So You Want to Subpoena the Claim File
Contents
To Get Discovery From A Party Don’t Use a Subpoena ................................................ 2
Then How Are Records Obtained From A Party? .......................................................... 3
A Notice Of Deposition Is Always Required When Obtaining Records From A Party . 3
A Subpoena Does Not Take the Place of the Notice of Deposition ............................... 4
Then When Is A Subpoena Used In A Workers’ Compensation Proceeding? ............... 4
Why Not Use A Subpoena For Discovery From A Party? ............................................. 5
But CCP §2025 Talks About An “Oral” Deposition. ..................................................... 6
Okay Then Why Not Use Both A Subpoena AND A Notice Of Deposition? ............... 7
Have We Always Been Doing It Wrong? ....................................................................... 7
Why Not Just Ask The Insurance Company For The Records? ..................................... 7
What If The Testimony Of The Claims Administrator Is Desired? ................................ 8
What If The Claims Administrator Is Not Located Within the Mileage Limits? ........... 9
What If The Claims Administrator Is Not Located in California? ................................. 9
Conclusion .................................................................................................................... 12
So You Want to Subpoena The Claim File
by Warren Schneider
Med-Legal, Inc.
It’s simple, right? You are an attorney for the injured worker who has filed a
workers’ compensation case. You have your attorney service deliver a subpoena duces
tecum to the insurance company asking for the claim file. The problem is that a
subpoena duces tecum isn’t used to obtain discovery from a party. No one wants to
introduce unnecessary and highly technical requirements into the workers’ compensation
system.1 However, doing it the correct way in this instance is the simpler and easier way.
Yes, the subpoena is used all the time. And insurance companies and defense
attorneys are used to this procedure and routinely handle it. But that doesn’t make it the
proper procedure to use. Nor is it the desirable procedure to use. This article will explain
why.
To Get Discovery From A Party Don’t Use a Subpoena
There is a common misconception in the workers' compensation community that a
subpoena is the device to use to obtain records from a party such as employment records
and claim files. This is not true.
Discovery is authorized through LC § 5710. LC §5710 is the doorway from the
Labor Code to the Code of Civil Procedure sections on discovery.
This section says that depositions are done in workers’ compensation cases the
same as in superior court. So, however it’s done in superior is how it should be done in a
workers’ compensation case. This is so important that the code should be read. LC §
5710 states:
(a) The appeals board, a workers' compensation judge, or any party
to the action or proceeding, may, in any investigation or hearing
before the appeals board, cause the deposition of witnesses
residing within or without the state to be taken in the manner
prescribed by law for like depositions in civil actions in the
superior courts of this state under Article 3 (commencing with
Section 2016) of Chapter 3 of Title 4 of Part 4 of the Code of Civil
Procedure. To that end the attendance of witnesses and the
production of records may be required.
This authorizes the use of the deposition as set forth in the CCP to be used in a
workers’ compensation proceeding. Contained in Chapter 3, commencing with Section
2016, are the rules regarding a deposition. The primary section being CCP §2025, which
sets the rules unless modified by other sections covering specific types of depositions.2
Because LC §5710 uses the word “deposition” only depositions are authorized.
That means interrogatories under CCP §20303, demand for production of document under
CCP §2031, and request for admissions under CCP §2033 are not authorized. No labor
code or regulation authorizes the use of these other discovery devices.
2
The deposition by written questions under Code of Civil Procedure §2028 is
authorized. Using it in practice though is seldom if ever done4. There is not much
advantage in doing so. The “deposition by written questions” is not interrogatories.
Then How Are Records Obtained From A Party?
The deposition is how records are to be produced as stated in the last sentence
quoted above from LC §5710. Section (h) of CCP § 2025 states:
(1) The service of a deposition notice under subdivision (c) is
effective to require any deponent who is a party to the action or an
officer, director, managing agent, or employee of a party to attend
and to testify, as well as to produce any document or tangible thing
for inspection and copying.
It is worth emphasizing. It says a deposition of a party and the production of
documents is done by service of a notice of deposition – not a subpoena. And that’s the
way it’s done in superior court.5
Since the insurance company is a party to the case CCP § 2025 sets forth the rules
to follow.
