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. SB 1087 (Anderson) Page 2 of ? 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 SB 1087 (Anderson) Page 3 of ? 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 SB 1087 (Anderson) Page 4 of ? 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 SB 1087 (Anderson) Page 5 of ? 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 SB 1087 (Anderson) Page 6 of ? 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 SB 1087 (Anderson) Page 7 of ? Related Pending Legislation : None Known Prior Legislation : None Known Prior Vote : Senate Public Safety Committee (Ayes 7, Noes 0) **************