Receiving a Subpoena for Employment Records

Jul 12 2019 - Record Retention - HRWatchdog

Receiving a subpoena is a very complicated situation so consult with your legal counsel before responding.

I received a document in the mail the other day from a law firm requesting a wide variety of employment records related to one of my employees. It seems like some of the records may be of a personal nature; do I have to turn everything over to this law firm? Should I tell the employee that I received this document? The document says I have 15 days to produce the documents. What should I do?

It sounds like what you received is a deposition subpoena for employment records. These forms are generated routinely during the process of a civil lawsuit to obtain information about the opposing party. It is likely that your employee is either suing or being sued by someone in a California superior court.

Although the document is issued by an attorney and not a court, the party receiving the subpoena must provide the records requested, provided the subpoena was properly issued and no objection was filed by the employee whose records are being sought.

Proof of Service

One of the key aspects of properly issuing such a subpoena is for the party seeking the records to provide the employee or his/her attorney with a copy of the subpoena at least five days before it is served on the employer. The party serving the subpoena must provide the employer with a Proof of Service which states under penalty of perjury that the employee or his/her attorney was provided with the subpoena at least five days before it was served on the employer.

If the attorney failed to take this step, the subpoena is invalid, and if you provide records in response to such a subpoena, you could be violating your employee’s right to privacy. Due to the possible adverse consequences of improperly responding to this subpoena, it is highly advised that you consult with your attorney whenever you receive this type of request.

Providing Records: Caution

If the attorney provided you with a proper proof of service showing that he/she gave the proper advance notice to your employee or his/her attorney, you must provide all the records you have that are responsive to the request, unless you receive a document from your employee or his/her attorney indicating that a Motion to Quash the subpoena has been filed.

If your employee’s attorney believes that the other attorney is asking for documents that should not be produced, he/she will file the Motion to Quash with the court and provide you a copy. If you receive a Motion to Quash document, you should not produce any documents until you have received either an order from the court, or a document indicating that the parties have reached an agreement as to the scope of the production of the employment records.

In that this is a very complicated situation, it is always best to consult with your attorney before responding to this type of subpoena.

Staff Contact: David Leporiere

CalChamber members can read more on Civil Action Subpoena of Records in the HR Library. Not a member? See what CalChamber can do for you.

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