What happened to the subpoena? CCP § 2025 does not require a subpoena for a
party. The requirements of a subpoena are absent. The service of a deposition notice is
effective to require any deponent who is a party or an officer, director, managing agent,
or employee of a party to attend and to testify, as well as to produce any document for
copying. CCP §2025(h)(1) A subpoena is not required.
Note that although a judge or attorney must sign a subpoena, an attorney need not
sign a notice of deposition. CC §128.7(g) The attorney’s copy service can prepare and
sign the notice of deposition.
A Notice Of Deposition Is Always Required When Obtaining Records From
A Party
This is always true when obtaining records from a party. A subpoena isn’t
necessary at all for a party. That was established above. But a notice of deposition is
required to obtain records from a party or a nonparty, for that matter. Whether or not you
still cling to the idea that a subpoena duces tecum is used to obtain records from a party, a
notice is still necessary. CCP § 2025 says:
(c) A party desiring to take the oral deposition of any person shall
give notice in writing in the manner set forth in subdivision (d). …
The notice of deposition shall be given to every other party who
has appeared in the action. The deposition notice, or the
accompanying proof of service, shall list all the parties or attorneys
for parties on whom it is served.
The only situation where a notice of deposition is not required is where business
records from a nonparty are sought. In that situation the deposition subpoena serves as
the notice of deposition. CCP §2025(c) This is more fully discussed below.
3
A Subpoena Does Not Take the Place of the Notice of Deposition
Only the notice of deposition sets a deposition of a party. CCP §2025(c) states,
“A party desiring to take the oral deposition of any person shall give notice in writing in
the manner set forth in subdivision (d).”
The only exception, i.e. where a notice of deposition is not required is where
business records are sought from a nonparty. CCP §2025(c) goes on to state, “However,
where under subdivision (d) of Section 2020 only the production by a nonparty of
business records for copying is desired, a copy of the deposition subpoena shall serve as
the notice of deposition.”
A subpoena is an order for a person to appear and testify as a witness at a hearing,
trial, or deposition. CCP §1985(a) state, “The process by which the attendance of a
witness is required is the subpoena. It is a writ or order directed to a person and requiring
the person's attendance at a particular time and place to testify as a witness.” A subpoena
is like an invitation to a wedding. The invitation does not arrange the wedding. More
has to be done besides a mother sending out invitations.
The notice of deposition arranges the deposition.
Then When Is A Subpoena Used In A Workers’ Compensation Proceeding?
The regulation authorizing the use of the subpoena in workers’ compensation
proceedings is Reg. 10530. It is the doorway to the subpoena sections of the Code of
Civil Procedure where a subpoena is required. That’s not the situation here. Reg. 10530
incorporates the subpoena sections of the CCP, specifically sections 1985 and 1987.5.
These two sections do not apply when obtaining records from a party. Don’t even go
there.
The misconception that a subpoena is required to obtain discovery from a party
may come from Reg. 10530 and 10532. These sections are not used to set depositions for
discovery of either a party or nonparty. These sections are not discovery devices and do
not refer to discovery sections of the Code of Civil Procedure. The discovery sections of
the Code of Civil Procedure commence at section 2016.
Reg. 10532 doesn’t help either. That regulation incorporates CCP § 1987. CCP §
1987 only serves to authorize the use of a notice to appear before a court. It is not a
discovery device.
When is the board subpoena used? Keeping in mind that the subpoena is not used
in our present situation, i.e. a deposition of a party, a subpoena is necessary to command
a nonparty witness to appear and testify and produce documents at a deposition or trial.
The board subpoena duces tecum is only used for the appearance of nonparties at
depositions or at trial.
Probably the idea that only a subpoena can get records from a party stems from
historical practices. In earlier times workers’ compensation cases were much simpler.
Practitioners may remember when a case file contained only a few documents. Now a
file can easily be six inches thick or more. Maybe in those days little discovery was
done. When testimony of a witness was needed the witness was subpoenaed to trial – not
to a deposition. When documents were needed the custodian of records was subpoenaed
to trial. Deposition of witnesses other than the injured employee was seldom done.
4
The WCAB did not publish an official deposition subpoena form – and still hasn’t
to this day. When records were needed a subpoena was used and nobody complained.
That was the only form available.
Why Not Use A Subpoena For Discovery From A Party?
Because a subpoena for discovery from a party is easily quashed – besides being
the wrong device for the job as stated above. There are a number of reasons.
