Amended in Senate April 19, 2016

Senate Bill No. 1087

Introduced by Senator Anderson

February 17, 2016

An act to amend Sections 1560, 1561, and 1563 of the Evidence Code, relating to evidence.

LEGISLATIVE COUNSEL’S DIGEST

SB 1087, as amended, Anderson. Evidence: production of business records.

Existing law provides that when a subpoena duces tecum is served upon the custodian of records or other qualified witness of a business in a criminal action in which the business is neither a party nor the place where any cause of action is alleged to have arisen, and the subpoena requires the production of all or any part of the records of the business, it is sufficient compliance therewith if the custodian or other qualified witness, within begin delete five end delete begin insert 5 end insert days after the receipt of the subpoena or within a time otherwise agreed upon, delivers a copy of all the records described in the subpoena to the clerk of the court, the judge, or another person, as specified. Existing law requires that the records be accompanied with an affidavit from the custodian attesting to specified information.

Existing law also provides for the service of search warrants for the seizure begin insert of end insert business records, as specified.

This bill would authorize a custodian of business records to comply with a search warrant for certain business records by delivering a true, legible, and durable copy of all of the records described in the search warrant to the law enforcement agency ordered to execute the search warrant, if the warrant provides for compliance in that manner. The bill would require that the records be delivered within 5 days of receipt of the search warrant or such other time as is specified in the search warrant. The bill would require that the records be accompanied by an affidavit of the custodian of records attesting to the same information that is required with respect to a subpoena duces tecum.

Existing law authorizes all reasonable costs, as specified, incurred by a nonparty witness to be charged against the party serving the subpoena duces tecum.

This bill would make technical, nonsubstantive changes to those provisions.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 1560 of the Evidence Code is amended
to read:

1560.  

(a) As used in this article:

(1) “Business” includes every kind of business described in
Section 1270.

(2) “Record” includes every kind of record maintained by a
business.

(b) Except as provided in Section 1564, when a subpoena duces
tecum is served upon the custodian of records or other qualified
witness of a business in an action in which the business is neither
a party nor the place where any cause of action is alleged to have
arisen, and the subpoena requires the production of all or any part
of the records of the business, it is sufficient compliance therewith
if the custodian or other qualified witness delivers by mail or
otherwise a true, legible, and durable copy of all of the records
described in the subpoena to the clerk of the court or to another
person described in subdivision (d) of Section 2026.010 of the
Code of Civil Procedure, together with the affidavit described in
Section 1561, within one of the following time periods:

(1) In any criminal action, five days after the receipt of the
subpoena.

(2) In any civil action, within 15 days after the receipt of the
subpoena.

(3) Within the time agreed upon by the party who served the
subpoena and the custodian or other qualified witness.

(c) The copy of the records shall be separately enclosed in an
inner envelope or wrapper, sealed, with the title and number of
the action, name of witness, and date of subpoena clearly inscribed
thereon; the sealed envelope or wrapper shall then be enclosed in
an outer envelope or wrapper, sealed, and directed as follows:

(1) If the subpoena directs attendance in court, to the clerk of
the court.

(2) If the subpoena directs attendance at a deposition, to the
officer before whom the deposition is to be taken, at the place
designated in the subpoena for the taking of the deposition or at
the officer’s place of business.

(3) In other cases, to the officer, body, or tribunal conducting
the hearing, at a like address.

(d) Unless the parties to the proceeding otherwise agree, or
unless the sealed envelope or wrapper is returned to a witness who
is to appear personally, the copy of the records shall remain sealed
and shall be opened only at the time of trial, deposition, or other
hearing, upon the direction of the judge, officer, body, or tribunal
conducting the proceeding, in the presence of all parties who have
appeared in person or by counsel at the trial, deposition, or hearing.
Records that are original documents and that are not introduced
in evidence or required as part of the record shall be returned to
the person or entity from whom received. Records that are copies
may be destroyed.

