SECTIONS 1560-1567 - California Statutes

EVIDENCE CODE

SECTION 1560-1567

1560. (a) As used in this article:
(1) "Business" includes every kind of business described in
Section 1270.
(2) "Record" includes every kind of record maintained by a
business.
(b) Except as provided in Section 1564, when a subpoena duces
tecum is served upon the custodian of records or other qualified
witness of a business in an action in which the business is neither a
party nor the place where any cause of action is alleged to have
arisen, and the subpoena requires the production of all or any part
of the records of the business, it is sufficient compliance therewith
if the custodian or other qualified witness delivers by mail or
otherwise a true, legible, and durable copy of all of the records
described in the subpoena to the clerk of the court or to another
person described in subdivision (d) of Section 2026.010 of the Code
of Civil Procedure, together with the affidavit described in Section
1561, within one of the following time periods:
(1) In any criminal action, five days after the receipt of the
subpoena.
(2) In any civil action, within 15 days after the receipt of the
subpoena.
(3) Within the time agreed upon by the party who served the
subpoena and the custodian or other qualified witness.
(c) The copy of the records shall be separately enclosed in an
inner envelope or wrapper, sealed, with the title and number of the
action, name of witness, and date of subpoena clearly inscribed
thereon; the sealed envelope or wrapper shall then be enclosed in an
outer envelope or wrapper, sealed, and directed as follows:
(1) If the subpoena directs attendance in court, to the clerk of
the court.
(2) If the subpoena directs attendance at a deposition, to the
officer before whom the deposition is to be taken, at the place
designated in the subpoena for the taking of the deposition or at the
officer's place of business.
(3) In other cases, to the officer, body, or tribunal conducting
the hearing, at a like address.
(d) Unless the parties to the proceeding otherwise agree, or
unless the sealed envelope or wrapper is returned to a witness who is
to appear personally, the copy of the records shall remain sealed
and shall be opened only at the time of trial, deposition, or other
hearing, upon the direction of the judge, officer, body, or tribunal
conducting the proceeding, in the presence of all parties who have
appeared in person or by counsel at the trial, deposition, or
hearing. Records that are original documents and that are not
introduced in evidence or required as part of the record shall be
returned to the person or entity from whom received. Records that are
copies may be destroyed.
(e) As an alternative to the procedures described in subdivisions
(b), (c), and (d), the subpoenaing party in a civil action may direct
the witness to make the records available for inspection or copying
by the party's attorney, the attorney's representative, or deposition
officer as described in Section 2020.420 of the Code of Civil
Procedure, at the witness' business address under reasonable
conditions during normal business hours. Normal business hours, as
used in this subdivision, means those hours that the business of the
witness is normally open for business to the public. When provided
with at least five business days' advance notice by the party's
attorney, attorney's representative, or deposition officer, the
witness shall designate a time period of not less than six continuous
hours on a date certain for copying of records subject to the
subpoena by the party's attorney, attorney's representative, or
deposition officer. It shall be the responsibility of the attorney's
representative to deliver any copy of the records as directed in the
subpoena. Disobedience to the deposition subpoena issued pursuant to
this subdivision is punishable as provided in Section 2020.240 of the
Code of Civil Procedure.

1561. (a) The records shall be accompanied by the affidavit of the
custodian or other qualified witness, stating in substance each of
the following:
(1) The affiant is the duly authorized custodian of the records or
other qualified witness and has authority to certify the records.
(2) The copy is a true copy of all the records described in the
subpoena duces tecum, or pursuant to subdivision (e) of Section 1560
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, as the case may be.
(3) 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.
(4) The identity of the records.
(5) A description of the mode of preparation of the records.
(b) If the business has none of the records described, or only
part thereof, the custodian or other qualified witness shall so state
in the affidavit, and deliver the affidavit and those records that
are available in one of the manners provided in Section 1560.
(c) Where the records described in the subpoena were delivered to
the attorney or his or her representative or deposition officer for
copying at the custodian's or witness' place of business, in addition
to the affidavit required by subdivision (a), the records shall be
accompanied by an affidavit by the attorney or his or her
representative or deposition officer stating that the copy is a true
copy of all the records delivered to the attorney or his or her
representative or deposition officer for copying.

1562. If the original records would be admissible in evidence if
the custodian or other qualified witness had been present and
testified to the matters stated in the affidavit, and if the
requirements of Section 1271 have been met, the copy of the records
is admissible in evidence. The affidavit is admissible as evidence of
the matters stated therein pursuant to Section 1561 and the matters
so stated are presumed true. When more than one person has knowledge
of the facts, more than one affidavit may be made. The presumption
established by this section is a presumption affecting the burden of
producing evidence.

