The subject of this article is the use of a notice to appear at trial or hearing and produce documents in California litigation, also known as a notice in lieu of a summons duces tecum. The notice is given pursuant to Section 1987(b) and (c) of the Code of Civil Procedure, and may only be used on a party to the litigation, or someone who is an officer, director, or managing agent of such party. One of the main advantages of using the notice to appear is that service can be served by mail, rather than personal service as required with a standard subpoena.
But the best advantage of all is yet to come. The best advantage is the fact that even a party that may not have requested certain essential or critical documents during the discovery phase of the litigation process, if the documents are known to exist and can be clearly identified, the party can prepare and Serve the notice on the other party to compel them to appear and produce the documents requested at trial or hearing. They can also compel someone who is an officer, director, or managing agent of the other party to appear. The author has seen many cases where the use of notice has been very helpful in preparing for trial.
Thus, even a party that has missed the discovery deadline for requesting certain documents may still compel the production of those documents, provided that it can identify the requested documents with reasonable particularity. And as mentioned above, they can also compel the attendance of certain well-known people to appear as witnesses.
If only the attendance of the person as a witness is required, then service may be served in person at least ten (10) calendar days prior to trial or hearing, or fifteen (15) calendar days prior to trial or hearing if service is served by mail. Notice must be made to the party, or his attorney, if he has one.
If production of documents is required, service may be served in person at least twenty (20) calendar days before trial or hearing, or twenty-five (25) calendar days before trial or hearing if service is by mail. Notice must be made to the party, or to his or her attorney, if any. The notice must state the exact materials or things desired, as well as a statement that the person has them in his or her possession or control.
Service of notice shall have the same effect as service of a subpoena on the witness, and the parties shall have those rights and the court may make such orders, including the imposition of penalties, as in the case of a summons to appear in court , pursuant to Section 1987(b) of the Code of Civil Procedure.
The author sincerely hopes that you have enjoyed this article.
Sincerely,
Stan Burman
Copyright 2012 Stan Burman. All rights reserved.