(e) As an alternative to the procedures described in subdivisions
(b), (c), and (d), the subpoenaing party in a civil action may direct
the witness to make the records available for inspection or copying
by the party’s attorney, the attorney’s representative, or deposition
officer as described in Section 2020.420 of the Code of Civil
Procedure, at the witness’ business address under reasonable
conditions during normal business hours. Normal business hours,
as used in this subdivision, means those hours that the business of
the witness is normally open for business to the public. When
provided with at least five business days’ advance notice by the
party’s attorney, attorney’s representative, or deposition officer,
the witness shall designate a time period of not less than six
continuous hours on a date certain for copying of records subject
to the subpoena by the party’s attorney, attorney’s representative,
or deposition officer. It shall be the responsibility of the attorney’s
representative to deliver any copy of the records as directed in the
subpoena. Disobedience to the deposition subpoena issued pursuant
to this subdivision is punishable as provided in Section 2020.240
of the Code of Civil Procedure.

(f) If a search warrant for business records is served upon the
custodian of records or other qualified witness of a business in
connection with an action or investigation in which the business
is neither a party nor the place where any cause of action is alleged
to have arisen, and the search warrant provides that the warrant
will be deemed executed if the business causes the delivery of
records described in the warrant to the law enforcement agency
ordered to execute the warrant, it is sufficient compliance therewith
if the custodian or other qualified witness delivers by mail or
otherwise a true, legible, and durable copy of all of the records
described in the search warrant to the law enforcement agency
ordered to execute the search warrant, together with the affidavit
described in Section 1561, within five days after the receipt of the
search warrant or within such other time as is set forth in the
warrant. This begin delete section end delete begin insert subdivision end insert does not abridge or limit the
scope of search warrant procedures set forth in Chapter 3
(commencing with Section 1523) of Title 12 of Part 2 of the Penal
Code or invalidate otherwise duly executed search warrants.

SEC. 2.  

Section 1561 of the Evidence Code is amended to read:

1561.  

(a) The records shall be accompanied by the affidavit
of the custodian or other qualified witness, stating in substance
each of the following:

(1) The affiant is the duly authorized custodian of the records
or other qualified witness and has authority to certify the records.

(2) The copy is a true copy of all the records described in the
subpoena duces tecum or search warrant, or pursuant to subdivision
(e) of Section 1560 begin insert , end insert the records were delivered to the attorney, the
attorney’s representative, or deposition officer for copying at the
custodian’s or witness’ place of business, as the case may be.

(3) The records were prepared by the personnel of the business
in the ordinary course of business at or near the time of the act,
condition, or event.

(4) The identity of the records.

(5) A description of the mode of preparation of the records.

(b) If the business has none of the records described, or only
part thereof, the custodian or other qualified witness shall so state
in the affidavit, and deliver the affidavit and those records that are
available in one of the manners provided in Section 1560.

(c) If the records described in the subpoena were delivered to
the attorney or his or her representative or deposition officer for
copying at the custodian’s or witness’ place of business, in addition
to the affidavit required by subdivision (a), the records shall be
accompanied by an affidavit by the attorney or his or her
representative or deposition officer stating that the copy is a true
copy of all the records delivered to the attorney or his or her
representative or deposition officer for copying.

SEC. 3.  

Section 1563 of the Evidence Code is amended to read:

1563.  

(a) This article does not require tender or payment of
more than one witness fee and one mileage fee or other charge, to
a witness or witness’ business, unless there is an agreement to the
contrary between the witness and the requesting party.

(b) All reasonable costs incurred in a civil proceeding by a
witness who is not a party with respect to the production of all or
any part of business records requested pursuant to a subpoena
duces tecum shall be charged against the party serving the subpoena
duces tecum.

