1. The first method, which can be rather cumbersome, requires one to submit a foreign subpoena to the Clerk of Court in the county in which the discovery is sought, along with the required judicial council form. This process is laid out in Code of Civil Procedure section 2029.300:To request issuance of a subpoena under this section, a party shall submit the original or a true and correct copy of a foreign subpoena to the clerk of the superior court in the county in which discovery is sought to be conducted in this state. A request for the issuance of a subpoena under this section does not constitute making an appearance in the courts of this state.
   In addition to submitting a foreign subpoena under subdivision (a), a party seeking discovery shall do both of the following:
   1. Submit an application requesting that the superior court issue a subpoena with the same terms as the foreign subpoena. The application shall be on a form prescribed by the Judicial Council pursuant to Section 2029.390. No civil case cover sheet is required.
   2. A subpoena issued under Code of Civil Procedure section 2029.300 must “also satisfy all of the following conditions”:
      1. It shall incorporate the terms used in the foreign subpoena.
      2. It shall contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel.
      3. It shall bear the caption and case number of the out-of-state case to which it relates.
      4. It shall state the name of the court that issues it.
      5. It shall be on a form prescribed by the Judicial Council pursuant to Section 2029.390.
2. The second method involves retaining a California attorney to domesticate the out of state subpoena. This method is set forth in Code of Civil Procedure section 2029.350:
   1. (a) Notwithstanding Sections 1986 and 2029.300, if a party to a proceeding pending in a foreign jurisdiction retains an attorney licensed to practice in this state, who is an active member of the State Bar, and that attorney receives the original or a true and correct copy of a foreign subpoena, the attorney may issue a subpoena under this article.Just as with the first method, a subpoena issued under Code of Civil Procedure section 2029.350 must “also satisfy all of the following conditions”:
      1. It shall incorporate the terms used in the foreign subpoena.
      2. It shall contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel.
      3. It shall bear the caption and case number of the out-of-state case to which it relates.
      4. It shall state the name of the superior court of the county in which the discovery is to be conducted.
      5. It shall be on a form prescribed by the Judicial Council pursuant to Section 2029.390.

The forms prescribed by the Judicial Council are as follows and depend on the precise discovery sought in California:

1. SUBP-035: “Subpoena for Production of Business Records in Action Pending Outside California” (https://www.courts.ca.gov/documents/subp035.pdf)
2. SUBP-040: “Deposition Subpoena for Personal Appearance in Action Pending Outside California” (https://www.courts.ca.gov/documents/subp040.pdf)
3. SUBP-045: “Deposition Subpoena for Personal Appearance and Production of Documents, Electronically Stored Information, and Things in Action Pending Outside California” (https://www.courts.ca.gov/documents/subp045.pdf)
4. SUBP-050: “Subpoena for Inspection of Premises in Action Pending Outside California” (https://www.courts.ca.gov/documents/subp050.pdf)

Here is something that may trip up non-California attorneys: if your discovery seeks employee, health, banking or other records protected by Code of Civil Procedure section 1985, the notice requirements of this statute still apply, even if the discovery was originally issued in another state. To wit, if you are seeking these types of protected records, the affected consumer or employee must be given notice in advance of the service of the subpoena on the witness or business. Failure to comply with these requirements may lead to sanctions and may prohibit enforcement of the requested discovery in California.

Do you need to retain local counsel in California to domesticate a subpoena from another state? We can help and we can do it for a low, flat fee. You can contact us by e-mail or call us at 858-793-8884.

* Nothing herein constitutes a warranty, guarantee or prediction of your case. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result.

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Effective Jan 1, 2013, AB2612 increases the witness fee that must be paid at the time a subpoena is served to a qualifying government employee (CHP, Police, Fire, certain County and State employees, etc) under GC§68097.2 . The fee will increase from the current $150.00 to $275.00 per day.When serving a subpoena to an employee of one of these agencies, the subpoena must be served at least 5 business days before the scheduled appearance. The witness fees must be paid at the time of service and should be made payable to the agency that the employee works for (i.e. San Francisco County Sheriff, Marin County Fire Dept.). If the cost for the actual appearance is greater than the witness fee deposit, the agency will bill you for the difference. If the actual cost is lower, the agency will refund the difference to you. Most agencies will not accept an “On Call” letter and/or agreement. You should call the specific agency to verify.

Effective Jan. 1, 2017, the Federal mileage rate will increase to 53½¢ per mile. Mileage should be calculated from the home address of the witness (if known) to the place of appearance. Witness fees must be paid at the time of service with a Federal subpoena. For a State subpoena, the witness fees can be paid at the time of service or at the time of appearance, at the option of the issuing party.

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