Can A Record Copy Service Copy Records For A Subpoena Duces Tecum

Legal copy services are a fact of life in the legal earth. No chaser practicing today tin can alive without them, unless we could dedicate our whole day to the minutiae of document preparation and dissemination. They are an essential service that we rely on. Just let's face up it. They run a business and will always endeavor to bolster their lesser line. Since there are strict rules as to which political party pays for legal copy services and when, the ledgers go a little muddied. Lawmakers have stepped in to endeavor and streamline the manufacture, simply there are always ways to effigy out how to sidestep regulations.

Following, I've prepared a listing of the current tricks employed by re-create services and how you can spot them, outmaneuver them, and prevent getting gouged.

Only starting time, a little background.

A number of years ago, I drafted a two-part article serial near the perils of re-create services and their subpoena and billing practices and how to mount a successful defense confronting them. It resulted in 1 well-known provider in Northern California writing a "white paper" in response to my commodity, which was filled with some small counter arguments and not much more. In the years subsequent to those articles, a lot has changed in the globe of re-create services and their practices. The most notable change was the passage in 2012 of California SB 863.

SB 863 and its impact on subpoenas

SB 863 implemented a fee schedule for copy services. This ended, for the well-nigh part, the "wild w" of service fees. In my stance, SB863 and the implementation of a copy service fee schedule was implemented at least in office, to forestall unnecessary re-create service charges that typically occur throughout the life of the claim. Signed in August of 2012 and later codified in Labor Code §5307.9, SB 863 ultimately resulted in a fee schedule that went into effect on 7/1/15 (see also 8 CCR §9980-9983 for more information).

The fee schedule did a number of things:

Placed a apartment fee on re-create costs for pages below 500
Added a per page cost above 500 pages
Cancelled other amendment costs
Created flat fees for records from sure agencies

Gone were the days of $300+ bills for a Certificate of No Records. Useless charges for "base rate", phone calls, mileage, pagination, bates stamping were ghosts of billing abuses past. And the defense side rejoiced. But non me! I chose to operate on the assumption that similar other billing phenomena in the Workers' Compensation world such equally positional MRI'south and re-packaged and chemical compound medications, providers would just find another way to recoup that lost income. I was right.

I've compiled a list of tricks I have noticed that copy services are pulling in low-cal of SB 863, which in all seriousness really was a striking to their lesser line.

Read: Is the claim contested?

Play a trick on #1- Subpoenas issued immediately upon representation

SB 863, codified by eight CCR §9982(d)(ane) established a waiting period of 30 days for the accused to provide records upon request and too discusses "allowable services". In the event the applicant's attorney sends a letter of representation and makes a request for records from the defendant, the defendant is non liable for charges associated with records provided during this waiting period by the carrier, claims administrator, or party that is non a professional person photocopier.

The first "flim-flam" I wish to address is the subpoena immediately upon filing of an Application of Arbitrament or only when applicant'due south attorney sends their boilerplate introduction letter of the alphabet and makes a general request for records. I have been told on more ane occasion that it is commonplace for virtually of the larger copy service companies to take a de facto "desk-bound" at many applicant attorney's offices, where they come by multiple times a calendar week to inquire nearly new claims to be filed and immediately go along with multiple subpoenas to parties such as employer, carrier, known physicians, private treating physicians and others.

I would debate that contrary to many copy service providers' claim that a subpoena issued past them starts this 30 mean solar day clock, the Lawmaking does not specify this. Further, this would defeat the purpose of the fee schedule. If a subpoena is issued during this timeframe and the defendant provides the records to applicant's chaser directly, tin the copy service cancel their subpoena and hit you lot with a $75.00 charge?

I would argue no! Past issuing immediate subpoenas, they anticipate that:

The defendant will not comply with a 30-twenty-four hours requirement
Parties served with their subpoenas will automatically comply, thus "justifying" their billing and
They tin can establish a pattern of additional subpoenas, which we will discuss below.

Trick #2- Ongoing/updated subpoenas

Any defense chaser or claims examiner who has worked for longer than a week at an active desk-bound has experienced this. New applicant's attorney? Here's your subpoena. New primary treating physician? Hither's your subpoena. The defendant issues a subpoena for a particular location? Hither's a amendment for the same location. Ongoing medical care? Here's your updated amendment.

The near common arguments that I hear are four-fold.

The start argument I usually hear is that the original request for records in the boilerplate grade sent by applicant's attorney at the start of the claim creates an ongoing requirement for a file and serve. I concede that this argument may have some merit, yet we must jump into the weeds to dissect information technology. With an ongoing duty, I am not aware of a set "required time" to comply with ongoing file and serves. I recommend every 45 days the claims examiner provide updated reports and upon the receipt of a DOR. However, I always argue upon receipt of an updated subpoena for ANY location in which the defendant has records, that nosotros treat that subpoena as a request for records from the bidder and comply with the request inside 30 days.

I always get in a point to demonstrate to the WCAB that the defendant is diligent in their service of updated records to defeat this argument. I also indicate out other times during the merits in which records are voluntarily provided. Such every bit when a copy is sent to an AME/QME/IME. I always serve bidder's attorney with any records that get to these providers. Or, when we serve records to a new PTP or secondary PTP. Claims examiners should make it a betoken to e'er include a second copy to the applicant's attorney. Service on a disc is unremarkably easiest and most cost-efficient. That way, we have a clear and established design of service of records to demonstrate that a subpoena is not necessary.

