63-358     Court Appearances and Subpoenas

 

63-358.1
General

A subpoena is a court order to compel a person to appear at a deposition or court proceeding to testify as a witness.

A subpoena duces tecum is a court order normally used to compel a person to produce all documents or records named in the subpoena.

The testimony of Health and Human Services Agency (HHSA) employees involving case records for matters not directly related to the administration of public social service programs is an inappropriate use of case records and a violation of confidentiality.

To avoid violating confidentiality and/or court orders the procedures in 63-357.2 and .3 below will apply.  These procedures apply only to subpoenas involving HHSA records and applicants/recipients.

 

63-358.2
District Attorney/
County Counsel Subpoena

Staff is routinely served with subpoenas issued by the District Attorney’s (DA) office.  It is HHSA policy to fully cooperate with the DA in the investigation or prosecution of all matters directly related to the administration of public social services. 

Procedures for staff served with a subpoena issued by the DA are outlined below:

·   A demand for witness fees and mileage should not be made.

·        The employee will notify his/her supervisor or the appropriate Family Resource Center (FRC) manager immediately when served with a subpoena.

·        The employee named on the subpoena is expected to appear as directed. 

o   When the employee is no longer assigned to HHSA, the supervisor or FRC manager will immediately contact the Deputy DA identified on the subpoena to provide the identity of the employee who will respond as a substitute. 

o   If there has been a change in the worker assigned to the case, the Deputy DA must be informed so that he/she may make the decision on who will be required to appear.

·        The employee must contact the Deputy DA to discuss the case and restrictions to availability for court (planned vacation or medical leave).

·        If unsure whether the subpoena relates to a matter directly connected to HHSA programs, the employee’s supervisor or FRC Management must contact the Subpoena Liaison who is the Public Assistance Information (PAI) Supervisor.

·        If the subpoena relates to a matter not directly related to the administration of public social service programs, the employee will follow the procedures outlined in 63-356.4 below.

 

63-358.3
Private Attorney Subpoena/
Subpoenas Duces Tecum
General

Staff is occasionally served with subpoenas or subpoenas duces tecum that are initiated by:

·         Private attorneys;

·         Legal Aid Society; or

·         The Public Defender.

These subpoenas normally request the presence of staff and/or case records and may deal with civil or criminal matters not directly related to the official administration of public social service programs, such as:

·         Divorce;

·         Child support;

·         Child custody; or

·         Property settlement matters.

By State Law (W & I Code 10850), the testimony of staff and/or use of case records for matters not related to the administration of public social service programs is considered inappropriate use of public social service records and is a violation of confidentiality.

Subpoena Addressed to the “Custodian of Record”

Frequently these subpoenas will be for the case record, rather than a specific person and will be addressed to the “Custodian of Record”.

HHSA staff must not accept service of subpoenas addressed to the “Custodian of Record”. 

The server of the subpoena duces tecum must be informed that the Custodian of Record for HHSA is the Eligibility Operations Chief and that service of the subpoena may be arranged by the server by contacting the PAI Supervisor.

 

63-358.4
Private Attorney Subpoena Procedures

All HHSA staff served with a subpoena or subpoena duces tecum from a private attorney that is addressed to the staff person (not the “Custodian of Record”)  must accept the subpoena and adhere to the following procedures:

 

Procedures

1

The employee must demand witness fees and mileage at the time the subpoena is served.  HHSA employees must also demand that HHSA receive the fees and mileage prior to the court appearance.  Witness fees and mileage reimbursement amounts are established by State Law.

 

The person delivering the subpoena may write a check and present it at the time the subpoena is served (payee on the check should be the “Health and Human Services Agency”). 

 

The employee must send the check with the subpoena to the Subpoena Liaison Eligibility Operations, Mail Stop W414.  For subpoena duces tecum, send to the PAI Supervisor at Mail Stop W409.

2

Immediately following the serving of the subpoena, the employee’s immediate supervisor will call the Subpoena Liaison, who will determine if the pending legal proceedings are related to the administration of a public social service program.

3

Upon notification, the Subpoena Liaison will request that the subpoena and check for witness fees, if applicable, be delivered to him/her as soon as administratively possible.

4

Upon receipt of the subpoena, the Subpoena Liaison will contact the serving attorney and explain the legal provisions of confidentiality (W& I Code 10850) and request the subpoena be withdrawn.

 

 

63-358.5
Attorney Agrees/
Refuses to Withdraw Subpoena

Attorney Agrees to Withdraw Subpoena

The Subpoena Liaison will notify the employee’s supervisor that the employee is excused from compliance with the subpoena.

Attorney Refuses to Withdraw Subpoena

The Subpoena Liaison will return the subpoena to the employee and provide him/her with a copy of the “Points and Authorities in Opposition to Subpoena Duces Tecum”.  The “Points and Authorities” is a statement prepared by the County Counsel’s Office, and serves as a formal request to the court to excuse the witness and/or records on the grounds that the records are confidential.  The employee must appear in court at the designated time.

The employee must not testify or allow anyone to see the record until the “Points of Authorities” has been presented to the judge and the judge has made a determination.  The “Points and Authorities” should be given to the judge at the time the employee is called to the stand to testify. 

If the judge rules against the “Points of Authorities”, the employee must:

·         Comply with the decision;

·         Submit the case record; and

·         Give testimony.

If parts of the case record are introduced as evidence, the employee will seek court approval, on the record, of substitution of photocopies so that the case record and its documents can remain intact when the employee is excused.