California Evidence Code 1561 sets out what the records custodian must swear to in the affidavit that travels with any business records produced under subpoena. The affidavit has to be signed by the custodian or another qualified witness and must state five things: that the signer is authorized to certify the records, that the copies are true copies of what the subpoena described, that the records were made in the ordinary course of business at or near the time of the events they document, which records are being produced, and how those records were prepared and maintained. If the business has none of the requested records, or only some of them, a separate affidavit saying so is required.1California Legislative Information. California Evidence Code 1561 – Production of Business Records
The Five Statements the Affidavit Must Contain
Section 1561 is short but specific. Every element listed below has to appear in the affidavit for the records to travel cleanly into evidence.
- Authority. The person signing states that they are the duly authorized custodian of the records or another qualified witness with authority to certify them.
- True copies. The copies produced are true copies of the records described in the subpoena. If the requesting party’s attorney arranged to copy the originals on-site instead of receiving copies, the affidavit says that.
- Ordinary course of business. The records were prepared by personnel of the business in the ordinary course of business at or near the time of the act, condition, or event they describe.
- Identification. The affidavit identifies which records are being produced, so the reader can match documents to the subpoena request.
- Mode of preparation. The affidavit explains how the records were made and how they have been kept.
The last two carry more weight than they look. The identification statement is what lets the court and opposing counsel tell whether the production actually matches what the subpoena asked for. The mode-of-preparation statement is what establishes the records are reliable enough to substitute for live testimony from whoever created them. Skip either one and the affidavit stops doing the job the statute wrote it to do.1California Legislative Information. California Evidence Code 1561 – Production of Business Records
When the Business Has No Records, or Only Some
Section 1561(b) covers the situation custodians most often mishandle. If the business has none of the records described in the subpoena, or has only part of them, the custodian must still file an affidavit stating exactly that. Whatever partial records do exist have to be delivered along with the affidavit, using the delivery methods in Evidence Code 1560.1California Legislative Information. California Evidence Code 1561 – Production of Business Records
The instinct when a subpoena asks for records you don’t have is to set it aside. That is the wrong response. An affidavit saying the business has no responsive records is itself a required response under the statute, and failing to send it can be treated the same as failing to produce records the business does have.
Who Signs and How It Gets Delivered
Section 1561 lets either the custodian of the records or another qualified witness sign. “Qualified witness” is broader than the title on someone’s business card; the person needs to know how the records are made and kept well enough to swear to the five points above. In practice, this is usually a records manager, a compliance officer, or another employee with day-to-day knowledge of the recordkeeping system.
The affidavit and the records travel together. Evidence Code 1560 handles the packaging. When the business is a nonparty, the custodian places a true, legible, and durable copy of the records inside an inner sealed envelope or wrapper marked with the case title and number, the witness’s name, and the subpoena date. That inner envelope goes inside an outer sealed envelope addressed to the clerk of the court for a court subpoena, to the deposition officer for a deposition subpoena, or to the officer, body, or tribunal conducting any other proceeding. The sealed records stay sealed until the judge or officer opens them with the parties present.2California Legislative Information. California Evidence Code 1560 – Obedience to Subpoena
One boundary worth flagging before releasing anything: if the records belong to a consumer, Code of Civil Procedure 1985.3 requires the subpoenaing party to give the consumer notice and a chance to object before production. A custodian who releases protected consumer records without that notice in place can end up in the middle of a privacy dispute even with a perfect 1561 affidavit.3California Legislative Information. California Code of Civil Procedure 1985.3
Why the Affidavit Matters at Trial
The point of the whole 1560–1561 procedure is to get business records admitted without pulling the custodian into court to testify in person. Evidence Code 1562 makes that trade explicit. If the original records would have been admissible had the custodian appeared and testified to the facts stated in the affidavit, and if the records qualify as business records under Evidence Code 1271, then the copies come in. The affidavit itself is also admissible, and its statements are presumed true.4California Legislative Information. California Evidence Code 1562
That presumption is a presumption affecting the burden of producing evidence. The records are treated as authentic unless the opposing party comes forward with evidence showing otherwise. Arguing that the affidavit might be inaccurate is not enough; the challenger has to produce something. That is exactly why the affidavit’s content matters so much. A missing element, a vague identification of the records, or a mode-of-preparation statement that reads like it was copied from a template gives the other side an easy opening to attack the foundation the records are resting on.
An affidavit that omits one of the five statements does not automatically doom the records. The proponent can still try to authenticate them through live testimony from a qualified witness, which is the whole thing the procedure was designed to avoid. Getting the affidavit right the first time saves the cost of flying in a custodian to say in person what the statute lets them say on paper.
What a Defective or Missing Affidavit Costs
Two kinds of exposure follow from a bad or missing 1561 affidavit. The first is evidentiary. Without a compliant affidavit, the records may not come in as business records, and a party who was counting on them can lose the point they were meant to prove. The second is direct sanctions against the business.
Under Code of Civil Procedure 1991, disobedience to a subpoena can be punished as contempt of court.5California Legislative Information. California Code of Civil Procedure 1991 Code of Civil Procedure 1218 sets the penalty at up to $1,000, up to five days in jail, or both. Family law cases carry higher escalations, starting at up to 120 hours of community service or jail time per violation on a first finding and rising to 240 hours on repeat findings.6California Legislative Information. California Code of Civil Procedure 1218 For deposition subpoenas, Code of Civil Procedure 1991.1 lets the court move to contempt without first issuing an order directing compliance.7California Legislative Information. California Code of Civil Procedure 1991.1
A court in a contempt proceeding can also order the non-compliant party to produce the records and to pay the attorney’s fees of the party who had to bring the motion. That fee award frequently costs more than the contempt fine itself, especially when weeks of follow-up went into chasing records that should have arrived with a proper affidavit the first time.