5 (commencing with Section 6100), or
Division 4.7 (commencing with Section 6200) of the Labor Code.
(o) This section does not apply to online subpoenas issued under
Section 11180 of the Government Code or to a subpoena issued by or on
behalf of a licensee or owner of copyrighted work seeking the
identity of an individual pursuant to the Digital Millennium
Copyright Act (P.L. 105-304).
(p) Failure to comply with this section shall be sufficient basis
for a witness to refuse to produce the personal records sought by a
subpoena duces tecum.
(q) An interactive computer service is not liable to any person
for any claim based on any action or failure to act by the
interactive computer service in good faith compliance with this
section.
(r) An interactive computer service is not liable to any person
for any claim based on either of the following:
(1) Any action or inaction of the subpoenaing party or consumer.
(2) Any action taken by the interactive computer service as a
result of a failure by the subpoenaing party or consumer to fulfill
his or her obligations under this section.
(s) An interactive computer service is not liable for any claim
related to the service's violation of this section in a case in which
the service did not receive actual notice provided to its agent
designated under Section 1505 of the Corporations Code, of the
consumer's intention to file a motion to quash or modify the subpoena
or other motion limiting or staying the disclosure.
(t) In the case of an online subpoena, a consumer may bring a
civil action against an interactive computer service, for a violation
of this section, for actual damages caused by a willful and
intentional failure to provide notice or a willful or intentional
release of identifying information in violation of subdivision (d).
The prevailing party in that action shall be awarded reasonable
attorney's fees and costs.
(u) In the case of an online subpoena, a consumer may bring a
civil action against the subpoenaing party for damages caused by the
release of online consumer information that, as a result of the
willful and intentional action of the subpoenaing party, fails to
comply with subdivision (c) or (d), in which case the court shall
award the consumer all of the following:
(1) Reasonable attorney's fees and other litigation costs.
(2) Actual damages, including economic loss.
(3) Statutory damages. Minimum statutory damages of five thousand
dollars ($5,000) shall be imposed upon the subpoenaing party for
failure to comply with subdivision (c) or (d).
(v) The rights and remedies provided in this section are
nonexclusive and are in addition to all those rights and remedies
that are otherwise available under any provision of law.