1563. (a) This article shall not be interpreted to require tender
or payment of more than one witness fee and one mileage fee or other
charge, to a witness or witness' business, unless there is an
agreement to the contrary between the witness and the requesting
party.
(b) All reasonable costs incurred in a civil proceeding by any
witness which is not a party 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 may be charged against the party
serving the subpoena duces tecum.
(1) "Reasonable cost," as used in this section, shall include, but
not be limited to, the following specific costs: ten cents ($0.10)
per page for standard reproduction of documents of a size 8 1/2 by 14
inches or less; twenty cents ($0.20) per page for copying of
documents from microfilm; actual costs for the reproduction of
oversize documents or the reproduction of documents requiring special
processing which are made in response to a subpoena; reasonable
clerical costs incurred in locating and making the records available
to be billed at the maximum rate of twenty-four dollars ($24) per
hour per person, computed on the basis of six dollars ($6) per
quarter hour or fraction thereof; actual postage charges; and the
actual cost, if any, charged to the witness by a third person for the
retrieval and return of records held offsite by that third person.
(2) The requesting party, or the requesting party's deposition
officer, shall not be required to pay those costs or any estimate
thereof prior to the time the records are available for delivery
pursuant to the subpoena, but the witness may demand payment of costs
pursuant to this section simultaneous with actual delivery of the
subpoenaed records, and until payment is made, is under no obligation
to deliver the records.
(3) The witness shall submit an itemized statement for the costs
to the requesting party, or the requesting party's deposition
officer, setting forth the reproduction and clerical costs incurred
by the witness. Should the costs exceed those authorized in paragraph
(1), or the witness refuses to produce an itemized statement of
costs as required by paragraph (3), upon demand by the requesting
party, or the requesting party's deposition officer, the witness
shall furnish a statement setting forth the actions taken by the
witness in justification of the costs.
(4) The requesting party may petition the court in which the
action is pending to recover from the witness all or a part of the
costs paid to the witness, or to reduce all or a part of the costs
charged by the witness, pursuant to this subdivision, on the grounds
that those costs were excessive. Upon the filing of the petition the
court shall issue an order to show cause and from the time the order
is served on the witness the court has jurisdiction over the witness.
The court may hear testimony on the order to show cause and if it
finds that the costs demanded and collected, or charged but not
collected, exceed the amount authorized by this subdivision, it shall
order the witness to remit to the requesting party, or reduce its
charge to the requesting party by an amount equal to, the amount of
the excess. In the event that the court finds the costs excessive and
charged in bad faith by the witness, the court shall order the
witness to remit the full amount of the costs demanded and collected,
or excuse the requesting party from any payment of costs charged but
not collected, and the court shall also order the witness to pay the
requesting party the amount of the reasonable expenses incurred in
obtaining the order including attorney's fees. If the court finds the
costs were not excessive, the court shall order the requesting party
to pay the witness the amount of the reasonable expenses incurred in
defending the petition, including attorney's fees.
(5) If a subpoena is served to compel the production of business
records and is subsequently withdrawn, or is quashed, modified or
limited on a motion made other than by the witness, the witness shall
be entitled to reimbursement pursuant to paragraph (1) for all costs
incurred in compliance with the subpoena to the time that the
requesting party has notified the witness that the subpoena has been
withdrawn or quashed, modified or limited. In the event the subpoena
is withdrawn or quashed, if those costs are not paid within 30 days
after demand therefor, the witness may file a motion in the court in
which the action is pending for an order requiring payment, and the
court shall award the payment of expenses and attorney's fees in the
manner set forth in paragraph (4).
(6) Where the records are delivered to the attorney, the attorney'
s representative, or the deposition officer for inspection or
photocopying at the witness' place of business, the only fee for
complying with the subpoena shall not exceed fifteen dollars ($15),
plus the actual cost, if any, charged to the witness by a third
person for retrieval and return of records held offsite by that third
person. If the records are retrieved from microfilm, the reasonable
cost, as defined in paragraph (1), shall also apply.
(c) When the personal attendance of the custodian of a record or
other qualified witness is required pursuant to Section 1564, in a
civil proceeding, he or she shall be entitled to the same witness
fees and mileage permitted in a case where the subpoena requires the
witness to attend and testify before a court in which the action or
proceeding is pending and to any additional costs incurred as
provided by subdivision (b).

1564. The personal attendance of the custodian or other qualified
witness and the production of the original records is not required
unless, at the discretion of the requesting party, the subpoena duces
tecum contains a clause which reads:
"The personal attendance of the custodian or other qualified
witness and the production of the original records are required by
this subpoena. The procedure authorized pursuant to subdivision (b)
of Section 1560, and Sections 1561 and 1562, of the Evidence Code
will not be deemed sufficient compliance with this subpoena."

1565. If more than one subpoena duces tecum is served upon the
custodian of records or other qualified witness and the personal
attendance of the custodian or other qualified witness is required
pursuant to Section 1564, the witness shall be deemed to be the
witness of the party serving the first such subpoena duces tecum.

1566. This article applies in any proceeding in which testimony can
be compelled.

1567. A completed form described in Section 3664 of the Family Code
for income and benefit information provided by the employer may be
admissible in a proceeding for modification or termination of an
order for child, family, or spousal support if both of the following
requirements are met:
(a) The completed form complies with Sections 1561 and 1562.
(b) A copy of the completed form and notice was served on the
employee named therein pursuant to Section 3664 of the Family Code.