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Subpoena Compliance 101: LFLM’s Subpoena Response Protocols and Guidance

February 14, 2024

There continues to be a steady increase in subpoenas seeking claims files and human resources or personnel files from applicant’s counsel. Receiving and responding to subpoenas can be burdensome and costly, especially for long-term employees or voluminous claims files.  Laughlin Falbo Levy & Moresi provides a streamlined process for subpoena response, to ensure only relevant, discoverable information is produced, as well as to protect privileged documents and information, which in turn, protects the interests of the carrier, adjuster, and employer.

What is a Subpoena?

Deposition subpoenas or subpoenas duces tecum are a litigation discovery tool often utilized by parties to obtain documents from other parties or entities. Typically, a copy service is used to prepare and serve a subpoena duces tecum. Form documents are also available online. Subpoenas have the same force and effect of a court order and cannot simply be ignored.

What to Do When You Receive a Subpoena?

The moment a subpoena is served on either the carrier or employer, usually by mail, the first step is to immediately identify what documents or materials are being requested, the party or entity requesting the document, and the deadline for production of the documents sought.

Sometimes, the time to respond to the subpoena is very short. Failure to timely respond to a subpoena may waive any potential objections to the production of documents. This could result in the production of privileged or protected documents. Failure to timely object to the subpoena may also waive an argument against the costs claimed by the copy service. It is critical to any motion to quash a subpoena that objections be raised timely.

Send the Subpoena to Counsel

As soon as a subpoena is received, advise counsel if already assigned to the file, or consider referral to counsel for purposes of responding to the subpoena. It may also be appropriate to advise a civil attorney or human resources specialist if there are issues of discipline or internal complaints regarding the injured worker.

Once we receive a subpoena, we review it to determine whether it is appropriate in scope and form. A subpoena must be sufficiently specific in its scope. Subpoenas commonly seek the “entire claims file” or “all personnel files,” but these descriptions are not sufficiently specific and can be a source of objection for overbreadth or be overly burdensome to produce.

A subpoena must also be evaluated to determine whether protected or privileged documents are being sought. This includes attorney-client privileged communications, attorney work-product, and the right to privacy. Additionally, “the entire claim file” could also technically include internal communications, notes regarding claim handling, reserve calculations, and legal billing, among others. The subpoena may also be unreasonable or not calculated to lead to the discovery of admissible evidence.

Our Response Protocol

I.        Send Counsel All of the Materials Being Sought

First and foremost, to effectively respond to a subpoena, counsel must receive the entirety of the materials at issue. Counsel is adept at reviewing the files and redacting privileged or protected documents before a “meet and confer” or otherwise responding to the subpoena. Counsel will identify any documents which should not be provided to the opposing counsel pursuant to one of the categories noted above, and any documents removed will be identified in a “privilege log” which identifies the document being sought and the reason it was removed. It is also important the person preparing and compiling the documents for submission sign and return the “Declaration of Custodian of Records” attesting that the materials provided are the complete materials requested.

II.        Meet and Confer

The California Code of Civil Procedure requires that parties “meet and confer” to resolve any disputes regarding a subpoena before seeking court intervention. The subpoenaed party will generally set out in writing its specific objections to the subpoena and propose an agreement limiting the scope of production in order to avoid a Motion to Quash.

This letter should outline the documents that will be produced voluntarily and include a response date. The copy service, if utilized, should also be copied on the “meet and confer” letter, to later support a challenge to costs submitted by the copy service.

III.       Motion to Quash

If the parties are unable to resolve the dispute over the subpoena informally, a Motion to Quash should be filed to protect the subpoenaed party. A Motion to Quash can be filed on various grounds, including that the subpoena makes no showing of just cause or materiality, seeks the production of irrelevant or privileged documents, is overly burdensome, or not reasonably calculated to lead to discovery of admissible evidence. It is important, as noted above, to file the Motion to Quash within the timeframe for production of the documents to preserve our right to assert any and all defenses to the subpoena.

The moving party must demonstrate that good cause has not been established for the documents sought by the subpoena. Generally, a well-written Motion to Quash including a “meet and confer” letter will allow the WCJ to issue an Order Quashing Subpoena without the need for a hearing on the issue. However, some Judges to prefer to schedule a Status Conference sua sponte in order to discuss the discovery issues with the parties.


Receiving a subpoena can initially feel daunting. Failing to timely and properly object and/or file a Motion to Quash can result in the production of confidential information, such as litigation strategy or reserve information, or can provide the basis for a 132a claim. Failure to respond to or comply with a subpoena may also result in contempt sanctions. As outlined above, our response protocol has been developed in order to avoid these issues, and ensure timely and appropriate compliance with subpoenas. If you need any assistance, please contact any of our attorneys.

Written By:

Aleah McGraw, Esq., of our LFLM – San Francisco Office

Laughlin, Falbo, Levy & Moresi, LLP.