One of your fundamental rights as a witness is to be personally served with subpoenas. The law takes this right very seriously! You certainly can agree to be served in another manner if you choose to do so, such as by mail or by fax machine. But, the choice is yours, not theirs. The case of In re Edward Abrams (1980) 108 Cal.App.3d 685 is illustrative. In Abrams an attorney served a subpoena duces tecum on Bernbrock, the attorney representing Dr. Abrams, instead of on Dr. Abrams personally. Bernbrock told the attorney who issued the subpoena duces tecum that he had no authority to accept service of the subpoena on behalf of Dr. Abrams. Then, when Dr. Abrams failed to show up for court, the Superior Court initiated contempt proceedings against him. Dr. Abrams was served with the contempt papers and he did show up for that hearing.

Although the Superior Court found Dr. Abrams in contempt of court for disobeying the subpoena duces tecum, the Court of Appeal, Fourth District, reversed the Superior Court's decision. The Court of Appeal found that Dr. Abrams was under no legal compulsion to attend the original hearing because he had not been served personally with the subpoena duces tecum for that hearing.

In reaching its decision, the Court of Appeal stressed that "service of a subpoena on a witness is an original exercise of jurisdiction" over the witness, meaning that through service of subpoenas, courts acquire the ability to punish those who fail to comply with subpoenas. This is why service of subpoenas is so important for witnesses. Failing to comply with subpoenas can have significant legal consequences for those properly served, and the rules have been designed to give witnesses full and fair notice of their rights and responsibilities.

The Concept of Personal Service By personal service, it is meant that the subpoena and all accompanying documents are physically given to you in your presence. They are handed to you like a loaf of bread or a pizza. Technically, if you try to evade service by fleeing from the process server, he or she could throw the subpoena at you and announce that he or she is serving you with a subpoena and such activity would likely count as valid service. You should not try and evade the process server. For instance, in situations where a witness has secluded herself in a building to evade service, the court can authorize a sheriff to break into the building to serve the subpoena.1 Because the possibility of being served with a subpoena at home is so disquieting to most therapists, it seems prudent to work towards an outcome that effectuates service of the subpoena at work so that your quiet enjoyment of your home is not disturbed by process servers. In this sense, working with process servers about good days and good times to serve subpoenas at your office makes a whole lot of sense. The professional thing to do is to accept service of the paperwork and then deal with the subpoena as allowed by law.

The Requirement of Personal Service There are different kinds of subpoenas. Some seek only records; some seek only testimony; and, some seek both records and testimony. To identify the kind of subpoena you have been served with, you can look for the title of the subpoena about a third of the way down from the top. This information is also found at the bottom of the document. The type of subpoena will be set forth in capital letters and "Bold" type.

Whether the subpoena is a Deposition Subpoena for Personal Appearance, a Deposition Subpoena for Production of Business Records, a Deposition Subpoena for Personal Appearance and Production of Documents, a Civil Subpoena for Personal Appearance at Trial or Hearing, or a Civil Subpoena (Duces Tecum), the law requires these subpoenas to be personally served on witnesses.2

The rule for service of a Criminal and Juvenile subpoena is different, however. Although this type of subpoena should be served personally on the witness,3 it can actually be mailed to you instead; however, it does not become a valid subpoena until it has been "acknowledged" by you as the witness.

Such acknowledgment requires you to contact the attorney who issued the subpoena by telephone, by mail, by email, by completing an online form at the attorney's website, or by going to the attorney's office in person. Once you have made contact with the attorney, to "acknowledge" the subpoena, you must then give that attorney your date of birth and driver's license number.4

Without this "acknowledgement" by you, serving the Criminal and Juvenile subpoena by mail would have no legal effect on you. Attorneys and process servers who serve Criminal and Juvenile subpoenas by mail assume the risk of individuals not "acknowledging" subpoenas, and, ultimately, not responding to them.

Service of Subpoenas on Organizations The service of subpoenas on agencies, partnerships, or professional corporations ("Organizations") presents other types of issues. When Organizations are involved, subpoenas can be served on officers, such as the president, the secretary, or the treasurer of the Organization, or on any member of the Organization's board of directors.5 Subpoenas can be served on the Organization's custodian of records, if the Organization has one. Subpoenas can also be served on any agent or employee authorized by the Organization to accept service of subpoenas.6 An Organization should have a written policy regarding who can accept service of subpoenas.