1. A notice of deposition must still be served. A bare subpoena duces tecum
does not set a deposition. Only a notice of deposition sets a deposition of
a party.
2. A subpoena duces tecum must specify the material to be produced exactly.
This can’t be done during the discovery phase of the case. CCP § 1985
says, “…specifying the exact matters or things desired to be produced …”
Any subpoena that says to produce “any or all documents …” does not
specify the exact thing to produce. The proponent of the subpoena must
describe the exact piece of paper. This cannot be done in the discovery
phase of the case because it is not known even if the document exists let
alone the exact description. In contrast, the deposition notice does not
require a specification of the exact thing. CCP § 2025(d)(4) says that the
notice shall state, “(4) The specification with reasonable particularity of
any materials or category of materials to be produced by the deponent.”
Discovery may require the party to create a document such as a report of
benefits paid – not so for a subpoena.
3. A subpoena duces tecum must have a showing of good cause. CCP §
1985(b) says, “The service of a subpoena duces tecum is invalid unless at
the time of such service a copy of the affidavit upon which the subpoena is
based is served on the person served with the subpoena.” A statement that
the material is necessary to prove issues in the case is conclusionary and
inadequate. In contrast good cause is not a requirement for a notice of
deposition.6
4. A subpoena duces tecum must name a specific person. It is difficult to do
that if the name of the person who has the records is unknown. Naming
the adjuster to get records only would prevent a second deposition of the
adjuster to get testimony since only one deposition of a witness is
allowed.7 A specific person does not even have to be named on the notice
of deposition. CCP § 2025(d)(6) says, “If the deponent named is not a
natural person, the deposition notice shall describe with reasonable
particularity the matters on which examination is requested. In that event,
the deponent shall designate and produce at the deposition those of its
officers, directors, managing agents, employees, or agents who are most
qualified to testify on its behalf as to those matters to the extent of any
information known or reasonably available to the deponent.” 8 This can be
as simple as “the custodian of records” or “the person most
knowledgeable” or “the person having custody or control of the records.”
5
5. A subpoena duces tecum must be personally served on a specific person.9
This can be a big problem. The adjuster may be located in a big building
with lots of security. Often the adjuster will not voluntarily come to the
lobby to be served. The process server cannot get close enough to the
adjuster to deliver the subpoena to him or her. So, service cannot be
affected10. In contrast the notice of deposition is served by mailing it to
the attorney for the insurance company. Simple as that.
So, to avoid all these pitfalls and technicalities, do not serve a subpoena duces
tecum to get discovery from a party. An opposing attorney will try to get you to use a
subpoena duces tecum because he or she can then easily quash it.
But CCP §2025 Talks About An “Oral” Deposition.
CCP §2025 talks about an oral deposition. What if only records are sought and no
testimony need be taken?
An ambiguity in the Code of Civil Procedure arises for workers’ compensation
cases because CCP § 2025 is entitled oral deposition. Since demand to produce under
CCP §2031 isn’t available in workers’ compensation proceedings, the only alternative is
the records-only deposition without testimony. Without the records-only deposition there
would be no legal discovery device to obtain documents from a party short of a motion to
the board. A motion to the board every time documents are sought from a party would
not tend to expedite workers’ compensation procedures. Surely that is not the intent of
the labor code or the already overburdened WCAB.
Is an appearance by the deponent at the deposition necessary? Must the witness
be sworn under oath in a deposition of a party in a workers’ compensation proceeding
when only records are to be obtained?
First, arguing that a subpoena is the thing to use is illogical because there is no
question that a subpoena commands the appearance of a party. A subpoena is a writ or
order directed to a person and requiring the person’s attendance at a particular time and
place to testify as a witness.11 The attendance of the person is not wanted if the records
are produced. Only records are wanted. It makes no sense to serve the witness with an
order to appear if it was not necessary for the person to appear.
Second, the word “oral” is mentioned in the title to CCP §2025 and in the first
sentence does not limit a deposition only to oral testimony. The provisions of CCP
§2025 apply to both oral depositions and “records only” depositions.12
Third, some additional wording on the notice of deposition easily eliminates this
possible issue. The wording on the notice is that no appearance is necessary if the
records are produced and made available for copying prior to the date of the deposition.
