Order a witness to appear and bring evidence to a deposition
If there is a witness you need to appear at a deposition (taking evidence outside court) and bring evidence, you may use a subpoena to order that person to do so.
Before you start
What is a deposition?
A deposition is taking a witness' testimony outside of court. At a deposition, the witness is sworn in, and answers questions under penalty of perjury. A court reporter is hired to transcribe the testimony, and the witness might also be audio or video recorded. A deposition is useful to know in advance what a witness will say at trial, and creates evidence that can be used if the witness changes their story at trial, or becomes unavailable for trial.
You may have to pay witnesses
Witnesses can ask for $35 a day and $.20 per mile each way. An expert witness can charge more. If they request to be paid before the hearing, you must pay them. Otherwise, they are not required to appear.
Be prepared to pay the witness when they come to the deposition regardless of whether they've asked to be paid.
There are special protections for phone records, e-mails, and texts
If you are subpoenaing evidence that includes phone records, email, social media, or texts you must get consent from the owner of those communications by having them sign a release.
Your local Self-Help Center or Law Library may be able to help you find the proper language for the specific release you need.
You must give notice to any consumer or employees whose records you seek
If you are subpoenaing evidence that includes consumer records or employee records of a company, you must give notice to the consumer or employee before serving the subpoena in order to give that person the opportunity to object to the production.
Take a blank subpoena to court
Take a blank Deposition Subpoena for Personal Appearance and Production of Documents and Things (form SUBP-020) to your court clerk's office.
The clerk will issue the subpoena. This means the clerk signs and stamps the subpoena before you fill it out.
Bring a separate one for each person, business, or agency you want to subpoena.A few courts post issued subpoenas online. The subpoena will have a clerk's signature and stamp on them. Check on their website or call and ask if they have them available online.
Fill out your subpoena
Complete the case information in the caption and write the name, address, and phone number of the witness you want ordered to appear.
Section 1: Complete the information about your trial or hearing date.
Use the check boxes to indicate if you are:
- Deposing a corporation, LLC, or other business entity and need it to designate someone to testify
- Having a stenographer record the deposition
- Making an audio or video recording the deposition
- Taking the deposition of an expert witness or physician and want to be able to play the deposition as evidence at trial
Section 3: Describe the documents or things you are requesting the witness to bring to the deposition.If you need more space, check the continued in attachment box and continue the description on an Attachment to Judicial Council Form (form MC-025).
Section 4: Use section 4 only if the subpoenaed party is a corporation, LLC, or other business entity. Describe the subject of the deposition. If you need more space, check the continued in attachment box and continue the description on an Attachment to Judicial Council Form (form MC-025).
Date, Name, and Signature at the bottom: The date, name, and signature at the bottom were filled in by the court.
If the documents include consumer or employee of the person or business on the subpoena, you have to give notice to the consumer or employee at least five days (or longer if the notice is by mail) before you serve the subpoena on the witness.The location of the deposition should comfortably fit all the attorneys or self-represented parties in the case, the witness, and a stenographer.
Business centers, libraries, and other facilities often have conference rooms that can be rented by the hour. Schedule the location of your deposition before you complete the Subpoena form.
The location of the deposition must be within 75 miles of the witness's residence, or 150 miles if it is being held in the same county as the court the case is filed.
Make at least 3 copies of your Subpoena form. One for you, one for the other party in your case (unless they were served in the previous step) and another for the person you need to subpoena.
Keep the original for the court.
Deliver the subpoena
Hand deliver ("serve") a copy (not the original) of the Subpoena form to the person or business you are subpoenaing.
You must serve the Subpoena in person 5 days prior to the deposition. But it is usually a good idea to provide substantially more time (15 days) for the production of records. In addition to the witness, you must also serve any other attorney or self-represented party in your case, although they typically can be served by mail.Corporations and LLCs typically have a designated person or law firm that you need to serve (an agent for service of process). They should be listed with the California Secretary of State.
Corporations or LLCs can request a different type of service for subpoenas, such as faxing the subpoena.
Fill out the Proof of Service
Fill out page 3 of the original Subpoena form the Proof of Service.
Have the person who delivered the Subpoena sign at the bottom-left of page 3.
Ignore the signature line on the right-hand side. This is only used if a sheriff or marshal serves the subpoena.
Keep the original subpoena
Keep the original Subpoena form (and Notice to Consumer or Employee if you used one).
If your witness does not appear and bring documents, you will present the Subpoena form to the court. The court may hold the witness in contempt, and fine the witness $500 plus the cost of the missed deposition.
Once you've completed and served the subpoena, you can expect the witness to appear at the deposition with the evidence you requested.