Receiving a subpoena can be intimidating!  It comes in the mail and asserts that you must respond and maybe even appear by a deadline or else…

Well, first things first.   Nine times out of ten you do not need to go anywhere.  You can generally fax, mail, email or even have the copy service company collect the documents requested in person.

Now that we have that out of the way, let me walk you through the subpoena process!

 What is a subpoena?

• It is a court order and if you ignore it, the court will hold you in contempt.

• In Workers’ Comp, the subpoena is usually from the employee’s attorney (applicant attorney) to obtain wage and employment records.

 At time of receipt of subpoena:

• Confirm subpoena is directed at you (employer) and not the insurance company.

• Confirm with the assigned claims adjuster that the records have not already been sent to the applicant’s attorney and / or whatever company has submitted the subpoena.  (If you have, then we may want to object and file a motion to quash; please note this should be on a case by case basis as it may not be cost effective.)

• Check for due date; will you be able to complete in time?

• If not, contact the copy company for extension.  They are generally quite flexible.

INSITE users click below to watch the training video on 5 Reasons Why Claimants Get Represented. Special Guest, James Sim, Esq. of The Law Offices of T. Mae Yoshida.

 If you have in-house counsel:

• Forward subpoena and entire personnel file (which should include wage statements, employee handbook and any other documents listed in subpoena) to in-house counsel.

• Sign, date and send Declaration of Custodian of Records to in-house counsel.

• In-house counsel should review all documents and redact any documents they deem necessary.

• Ensure counsel advises you of any documents that have been redacted / removed.

• In-house counsel should then respond accordingly by due date.

 If you do not have in-house counsel, send to Workers’ Compensation Defense Attorney:

Forward a copy of the subpoena to the adjuster and ensure he / she is aware that you will be forwarding the personnel file and Declaration of Custodian of Records to then be forwarded to the assigned defense attorney for review.

• Sign, date and send Declaration of Custodian of Records to the adjuster to be forwarded to WC defense attorney.

• Forward subpoena and entire personnel file to adjuster to be forwarded to WC defense attorney for response.

• Ensure adjuster / defense attorney are aware of due date.

• Defense counsel should review documents and redact / remove any documents they deem necessary.

• Defense should contact you to confirm which documents are not being sent.

• Defense should then respond by the due date and send confirmation to you and the adjuster.

• TIP: Set yourself a reminder to follow up with the adjuster prior to the due date to ensure completion – adjusters can get very busy!

If you do not have in-house or Workers’ Compensation counsel:

• Please gather any and all documents related to the employee and requested by the subpoena.

• If you have any questions as you are going through this process, please feel free to reach out to your ESM Claims Advocate.

• Sign and date the Declaration of Custodian of Records and place with a copy of the subpoena and your set of documents you will be sending in response.

• You can contact the subpoena company to schedule their pick up or respond per their instructions on the subpoena.

• Provide a copy of the records to your claim’s adjuster, too.

If you’re still looking for further information and / or guidance with your subpoena, please see below for some resources I have found helpful. 

Additional Resources:

• The Subpoena Response Chart for the defense firm of Laughlin, Falbo, et al. for any information that should be submitted to the copy company or any information that should be taken out.

• Department of Industrial Relations https://www.dir.ca.gov/dlse/FAQ_RightToInspectPersonnelFiles.htm

  • This page is for employees but provides a general guideline in the type of documents an employee is entitled to and therefore should be released when subpoenaed.