CCP 1985.6 Employment Records: Notice, Objections, and Penalties

A subpoena for employment records in a California state court case is governed by Code of Civil Procedure Section 1985.6, which requires the party issuing the subpoena to notify the employee at least ten days before the records are produced and gives the employee a defined window to object. The statute applies to personnel files, payroll data, disciplinary records, and virtually anything else a current or former employer keeps about the worker, whether on paper or stored electronically. Records held by a labor organization that represents or once represented the employee are included as well.¹

The Notice the Employee Must Receive

Before any records leave the employer’s hands, the subpoenaing party must serve the employee with a packet containing a copy of the subpoena, any supporting affidavit, and Judicial Council form SUBP-025.² The form uses a typeface designed to stand out and tells the employee four things: that employment records about them are being requested from a named employer, that those records may be protected by a right of privacy, that they can file papers with the court before the production date to stop the release, and that they should consult an attorney if the subpoenaing party does not agree in writing to cancel or limit the subpoena.¹

How Much Time You Actually Get

The notice must reach the employee at least ten days before the production date on the subpoena.¹ Service by mail extends that period under CCP Section 1013: five extra calendar days if served within California, ten if served elsewhere in the United States, and twenty if served outside the country. Service by fax, express mail, or electronic means adds two calendar days.³ These extensions are mandatory. If the packet arrives late, the production is not properly supported, and the employer should not release the records.

Proof the Employer Will Look For

The subpoenaing party then has to give the employer a proof of service showing the employee was properly notified, or, alternatively, a written authorization signed by the employee or the employee’s attorney of record. Without one of those documents, the employer cannot legally hand over anything.¹

What the Employer Does With the Subpoena

An employer receiving a subpoena for employment records acts as a gatekeeper. The first task is checking for either the proof of service showing the employee was notified or a signed authorization from the employee. If neither is in the packet, the employer must refuse to produce the records. Releasing them anyway exposes the employer to liability for violating employee privacy.¹

Even with proper documentation, the employer waits until the production date. If the employee files a motion to quash or serves a written objection before that date, the employer is prohibited from releasing the records until a court orders otherwise or the parties agree.¹ Producing early is where liability tends to arise, so the cautious move is to hold until every question mark is resolved.

How an Employee Objects

The statute gives employees two ways to block or limit the release, and which one is available depends on whether the employee is a party to the lawsuit.

Motion to Quash or Modify

Any employee whose records are targeted, party or not, can file a motion to quash or modify the subpoena under CCP Section 1987.1.⁴ The motion must be filed with the court before the production date, and the employee must give notice to the employer and the deposition officer at least five days before the scheduled production.¹

The court’s authority is broad. It can quash the subpoena outright, narrow its scope, or allow production subject to conditions, including protective orders written to prevent unreasonable privacy violations.⁴ The filing fee is $60 as of 2026.⁵

Written Objection for Nonparty Employees

Employees who are not parties to the lawsuit have a simpler alternative. They can serve a written objection stating specific grounds for withholding the records. The objection goes to the subpoenaing party, the deposition officer, and the employer, and it must be served before the production date.¹ Nothing is filed with the court, so there is no filing fee.

Once the objection is served, the employer and deposition officer cannot produce the records unless a court later orders production or every affected party agrees. The burden shifts to the party that issued the subpoena, who has twenty days from service of the objection to file a motion to compel production. Miss that window and the subpoena effectively dies as to those records.¹

Silence Is Consent

If the employee does nothing before the production date, the employer proceeds with releasing the records. The notice period is the employee’s window to protect their privacy, and once it closes without a motion or written objection, the procedural safeguards are considered satisfied.

Protective Orders as a Middle Ground

Employment files hold information most employees would rather not see travel through litigation: Social Security numbers, home addresses, medical notes, salary details, disciplinary write-ups. When the requesting party can show the records are genuinely relevant, courts are usually more receptive to limiting how those records are used than to blocking disclosure entirely. Under CCP Section 1987.1, a court can restrict who reviews the documents, require copies to be returned or destroyed at the end of the case, and prohibit any use of the records beyond the litigation.⁴ For employees whose records are almost certainly discoverable, asking to modify the subpoena and add a protective order is often more realistic than fighting production altogether.

Medical Records Inside the Employment File

Employment files sometimes hold health information: doctor’s notes for leave requests, disability accommodation paperwork, workers’ compensation records. When any of that is inside the scope of the subpoena, HIPAA and California’s own medical privacy laws add hurdles on top of CCP 1985.6.

HIPAA allows disclosure of protected health information in response to a subpoena only if the individual has been notified and given a chance to object, or if the requesting party has obtained a qualified protective order. California law is generally more protective than HIPAA on medical privacy, so the stricter California standard controls where the two conflict. Substance abuse treatment records carry even tighter federal restrictions and often require a specific court order rather than a subpoena. Any motion to quash or modify should flag medical content explicitly, because courts treat health data as deserving heightened protection.

Federal Court Cases Work Differently

CCP 1985.6 governs subpoenas issued in California state court. If the case is in federal court, Federal Rule of Civil Procedure 45 applies instead, and it does not include a mandatory pre-service notice requirement for the employee whose records are being sought.⁶ Rule 45 requires notice to the other parties before a document subpoena is served, but that notice runs between the litigants, not necessarily to the employee.

The employee can still move to quash or modify under Rule 45(d)(3) if the subpoena calls for privileged information or imposes an undue burden.⁶ The catch is that there is no guaranteed heads-up. In state court under CCP 1985.6 the employee gets time to react; in federal court the records can be produced before the employee even knows about the request.

What Improper Disclosure Can Cost

CCP 1985.6 refers to civil liability for improper release of employment records, noting that a deposition officer may raise failure to receive notice as an affirmative defense “in any action for liability for improper release of records.”¹ That language assumes the underlying claim exists. An employer that releases records without verifying proof of service, or that produces documents after receiving a valid objection, faces potential liability under California’s privacy protections. The California Constitution contains an express right to privacy, and courts have recognized that unauthorized disclosure of employment records can support an invasion of privacy claim. Waiting until the statutory requirements are satisfied and no objection is pending is the only safe posture for an employer, and it is the reason the timeline exists for the employee’s benefit in the first place.

1
California Legislative Information. California Code of Civil Procedure 1985.6 – Subpoena Duces Tecum for Employment Records
2
California Courts. Notice to Consumer or Employee and Objection (SUBP-025)
3
California Legislative Information. California Code CCP 1013 – Notices, and Filing and Service of Papers
4
California Legislative Information. California Code of Civil Procedure 1987.1
5
Judicial Council of California. Statewide Civil Fee Schedule
6
Legal Information Institute. Rule 45 Subpoena