Declaration
(Business Records Custodian) (CA)

Summary

This template is a declaration for use by a business records custodian or other qualified witness when complying with a subpoena duces tecum that requires the production of business records in a civil action in California superior court in which the business is neither a party to the action nor the place where any cause of action is alleged to have occurred. See Cal. Evid. Code §§ 1560, 1561, 1564. This template includes practical guidance, drafting notes, and alternate and optional paragraphs. Note that a "business" for purposes of Cal. Evid. Code § 1560 et seq. (production of business records) includes every kind of business, governmental activity, profession, occupation, calling, or operation of institutions, whether carried on for profit or not. Cal. Evid. Code §§ 1270, 1560(a)(1). A "record" includes every kind of record maintained by a business. Cal. Evid. Code §§ 1560(a)(2). When a business records custodian or other qualified witness is served with a subpoena requiring production of business records and is not required by the subpoena to personally appear, the custodian or witness may comply with the subpoena by mailing or delivering, within 15 days after receipt of the subpoena, or within the time agreed on with the subpoenaing party, a true, legible, and durable copy of all records described in the subpoena to the court clerk or to another person described in Cal. Code Civ. Proc. § 2026.010 (person conducting deposition outside California). See Cal. Evid. Code § 1560(b). Alternatively, if directed by the subpoenaing party, the custodian or witness may comply with the subpoena by making the records available for inspection or copying by the subpoenaing party's attorney, the attorney's representative, or a deposition officer as described in Cal. Code Civ. Proc. § 2020.420 at the custodian's or witness' business address under reasonable conditions during normal business hours. See Cal. Evid. Code § 1560(e). In either case, an affidavit (or declaration under penalty of perjury under Cal. Code Civ. Proc. 2015.5) setting forth the information required Cal. Evid. Code § 1561 must accompany copies of the records when delivered under Cal. Evid. Code § 1560(b) or the records themselves when made available for copying under Cal. Evid. Code § 1560(e). See Cal. Evid. Code §§ 1560(b), (e), 1561(a), (c). The accompanying affidavit or declaration of the custodian or other qualified witness must: • State that the declarant is the duly authorized custodian of the records or other qualified witness and has authority to certify the records • State that: o The copies are true copies of all records described in the subpoena duces tecum – or – o If the subpoenaing party elected the procedure described in Cal. Evid. Code § 1560(e), the records were delivered to the subpoenaing party's attorney, the attorney's representative, or the deposition officer for copying at the custodian's or witness's place of business • State that the records were prepared by the personnel of the business in the ordinary course of business at or near the time of the act, condition, or event • Identify the records – and – • Describe the mode of preparation of the records Cal. Evid. Code § 1561(a). If the business does not have any of the records described, or has only a part of them, the custodian or other qualified witness must so state in the affidavit or declaration and deliver the affidavit or declaration and any available records in one of the manners provided in Cal. Evid. Code § 1560. Cal. Evid. Code § 1561(b). For a full listing of key content covering fundamental civil litigation tasks throughout a California state court litigation lifecycle, see Civil Litigation Fundamentals Resource Kit (CA). For additional information on responding to discovery subpoenas, see Discovery Subpoenas: Responding (CA).