Attorney Articles | Diagnosing a Subpoena for Validity
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Articles by Legal Department Staff

The Legal Department articles are not intended to serve as legal advice and are offered for educational purposes only. The information provided should not be used as a substitute for independent legal advice and it is not intended to address every situation that could potentially arise. Please be aware that laws, regulations and technical standards change over time. As a result, it is important to verify and update any reference or information that is provided in the article.

Diagnosing a Subpoena for Validity

Part of the deal of being a therapist is responding to subpoenas, should the need arise. Therapist should have a working knowledge of the laws pertaining to the preparation and service of subpoenas.

The Therapist
November/December 2007
David Jensen, JD (former CAMFT Staff Attorney)
Reviewed November, 2020 by Kristin W. Roscoe, JD (CAMFT Staff Attorney)

It did not take me long as a lawyer with CAMFT to figure out that therapists like dealing with subpoenas just about as much as cats like having baths. Whether it is helping a therapist address a subpoena or giving a cat a bath, there is bound to be some deep-seated fear, some rising of the hair on the back of one’s neck, and some hissing and scratching, more so from therapists because cats just run away. All kidding aside, however, part of the deal of being a therapist is responding to subpoenas, should the need arise, which it very well may. Some therapists practice for many years before being served with a subpoena; conversely, some trainees have been served with subpoenas, so you never know when the “joyous” event is going to occur. One Registered Associate MFT was served with a subpoena the very day he received his registration number. Talk about timing!

Although you should strive to stay as far away from the legal problems of your patients as is possible, the reality is that any of your patients could become involved in a legal proceeding, which could then result in some sort of subpoena being issued to you. Consequently, therapists should have a working knowledge of the laws pertaining to the preparation and service of subpoenas and the options they have for responding to them.

Before jumping into the meat of the article, however, it is important to address a couple of “housekeeping” issues. First, this article assumes you are not a party to a legal proceeding, and you are working in a private practice or for a nonprofit organization such as a church or counseling agency. This article is not intended to address the issues arising when therapists are parties to lawsuits or when they work for governmental agencies. A different set of rules comes into play when a therapist is a party to a lawsuit, and therapists who work for governmental agencies should consult with their superiors regarding responding to subpoenas.

Secondly, this article should properly be read as a tributary, or as an adjunct, to an article Richard Leslie, J.D. authored for CAMFT in 1987 titled How to Handle a Subpoena. His article is available at the CAMFT website, and, in most cases, his counsel regarding the handling of subpoenas, especially discussing these issues with the client or with the client’s attorney, with proper authorization of course, remains sage advice and generally the most effective way of figuring out how to respond to a particular subpoena.

But, the issue of responding to subpoenas is one with many aspects to it, and some topics have been relatively unexplored by CAMFT, namely how to determine whether a subpoena has been prepared and served in accordance with California law and then what to do, if anything, when a deficiency in the process has been discovered.

For instance, suppose you just returned from a vacation and found, in your mail, a subpoena commanding your appearance at a deposition or court hearing the next day or within the next couple of days or week (true stories, with multiple occurrences). Suppose you come back from lunch, a meeting, a conference, or an appointment and find a subpoena left under your office door or given to a “suitemate” who was directed to hand it to you when you return (true stories, with multiple occurrences). Suppose your client, or his or her attorney, fails to return your telephone calls so you have no idea about what they want you to do in response to the subpoena (true stories, with multiple occurrences). Moreover, suppose the subpoena was delivered to you personally, but it lacks documents that are required by law to be included (all too common a scenario). Then what?

What seems to be lacking from many of our members is an understanding of what the law allows them to do when a subpoena has been prepared or served in violation of California law. This article then is meant to address the “dark” side of some of the issues involved with the preparation and service of subpoenas. After reading this article, you should see that California law gives you some options to utilize when responding to subpoenas that are defective, either in the preparation or service. Although this is somewhat technical, you do not need to be an attorney to make these determinations. In fact, much of this information is already printed on the subpoena forms themselves. You just need to be trained to look for certain documents and dates. In the vernacular of your profession, you just need to be trained to diagnose a subpoena for validity, with validity meaning compliance with California law.

