In the last two issues of California Veterinarian, we explored issues relating to a veterinarian’s duty to warn of an animal’s dangerous propensities, along with suggestions for avoiding potential liability for a failure to warn.
In this and future issues, we endeavor to discuss other matters of importance to veterinarians. In this article, we provide general information on what to do upon receipt of a subpoena that calls for you to provide testimony and/or documents in connection with litigation. This situation may arise where, for example, an individual is attacked by an animal, sues the owner, and seeks veterinary records and/or testimony regarding the animal. As animal attacks become more and more visible on the collective radar screen of the general public, it is likely that lawsuits by victims of animal attacks will increase. If this is the case, the occurrence of veterinarians being called upon to provide records and/or testimony in a lawsuit regarding an animal patient will also rise. It is therefore important for veterinarians to be at least generally familiar with the process by which such evidence is obtained.
What is a Subpoena?
A subpoena is a document issued under court authority which commands the attendance and testimony of and/or production of documents by a witness who is not an actual party to the lawsuit in which the testimony and/or records are sought. A subpoena may be issued to compel attendance or production of documents in court or at a deposition. Since most subpoenas issue in the context of depositions, it is this type of subpoena that will be the focus of this article.
Under the California Code of Civil Procedure, a deposition subpoena may command (1) the production of business records for copying, (2) the attendance and testimony of an individual or representative of an entity (known as the “deponent”), or (3) both the attendance and testimony of the deponent and the production of business records, other documents, and/or tangible things.
Subpoenas Seeking Testimony Only
The first type of subpoena is that which requires only the attendance and testimony of the deponent. Such a subpoena must specify the time and place of the deposition, and also must provide a summary of (1) the nature of the deposition, (2) the rights and duties of the deponent, and (3) the penalties for disobedience of the subpoena (which penalties include punishment for contempt of court). If the deposition is to be videotaped, the subpoena must specifically so indicate. If the named witness is an organization rather than an individual (i.e., a veterinarian’s corporation as opposed to the veterinarian personally, as will oftentimes be the case), the subpoena must describe with reasonable particularity the matters on which examination is requested, and must advise the organization of its duty to designate the person most qualified to testify on the organization’s behalf regarding the specified matters (which, of course, will usually be the veterinarian).
Subpoenas Seeking Business Records Only
The second type of deposition subpoena is that which commands only the production of business records (for veterinarians, these will most commonly be veterinary medical records) for copying. Such a subpoena must specifically describe each individual item or reasonably particularize each category of item sought, and must be directed to the custodian of the sought-after records or another person qualified to certify that the records are prepared and maintained in the ordinary course of business.
Subpoenas Seeking Records and Testimony
The third type of subpoena is that which requires both the attendance and testimony of the deponent, as well as the production of business records, documents, and/or tangible things. This subpoena must include the same information as that contained in a subpoena seeking testimony alone and, as with a subpoena seeking business records only, must designate the documents and/or things sought on an item-by-item basis or by reasonably particularized categorization.
Service of Subpoenas
A subpoena must be served personally. Thus, if you receive a subpoena requiring your attendance at deposition or production of documents, or both, by mail alone, you are under no duty to appear for the deposition or produce the requested documents. Although no specific amount of time in advance of the deposition date is required to command a deponent’s attendance, a sufficient time is required to allow the deponent to locate and produce any designated documents or things and to travel to the deposition.
Where the subpoena seeks the production of records only (and does not require personal attendance at deposition), the designated date for document production must be no earlier than 20 days after issuance, or 15 days after service, of the subpoena, whichever date is later.
Responding to a Subpoena Seeking Business Records Only
In the case of subpoenas seeking business records alone (e.g., veterinary medical records), the custodian of the requested records or other qualified person will usually be instructed to provide copies of the records to the deposition officer specified in the subpoena, either by delivering (personally or by mail) such copies to the office of the deposition officer (in which case the records must be separately enclosed and sealed as specified in California Evidence Code section 1560, subdivision (c)), or, alternatively, by permitting the deposition officer to come to the custodian’s office during normal business hours to make copies of the documents. On some occasions, a subpoena may direct the witness to make the original records available for inspection or copying by the subpoenaing party’s attorney or a representative thereof.