With this wording on the notice of the deposition, the deposition is automatically
canceled when the records are produced for copying. This has the same force and effect
as a records-only deposition with an added benefit. If the records are not produced by the
date of the deposition the witness must appear.
Under Code of Civil Procedure Section 2021 the parties may agree that an
appearance is not necessary. The wording on the notice of deposition is that an
6
appearance by the deponent is not necessary if the records are produced within the
required time limits. The declaration of the custodian of records should state that the
deponent stipulates that there will be no appearance. This satisfies the requirements of
the Code of Civil Procedure.
Okay Then Why Not Use Both A Subpoena AND A Notice Of Deposition?
Because the defendant then objects to the subpoena duces tecum due to the
technicalities discussed above and ignores the notice of deposition. Nothing is produced.
Have We Always Been Doing It Wrong?
No, defense attorneys use the notice of deposition to set the deposition of the
injured worker. The problem only comes up for getting records from the insurance
company and the employer.
It’s just that it hasn’t been done much in the past. The need for perusing the claim
file is much more important today than it was in the past. It’s being done with more
frequency, so the need to do it right has become more important.
In years past penalties were seldom sought, so the record of payments was not
often needed. Also, there was no presumption of compensability. If the case was not
denied within 90 days it is presumed compensable and evidence that could have been
obtained within the 90-day period is excluded.13 Petitions for discrimination under LC
§132a weren’t as prevalent. Workers’ compensation attorneys never thought of suing the
employer under the California Fair Employment and Housing Act (FEHA). It is
important now because the employer must engage in an interactive, problem-solving
accommodation process that includes consulting with an expert regarding
accommodating the injured worker in the job. The claim file and employer’s records
would contain the investigation efforts.
It’s not so much that it has been done wrong in the past. It’s more like it was
hardly ever done. When it was done, a subpoena duces tecum was used. When the
Discovery Act of 1986 was enacted the use of the subpoena duces tecum in workers’
compensation proceedings continued even though the act eliminated its use for a party.
Why Not Just Ask The Insurance Company For The Records?
Why not just ask the insurance company to produce the records without resorting
to a legal device? Because there is no guarantee that all the evidence will be voluntarily
produced. The smoking gun won’t be there. The insurance company may not send
everything to their attorney. The defense attorney can then truthfully say that he or she
has turned over everything that he or she received. Also, the insurance company may not
timely comply. Many requests may be needed before a response of, “It’s in the mail” is
received. A proper legal device will get the desired attention.
Would a defense attorney malpractice by voluntarily turning over the smoking
gun that may cost an employer hundreds of thousands of dollars in a FEHA or wrongful
termination case?
7
What If The Testimony Of The Claims Administrator Is Desired?
It should be clear by now that a notice of deposition along with a demand for the
production of documents is all that is needed. Must the claims administrator14 be
personally served a subpoena to appear at the deposition?
No. CCP §2025(h)(1) was quoted earlier. It says that, “The service of a
deposition notice under subdivision (c) is effective to require any deponent who is a party
to the action or an … employee of a party to attend and to testify, as well as to produce
any document or tangible thing for inspection and copying.” The claims administrator is
an employee of a party to the action. So, a subpoena is not necessary thereby avoiding all
the problems of a subpoena and the service of a subpoena.
Is it desirable to take the deposition of the claims administrator as opposed to
having he or she testify at the trial?
Yes, it is. Taking the deposition of the claims adjuster avoids the problems of the
subpoena. To have a claims adjuster testify at trial he or she must be personally served
with a subpoena duces tecum. The subpoena duces tecum must describe exactly the
materials to be produced and there must be an affidavit of showing good cause and all the
other technicalities of a subpoena. Ugh. All these land mines can be avoided with the
deposition.
What about using Reg. 10532 and CCP §1987 to send a notice to the defense
attorney for the insurance company to have the claims administrator appear at the trial
and produce? The idea here is to get around the necessity of having to personally serve
the claims administrator a subpoena. It is questionable that CCP §1987 can be used in
place of a subpoena in this situation. This is because CCP §1987 says that this only
applies to an officer, director, or managing agent of the party. The word “employee” is
left out. Then is a claims administrator a “managing agent?” It’s doubtful. The
managing part is the managing of the company and not the managing of a claim file.
