What should I check before responding to a criminal subpoena for business records?

Read the subpoena itself before producing records. Confirm who issued it, the case and court, the person or business named, the record categories and date range, the return date, and exactly how the records must be delivered. Preserve potentially responsive material while you promptly ask counsel to review the command, its scope, and any sensitive records. Do not ignore or alter records covered by a subpoena.

Identify the authority and the requested records

A criminal subpoena is formal process, not an informal phone or email request. California Penal Code section 1326 identifies who may issue criminal subpoenas. For a subpoena seeking business records, subdivision (b) directs production using the procedure in Evidence Code section 1560(b), subject to the requirements and limits in the statutes. (Penal Code § 1326)

Evidence Code section 1560 describes qualifying business records and allows specified compliance by a custodian through copies and an affidavit when the statutory conditions are met. The actual subpoena and requested production method matter; do not assume every document request qualifies for that procedure. (Evidence Code § 1560)

Check whether the subpoena names you as an individual, a records custodian, or a business. Compare each requested category and time period with records the business actually keeps. Note whether it asks for originals, copies, testimony, or a custodian certification, and follow the stated return instructions only after counsel checks them.

Flag sensitive material and scope questions for counsel

Some records may contain customer or employee information, medical or financial details, communications, trade secrets, or material subject to a privilege or specific statutory protection. Do not assume that privacy alone permits withholding, and do not assume every item must be produced without review. Preserve the records and tell counsel what categories raise a concern so counsel can assess the law and any available response. Ask counsel which response and objection deadlines apply to this criminal subpoena; a deadline from a civil case may not apply.

A subpoena to a business custodian is also different from the prosecutor’s obligation to provide discovery to a criminal defendant. A business recipient should not treat a subpoena as ordinary party discovery or follow procedures from a different case type without checking the governing command.

For help reviewing a criminal subpoena or records request, contact the Law Offices of David S. Chesley at (800) 755-5174.