The topic of this article is the use of a notice to appear at trial or hearing and produce documents in California litigation, also known as a notice in lieu of subpoena duces tecum.
The notice is given pursuant to Code of Civil Procedure Section 1987(b) and (c), and can only be used on a party to the litigation, or someone who is an officer, director, or managing agent of any such party.
One of the main advantages of using the notice to appear is that service may be made by mail, instead of personal service as is required with a standard subpoena.
But the best advantage of all is yet to come.
The best advantage is the fact that, even a party who has failed to request certain essential or critical documents during the discovery phase of the litigation process, if the existence of the documents is known, and the documents can be clearly identified, the party can prepare and serve the notice on the other party to compel them to appear and produce the requested documents at the trial or hearing.
They can also compel someone who is an officer, director, or managing agent of the other party to appear.
The author has seen many cases where the use of the notice has been very useful in trial preparation.
Thus, even a party who has missed the discovery cut-off date for requesting certain documents can still compel production of those documents, provided that they can identify the requested documents with reasonable particularity.
And as mentioned above, they can also compel the attendance of certain known individuals to appear as a witness.
If only the attendance of the person as a witness is required, then service may be made personally at least ten calendar (10) days before the trial or hearing, or fifteen calendar (15) days before the trial or hearing if service is made by mail.
Service should be made on the party, or their attorney if they have one.
If production of documents is required, then service may be made personally at least twenty (20) calendar days before the trial or hearing, or twenty five (25) calendar days before the trial or hearing if service is made by mail.
Service should be made on the party, or their attorney if they have one.
The notice should state the exact materials or things desired, as well as a statement that the person has them in their possession, or under their control.
The giving of the notice shall have the same effect as service of a subpoena on the witness, and the parties shall have those rights and the court may make those orders, including the imposition of sanctions, as in the case of a subpoena for attendance before the court, pursuant to Code of Civil Procedure Section 1987(b).
The author sincerely hopes that you have enjoyed this article.
Yours Truly, Stan Burman Copyright 2012 Stan Burman.
All rights reserved.