First Things First: Check Your Emotions
When served with a subpoena, too many therapists allow anxiety to run amok, like a river overflowing its banks, and they turn a rather perfunctory set of tasks into a gut-wrenching ordeal. Consequently, instead of dealing with the subpoena in a calm, confident manner, the subpoena ends up “dealing” with the therapist. But, it doesn’t have to be that way! In the vast majority of cases, subpoenas are just important pieces of paper that must be addressed, one way or another. Being a little nervous, a little confused, a little anxious, a little stressed-out is all right, but being over-wrought is not! When served with a subpoena, take a deep breath and relax, and then fall back on what you have learned. You will be fine, not fined!

Two Separate Issues
In terms of compartmentalizing the information set forth in this article, think of two separate issues: the first is determining whether the subpoena has been served in accordance with California law. The second is responding to a subpoena in a lawful manner.

Your lawful response, however, could take a variety of forms, depending on the facts of the particular situation and your desire to “go with the flow” or “rock the boat,” as the case may be. For instance, in some situations asserting the psychotherapist-patient privilege is the thing to do; in other situations objecting to the subpoena because it is defective, whether in the preparation or the service, is the thing to do; and, in still other situations complying with the demand to produce records and/or attend the legal proceeding is the thing to do. Again, the underlying facts of the particular situation will shape your response.

Have You Been Served?
In plain English, a subpoena is a command from the court for records or persons, or records and persons, to appear at a designated time and place,i which could include a court hearing or a deposition. And, for the record, attorneys are empowered by law to issue subpoenas, so a subpoena that comes from an attorney is just as legitimate as one that comes from a judge.ii That does not mean, however, that you will testify or that your records will be admitted as evidence in the legal proceeding.

As a reminder, although a subpoena compels the attendance of a therapist and/or his or her records at a designated time and place, it does not, in and of itself, compel any testimony regarding a patient or disclosure of records by the therapist at that time and place. This is an important distinction to note. California Evidence Code §1015 places an affirmative obligation on therapists to assert the psychotherapist-patient privilege whenever third parties seek patient information. Consequently, in furtherance of this legal obligation, the prudent therapist would not testify or disclose records to anyone without authorization from the patient waiving the psychotherapist-privilege or an order from a judge.

The process of compelling the attendance of people or documents to court is carried out by serving, which is a legalistic term for delivering, certain documents on a witness. It is the law of the land that these subpoenas must be served personally.iii So called “substituted service” is not allowed.iv This means that if you are in private practice the subpoena must be physically given to you by the process server. Receiving a subpoena in the mail or from a suitemate, finding one in your office or on your waiting room floor, or finding one stuffed between the cushions of your couch does not constitute personal service. But, service on “business entities” may be accomplished by delivering the subpoena to any officer or director, to the custodian of records, or to any agent or employee authorized by the entity to accept.

As an aside, if you live in a gated community, do not think that you cannot be served with a subpoena at your home. Guards at gated communities must allow a peace officer or a licensed process server, with proper identification, of course, into the community to serve subpoenas.vi

The concept of service, however, is much broader than just the physical delivery of documents to the witness. For a subpoena to be prepared and served in accordance with California law, depending on the type of subpoena, it may have to be accompanied by certain documents and there may be certain timelines that have to be adhered to or the subpoena is invalid. This is where the technicalities creep in like the fog in San Francisco, but these documents and timelines are important because they ensure that a patient has enough time to assess and redress his or her privacy rights. The technicalities are our friend because they aid us in preserving patient privacy rights.

Types of Subpoenas
Six (6) of the most common types of subpoenas you may encounter are:

1. A Deposition Subpoena for Personal Appearance. This subpoena commands your appearance, but not your records, at a designated time and place for a deposition. If served with this subpoena, you should receive the actual subpoena and a proof of service. With this subpoena, you may want to consult with your malpractice carrier about whether it is possible to secure legal representation for you at the deposition. To be valid, this subpoena must be:

  1. Served personally on the therapist (CCP § 2020.220(b)).
  2. Served in sufficient time in advance of the time to testify to allow the therapist a reasonable time to travel to the place of the testimony (CCP § 2020.220(a)).

