BILL ANALYSIS Ó
SB 1087
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Date of Hearing: June 8, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
SB
1087 (Anderson) - As Amended May 26, 2016
PROPOSED CONSENT
SENATE VOTE: 39-0
SUBJECT: EVIDENCE: PRODUCTION OF RECORDS
KEY ISSUE: sHOULD BUSINESS RECORDS THAT ARE CERTIFIED AS
ORIGINAL BY THE CUSTODIAN OF THOSE RECORDS AND PRODUCED IN
RESPONSE TO A SEARCH WARRANT, SIMILAR TO RECORDS PRODUCED IN
RESPONSE TO A SUBPOENA DUCES TECUM, BE ADMITTED INTO EVIDENCE
WITHOUT THE NECESSITY OF A LIVE WITNESS APPEARING IN COURT TO
VERIFY THE AUTHENTICITY OF THE RECORDS?
SYNOPSIS
This bill, sponsored by the California District Attorneys
Association, seeks to address a procedural problem faced by
prosecutors who obtain records needed in a criminal prosecution
via search warrant prior to criminal charges being filed.
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 ability to obtain
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business records prior to criminal charges being filed. While a
subpoena duces tecum, which requires the custodian of records to
send records to the court with an affidavit of authenticity and
allows those records to be admitted into evidence, can be issued
after a civil or criminal case is filed, a search warrant can be
used prior to a case being filed. However, current law does not
allow business records that are copied and produced in response
to a search warrant to be admitted into evidence with an
affidavit, requiring prosecutors to request (and businesses to
copy and provide) records again via a subpoena duces tecum prior
to trial, which is a waste of time and resources. This bill
would allow this same procedure to be used for the production of
records pursuant to a search warrant and would make other
clarifying changes throughout these sections.
This bill would leave in place the current distinction in the
law between costs for copying and producing records that are
reimbursed when the records are produced via subpoena in civil
cases, but not reimbursed when the records are produced via
subpoena or search warrant in criminal cases. But as a
practical matter, the bill could have a positive impact on
businesses because they should only have to copy and provide
records one time: when they receive a search warrant for the
records. Also, recent amendments clarify that this bill does
not expand the legal basis for issuance of a search warrant.
This bill is supported by Alameda County District Attorney Nancy
O'Malley and has no known opposition.
SUMMARY: Authorizes a custodian of business records to comply
with a search warrant for certain business records in the same
manner as a subpoena duces tecum. Specifically, this bill:
1)Provides that if a search warrant for business records is
served upon the custodian of records or other qualified
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witness of a business in compliance with Section 1524 of the
Penal Code regarding a criminal investigation in which the
business is neither a party nor the place where any crime is
alleged to have occurred, it is sufficient compliance with the
subpoena for the custodian or other qualified witness to
deliver by mail a 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
regarding the authenticity of the records, within five days
after the receipt of the search warrant or within such other
time as is set forth in the warrant.
2)Makes the copies produced in response to the subpoena
admissible in court to the same extent as the original
records.
EXISTING LAW:
1)Specifies certain circumstances that allow for issuance of a
search warrant, including (1) When the property was stolen or
embezzled, and (2) When the property or things were used as
the means of committing a felony, among others. (Penal Code
Section 1524 (a).)
2)Provides that when a subpoena duces tecum (SDT) is served upon
the custodian of records of a business in an action in which
the business is neither a party, nor the place where the
action is alleged to have taken place, it is sufficient
compliance with the SDT for the custodian or other qualified
witness to deliver a true, legible and durable copy of all the
records described in the SDT to the clerk of the court
together with an affidavit within a specified time period:
a) In any criminal action, five days after the receipt of
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the subpoena.
b) In any civil action, within 15 days after the receipt of
the subpoena.
c) Within the time agreed upon by the party who served the
subpoena and the custodian or other qualified witness.
(Evidence Code Section 1560. All further statutory
references are to the Evidence Code, unless otherwise
indicated.)
3)Requires the records to be accompanied by an affidavit of the
custodian or other qualified witness, stating certain
information, including all of the following:
a) The affiant is the duly authorized custodian of the
records or other qualified witness and has authority to
certify the records.
b) 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.
c) 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. (Section 1561 (a).)
4)Provides that if the original records would be admissible in
evidence if the custodian or other qualified witness were
present and testified in matters stated in an affidavit
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accompanying copies of business records, then the affidavit is
admissible as evidence of the matters stated therein and those
matters are presumed to be true; and states that the
presumption established is a presumption affecting the burden
of producing evidence. (Section 1562.)
FISCAL EFFECT: As currently in print this bill is keyed
non-fiscal.
