BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
SB 1087 (Anderson)
Version: February 17, 2016
Hearing Date: April 12, 2016
Fiscal: No
Urgency: No
RD
SUBJECT
Evidence: production of business records
DESCRIPTION
Existing law provides for a simplified procedure by which a
party can produce business records pursuant to a subpoena duces
tecum and allows for the recovery of reasonable costs by a
nonparty witness who produces such records accordingly. This
bill would additionally authorize a custodian of business
records to comply with a search warrant for certain business
records in the same manner as a subpoena duces tecum and would
also require that the production of those records be accompanied
by a specified affidavit attesting to the same information that
is currently required for records produced pursuant to a
subpoena duces tecum. This bill would also make various changes
to the provision relating to the recovery of reasonable costs
incurred by nonparty witnesses producing records pursuant to a
subpoena duces tecum.
BACKGROUND
In 1959, to alleviate the burden on businesses to provide an
officer or employee to testify in court to the authenticity of a
business record, the California Legislature authorized a simpler
procedure for the ordinary case whereby a business could
introduce a copy of the subpoenaed record, with an affidavit in
lieu of authenticating testimony. (See Evid. Code Sec. 1560 et
seq.; see also 2 Witkin Cal. Evidence, Documentary Evidence,
Sec. 50.) While the special procedure generally applies in any
proceeding in which testimony can be compelled (Evid. Code Sec.
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1566), it is not available if the business is a party to the
action or is the place where a cause of action is alleged to
have arisen (Evid. Code Sec. 1560(b)).
Under this special procedure, on service of a subpoena duces
tecum (a writ by the court generally ordering a witness to
appear and to bring specified documents, records, or things),
unless the personal attendance of the custodian and production
of the original records is specifically required, the custodian
of records or other qualified witness may deliver to the clerk
(or to the judge if there is no clerk) or to the officer taking
a deposition, by mail or otherwise, a true, legible and durable
copy of all the records described. (Evid. Code Sec. 1560(b).)
The records must also be accompanied by an affidavit of the
custodian or other qualified witness, stating the facts
essential to the foundation, including, among other things, that
the copy is a true copy of all records described in the subpoena
duces tecum or that the records were delivered to the attorney,
the attorney's representative, or a deposition officer for
copying at the custodian's or witness's place of business
pursuant to specified law. (Evid. Code Sec. 1561(a).)
Relatedly, California law authorizes a nonparty witness to
recover all reasonable costs incurred in producing business
records pursuant to a subpoena duces tecum from the party that
served the subpoena duces tecum for those records.
This bill would now add simplified procedures for the production
of records pursuant to a search warrant that would be
substantially similar to the simplified procedures that
currently exist for the production of records pursuant to a
subpoena duces tecum, and makes other clarifying changes
throughout these sections, including the section allowing for
the recovery of reasonable costs by a nonparty witness who
complies with a subpoena duces tecum.
This bill was heard by the Senate Public Safety Committee on
March 29, 2016, and was passed out on a vote of 7-0.
CHANGES TO EXISTING LAW
1. Existing law , in relevant part, provides that the process
by which a witness's attendance is required is the subpoena,
which is a writ or order directed to a person, requiring his
or her attendance at a particular time and place to testify as
a witness. The subpeona may require a witness to bring any
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books, documents, electronically stored information, or other
things under the witness's control which the witness is bound
by law to produce in evidence. Existing law further provides
that a copy of an affidavit shall be served with a subpoena
duces tecum issued before trial, showing good cause for the
production of the matters and things described in the subpoena
and specifying certain information. (Code Civ. Proc. Sec.
1985(a), (b).)
Existing law provides that, except where personal attendance
of the custodian or other qualified witness and production of
the original records is required, 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,
the custodian or other qualified witness may deliver 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 authorized under law, together with the
required affidavit, as specified, within certain time periods.
(Evid. Code Sec. 1560(b), (c).)
Existing law requires the records to be accompanied by an
affidavit of the custodian or other qualified witness, stating
in substance certain information, such as:
the affiant is the duly authorized custodian of the
records or other qualified witness and has authority to
certify the records;
the copy is a true copy of all the records described in
the subpoena duces tecum or, pursuant to specified law, 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; and
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. (Evid. Code Sec.
1561(a).)
