Frequently Asked Questions - Subpoena FAQs

          If a process server is “at your door” and you know nothing about service of process, and the document does not look familiar to you even if it may look legal, you are not obligated to accept it.  Refer the individual serving the document to Office of Legal Affairs (OLA).  Further, if you receive a phone call from an attorney’s office or a company handling service of process of subpoenas and summons and complaints, refer them to OLA at (510) 642-7122.

CLICK HERE for a list of campus records custodians

          Service of process involves delivery of a special type of court order to an individual or company (“entity”).  Service of process can involve either a “Summons and Complaint” initiating a lawsuit, or a “Subpoena” requesting that business records be turned over and/or that personal testimony be given, or a personal appearance be made.  These are the types of service most likely encountered at UC Berkeley.  

          Formal personal delivery of documents for both types of service (Summons and Complaint, Subpoenas) is required and important because these documents impose legal obligations on the person or entity they are delivered to.   Failure to comply with these court orders can result in penalties

          Service of a Summons and Complaint is a process to compel someone to appear in court to defend him/her/itself against a lawsuit.  It involves presenting to the person or entity sued (the ‘defendant’) a Complaint in which the person suing (the ‘plaintiff’) describes its legal claims and should always be accompanied by a Summons, requiring a defendant to respond in court.  There are very specific requirements for serving a lawsuit on a defendant.  Plaintiffs frequently hire a professional process server to comply with these requirements.  

          If a process server attempts service of a Summons and Complaint on any University entity (The Regents, UCOP, UC Berkeley, or any campus department, academic or otherwise), s/he should be directed to Office of the General Counsel (OGC), 1111 Franklin Street, 8^th Floor, Oakland, CA 94607-5200.   OGC is the only entity authorized to accept service of a Summons and Complaint on behalf of The Regents or a UC entity.

          If an individual is named and being served, the law requires that the Summons and Complaint be delivered directly to that person.  Colleagues or managers may not accept personal service of process on behalf of a fellow employee.  

         If any doubt about personal delivery of a Summons and Complaint, contact OLA (510-642-7122) immediately.    

          A subpoena is a legal document that commands a person or entity to testify as a witness at a specified time and place (at a deposition, trial, or other hearing), and/or to produce documents or other tangible objects in a legal proceeding.  Subpoenas are time-sensitive with court-imposed deadlines. 

          It can be issued by any attorney, a self-represented individual, or a service hired by an attorney, using court-supplied forms. Subpoenas can be issued in criminal cases, in private (“civil”) lawsuits; they may also be issued by government agencies conducting their own investigations and proceedings, administrative or criminal (e.g., IRS, SEC, FBI, even issued by the President of the United States on behalf of the military).

          Not necessarily—subpoenas are generally issued to persons or entities who are not parties to the lawsuit, known as “third parties.”  The University typically is served with “third party” subpoenas.   

          The typical subpoena issued and served on the University is a subpoena for records and may be addressed to the “Custodian of Records” or to a department with a physical location listed (e.g., Registrar's Office).  This type of subpoena should be personally served, and accepted by the appropriate custodian.  It may also be accepted by others in a campus department with authority over those records.     

 [CLICK HERE for a list of campus records custodians]

          A subpoena to a particular named person rather than the University can only be accepted by that person.  However, there are three important exceptions to this requirement:

1. If the subpoenaed person is a peace officer, subpoenaed to testify about an event or transaction h/she witnessed or investigated as a peace officer, the subpoena may be served by delivering two (2) copies to the immediate superior or an agent designated to receive subpoenas, who must then deliver a copy to the peace officer (Gov. Code § 68097.1(a)).^[1]  
2. If the subpoenaed person is a state employee, subpoenaed to testify about something s/he has gained expertise in during the course of his/her duties, a subpoena may be served by delivering two (2) copies to the employee’s immediate superior or an agent designated to receive subpoenas.^[2]  State employees who are being subpoenaed for their everyday, percipient knowledge must be personally served.  For example, if a campus employee in Human Resources is subpoenaed to testify about specialized procedures for reporting, investigating, and resolving employment disputes, that employee may be served through his/her superior.  However, if that same employee is subpoenaed to testify about a slip-and-fall accident that s/he witnessed on campus, s/he must be personally served.
3. Not recommended, but a criminal subpoena may be served by mail if the person served is willing to acknowledge to the person who served the subpoena that s/he received the subpoena, and is willing to identify him/herself by date of birth, driver’s license number, or DMV identification card.^[3]   Again, it is not recommended that a person supply his/her personally identifiable information to third parties.

          Aside from these exceptions, the law requires personal service of every subpoena.   Service in less formal ways, such as by fax or mail, should not be accepted, as the parties in litigation have the right to expect UC Berkeley to follow legal formalities. 