(1) “Reasonable costs,” as used in this section, begin delete includes end delete begin insert includes,
but is not limited to, end insert the following specific costs: ten cents ($0.10)
per page for standard reproduction of documents of a size 81⁄2 by
14 inches or less; twenty cents ($0.20) per page for copying of
documents from microfilm; actual costs for the reproduction of
oversize documents or the reproduction of documents requiring
special processing which are made in response to a subpoena;
reasonable clerical costs incurred in locating and making the
records available to be billed at the maximum rate of twenty-four
dollars ($24) per hour per person, computed on the basis of six
dollars ($6) per quarter hour or fraction thereof; actual postage
charges; and the actual cost, if any, charged to the witness by a
third person for the retrieval and return of records held offsite by
that third person.

(2) The requesting party, or the requesting party’s deposition
officer, shall not be required to pay the reasonable costs or any
estimate thereof before the records are available for delivery
pursuant to the subpoena, but the witness may demand payment
of costs pursuant to this section simultaneous with actual delivery
of the subpoenaed records, and until payment is made, the witness
is under no obligation to deliver the records.

(3) The witness shall submit an itemized statement for the costs
to the requesting party, or the requesting party’s deposition officer,
setting forth the reproduction and clerical costs incurred by the
witness. If the costs exceed those authorized in paragraph (1), or
if the witness refuses to produce an itemized statement of costs as
required by paragraph (3), upon demand by the requesting party,
or the requesting party’s deposition officer, the witness shall furnish
a statement setting forth the actions taken by the witness in
justification of the costs.

(4) The requesting party may petition the court in which the
action is pending to recover from the witness all or a part of the
costs paid to the witness, or to reduce all or a part of the costs
charged by the witness, pursuant to this subdivision, on the grounds
that those costs were excessive. Upon the filing of the petition the
court shall issue an order to show cause and from the time the
order is served on the witness the court has jurisdiction over the
witness. The court may hear testimony on the order to show cause
and if it finds that the costs demanded and collected, or charged
but not collected, exceed the amount authorized by this subdivision,
it shall order the witness to remit to the requesting party, or reduce
its charge to the requesting party by an amount equal to, the amount
of the excess. If the court finds the costs were excessive and
charged in bad faith by the witness, the court shall order the witness
to remit the full amount of the costs demanded and collected, or
excuse the requesting party from any payment of costs charged
but not collected, and the court shall also order the witness to pay
the requesting party the amount of the reasonable expenses incurred
in obtaining the order, including attorney’s fees. If the court finds
the costs were not excessive, the court shall order the requesting
party to pay the witness the amount of the reasonable expenses
incurred in defending the petition, including attorney’s fees.

(5) If a subpoena is served to compel the production of business
records and is subsequently withdrawn, or is quashed, modified,
or limited on a motion made other than by the witness, the witness
shall be entitled to reimbursement pursuant to paragraph (1) for
all reasonable costs incurred in compliance with the subpoena to
the time that the requesting party has notified the witness that the
subpoena has been withdrawn or quashed, modified, or limited. If
the subpoena is withdrawn or quashed, if those costs are not paid
within 30 days after demand therefor, the witness may file a motion
in the court in which the action is pending for an order requiring
payment, and the court shall award the payment of expenses and
attorney’s fees in the manner set forth in paragraph (4).

(6) If records requested pursuant to a subpoena duces tecum are
delivered to the attorney, the attorney’s representative, or the
deposition officer for inspection or photocopying at the witness’
place of business, the only fee for complying with the subpoena
shall not exceed fifteen dollars ($15), plus the actual cost, if any,
charged to the witness by a third person for retrieval and return of
records held offsite by that third person. If the records are retrieved
from microfilm, the reasonable costs, as defined in paragraph (1),
applies.

(c) If the personal attendance of the custodian of a record or
other qualified witness is required pursuant to Section 1564, in a
civil proceeding, he or she shall be entitled to the same witness
fees and mileage permitted in a case where the subpoena requires
the witness to attend and testify before a court in which the action
or proceeding is pending and to any additional costs incurred as
provided by subdivision (b).