Notice to Consumer and Third-Party Subpoena Requirements

In California, before you can subpoena someone’s personal or employment records from a third-party business, you have to send that person a Notice to Consumer or Notice to Employee. The rule comes from Code of Civil Procedure sections 1985.3 and 1985.6, and it exists so the person whose private records are at stake gets a chance to object before anything leaves the record-keeper’s file cabinet. Skip the step or botch the timing, and the witness can simply refuse to hand anything over.¹

When the Notice Requirement Applies

The notice obligation is triggered by three things together: a subpoena, directed to a specific type of record-keeper, seeking records about a specific person. If any of the three is missing, the section 1985.3 and 1985.6 procedures don’t apply.

Who Counts as a Consumer

A consumer is any individual, a partnership of five or fewer persons, an association, or a trust that has done business with, used the services of, or been represented by the witness as an agent or fiduciary.¹ The partnership cap matters. A large commercial partnership isn’t a consumer, so subpoenaing its bank records doesn’t trigger notice.

Who Counts as an Employee

An employee is any current or former worker of the witness. The definition also reaches individuals represented by a labor organization when that organization is the witness receiving the subpoena.² Employment records cover any documents the employer or union keeps about that person’s work history.

Which Witnesses Trigger the Rule

Section 1985.3 enumerates the record-keepers whose files trigger consumer notice. The list is long and includes doctors, dentists, chiropractors, hospitals, pharmacies, clinical labs, banks, credit unions, trust companies, mortgage lenders, insurance companies, title and escrow companies, attorneys, accountants, psychotherapists, telephone utilities, veterinary providers, and schools from preschool through college.¹ If your record-keeper isn’t on that list, the section 1985.3 consumer-notice rules don’t apply, though other privacy protections might still be in play.

When You Can Skip the Notice

Two statutory exceptions let you issue the subpoena without serving a Notice to Consumer. Both are narrow.

You are subpoenaing your own records and you are the only person identified in them. You obviously don’t need to notify yourself.¹
The subpoena does not target any particular consumer and requires the custodian to strip every piece of identifying information from the records before producing them.¹

A separate carve-out removes certain state and local agencies described in Government Code section 7465, and entities acting under Article VI of the California Constitution (such as State Bar disciplinary proceedings), from the definition of “subpoenaing party” altogether.

The Forms You Need

Two Judicial Council forms do the work in most cases.

Form SUBP-010 is the Deposition Subpoena for Personal Appearance and Production of Documents and Things. It goes to the record-keeper. It must describe the records with enough specificity for the custodian to actually find them, and it should state the format you want for any electronically stored information.³ “All records” is the kind of description that invites objections.

Form SUBP-025 is the Notice to Consumer or Employee and Objection. This is the notice itself. It tells the person which records are being sought, who is seeking them, and how to object.

The subpoena also has to name the deposition officer who will receive and hold the produced records, and it has to set a production date, time, and place. The production date can be no earlier than 20 days after the subpoena is issued or 15 days after it is served on the witness, whichever is later.⁴

Timing and Service: The Part Most People Miss

The consumer must be served first, and two separate deadlines both have to be satisfied.

The consumer must receive the notice and a copy of the subpoena at least 10 days before the production date.
The consumer must receive them at least 5 days before the subpoena is served on the custodian of records.

If you serve by mail instead of personally, you add the extension in CCP section 1013: five calendar days for mailing inside California, ten for out-of-state, twenty for international.¹

Work backward from the production date. For a California mailing, you need at least 15 days of lead time before production (the 10-day minimum plus the 5-day mail extension). Personal delivery saves the mailing days but requires actually finding the consumer and completing a proof of service.

If the consumer has an attorney of record, serve the attorney. Either way, fill out a proof of service recording the method, date, and address. That proof of service has to travel with the subpoena when you later serve the witness.

How the Consumer Can Object

The notice is not window dressing. Once served, the consumer has two paths depending on whether they are a party to the case.

If the Consumer Is a Party

A party-consumer can file a motion to quash or modify the subpoena under CCP section 1987.1 any time before the production date, giving the witness and deposition officer at least five days’ notice. Once the witness or deposition officer learns a motion has been filed, production stops unless the court orders otherwise.¹

If the Consumer Is Not a Party

A nonparty consumer has a simpler route: serve a written objection on the subpoenaing party, the witness, and the deposition officer, stating the specific grounds for withholding the records. No court filing required. Once the witness has the written objection, production is frozen unless the court orders release or the parties agree.¹

The burden then flips to you. You have 20 days from the date the objection was served to file a motion to enforce the subpoena, and that motion must include a declaration showing a good-faith attempt to resolve the dispute informally. Miss the 20-day window and the objection effectively stands.

What Objections Usually Argue

Common grounds include privilege (attorney-client, psychotherapist-patient), overbreadth, irrelevance, and undue burden. A motion for a protective order can narrow a subpoena rather than kill it. Quashing ends the subpoena; a protective order reshapes it.

Serving the Record-Keeper After Notice

Only after the consumer has been properly served do you turn to the custodian. When you serve the subpoena on the witness, you must include either a copy of the proof of service on the consumer, or the consumer’s written authorization to release the records.¹ Without one of those, the witness has statutory authority to refuse.

Assuming no objection arrives, the witness produces the records to the deposition officer on the production date, which again is the later of 20 days after issuance or 15 days after service.⁴ The deposition officer then makes copies available to the parties.

If an objection or a motion to quash arrives before production, the witness should hold everything until the court resolves it or the parties agree. A record-keeper that releases documents after receiving an objection risks sanctions and liability to the consumer.

What Happens If You Skip or Botch the Notice

The consequences are blunt. If you fail to comply with section 1985.3, the witness has a statutory right to refuse production.¹ A refusal in that posture is lawful, and no motion to compel will cure it, because the problem is the defective subpoena, not the witness. You have to start over with correct notice.

A witness who complies anyway doesn’t get a free pass either. Records produced under a defective subpoena can be challenged as inadmissible, and the custodian may face liability to the consumer for releasing private information without following the required steps.

Boundaries: Federal and Interstate Subpoenas

The Notice to Consumer requirement is a creature of California law. Two situations where readers often assume it applies are worth flagging.

Federal court subpoenas run under Rule 45 of the Federal Rules of Civil Procedure. Rule 45 does not require notice to the person whose records are being subpoenaed. It requires serving a copy of the subpoena and a notice on every other party in the case before serving the witness.⁵ The consumer may never learn about the subpoena unless a party or the record-keeper tells them.

Out-of-state subpoenas aimed at California records do have to comply with the Notice to Consumer rules. California’s Interstate and International Depositions and Discovery Act lets the clerk of the superior court in the county where discovery will occur issue a California subpoena based on an out-of-state subpoena. The domesticated subpoena must satisfy California’s procedural rules, including sections 1985.3 and 1985.6.⁶

1
California Legislative Information. California Code CCP – Section 1985.3
2
California Legislative Information. California Code CCP – Section 1985.6
3
Judicial Branch of California. Court Forms
4
Judicial Branch of California. Subpoena Business Records
5
Legal Information Institute (LII). Rule 45 – Subpoena
6
Judicial Branch of California. Give Notice to a Consumer or Employee