A California Declaration of Custodian of Records is a signed statement that lets your business respond to a subpoena for records without sending anyone to court or a deposition. Under California Evidence Code Sections 1560 through 1562, if the declaration is done right and packaged with copies of the records, the records come in as evidence just as if you had testified about them in person, and the facts you state in the declaration are presumed true.
There is no mandatory Judicial Council form for the declaration itself. The Judicial Council publishes form SUBP-010 for the Deposition Subpoena for Production of Business Records, but the custodian’s declaration is a standalone document you draft, or one the requesting attorney supplies as a blank template with the subpoena.
The Five Things the Declaration Must Say
Evidence Code Section 1561 sets out five elements. Miss one and the opposing party has an opening to challenge the records or force you to appear.1California Legislative Information. California Evidence Code Section 1561
- You are the duly authorized custodian of the records, or another qualified witness, with authority to certify them.
- The copies are true copies of everything described in the subpoena. If the requesting party’s attorney instead came to your office and copied the records under Section 1560(e), say that.
- The records were prepared by business personnel in the ordinary course of business, at or near the time of the event they describe.
- Identify the records. Use date ranges, account numbers, patient names, or file categories so a judge can match what you produced against what the subpoena asked for.
- Describe how the records were prepared and maintained: electronic medical records system, accounting software, handwritten logs, or whatever applies.
If you do not have all of the records described, or have none at all, you still have to say so in the declaration and turn over whatever you do have.
Declaration or Notarized Affidavit
Section 1561 uses the word “affidavit,” which traditionally means a statement sworn before a notary. Most custodians skip the notary. Code of Civil Procedure Section 2015.5 lets an unsworn declaration signed under penalty of perjury substitute for any affidavit required by state law, provided it includes the required language and the date and place of signing.2California Legislative Information. California Code of Civil Procedure Section 2015.5
Signed inside California, the closing line reads: “I certify (or declare) under penalty of perjury that the foregoing is true and correct.” Signed outside California, add “under the laws of the State of California” after “penalty of perjury.” That is why the document is almost always called a declaration even though the statute uses the older term. Either works.
Filling It Out
Start with your full legal name and job title. Identify the business and explain your role as custodian. Then work through the five Section 1561 elements one by one.
Be specific when you identify the records. “Medical records” is too vague. “Medical records for Jane Doe, date of birth 01/15/1980, for treatment dates January 1, 2024 through December 31, 2025” tracks the subpoena and shows on its face that you produced what was asked for.
Close with the penalty-of-perjury language from CCP 2015.5, the date, the city where you signed, and your signature. If you sign electronically, keep a printed copy with your original wet signature on file. California Rules of Court require that the signed original be available for inspection on request.
Perjury Exposure
The penalty-of-perjury line is not a formality. Penal Code Section 118 defines perjury as willfully stating something material you know to be false in a declaration signed under penalty of perjury.3California Legislative Information. California Penal Code Section 118 Under Penal Code Section 126, perjury is a felony punishable by two, three, or four years in state prison.4California Legislative Information. California Penal Code Section 126 Certifying altered records as true copies, or claiming records do not exist when they do, is the kind of thing that puts a custodian on the wrong side of that statute. Check the file before you sign.
Deadlines
Evidence Code Section 1560 sets the response clock.5California Legislative Information. California Evidence Code Section 1560 In a civil case you have 15 days after receiving the subpoena to deliver the records and declaration. In a criminal case the deadline is five days. You and the requesting party can agree on a different timeline.
Packaging and Delivering the Records
Section 1560 is precise about packaging. The copies go into a sealed inner envelope labeled with the case name and number, your name as witness, and the date of the subpoena. That sealed inner envelope goes inside a sealed outer envelope. The outer envelope goes to:
- The clerk of the court, if the subpoena is for a court appearance.
- The deposition officer at the location listed on the subpoena, or at the officer’s place of business, for a deposition subpoena.
- The officer, body, or tribunal conducting the hearing, for other proceedings.
The records stay sealed until opened by the judge or officer at trial, deposition, or hearing, with all parties present. Section 1560 does not provide for delivery through an electronic portal as an alternative to the sealed-envelope method. Section 1560(e) does allow the requesting party’s attorney to come to your place of business and copy records on-site during normal business hours if the subpoena directs that.
Keep a copy of the declaration, the records, and proof of delivery. If a dispute arises about what you produced, your file copy is your protection.
Fees You Can Charge
The requesting party pays. Evidence Code Section 1563 sets the rates in civil cases:6California Legislative Information. California Evidence Code Section 1563
- $0.10 per page for standard copies up to 8.5 by 14 inches.
- $0.20 per page for microfilm copies.
- Actual cost of reproduction for oversize documents or those needing special processing.
- Up to $24 per hour for clerical time locating and preparing records, billed in quarter-hour increments at $6 each.
- Actual postage.
- Actual cost charged by a storage company for off-site retrieval.
If the requesting attorney copies the records at your office under Section 1560(e), the maximum fee drops to $15 plus any off-site retrieval cost. You can demand payment when you turn over the records and you do not have to release them until you are paid. Submit an itemized statement to the requesting party.
When You Should Not Just Comply
The declaration is a shortcut, not a rubber stamp. A few situations call for pausing before you produce.
Consumer or Personal Records
If the subpoenaed records are personal records of an individual who is not a party to the lawsuit, Code of Civil Procedure Section 1985.3 requires the requesting party to give the consumer notice before you produce anything.7California Legislative Information. California Code of Civil Procedure Section 1985.3 Notice must go out at least 10 days before the production date and at least five days before the subpoena is served on you. If the consumer files a written objection or a motion to quash before the production date, hold the records until the court resolves it. If the requesting party cannot show you proof that the consumer was properly notified, do not release the records. This matters for medical offices, banks, insurers, and any business holding personal financial or health information.
HIPAA for Medical Records
Healthcare providers have a federal layer on top. The HIPAA Privacy Rule permits disclosure of protected health information in response to a subpoena without patient authorization only when the patient has been notified (or reasonable efforts to notify were made), the time to object has passed without objection, and a protective order limiting further disclosure is in place or has been requested. The minimum necessary standard applies: produce the specific records the subpoena asks for, not the entire chart. Psychotherapy notes and substance abuse treatment records carry stricter protections and generally require a signed patient authorization even when a subpoena is involved.
Motion to Quash
Under Code of Civil Procedure Section 1987.1, a witness, a party, or a consumer whose records are sought can ask the court to quash the subpoena, narrow it, or impose protective conditions.8California Legislative Information. California Code of Civil Procedure Section 1987.1 Grounds include requests that are unreasonably broad, oppressive, or that invade privacy. If a subpoena reaches for privileged material, records under a confidentiality agreement, or is plainly overbroad, talk to a lawyer before producing. Producing records you should have withheld can create liability. A good-faith objection generally will not.