COMMENTS: According to the author, this bill seeks to address a
procedural problem faced by prosecutors who obtain records
needed in a criminal prosecution via search warrant prior to
criminal charges being filed:
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. These records are often voluminous and
not stored indefinitely by the entity that produces them. 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.
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Prosecutors then face two choices. They can rely on EC 1560
et seq for admissibility, which requires them, after filing
criminal charges, to subpoena the exact same records we
obtained via search warrant. If these records still exist,
they must be re-copied, re-sent, and re-discovered. This is a
significant expenditure of material and human resources on the
part of the court, the attorneys, and the target entities of
the subpoena.
Alternatively, or if the records have been destroyed in the
intervening period, they must procure live testimony from the
custodian of records in order to make the records received in
response to the search warrant admissible. This requires the
target entity to incur the cost and inconvenience of sending a
live witness to testify.
Background. In 1959, to alleviate the burden on businesses to
provide an officer or employee to testify in court regarding the
authenticity of business records, the California Legislature
authorized a new procedure whereby a business could introduce a
copy of the subpoenaed record, with an affidavit of
authenticity, in lieu of authenticating testimony. (See Section
1560 et seq.; see also 2 Witkin, Cal. Evidence, Documentary
Evidence (5th ed. 2012), Sec. 51, p. 191.) While the procedure
generally applies in any proceeding in which testimony can be
compelled (Evid. Code Sec. 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 (Section 1560 (b)).
Under the Section 1560 procedure, upon 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
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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) a true, legible and durable copy of all the
records described. (Section 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. (Section 1561(a).) This bill would allow this
same procedure to be used for the production of records pursuant
to a search warrant and make other clarifying changes throughout
these sections.
Existing rules regarding reimbursement to businesses of their
expenses is not affected by this bill. Current law provides
that all "reasonable costs" incurred in a civil proceeding by
any witness with respect to the production of all or any part of
business records the production of which is requested pursuant
to a subpoena duces tecum shall be reimbursed by the party
serving the subpoena duces tecum. (Section 1563 (b)(6).)
Current law also specifies the fee for records that are
delivered to the attorney, the attorney's representative, or the
deposition officer for inspection or photocopying at the
witness' place of business. (Section 1563 (b)(6).) However,
current law does not provide for a similar reimbursement right
when business records are prepared and delivered in response to
either a criminal subpoena, or a search warrant.
This bill would leave in place the current distinction in the
law between the costs for copying and producing records that are
reimbursed when the records are produced in civil cases, but not
reimbursed when the records are produced in criminal cases. But
as a practical matter, the bill is unlikely to have a
significant negative fiscal impact on businesses, even if more
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search warrants are issued for business records. In fact, it
could have a positive impact because it is likely to reduce the
necessity for businesses to duplicate their efforts by preparing
and sending the same records twice (once in response to a search
warrant issued before criminal charges are filed, and again in
response to a subpoena duces tecum issued after charges are
filed). Under this bill, businesses should only have to copy
and provide those records one time: when they receive a search
warrant for their records.
Recent amendments clarify that this bill does not expand the
legal basis for issuance of a search warrant. The original
wording of the bill's most substantive provision, adding a new
subdivision (f) to Section 1560, was very similar to the wording
of subdivision (b) of that section, regarding subpoenas duce
tecum (in both civil and criminal matters). However, the
language was not appropriate when describing a search warrant
that would only be issued in a criminal matter. Also, it could
be argued that the bill created a new basis for issuance of a
search warrant (for business records), which is not the intent
of the author or the purpose of the bill. In order to address
those concerns, recent amendments (May 26, 2016) update the
language to refer to criminal matters. The May 26th amendments
also state that a search warrant must be issued "in compliance
with Section 1524 of the Penal Code" in order to clarify that
the bill does not create a new basis for issuance of a search
warrant.
PAST SIMILAR LEGISLATION. AB 794 (Corbett, Chapter 444,
Statutes of 1999) addressed issues of access to personal and
employment records required to be made available pursuant to a
subpoena duces tecum and made technical changes to various codes
dealing with subpoenas.
AB 2842 (Harman, Chapter 1068, Statutes of 2002) amended the
deposition statutes to reflect that technology other than tapes
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are used for audio and video storage media; allowed non-party
deponents to obtain a copy of their testimony, and clarified the
circumstances under which the deposition officer may go off the
record.
AB 3081 (Committee on Judiciary, Chapter 182, Statutes of 2004)
reorganized the civil discovery statutes by dividing the
statutes into short sections grouped in chapters according to
subject matter and made conforming changes in cross-references
to the discovery statutes in other code sections.
REGISTERED SUPPORT / OPPOSITION:
Support
California District Attorneys Association (sponsor)
Alameda County District Attorney Nancy O'Malley
Opposition
None on file
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Analysis Prepared by:Alison Merrilees / JUD. / (916)
319-2334