2. A Deposition Subpoena for Production of Business Records. This subpoena commands the appearance of your records, but not yourself, at a designated time and place for a deposition. If served with this subpoena, you should receive the actual subpoena; a proof of service; either a written release signed by the patient, or a proof of service indicating that the patient was served with a copy of the subpoena and a “Notice to Consumer or Employee and Objection” form; and, a check for fifteen (15) dollars. To be valid, this subpoena must be:

  1. Served personally on the therapist or organization (CCP §2020.220(b)).
  2. Served in such a time as to command compliance no sooner than twenty (20) days after the subpoena was issued, or fifteen (15) days after service, whichever is later (CCP §2020.410(c)).
  3. Served at least five (5) days after the subpoena and a “Notice to Consumer or Employee and Objection” form has been served, either personally or by mail, on the patient (CCP §1985.3(b)(3)).
  4. Accompanied by a written release from the patient or his or her attorney, or proof that the patient has been served with copies of the subpoena and the “Notice to Consumer or Employee and Objection” form (CCP §2020.410(d)).
  5. Accompanied by witness fees ($15) allowed by California Evidence Code §§ 1563(b)(6) and CCP §2020.230(b).

3. A Deposition Subpoena for Personal Appearance and the Production of Business Records. This subpoena commands the appearance of you and your records at a designated time and place for a deposition. If served with this subpoena, you will get the subpoena itself; a proof of service; and, either a written release signed by the patient, or a Proof of Service indicating that the patient was served with a copy of the subpoena and a “Notice to Consumer or Employee and Objection” form. To be valid, this subpoena must be:

  1. Served personally on the therapist or organization (CCP §2020.220(b)).
  2. Served in sufficient time in advance of the time to testify to allow the therapist to locate and produce any applicable records and a reasonable time to travel to the place of the testimony (CCP §§ 1985.3(d), 2020.220(a)).
  3. Served at least five (5) days after the subpoena and a “Notice to Consumer or Employee and Objection” form has been served, either personally or by mail, on the patient (CCP §1985.3(b)(3)).
  4. Accompanied by a written release from the patient or his or her attorney, or proof that the patient has been served with copies of the subpoena and the “Notice to Consumer or Employee and Objection” form (CCP §§ 1985.3(c) and 2020.410(d)).

There is no requirement that a check for fifteen (15) dollars accompany this subpoena. Witnesses served with this subpoena must generally demand witness fees and mileage reimbursement from the subpoenaing party, who may elect to pay such fees at the time of the deposition. Again, with this type of subpoena, you may want to consult with your malpractice carrier about whether it is possible to secure legal representation for you at the deposition.

4. A Civil Subpoena for Personal Appearance at Trial or Hearing. This subpoena commands the appearance of you, but not your records, at a designated time and place, such as a civil trial or a family court proceeding. If served with this subpoena, you should get the subpoena itself and a proof of service. To be valid, this subpoena must be:

  1. Served personally on the therapist or organization (CCP § 1987(a)).
  2. Accompanied by the fee and mileage for one day’s appearance, if demanded by the therapist as a witness (CCP § 1987(a))
  3. Served in sufficient time in advance of the time to testify to allow the therapist a reasonable time for preparation and travel to the place of the testimony (CCP § 1987).

5. A Civil Subpoena (Duces Tecum) for Personal Appearance and Production of Documents and Things at Trial or Hearing and Declaration. This subpoena commands the appearance of you and your records at a legal proceeding, such as civil trial or family court matter. If served with this subpoena, you will get the subpoena itself; a proof of service; and, either a written release signed by the patient, or a proof of Service indicating that the patient was served with a copy of the subpoena and a “Notice to Consumer or Employee and Objection” form. To be valid, this subpoena must be:

  1. Served personally on the witness, i.e., the therapist or organization (CCP § 1987(a)).
  2. Served in sufficient time in advance of the time to testify to allow the therapist a reasonable time for preparation and travel to the place of the testimony (CCP § 1987(a)).
  3. Accompanied by an affidavit or declaration specifying the exact matters to be produced, their materiality to the issues in the case, facts constituting good cause for their production, and that the witness has such documents in his or her possession or under his or her control (CCP §1985(a-b)).
  4. Accompanied by a written release from the patient, or proof that the patient has been served with copies of the subpoena and the “Notice to Consumer or Employee and Objection” form (CCP §§ 1985.3(c) and 2020.410(d)).

