A custodian of records declaration in California is the sworn affidavit that lets a business’s records enter evidence without dragging the person who keeps them into court. Under Evidence Code sections 1560 through 1562, if the affidavit contains the right statements and travels with true copies of the requested records, the court treats those records as authentic and properly maintained.1Justia Law. California Evidence Code 1560-1567 The other side can still challenge them, but the burden to produce contrary evidence sits with the challenger.
The Five Things the Affidavit Must Say
Evidence Code 1561 lists five statements the affidavit has to contain. Miss one and opposing counsel has an opening to keep the records out.1Justia Law. California Evidence Code 1560-1567
- The signer is the duly authorized custodian of the records or is otherwise qualified to certify them.
- The attached documents are true copies of all records described in the subpoena.
- 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 document.
- A specific identification of the records being produced.
- A description of the mode of preparation — how the records were created and maintained.
These five track the foundation Evidence Code 1271 sets for the business records hearsay exception: made in the regular course of business, at or near the time of the events, by someone with knowledge, through a trustworthy process.2California Legislative Information. California Evidence Code 1271 The declaration is what proves each element without putting a live witness on the stand.
Who Qualifies to Sign
The signer has to be the person who actually maintains the records or someone else in the organization who knows the record-keeping system well enough to describe it under oath. In practice that’s a records manager, a compliance officer, a department head, a medical records director, a records supervisor at a law enforcement agency, or an operations manager at a bank.
The signer doesn’t need to have personally created every document. A hospital medical records director can certify patient charts written by nurses and physicians because the director oversees the system that stores them. What matters is direct knowledge of the process, not authorship of the paper.
If the designated custodian is out sick, has left the organization, or is otherwise unavailable, another qualified person inside the business can step in as long as they genuinely understand how the records were kept. This is where challenges most often land. An attorney spots a signer with a vague title and no visible connection to the record-keeping system, and the entire production is suddenly at risk.
What to Do When Records Are Missing or Partial
If the business has none of the records the subpoena asks for, or only some of them, the custodian has to say so in the affidavit and produce whatever exists.1Justia Law. California Evidence Code 1560-1567 Silence on the gap is not compliance. This catches some custodians off guard when a subpoena asks for records the organization never created in the first place — the affidavit still has to account for it.
There’s also a copying wrinkle. If the requesting attorney or a deposition officer copies the records at the custodian’s place of business rather than receiving copies from the custodian, that attorney or officer must sign a separate affidavit certifying that their copies are true copies of what was delivered to them for copying.
The Presumption the Declaration Creates
Under Evidence Code 1562, a properly prepared affidavit is itself admissible as evidence of the matters it states, and those statements carry a presumption of truth.3California Legislative Information. California Evidence Code EVID 1562 This is a presumption affecting the burden of producing evidence. The court treats the records as authentic unless the opposing party comes forward with actual evidence to the contrary. Arguing the records “might” be unreliable is not enough. The challenger has to produce something concrete.
When You Still Have to Appear in Person
In most cases the custodian never sets foot in a courtroom. Copies plus a proper affidavit are enough. Personal attendance is required only when the subpoena itself explicitly demands it using specific statutory language.
Under Evidence Code 1564, the subpoena must contain a clause stating that the custodian’s personal attendance and production of the original records are required, and that the usual affidavit procedure will not be accepted as compliance.4California Legislative Information. California Evidence Code 1564 Without that language, sending copies with an affidavit is sufficient.
If you received a subpoena, read it before blocking off your calendar. Many attorneys request records without the personal-attendance clause, and you can comply by mail or delivery. If you’re the attorney and you actually need the custodian on the stand — say, because you expect a fight over authenticity — write the clause in.
How and When to Deliver the Records
When a business that isn’t a party to the lawsuit receives a subpoena duces tecum, Evidence Code 1560 controls the mechanics. The custodian prepares true copies, attaches the section 1561 affidavit, and delivers the package to the court clerk. In criminal cases the custodian has five days after receiving the subpoena to comply. In civil cases the timeframe is whatever the parties agree to or whatever the subpoena specifies.1Justia Law. California Evidence Code 1560-1567
For subpoenas seeking a consumer’s personal records — medical, financial, or employment files — Code of Civil Procedure 1985.3 adds a step. The party issuing the subpoena has to give notice to the person whose records are being sought, and that person has the right to object before the records are produced.5California Legislative Information. California Code of Civil Procedure 1985.3 If you’re the custodian, confirm the requesting party has served the consumer notice before you hand anything over.
Fees You Can Charge for Producing Records
Evidence Code 1563 lets the custodian charge the requesting party for the work of producing records and caps what can be billed:6California Legislative Information. California Evidence Code 1563
- Standard copies (8½ by 14 inches or smaller): $0.10 per page
- Microfilm copies: $0.20 per page
- Oversize or special processing: actual costs
- Clerical time to locate and assemble records: up to $24 per hour, calculated in quarter-hour increments at $6 each
A short subpoena runs modest. Years of transaction records or voluminous medical files can generate real money. If either side disputes the charges, the court can sort it out under Code of Civil Procedure 1987.1.7California Legislative Information. California Code of Civil Procedure 1987.1
Penalties for a False or Incomplete Declaration
The affidavit is signed under penalty of perjury, and the consequences track that. Custodians in regulated industries can face all three of the following at once.
Perjury
Under Penal Code 118, certifying a material matter you know to be false is perjury — a felony in California, carrying a sentence of two, three, or four years in state prison.8Justia Law. California Penal Code 118-131 – Perjury and Subornation of Perjury Prosecutors rarely chase innocent errors, but knowingly certifying falsified records or deliberately concealing responsive documents is a different matter.
Contempt and Sanctions
A custodian who ignores a valid subpoena, by failing to produce records or by failing to deliver the required affidavit, can be held in contempt. Under Code of Civil Procedure 1987.1, the court can quash or modify the subpoena and can also impose monetary sanctions on a custodian who unreasonably refuses to comply.7California Legislative Information. California Code of Civil Procedure 1987.1 Sanctions typically include the attorney’s fees the requesting party spent on a motion to compel.
Civil Liability and Professional Discipline
A party who relies on a fraudulent declaration and suffers harm can sue the custodian or the employer for damages. Medical professionals who falsify records risk discipline from the Medical Board of California. Financial institutions that produce misleading certifications can draw penalties from state regulators. Courts can also strike improperly certified records from evidence entirely, which sometimes hurts the party who relied on the records more than the custodian who signed them.