BILL NUMBER: SB 1465 CHAPTERED
BILL TEXT
CHAPTER 101
FILED WITH SECRETARY OF STATE JULY 6, 2004
APPROVED BY GOVERNOR JULY 5, 2004
PASSED THE ASSEMBLY JUNE 21, 2004
PASSED THE SENATE MAY 6, 2004
AMENDED IN SENATE MAY 4, 2004
INTRODUCED BY Senator Kuehl
FEBRUARY 19, 2004
An act to amend Section 1985.6 of the Code of Civil Procedure,
relating to the production of evidence.
LEGISLATIVE COUNSEL'S DIGEST
SB 1465, Kuehl. Production of evidence: employment records.
Existing law requires a subpoena duces tecum for the production of
various kinds of records, including employment records. Existing
law defines "employment records" as specified material maintained by
the current or former employer of the employee.
This bill would revise and expand the definition of "employment
records" to include records maintained by any labor organization, as
defined, representing the employee and make related changes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1985.6 of the Code of Civil Procedure is
amended to read:
1985.6. (a) For purposes of this section, the following
definitions apply:
(1) "Deposition officer" means a person who meets the
qualifications specified in paragraph (3) of subdivision (d) of
Section 2020.
(2) "Employee" means any individual who is or has been employed by
a witness subject to a subpoena duces tecum. "Employee" also means
any individual who is or has been represented by a labor organization
that is a witness subject to a subpoena duces tecum.
(3) "Employment records" means the original or any copy of books,
documents, other writings, or electronic data pertaining to the
employment of any employee maintained by the current or former
employer of the employee, or by any labor organization that has
represented or currently represents the employee.
(4) "Labor organization" has the meaning set forth in Section 1117
of the Labor Code.
(5) "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, but does 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.
(b) Prior to the date called for in the subpoena duces tecum of
the production of employment records, the subpoenaing party shall
serve or cause to be served on the employee whose records are being
sought a copy of: the subpoena duces tecum; the affidavit supporting
the issuance of the subpoena, if any; and the notice described in
subdivision (e), and proof of service as provided in paragraph (1) of
subdivision (c). This service shall be made as follows:
(1) To the employee 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 employee 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, 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
employment records, plus the additional time provided by Section 1013
if service is by mail.
(c) Prior to the production of the records, the subpoenaing party
shall either:
(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 employee or by his or her attorney of record.
The witness may presume that the attorney purporting to sign the
authorization on behalf of the employee acted with the consent of the
employee, and that any objection to release of records is waived.
(d) A subpoena duces tecum for the production of employment
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.
(e) Every copy of the subpoena duces tecum and affidavit served on
an employee 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) employment records about
the employee are being sought from the witness named on the
subpoena; (2) the employment records may be protected by a right of
privacy; (3) if the employee objects to the witness furnishing the
records to the party seeking the records the employee shall file
papers with the court prior to the date specified for production on
the subpoena; and (4) if the subpoenaing party does not agree in
writing to cancel or limit the subpoena, an attorney should be
consulted about the employee'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.
(f) Any employee whose employment records are sought by a subpoena
duces tecum may, prior to the date for production, bring a motion
under Section 1987.1 to quash or modify the subpoena duces tecum.
Notice of the bringing of that motion shall be given to the witness
and the deposition officer at least five days prior to production.
The failure to provide notice to the deposition officer does 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 nonparty employee whose employment records are sought by a
subpoena duces tecum may, prior to the date of production, serve on
the subpoenaing party, and the deposition officer, the witness a
written objection that cites the specific grounds on which production
of the employment records should be prohibited.
No witness or deposition officer shall be required to produce
employment records after receipt of notice that the motion has been
brought by an employee, or after receipt of a written objection from
a nonparty employee, except upon order of the court in which the
action is pending or by agreement of the parties, witnesses, and
employees affected.
The party requesting an employee's employment records may bring a
motion under subdivision (c) of Section 1987 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 employment records and the employee or the employee's
attorney.
(g) Upon good cause shown and provided that the rights of
witnesses and employees 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)
where due diligence by the subpoenaing party has been shown.
(h) This section may not be construed to apply to any subpoena
duces tecum which does not request the records of any particular
employee or employees and which requires a custodian of records to
delete all information which would in any way identify any employee
whose records are to be produced.
(i) This section does 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.
(j) Failure to comply with this section shall be sufficient basis
for the witness to refuse to produce the employment records sought by
subpoena duces tecum.