Business records subpoena valid as to unserved defendant?

[hms28945]

Jurisdiction

California

Let's say a lawsuit is filed and one of the defendants is never served with the summons and complaint and never dismissed, but documents are needed from this unserved defendant. Clearly, a Demand for Production of Documents under CCP 2031.010 is not going to work, so a subpoena for business records is served. The unserved defendant fails to respond to the subpoena, and a motion is to compel compliance with the subpoena is contemplated.

Is this subpoena valid as to the unserved defendant? In other words, can the unserved defendant be treated as a third party for purposes of this subpoena? Or is it impossible to obtain discovery from the unserved defendant until such time as it is served (in which case a CCP 2031.010 demand is propounded) or dismissed (in which case a subpoena is used)?

 

[army judge]

Is this subpoena valid as to the unserved defendant?

If a person has never been served, the person is no more involved in the lawsuit than Mickey Mouse or Donald Duck, presuming things are you've recited above.

 

[hms28945]

If a person has never been served, the person is no more involved in the lawsuit than Mickey Mouse or Donald Duck, presuming things are you've recited above.

Yes but if Mickey Mouse or Donald Duck were served with a subpoena in California, they would become involved in the lawsuit to which they are not parties, to the extent that they are obliged to comply with the subpoena. The question is whether the business records subpoena in California is valid as to an unserved defendant to the same extent as a third party.

 

[army judge]

The question is whether the business records subpoena in California is valid as to an unserved defendant to the same extent as a third party.

That question requires a legal conclusion, which you can seek from a court.
Alternatively you can pay a California licensed lawyer for a written legal opinion, which might be useful in the future.

Well, at least far more useful than quoting an anonymous (to you) internet source.

If the person is a records custodian of an employer, or a owner of interest in a business, when the business is served properly (or service accepted by the business' agent of record), the person has also been served.

Just what are you trying to avoid, and why?

It is never wise to paint a target on your back and say, don't hit me.

If you wish to not be seen or heard, it might be best not to raise a ruckus.

 

[zddoodah]

The subpoena is valid and enforceable. Your attorney should know this.