The disadvantage of taking the testimony of the claims administrator at a
deposition is that the attorney for the injured worker must front the money for the court
reporter. Usually this money is reimbursed as litigation costs under LC §5811.
Another disadvantage is that the attorney for the injured worker may have to
travel to a place of the deposition because of the distance limitations of CCP §2025(e).
The place must be within 75 miles of the deponent’s residence or 150 miles if the place is
within the county where the action is pending. Code of Civil Procedure §1987 doesn’t
have any distance limitations. Of course, this is easily overcome by using the office of a
local court reporter, the copy service, or a fellow attorney.
Even if the claims administrator was subpoenaed to trial and all the land mines of
a subpoena were safely navigated there may be more obstacles. There is danger of being
surprised or blind-sided at the trial. The claims administrator may only bring some
documents because the documents were not exactly specified in the subpoena. The
workers’ compensation judge may severely limit the testimony or what can be introduced
into evidence. Avoid the aggravation and possible malpractice by doing the discovery
and taking the deposition of the claims administrator when necessary.
8
What If The Claims Administrator Is Not Located Within the Mileage Limits?
If the deponent does not reside within the mileage limitations of CCP 2025.250
the applicant’s attorney has the option of either setting the place of the deposition closer
to the residence of the deponent or getting an order from a Workers Compensation Judge
that the witness attend the deposition at a place that is more distant then the mileage
limitations.
The best approach is to discuss the place and date of the deposition with the
attorney representing the insurance company. If the opposing attorney represents that
there will be an objection to setting the place of the deposition in the applicant attorney’s
office because of the mileage limitations then the attorneys should attempt a stipulation
that is more agreeable to all parties. Any stipulations should be reduced to writing so that
there is no confusion as to the ground rules for the deposition.
If mutually agreeable conditions of the deposition cannot be reached the place of
the deposition can be set by notice at a closer location such as at a court reporter’s office,
another attorney’s office, a copy service’s office (Med-Legal, Inc. provides this service)
or a hotel conference room. The insurance company should be cooperative in reaching
an agreement as to the place of the deposition because the insurance company will
ultimately be required to pay the costs under LC 5811.
In the alternative an order can be requested by petition from a Worker’s
Compensation Judge that the deposition be taken at a location that is beyond the distance
requirements of CCP 2025.250. The Worker’s Compensation Judge has the power15
under Labor Code 5710 and CCP 2025.260
What If The Claims Administrator Is Not Located in California?
If the claims administrator does not reside in this state then the claims
administrator cannot be subpoenaed to come to California and testify. To take the
deposition of the claims administrator the applicant’s attorney has three alternatives.
First, the attorney may petition the board for an order that the insurance company
produce the claims administrator. The second alternative is to have the deposition taken
in another state. The third alternative is that the applicant’s attorney can set the
deposition of the insurance company under CCP 2025.230.
The first alternative is the most practical. The board has the power to order the
insurance company to produce the deponent16 and at the expense of the defendant17. The
rationale is that the defendant chose to conduct the business of worker’s compensation
insurance in California and to locate its claims administrator in another state. The
defendant has created the inconvenience and should pay for the travel as opposed to the
injured employee paying. Injured employees are often out of work and usually have
limited funds. Forcing the injured employee to pay for travel is affectively shielding the
claims administrator from the reach of the board and denying the injured employee due
process.
The second alternative is by far the least desirable. To taking the deposition in
another state is complex and expensive. Before undertaking this route a more agreeable
situation should be sought from the opposing attorney. This might be arranging for a
telephone deposition or video conferencing deposition along with the production of
9
documents. Without an agreement the applicant’s attorney can still take the deposition in
another state.
Authority for a deposition in another state is Labor Code section 5710. It states,
“Depositions may be taken outside the state before any officer authorized to administer
oaths. The appeals board or a workers' compensation judge in any proceeding before the
appeals board may cause evidence to be taken in other jurisdictions before the agency
authorized to hear workers' compensation matters in those other jurisdictions.” The
procedure is to obtain an order from a Worker’s Compensation Judge then take that order
to the other state and get an order from a judge in the sister state compelling the
deposition. This writer has never heard of this actually being done in a worker’s
compensation case. But there is an easier way.