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[1] In criminal cases, the superior or agent may refuse to accept service if unable to deliver a copy to the peace officer in time to comply with the subpoena, or if service is made within five (5) days of the hearing and they are not reasonably certain they can deliver it to the peace officer.  Pen.Code § 1328(a)(3)(d) and (e).

[2] Gov. Code § 68097.1(b).

[3] Pen.Code § 1328d.

CLICK HERE  for a list of campus records custodians

Yes – there are three kinds of subpoenas.  

i.    A Witness Subpoena is a court order requiring a person to appear in court on a certain date and testify as a witness, usually in a trial.  

ii.   A Subpoena Duces Tecum (meaning ‘subpoena for production of evidence’) is a court order requiring the person subpoenaed to produce books, documents or other records under his or her control at a specified time/place in a court hearing or a deposition. Oftentimes, compliance can be achieved by mailing, or sending records via e-mail, or providing the records at a specified date without an in-person appearance if arranged in advance. 

iii.   A Deposition Subpoena is a court order requiring a person who is not a party to a lawsuit to provide copies of business records and/or appear at a deposition to answer questions asked by one party in a lawsuit.   A Deposition Subpoena differs from the Subpoena DucesTecum in that the documents and testimony requested are part of the “discovery process” before trial and may not be used in an actual court hearing. 

          Yes.  There are special rules that apply when these kinds of records are subpoenaed which requires the party issuing the subpoena to notify the individual (or his/her/its attorney) whose records are sought before the records can be disclosed.  The University is also required to give reasonable notice to an individual whose records are requested before complying with the subpoena's request(s).  Certain campus departments are familiar with these special rules, e.g., the Registrar's Office, University Health Services/Tang Center, and have procedures in place to handle these types of subpoena requests, but if you have questions about these rules, contact OLA (510-642-7122).  

          No, but it depends on the complexity and sensitivity of the documents, the testimony which one is asked to provide (if any), and the nature of the proceedings.

          However, the Office of Legal Affairs must be consulted if:

A)   UC Berkeley, a campus department, and/or a campus employee in his/her official capacity are named as either a plaintiff or a defendant.  Under these circumstances, OLA will make arrangements with either Office of the General Counsel or outside counsel for representation, if appropriate.

B)   The subpoena seeks individual student, employee or customer/consumer records, medical or mental health information, or other information that appears highly sensitive or raises privacy concerns.  However, campus offices that regularly receive subpoenas for certain types of records and that have received guidance from campus counsel in the past may respond without consulting OLA if they are confident they are aware of the applicable rules and the subpoena appears valid (e.g., Registrar’s Office, UHS/Tang Center, Campus Shared Services-Employee Verification/Academic Personnel Records).

C)  The subpoena calls for deposition (in-person) testimony of staff or faculty.

          You are encouraged to contact OLA if you have any questions or concerns about responding to a subpoena, whether in regards to manner of service, or records being requested.  

          An individual served with a subpoena duces tecum or deposition subpoena is normally given a reasonable time to respond.  A valid subpoena will provide, in accordance with the statute, a response date and location.  Any question about validity, contact OLA (510-642-7122).  

a.         For a subpoena duces tecum issued in a civil action, the records should be provided either within 15 days after the receipt of the subpoena, or within the time agreed upon by the party serving the subpoena and the custodian of records or witness.  (Evid. Code § 1560(b)(2) and (b)(3).)

b.         For a deposition subpoena issued in a civil action, the University has either 15 days after the service, or 20 days after issuance of the deposition subpoena, whichever date is later, in which to respond.  (Code Civ. Proc. § 2020.410(c).)

c.         For a subpoena duces tecum in a criminal action, the response must be provided five (5) days after receipt of the subpoena or within the time agreed upon by the party serving the subpoena and the custodian of records or witness.  (Evid. Code § 1560(b)(1) and (b)(3).) 

          A named individual (responder) is only obligated to produce documents which exist and are already under his/her custody and control.  You are not required to create documents that do not exist, or to procure documents not in your or your department’s possession or control.  If the documents called for do not exist or are not in the possession or control of the individual subpoenaed, the responder should notify the subpoenaing party of this fact in writing.  Subpoenas may attach an "Affidavit of No Records" that can be completed by the custodian if in fact no responsive records exist under the custodian's control.  If such an affidavit of no records is not attached to the subpoena and you need to submit it, contact OLA for a form of affidavit that can be signed and submitted to the requesting party or to the court declaring that no records exist that are not responsive to the subpoena's request.