There is no requirement that witness fees accompany this subpoena. The witness fee, which is $35 per day for percipient witnesses, and the mileage fee, which is $.20 per mile to and from the courthouse, should be demanded by the witness at the time of service (CCP § 1987(b)).

6. A Subpoena (Criminal or Juvenile). This subpoena commands the attendance of you and/or your records at a criminal trial or juvenile court proceeding. If served with this subpoena, you should get the subpoena itself and a proof of service of that subpoena. To be valid, this subpoena must be:

  1. Served personally on the therapist or organization by any person other than the defendant in a criminal action (California Penal Code §1328(a)), or delivered to the therapist by mail or messenger if, and only if, the therapist “acknowledges” receipt of the subpoena by contacting the attorney who issued the subpoena, either by telephone, by mail, or in person, and giving such attorney the therapist’s date of birth and driver’s license number (California Penal Code §1328(d)).
  2. Served at least five (5) days before any records are required to be produced (California Evidence Code §1560(b)(1)).

Witness and mileage fees are allowed (California Penal Code §1328(b), 1329, and 1329.1) and should be sought from the attorney who issued the subpoena.

So What? Each of the subpoenas discussed above has its own rules regarding lawful service, and the failure of the attorney issuing the subpoena, or the process server delivering it, to comply with the rules invalidates it. So what? Why should you care? You should care because you have options when responding to invalid subpoenas.

For instance, on one hand, you could ignore any deficiencies in the preparation or service of the subpoena and treat it as if it had been prepared and served in accordance with California law. This is the sort of “Go with the flow” approach. You call your client and encourage your client to discuss these matters with his or her attorney. Alternatively, you may even consult with the client’s attorney, with proper authorization of course, and then go with whatever the client decides to do. All things considered, this is probably the path of least resistance.

On the other hand, you could object to any deficiencies, whether in the preparation or the service, and challenge the subpoena. Although this is a more confrontational approach, there may be good reasons for objecting to a subpoena that has been prepared or served in violation of California law. These reasons add up to an increased level of professionalism by MFTs. For instance:

  1. It is the law. As a licensed professional, you have to follow the law, so why not insist on other individuals, whether attorneys or professional photocopiers, adhering to the law as well? Although your objection may only result in the lawyer issuing and serving another subpoena that does comply with California law, you have the satisfaction of knowing that the process was done lawfully.
  2. It is another way for LMFTs to maintain the confidentiality of patient information. As an LMFT you have a duty to maintain the confidentiality of patient information and a duty to assert the psychotherapist-patient privilege when third parties seek patient information. Objecting to a subpoena that has been prepared or served in violation of California law reinforces these fundamental obligations because, by objecting to the subpoena, you are denying access to patient information.
  3. Objecting to deficiencies, whether in the preparation or service of a subpoena, may also “buy you some time” that may end your involvement in the underlying legal proceeding. For instance, if you object to a Civil Subpoena for Personal Appearance at Trial or Hearing because you were not personally served there may not be enough time to serve you with another subpoena. Alternatively, your objection, which delays your involvement or access to your records, may give the parties in a civil lawsuit time to settle their case or the parties in a criminal case time to reach a plea agreement.

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i Black’s Law Dictionary, 6th Ed., “Subpoena,” page 995
iiSee, for example California CCP § 2020.210(a)
iii In re Edward Abrams (1980) 108 Cal.App.3d 685; Chapman v. Superior Court (1968) 261 Cal.App.2d 194; Sternbeck v. Buck (1957) 148 Cal.App.2d 829
iv Ibid.
v See, for example, California CCP § 2020.410(c)
vi California CCP § 415.21