The third alternative is to take the deposition of the insurance company. CCP
2025.010 states, “The person deposed may be a natural person, an organization such as a
public or private corporation, a partnership, an association, or a governmental agency.”
The applicant’s attorney should become familiar with law in this area as there are
some things he or she should be aware. If the deposition of the insurance
company is set then the insurance company must designate and produce a
deponent who is most qualified to testify on the matter. CCP 2025.230 states,
“If the deponent named is not a natural person, the
deposition notice shall describe with reasonable
particularity the matters on which examination is requested.
In that event, the deponent shall designate and produce at
the deposition those of its officers, directors, managing
agents, employees, or agents who are most qualified to
testify on its behalf as to those matters to the extent of any
information known or reasonably available to the
deponent.’
Note that the insurance company cannot say there is no one it can designate. It
must designate someone. The person can be an employee or an agent. Even if the claims
administrator is a third party administrator the insurance company can designate the
claims administrator.
A downside to this method is that the insurance company is not required to
designate the claims administrator who is currently assigned the case nor can the
applicant’s attorney require the designation of a particular person. But if a nonqualified
non-knowledgeable person is designated the insurance company is bound by the answers
and the defendant is deemed to lack the knowledge. No new testimony on the issue can
be produced at trial.
Another advantage is that the most-qualified deponent can be asked questions
such as to the position of the company on an issue and the company is bound by the
answer. The deponent is speaking for the company. This could lay the ground work for
a penalty. The only limitations are relevancy and work product and attorney-client
privilege. But the attorney-privilege only goes to the insurance company attorney’s
theories and opinions – not to facts and positions taken by the company conveyed by the
attorney to the deponent.
10
The notice of deposition must state the scope of the deposition with reasonable
particularity. CCP 2025.230 states, “If the deponent named is not a natural person, the
deposition notice shall describe with reasonable particularity the matter on which the
examination is requested.” Language such as “Any and all issues regarding the above
entitled case” might be permitted but not language as “Any and all, but not limited to,
issues regarding the above entitled case”. This would not be particular enough. Basically
there would be no limits and the company would not know how to prepare the deponent.
The company has an obligation to educate the deponent on all facts and issues
within the scope of the deposition.
The language of the notice of deposition and production of document is
important. The company is not bound by answers to questions that are not within the
scope of the issues delineated in the notice of deposition. Questions outside the scope
can be asked but the deponent need only answer based upon his or her personal
knowledge and the company is not bound by the answers.
Because the company is bound by the answers (and far reaching consequences)
insurance companies want to stay away from a company deposition. This might prod an
insurance company into agreeing to producing the claims adjuster for a deposition is in
the applicant attorney’s office.
The applicant’s attorney prepares the notice of deposition and production of
documents and has it served on the insurance company’s agent for service of process
listed with the California Secretary of State. This service is much easier than trying to
personally serve an adjuster in a secure office complex, not to mention trying to serve an
adjuster in another state.
The distance limitations still apply but now the limitation is from the principal
place of business within California18.
Documents to be produced need not be designated exactly. This is discovery
and not identifying documents at trial. CCP 2025.220 states, “(4) The specification with
reasonable particularity of materials or category of materials to be produced by the
deponent.”
About now the reader must be asking whether a worker’s compensation judge
would get involved in such complexity of discovery let alone enforce it or order it. Many
judges would not. Worker’s compensation procedures are supposed to be simple and
expeditious. Many judges have not done discovery in superior court in their career as an
attorney and are not versed in the Code of Civil Procedure. But keep in mind where this
all came from --Labor Code 5710. It states:
The appeals board, a workers' compensation judge, or any party
to the action or proceeding, may, in any investigation or hearing
before the appeals board, cause the deposition of witnesses
residing within or without the state to be taken in the manner
prescribed by law for like depositions in civil actions in the
superior courts of this state under Title 4 (commencing with
Section 2016.010) of Part 4 of the Code of Civil Procedure.
That means CCP 2025.230 is readily usable in worker’s compensation and the
legislature intended for the deposition and much of its complexity to be incorporated into
11
worker’s compensation procedures where warranted. An out-of-state claims
administrator is one of those situations where warranted.
Conclusion
The above procedures for a deposition of a party are generally followed by the
defense when taking the deposition of the injured worker. The defense sends a notice of
deposition. But going the other direction often isn’t done when obtaining records. It
should be.