          It is possible to negotiate the scope of records to be released in response to a subpoena.  Oftentimes, a party issuing a subpoena (“requestor”) is on a “fishing expedition” with no idea what documents exist or how files are organized.  The requestor may have no interest in spending time reviewing extraneous documents, and may be satisfied, after a conversation, with something less than what is called for in the initial request.  However, be very careful not to negotiate production of anything beyond what is called for in the subpoena, unless you are certain that the additional documents are public records.  Consult OLA for guidance regarding the scope of a subpoena’s requests. 

          In most cases, the University is obligated to comply with a subpoena duces tecum or deposition subpoena served upon it.  However, in certain circumstances a particular document may be subject to a privilege which does not permit the University to disclose without first obtaining permission of the holder of the privilege, or if that privilege has somehow been waived.  The most common privileges to arise in a University setting are the physician-patient privilege, the psychotherapist-patient privilege, and the attorney-client privilege.  Failure to assert a privilege not to disclose confidential information could subject the University to liability for invasion of privacy or breach of a confidential relationship.  OLA should be consulted about what privilege might apply, and/or whether a privilege applies. 

          When a full-time employee in a career position is served with a subpoena which compels the employee's presence as a witness and the subpoena relates to the employee’s University employment, the employee shall be granted leave with pay for actual time spent at the proceeding and for related travel.

          A part-time employee in a career position shall be granted leave with pay for time spent at the proceeding and for related travel which occurs during the employee's regularly scheduled working hours. 

          In most cases, it is not required that original documents be turned over in response to a subpoena.  Technically, a subpoena requires production of original documents, but often the requestor will be satisfied with copies, and this can clearly be negotiated with the requestor.  If originals are required, a University employee usually goes with the originals to the place of production to ensure that documents are not lost or misplaced; or the requestor comes to the University office where the records reside and inspects/copies them on-site.  A University employee should be present at all times during the copying and inspection of original documents.

The subpoenaing party is responsible for costs incurred by the University in responding to a subpoena, as follows:  

Witness Fees In Civil Case

If the witness is required to personally accompany the documents requested in a subpoena duces tecum for a deposition or trial in a civil action, the witness is entitled to all normal allowable daily fees (currently $35.00) plus mileage actually traveled (currently $0.20 per mile), both ways, at the prevailing rate, and any additional costs incurred.  (Gov. Code § 68093.) 

Witness Fees In Criminal Cases

When a witness is required to personally accompany documents requested by a subpoena duces tecum in a criminal case, the witness is entitled to any fees normally paid by that court.

Fees For Production Of Business Records  

a.  The University is entitled to all reasonable costs incurred for producing business records in response to a subpoena duces tecum.  “Reasonable costs” include, but are not limited to:

i)     reasonable clerical costs incurred in locating and making records available to be billed at the rate of $24 per hour per person ($6 per quarter hour or fraction thereof); actual costs, if any, charged the witness by a “third person” for retrieval and return of records held by such third person (for the University, “third person” does not include another University office or department); 

ii)    ten cents ($0.10) per page for standard reproduction of documents of a size, 8-1/2 x 14 inches or less; 

iii)   twenty cents ($0.20) per page for copying documents from microfilm; 

iv)    actual costs for the reproduction of oversize documents or the reproduction of documents requiring special processing which are made in response to a subpoena;  

v)     actual costs, if any, charged to the University by a “third person” for the retrieval and return of records held by that “third person”; 

vi)   The custodian is not allowed to charge for computer costs of retrieving data; 

vii)  When personal appearance of the custodian is waived and the custodian elects to produce original records, rather than reproductions, the sole fee for such records “shall not exceed fifteen dollars ($15), plus actual costs, if any, charged to the witness by a third person and return of records held offsite by the third person."  For UC, “third person” does not include another UC office or department. 

 b.  The requestor is not required to pay production costs prior to delivery of the records; however, the University may demand payment of costs at the time subpoenaed records are delivered.  Until such payment is made, the University is under no obligation to deliver the records.  

c.  If the requesting party demands it, the University must furnish an itemized statement describing the actions taken to justify the costs.

d.  If the subpoena duces tecum is subsequently withdrawn, quashed, or modified by a party other than the University, the University is entitled to reimbursement for reproduction costs incurred up to the time the University is notified of such an action.

Contact OLA if you have any questions regarding fees/charges for producing records.  

          Failure to respond to a subpoena is punishable as contempt by either the court or agency issuing the subpoena.  Punishment may include monetary sanctions (even imprisonment although extremely unlikely).  Generally, a hearing will be held where the party charged with noncompliance has an opportunity to explain its side of the story, and the court or agency has broad discretion to determine an appropriate punishment given the circumstances presented.  In most cases in a contempt proceeding, the court determines the appropriateness of withholding any documents under a claim of privilege.  In such cases, the outcome is more likely to be an order to produce, coupled with an award of attorneys’ fees to the party that had to initiate the contempt proceedings.

CLICK HERE for a list of campus records custodians