California Code of Civil Procedure 1985.3 governs how a party in a California civil case can subpoena a person’s records from a third-party business such as a bank, hospital, school, or phone company. Its central rule is simple: before the record holder produces anything, the person whose records are being sought has to be notified in writing and given time to object. Miss the notice steps, and the custodian can refuse to release the records.
Who the Statute Protects
The statute calls the protected person a “consumer,” and the definition reaches further than the ordinary sense of the word. It covers any individual, a partnership of five or fewer people, an association, or a trust that has done business with, used the services of, or been represented by the entity holding the records.1California Legislative Information. California Code of Civil Procedure 1985.3 A sole proprietor whose bank records are subpoenaed is a consumer. So is a small family trust whose accountant’s files are targeted.
The protections only apply when the records sit with a covered third party. If the records are already in the consumer’s possession, or in the hands of the opposing party in the lawsuit, section 1985.3 does not come into play.
Which Record Holders Are Covered
Section 1985.3 defines “personal records” by listing the categories of businesses whose files it reaches. The list is specific, and if the record holder doesn’t fit one of the categories, the special consumer-notice rules don’t attach to that subpoena.1California Legislative Information. California Code of Civil Procedure 1985.3
- Healthcare providers, including physicians, dentists, chiropractors, physical therapists, pharmacies, hospitals, clinics, radiology centers, and diagnostic laboratories
- Psychotherapists as defined in Evidence Code section 1010
- Banks, credit unions, trust companies, mortgage lenders, securities firms, insurance companies, and title and escrow companies
- Attorneys and accountants
- Preschools, elementary and secondary schools, and postsecondary schools
- Telephone companies that are public utilities under Public Utilities Code section 216
Employment records aren’t on this list. Subpoenas for records held by current or former employers and labor organizations go through a separate statute, CCP section 1985.6, which follows a similar framework but covers different record holders and different information.2California Legislative Information. California Code of Civil Procedure 1985.6
Notice the Consumer Must Receive
Before a subpoena for personal records can be enforced, the requesting party has to serve the consumer with a notice packet. That packet includes a copy of the subpoena, any supporting affidavit, the Notice to Consumer on Judicial Council Form SUBP-025, and proof of service.1California Legislative Information. California Code of Civil Procedure 1985.3
Two deadlines run at once. The consumer must be served at least 10 days before the date the records are set to be produced, and at least 5 days before the subpoena is served on the custodian. Both windows lengthen when service is by mail under CCP section 1013.3California Courts. Give Notice to a Consumer or Employee
Service can be made on the consumer personally, by mail to the last known address, or on the consumer’s attorney of record if the consumer is a party. For minors, service goes to a parent, guardian, or other responsible adult, and also directly to the minor if the minor is at least 12 years old.1California Legislative Information. California Code of Civil Procedure 1985.3
The Notice to Consumer itself has to be printed to stand out visually and must tell the consumer that records are being sought, that they can object by court motion or written objection before the production date, and that they should consider consulting an attorney if the requesting party won’t agree to cancel or narrow the subpoena.1California Legislative Information. California Code of Civil Procedure 1985.3
How the Consumer Can Object
Once notice is served, the consumer has two ways to stop the records from going out. Which one applies depends on whether the consumer is a party to the underlying lawsuit.
A consumer who is a party can file a motion to quash or modify the subpoena under CCP section 1987.1. That statute lets the court quash the subpoena entirely, narrow its scope, or set conditions on compliance to protect against unreasonable privacy intrusions.4California Legislative Information. California Code of Civil Procedure 1987.1 The consumer has to notify the witness and the deposition officer at least five days before the production date. Failing to notify the deposition officer doesn’t invalidate the motion.1California Legislative Information. California Code of Civil Procedure 1985.3
A consumer who isn’t a party takes the simpler route: serve a written objection on the subpoenaing party, the witness, and the deposition officer before the production date, stating the specific grounds for withholding the records.1California Legislative Information. California Code of Civil Procedure 1985.3
Either way, once the custodian knows a motion is pending or a written objection has been served, production stops. The records stay put unless the court orders release or every affected party agrees to it.
What the Custodian Needs Before Producing Records
The subpoena is served on the custodian of records after the consumer’s notice window has run. Before the custodian is obligated to hand anything over, the requesting party has to supply one of two things: proof of service confirming the consumer was properly notified, or a written authorization signed by the consumer or the consumer’s attorney releasing the records.1California Legislative Information. California Code of Civil Procedure 1985.3
When the consumer’s attorney signs the authorization, the custodian can treat the attorney as having the consumer’s permission and can treat any objection as waived. That’s the quiet path when nobody plans to fight the subpoena.
Phone Records Need Signed Consent
Records held by a telephone utility get an added layer of protection. A subpoena for those records is invalid unless it includes a signed consent from the consumer under Public Utilities Code section 2891.1California Legislative Information. California Code of Civil Procedure 1985.3 Notice by itself doesn’t get the records; the consumer has to affirmatively agree to the disclosure.
What Happens If the Rules Are Broken
Any failure to follow section 1985.3 gives the custodian grounds to refuse production.1California Legislative Information. California Code of Civil Procedure 1985.3 A subpoena that arrives with defective notice, late service, or missing proof that the consumer was notified can be set aside by the record holder without exposure to contempt.
Courts also keep independent authority under CCP section 1987.1 to quash or modify a subpoena that is unreasonable, oppressive, or invasive of privacy, and to impose protective conditions on how sensitive medical or financial records are handled once they’re produced.4California Legislative Information. California Code of Civil Procedure 1987.1 Both parties and non-party consumers can invoke that authority.