What should I do if I receive a deposition subpoena for an employee’s employment records?

A deposition subpoena is 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 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.

The party seeking the records must provide the employee or their 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 their 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.

If the attorney provided you with a proper proof of service showing that they gave the proper advance notice to your employee or their attorney, you must provide all the records you have that are responsive to the request, unless you receive a document from your employee or their 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, they 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.

Read more about Civil Action Subpoena of Records in the HR Library.