Notices to Consumer and when they are required is a topic I’m asked about frequently, and which can be very confusing if you don’t subpoena sensitive records very often. When subpoenaing potentially sensitive records, it’s important to make sure that you follow proper procedure and ensure all affected people are notified. You want to get that right from the start, because faulty Consumer Notice can render your subpoena unenforceable.
What is a Consumer?
Before we can address what types of records require consumer notice, we need to understand what the law considers a “consumer” for the purposes of providing that notice. Under Code of Civil Procedure § 1985.3(a)(2), a Consumer is “any individual, partnership of five or fewer persons, association, or trust which has transacted business with, or has used the services of, the witness or for whom the witness has acted as agent or fiduciary.”
You may notice that the definition above does not mention limited liability companies. In fact, no California law specifically states whether an LLC is entitled to consumer notice, and the California Law Revision Committee declined to propose legislation regarding the same in its Memorandum 2006-08.
It is important to note that a consumer does not have to be a party to the action to be entitled to consumer notice. The law applies to all consumers. For example, say you’re litigating a divorce proceeding, and you need to subpoena the husband’s bank records, but the account is held jointly by him and his parents. In this case, you would need to serve consumer notice not only on the husband, but on his parents as well, because the records will include their personal information as well.
What is Consumer Notice?
Consumer Notice is, in essence, a “head’s up” to a consumer that their personal records are being requested in connection with an active litigation. This is done through California Judicial Council Form SUBP-025 titled Notice to Consumer or Employee and Objection (“NTC”). The notice must be served to the consumer before the subpoena can be served to the witness. This allows the consumer to object to the release of their records before the witness even knows about the subpoena.
What are Personal and Employment Records under the law?
These are commonly referred to as “Consumer Records,” because a Notice to Consumer is required when you subpoena them. Code of Civil Procedure § 1985.3(a)(1) defines “personal records” as those held by witnesses who have access to very sensitive information, such as doctors, hospitals, insurance companies, banks, attorneys, accountants, and schools. A full and complete list of the witnesses who maintain “personal records” can be found at the link above.
Code of Civil Procedure § 1985.6(3) defines “employment records” as any records “pertaining to the employment of any employee maintained by the current or former employer of the employee, or by any labor organization that has represented or currently represents the employee.”
How do you Decide if Consumer Notice is Necessary?
The best rule of thumb when determining if you need to serve a Notice to Consumer is to consider who the witness is to the consumer. Records aren’t automatically consumer records just because the witness is an entity that would hold “personal records” under the law. You also need to consider what specific records you’re seeking, and what the witness’ relationship is with the proposed consumer. For instance, a hospital is specifically listed as a witness that would maintain records that require consumer notice. However, if you’re seeking records regarding general scheduling and administrative procedures not related to a patient, then Notice to Consumer is not required.
Navigating the requirements of Consumer Notice is a critical aspect of subpoenaing sensitive records in California. Key to ensuring compliance with Code of Civil Procedure §§ 1985.3 and 1985.6 is understanding what constitutes personal and employment records, identifying who qualifies as a consumer, and accurately assessing the relationship between the witness and the presumed consumer. Properly serving a Notice to Consumer not only safeguards the privacy rights of individuals but also upholds the enforceability of the subpoena.
How Array Can Help
Navigating the nuances of Consumer Notice requirements in California can be time-consuming and risky if not handled correctly. That’s where Array comes in. Our experienced team ensures your subpoenas are properly prepared, served, and tracked – so you don’t have to worry about compliance missteps.
We verify all necessary parties are notified, serve the appropriate Judicial Council forms, calendar all relevant deadlines, provide real-time updates, and deliver records in your preferred format. Whether you’re subpoenaing sensitive personal or employment records, we help you get it right from the start.
Let us manage the process – so you can focus on your case.
Reach out to learn more about our end-to-end subpoena services.
Sheri Webb, Assistant Director, Subpoena Operations
Sheri brings 27 years of legal experience to her role leading California Subpoena Operations at Array. She began her career in Intellectual Property and Corporate Law before spending over a decade as a Legal Secretary and Paralegal specializing in complex civil litigation. With a deep understanding of legal procedures and a passion for supporting legal professionals, Sheri ensures seamless subpoena operations while providing expert guidance to clients navigating complex record requests. A dedicated industry leader, she has also served on the Board of Directors for the California Alliance of Paralegal Associations and the Orange County Paralegal Association.