The same party procedures apply to the deposition of the employer as that of the
injured worker19. A subpoena is not required to have the injured worker appear for a
deposition. Nor is a subpoena duces tecum required to have the injured worker appear at
a deposition and produce documents. That’s worth repeating. A subpoena and CCP
sections 1985 and 1987.5 have nothing to do with the deposition of a party.
Even if a notice of deposition is correctly served, many insurance companies will
object on the ground that the wrong device was used claiming a subpoena duces tecum is
the correct device. But if a subpoena duces tecum is used, the same insurance company
will object on all the technicalities described earlier and get the subpoena duces tecum
easily quashed. This Catch 22 results in delay and unnecessary discovery motions at the
WCAB.
The logic of discovery code sections is not easy to follow. It takes going through
them several times (actually many times) before the whole scheme becomes clear. But it
should be clear by now that a notice of deposition and not a subpoena duces tecum is the
legal device to obtain the claim file. Use of only a subpoena is an abuse of process.
C:\My Documents\ Subpoena the Claim File
Hardesty v. McCord & Holdren, Inc. 41 CCC 111 at page 113 “The adoption by us of a set of rules
relating to discovery which would permit a paper war of interrogatories and would require frequent pre-trial
appearances by counsel to argue discovery motions would be inconsistent with that constitutional
mandate.”
2
In California Shellfish, Inc. v. United Shellfish Co. 56 Cal.App.4th 16, 23 the court stated, “sections 2025
and 2028 … are the general sections governing the procedures for oral and written depositions, and are
applicable to depositions of party deponents and nonparty witnesses alike.”
3
The title of CCP §2030 in West’s desktop edition is “Deposition of parties upon written interrogatories.”
However, the word “deposition” is nowhere in the language of the code. The title of a code section has no
legal significance.
4
It was used in Lubin v. Berkley East Convalescent Hospital 41 CCC 283 where the board did not say it
couldn’t be used, only that in this case the questions were boilerplate and burdensome. A few specific
questions probably would have been acceptable.
5
See also California Civil Discovery Practice 3rd Ed.CEB § 4.44; California Practice Guide Civil
Procedure Before Trial The Rutter Group § 8:516 Subpoena NOT Necessary for Party or “PartyAffiliated” Witnesses.
6
CCP §§ 2025(d) and 2025(h)(1); Cal. Civil Disc. Practice CEB §2.57
7
CCP §2025(t)
8
Taking the deposition of an entity as opposed to naming the adjuster avoids the possible problem of only
being able to take the deposition of a person one time under CCP § 2025(t). The limitation doesn’t apply
1
12
even if the adjuster actually testifies on behalf of the entity. Civil Procedure Before Trial, California
Practice Guide Rutter Group § 8:482 The distance limitation may be better if the deponent is an entity
because the testifying officer’s residence is immaterial. Civil Procedure Before Trial, California Practice
Guide Rutter Group § 8:629
9
CCP §1987 “…the service of a subpoena is made by delivering a copy … to the witness personally …”;
CCP §2020(f) [second sentence]; California Subpoena Handbook, Sink (cannot substitute serve a
subpoena).
10
An order can be obtained from a judge that the Sheriff is to serve the subpoena and for that purpose may
break into the building and serve the person. CCP §1988 (Call the swat team.)
11
CCP §1985, 1986
12
Monarch Healthcare v. Superior Court (Cassidenti) 78 Cal.App.4 th 1282
13
LC §5402; State Compensation Insurance Fund v. WCAB (Welcher) 37 Cal.App.4 th 675, 60 CCC 717
14
A claims administrator is defined by Labor Code section 138.4. A claims administrator is commonly
referred to as a claims adjuster.
15
The WCAB has general powers under Labor Code 133 and 134..
16
Glass v. Superior Court (1988) 204 Cal.App.3d 1048
17
Housing Authority of Alameda v. Gomez (1972) 26 CalApp3d 366; Crummer v. Beeler (1960) 185 Cal
App 2d 851
18
CCP 2025.250(b)
19
Unless the employer has been dismissed under LC §3755. Then the employer is no longer a party. See
Tri-Spur Investments v. WCAB 61 CCC 940. If the employer has been dismissed then the records of the
employer are obtained with a deposition subpoena under CCP §2020(d).
13