A subpoena is an order issued by either an attorney, court clerk or a judge. Subpoenas in real estate are used to obtain records and information from people or entities who are not parties to a lawsuit.
A subpoena usually requires you to appear at a certain place, date, and time to testify as a witness about a particular case or simply to produce listed documents designated in the subpoena.
In a criminal case, you can be subpoenaed only to testify in court.
In a civil case, you may be subpoenaed for out-of-court testimony as well, such as in a deposition, or simply to produce certain requested documents.
A subpoena must be delivered in person. In most cases this can be done by one of the parties in the case or by anyone who is at least 18 years old.
In California, there are three (3) types of subpoenas:
- Trial subpoenas for personal appearance
- Deposition subpoenas for personal appearance
- Subpoena to only produce documents
What To Do if You Receive a Subpoena
If you are personally served with a deposition subpoena for document production — or personal appearance in a litigated matter — where you and your real estate brokerage are not parties to the action, contact your insurance carrier’s representative and your attorney. Email a copy of the deposition subpoena to your attorney for review. A copy of the transmission should be saved electronically.
- Never produce documents in a “document–only subpoena” without having your own attorney review what is to be sent.
- Never attend a deposition pursuant to a served subpoena without legal representation.
I have seen instances where a person or the representative for an entity who is not a party to a lawsuit sends in documents pursuant to a subpoena, or attends a deposition pursuant to a served subpoena, without the assistance of an attorney — and ends up becoming a party to the lawsuit. This is the most common pitfall in responding to a served subpoena.
One thing to look for in the served deposition subpoena:
- Whether or not a Notice to Consumer was also served under Code of Civil Procedure § 1985.3(d) with the subpoena “duces tecum” upon both the seller or the buyer of the property in dispute.
If there is no provided Notice to Consumer served with the subpoena” duces tecum” as required by code, the recipient of the subpoena should serve a written objection upon the attorney who issues the subpoena duces tecum on this issue while saving a copy for future need.
In the event an objection is necessary to a subpoena duces tecum, the objection needs to be in writing and served by mail on the party’s attorney that issued it at least three (3) calendar days before the date of the oral deposition or the document production is due pursuant to the provisions of Code Civil Procedure § 2025.410(a).
Common grounds for objecting to a subpoena in California are:
- The deposition subpoena does not allow sufficient time for production of the business records
- The deposition subpoena does not describe with reasonable particularity the matters on which examination is requested
- The deposition subpoena does not specifically describe the business records to be produced
- The deposition subpoena is not accompanied either by a copy of the proof of service of the Notice to Consumer or employee
- The deposition subpoena seeks privileged information.
Document Production
Assuming the deposition subpoena is not subject to an objection, the real estate agent or broker who is served with the subpoena should begin gathering the documents sought — preferably with the assistance of his or her attorney.
Make two copies of what is being produced:
- The first is for the attorney seeking the documents
- The second is to document what is being sent
The documents should be sent to the requesting attorney by certified mail return receipt requested or overnight mail with a tracking number, to assure that the produced documents are received.
A cover letter is suggested with the document production with an invoice of $35.00 per the Government Code plus $0.25 per page copied.
- If a copy service is utilized by the attorney that issued the subpoena, you simply let the service copy the documents being produced, and you get them back.
A word of caution: whenever you are served with a deposition subpoena for your file and you are not a party to the lawsuit, the documents produced may result in an attorney for one of the litigants naming you as a defendant or cross-defendant.
That’s why it’s so important to have an attorney represent you in responding to a subpoena duces tecum.
Be sure you have California real estate errors and omissions insurance coverage to protect your business should you get involved in litigation. You’ll advise your insurance company that you’ve been served with the subpoena duces tecum in writing. (Save a copy of that writing.) See California real estate E&O for individuals or California real estate E&O for companies.
As a CRES E&O + ClaimPrevent® client, you’ll call the Legal Services Hotline (available 7 days a week) for guidance in how to proceed.
Contributing Author
B. Edward McCutchan, Jr.
Sunderland | McCutchan, LLP
Mr. McCutchan’s practice is primarily civil litigation with an emphasis in defending professionals and businesses in real estate, mortgage brokering, construction, banking and agricultural industries and all phases of dispute resolution through trial and appeal. His area of practice is also agricultural law (viticulture and wineries), trusts and estates, probate, real estate transactions, business law and elder abuse. B. Edward McCutchan, Jr. was admitted to the Bar in 1985 and is admitted and qualified to practice in all California courts and the U.S. District Court, Eastern and Northern Districts of California as well as the United States Tax Court.
