The topic of this article is the use of notice to appear at trial or hearing and produce documents in California litigation, also known as notice in lieu of 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 by 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 done by mail, rather than personal service as is required with a standard summons.
But the best bonus 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 him to appear and produce the documents requested at the 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 preparation for trial.
Therefore, even a party that has missed the discovery deadline for requesting certain documents may still compel the production of those documents, as long as it can identify the requested documents with reasonable particularity. And as mentioned above, they can also compel the attendance of certain known people to appear as witnesses.
If only the person’s attendance is required as a witness, then service may be given in person at least ten (10) calendar days before the trial or hearing, or fifteen (15) calendar days before the trial or hearing if service is made by mail. Service must be made to the party, or his attorney, if he has one.
If production of documents is required, service may be given in person at least twenty (20) calendar days before the trial or hearing, or twenty-five (25) calendar days before the trial or hearing if service is given by mail. Service must be made to the party, or to the party’s attorney, if she has one. The notice must state the exact materials or things desired, as well as a statement that the person has them in their possession or under their control.
Service of notice will have the same effect as service of a subpoena on a witness, and the parties will have those rights and the court may make those orders, including the imposition of sanctions, as in the case of a subpoena 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.