Regardless of the method by which the documents are provided, the custodian must execute an affidavit stating that (1) he or she is authorized to certify the records, (2) the copies provided are true copies of the records specified or categorized in the subpoena or were delivered to the attorney or authorized representative thereof for copying, (3) the records were prepared by the personnel of the business in the ordinary course of business at or near the time of the relevant act, condition, or event, (4) the identity of the records, and (5) a description of the mode of preparation of the records. Also, if the witness has none of the records described or only part of those records, the custodian must indicate this fact in the affidavit. Note that the requested records must not be delivered before the time specified in the subpoena.
Always remember that good recordkeeping makes the process of producing documents a good deal easier and less time-consuming. In the case of veterinary records, clearly-marked and user-friendly files, separately maintained for each animal patient, are preferable. Furthermore, be aware that computer files (including emails) are discoverable and subject to the scope of a subpoena, so make sure that good recordkeeping procedures extend to the computer realm, also.
A subpoena may be opposed or challenged on a number of substantive (e.g., oppressiveness or lack of relevance of the categories of records or testimony sought) and procedural (e.g., defects in form or service of the subpoena itself) grounds. Challenges may be raised by the witness who received the subpoena or a party to the litigation in which the subpoena is issued. A subpoena that is substantively or procedurally defective may be challenged by procedures such as a motion to quash or a motion for a protective order.
The above guidelines relate to the provision of testimony or records as a “percipient” witness. A “percipient” witness is one called upon to testify in a non-expert witness capacity. By contrast, an expert witness is a qualified individual specifically called upon to offer opinion or similar testimony regarding a particular matter. Where an expert is retained by a party to litigation for the purpose of forming and expressing an opinion, no subpoena is required in order for that expert witness to be called upon to provide deposition testimony; service of a deposition notice on the retaining party’s attorney, together with tendering of expert witness fees at or before the time of deposition (these fees are the reasonable and customary hourly or daily fees for the expert’s services, as disclosed in the expert witness declaration that will previously have been provided by the party on whose behalf the expert is testifying), is all that is required. However, a subpoena must still be used in order to command production of documents by the expert.
If your attendance at deposition is commanded, be sure and show up punctually at the time and place of deposition, bringing the documents and things specified in the subpoena, if any. Non-party percipient witnesses are entitled to daily witness fees (currently $35.00 per day) and mileage fees (currently $.20 per mile to and from deposition) for attending a deposition, so you should receive such fees either with the subpoena itself or at the time of deposition. If no such fees are presented at the time of deposition, insist that they be provided; the duty of the subpoenaing party to provide such fees is mandatory. (As stated above, if you are testifying as a retained expert witness, you are entitled to expert witness fees. These fees must be provided to the retaining party’s attorney no later than the commencement of the deposition.)
During the deposition, remember that you will be under oath, just as if you were testifying in a courtroom. Always provide truthful and accurate testimony. Remain calm. Provide short and succinct answers, unless the question clearly calls for a more lengthy or descriptive answer. Only answer the questions asked, and do not volunteer information unless you absolutely feel such information is necessary to provide a full and accurate answer to the question asked. If you do not know the answer to a question or do not recall a particular fact or nugget of information, say so. If you are confused by a question or otherwise do not understand the question being asked, do not be afraid to ask for clarification. It is the deposing attorney’s duty to ask proper and understandable questions, and you should not answer a question you do not understand; indeed, doing so may lead to inaccurate or misleading testimony. Furthermore, if you have not been designated as an expert witness, you are not required to provide your opinion, and it likely would not be favorable for you to do so. As a percipient witness, however, you may nonetheless be required to testify as to why you arrived at a particular diagnoses or embarked upon a particular course of treatment.
If you feel apprehensive about the deposition process in general or your role in the specific litigation in which your deposition is being taken, contact a qualified attorney to discuss whether you should be represented during the deposition. An attorney may also help you respond to a subpoena in which business records or other items are sought if you are unsure about your duties in this regard.