This bill would, in addition, provide that 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
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have arisen and the search warrant provides the warrant will
be deemed executed if the business causes the delivery of
records described in the warrant to the law enforcement agency
executing the warrant, then the custodian or other qualified
witness may deliver by mail or otherwise a true, legible, and
durable copy of all of the records described in the search
warrant to that law enforcement agency, together with the
affidavit required, above, within certain time periods. This
bill would specify that this authorization does not abridge or
limit the scope of specified Penal Code search warrant
procedures or invalidate otherwise duly executed search
warrants.
This bill would make conforming changes to the information
that must be contained in the accompanying affidavit, above,
to ensure that the affidavit reflects whether the copy is a
true copy of all the records described in the search warrant.
2. Existing law provides that all "reasonable costs" incurred
in a civil proceeding by any nonparty witness with respect to
the production of all or any part of business records
requested pursuant to a subpoena duces tecum may be charged
against the party serving the subpoena duces tecum.
"Reasonable costs" for these purposes shall include, but not
be limited to, the following specific costs:
$0.10 per page for standard reproduction of documents of
a specified size;
$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 $24 per hour per person, computed on the basis of
$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. (Evid. Code Sec. 1563(b),
(b)(1).)
Existing law prescribes a specified fee for records that are
delivered to the attorney, the attorney's representative, or
the deposition officer for inspection or photocopying at the
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witness' place of business. (Evid. Code Sec. 1563(b)(6).)
This bill would, instead, provide that all reasonable costs
incurred in a civil proceeding by any nonparty witness 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.
This bill would further clarify that the records referenced
above are the records requested pursuant to a subpoena duces
tecum (i.e., not a search warrant).
This bill would also make other technical and clarifying
changes to these provisions.
COMMENT
1. Stated need for the bill
According to the author:
When a prosecuting office is doing a criminal investigation,
most business records are obtained via search warrant because
there is very limited subpoena power until criminal charges
are actually filed. In fact, it's not uncommon for records to
be destroyed between the date the search warrant is executed
and the time charges are eventually filed.
Business records, whether produced pursuant to a subpoena or
search warrant, are usually provided with an accompanying
affidavit intended to comply with Evidence Code sections
1560-1562. If the records were produced in response to a
subpoena, these sections govern admissibility of the records
at trial without live testimony from the custodian of record.
Unfortunately, since sections 1560 and 1561 only refer to the
admissibility of documents obtained by subpoena and not by
search warrant, the search warrant records may not be admitted
at trial without testimony by the custodian of records-even if
the exact same records are produced and even if they are
provided with the exact same affidavit. [ . . . ]
SB 1087 seeks to solve this problem by amending the Evidence
Code to refer to documents obtained by search warrants as well
as subpoena. This would remove an artificial barrier to
admissibility, promote trial efficiency by eliminating an
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otherwise unnecessary witness (and a hearing on the subpoena),
and save resources for the court as well as the businesses
that comply with records requests.
2. Bill clarifies that reasonable costs can be recovered by
the nonparty witness when producing records pursuant to a
subpoena duces tecum, but not a search warrant
Existing law provides for a simplified procedure by which a
party can produce business records pursuant to a subpoena duces
tecum and authorizes all reasonable costs incurred by a nonparty
witness producing records pursuant to a subpoena duces tecum in
a civil proceeding to be charged to the party serving the
subpoena duces tecum, as specified. This bill would now
additionally authorize a custodian of business records to comply
with a search warrant for certain business records in the same
manner as a subpoena duces tecum. This bill would also clarify
that the "records" for which reasonable costs can be recovered
are those records produced pursuant to a subpoena duces
tecum-not records produced pursuant to a search warrant.
3. Suggested amendments
The following technical amendments would address (1) a drafting
error and (2) ensure that the list of reasonable costs is not
exhaustive:
Technical amendments :
(1) On page 4, line 15, strike "section" and insert
"subdivision"
(2) On page 5, line 21, strike "includes" and insert
"includes, but is not limited to"
Support : California Police Chiefs Association
Opposition : None Known
HISTORY
Source : California District Attorneys Association
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Related Pending Legislation : None Known
Prior Legislation : None Known
Prior Vote : Senate Public Safety Committee (Ayes 7, Noes 0)
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