Notice the key language, however. The person accepting service of the subpoena must be an agent or employee of the organization being served with the subpoena. This language is why "suite-mates" have no authority generally to accept service of subpoenas for other practitioners working in the same suite of offices. If you are approached by a process server trying to serve a subpoena on one of your colleagues, you can simply say "Sorry, I have no authority to accept service of legal documents on behalf of my colleague. You will have to find and serve her."

Of course, if a therapist knows she will be out of the office on Monday she could ask a "suitemate" to accept service of the subpoena for her and then communicate that arrangement to the process server, which would then be lawful service because the second suitemate would be acting as the first suitemate's "agent" for the transaction.

The Proof of Service Any subpoena you are served with must be accompanied by a document called the "Proof of Service." The Proof of Service is a very important document because it contains factual information about the manner of service. The Proof of Service tells us the name of the individual serving the subpoena; the name of the person served with the subpoena; the address of the location where service of the subpoena occurred; the date the subpoena was served; and, the time of day the subpoena was served. Most importantly, the Proof of Service requires the person who served the subpoena, which is usually a process server, to declare these facts under penalty of perjury.

In cases where service of a subpoena is "sketchy" because the documents were left on your desk without your knowledge, or slipped under your door while you were out of the office, or left with one of your suitemates without your authorization, the Proof of Service may actually set forth "facts" that may not actually be true. Think back to the introduction of this article. A psychotherapist was "served" with a subpoena while she was in another country! Obviously, based on the rules we have reviewed, that does not sound like valid personal service. Consequently, no judge would hold a therapist in contempt of court for failing to appear at the hearing, once the judge has heard the therapist's testimony regarding why she failed to appear and that she had never been validly served with a subpoena. The therapist would also have documentary evidence, such as hotel bills and airline tickets, to support her case. In cases like this, the evidence would tend to show that the process server had misrepresented the "facts" on the Proof of Service.

Additionally, remember that process servers are required to be registered with the county they are working in; consequently, if you have dealt with a process server who has flouted the rules regarding personal service of subpoenas, you could lodge a complaint about that process server with the County Clerk. Perhaps, in the wake of such misconduct, individuals would lose their registrations as process servers.

Moreover, remember process servers are required to post a $2,000 bond so there may be some money to go after if you are forced to expend your own money retaining an attorney to deal with a contempt hearing.

So, Do You or Don't You? As a witness, you have the right to be personally served with subpoenas. If you have not been properly served, you have two options:

1. You could choose to treat the subpoena as if it had been validly served. In such cases, you should call your client and encourage your client to discuss the subpoena (and its content) 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. If you are unable make contact with your client, it is advisable to consult with your attorney to secure legal advice; contact your malpractice carrier about the possibility of securing an attorney, if you do not have one; or, call CAMFT to discuss possible options. All things considered, this is probably the path of least resistance.

2. Conversely, you could object to the subpoena because it was not properly served, which, technically, invalidates the subpoena.7 In such cases, the prudent thing to do is to advise
the attorney who issued the subpoena that you are objecting to the legal effect of it because it was not personally served. This should be done in writing to create a "paper trail" of your conduct, but it could also be done via the telephone or email. This may not end the process, however, because there still may be time for the attorney to serve you personally with the subpoena. You would, however, have the satisfaction of exercising your legal right as a witness!

Conclusion
The reality of the situation is that there will always be "those" process servers and "those" attorneys who try and circumvent the rules regarding personal service of subpoenas. Wise therapists should see that they have rights in this area too. And, in fact, those therapists who are vigilant in exercising their rights regarding service of subpoenas will likely help curb the unprofessional conduct of those who try to circumvent such rules.

David Jensen, JD, is a former staff attorney at CAMFT. 

References
¹ California Code of Civil Procedure § 1988
² California Code of Civil Procedure §§ 1987 and 2020.220(b)
³ California Penal Code § 1328(a)
⁴ California Penal Code § 1328d
⁵ California Code of Civil Procedure §2020.220(b)(2)
⁶ California Code of Civil Procedure §2020.220(b)(2)
⁷ California Code of Civil Procedure §§ 1985.3(k); 1985.6(j)