In the outcome records are requested that have already been sent, or in the event a subpoena is received subsequently records are provided, the accused should gear up a declaration for execution for the party receiving the amendment which confirms that records have been sent and as such, the subpoena is improper.

The 2d argument is that the applicant has a "correct" to discovery. I would concord with this. However, the larger question is if the discovery request would be duplicative. Per the Lawmaking of Civil Procedure §2019.030, it reads, in part:

(a) The court shall restrict the frequency or extent of use of a discovery method provided in Section 2019.010 if information technology determines either of the following:

(one) The discovery sought is unreasonably cumulative or duplicative or is obtainable from another source that is more convenient, less burdensome, or less expensive.

(2) The selected method of discovery is unduly burdensome or expensive, taking into account the needs of the instance, the amount in controversy, and the importance of the issues at pale in the litigation.

For reference, CCP §2019.010 addresses oral and written depositions and inspection of documents, whereas CCP §2020.210 addresses deposition subpoenas. I always make information technology a point to address the duplicative nature of many of the original and "follow-upwards" or repetitive subpoenas that frequently come across my desk. I also make it a signal to notation to any Judge who may disagree with my position that the accused voluntarily serving records is always more toll-efficient and farther, the argument that the defendant can simply try and prevail on a lien at a lien trial or hearing to address non-IBR Petition litigation subjects the accused to unreasonable costs. How is that not a burden on the defendant and at what fourth dimension practise the rights of the defendant kick in?

The third statement is the claim that the defendant may non be providing all records to the bidder. This statement has no merit in my stance. Unless bidder'due south attorney can demonstrate prior bad behavior or sound testify that this is occurring, I see no reason to do much other than give a cursory scoff at this argument and strength the bidder's attorney or the copy service to bear witness upward their claim. The accused is required to send all records within a set flow of time when IMR Petitions are filed. They are required to send a consummate file to the applicant, the treating doc, the medical-legal evaluator. They are required to send a complete medical file to the applicant's chaser and have a duty to provide all updated reporting. In my 15+ years handling Workers Compensation matters, I have seen only a very few instances where records were withheld. It is a rarity and frankly, is a bit insulting as well.

The 4th argument that I run into is that the applicant needs all records to submit for IMR disputes. This is briefly discussed above. Per the guidelines put forth by the DIR:

For a regular review:

- The required medical records must be provided by the claims ambassador to Maximus within fifteen calendar days of the date designated on the mailed notification or within 12 calendar days of an electronic notification.
For an expedited review:
- The required medical records must be provided to Maximus within 24 hours post-obit receipt of the notification.
The claims administrator must as well send the employee or the employee'due south representative a notification that lists all of the documents submitted to Maximus and a copy of all of the documents that were not previously provided to the employee or the employee's representative.

https://www.dir.ca.gov/dwc/imr.htm

While I see nil wrong with applicant's attorney providing documentation should they chose, it once again goes back to the reasonableness of the subpoena itself. If the accused has provided updated reporting during the claims process, and if they are providing the records to Maximus for the IMR process, then why is a amendment, or multiple subpoenas for that thing, requesting the ENTIRE medical file from multiple providers necessary at this point? Information technology simply makes no sense.

Further, I see subpoenas generated simply considering an IMR request has been filed, and the subpoena seems to accept no actual request from applicant's attorney. Two copy service firms I deal with on a regular footing freely admit they may receive an IMR application copy from applicant's attorney, OR they may stop into the role and gather upward multiple recent IMR requests and generate subpoenas directly due to those documents. Is this a formal request for records? Is bidder'south attorney even directing reasonable or limited discovery at this signal? I would argue that no, it is not reasonable discovery, nor is it limited.

Pull a fast one on #3- Proceeding with the subpoena, regardless of objection or Petition

I am convinced that many copy services rely upon the defendant becoming or remaining conceited. Which is exactly why they don't intendance about objections or a Petition to Quash. Even in the outcome of a timely objection and a timely filing of a Petition to Quash pursuant to the Code of Civil Procedure, copy services volition almost certainly proceed with the collection of records anyway. They then submit billing and attempt to fence that despite an objection and even a Petition to Quash, the timelines noted in the non-IBR Petition process still apply. I disagree, as the event over the appropriateness of the amendment itself trumps the non-IBR process.

The problem with this dispute process largely lies with the WCAB itself. I have had numerous occasions over the years (especially in Northern California) of existence forced to either file for or attend a hearing if the WCAB sets the affair on calendar, due to the filing of my Petition to Quash. Many WCJ's choose to suspend the Petition then fix the thing on calendar, presumably in an endeavour to go the parties to negotiate and resolve the discovery issue informally. Or, the WCAB does nil at all. And if that occurs and the Petition is not followed up on, the copy service points to that as the accused declining to do more with their objection, thus attempting to invalidate their other arguments.

While a hearing over the matter is ideal in theory, it is not e'er practical. Applicants' attorneys have petty incentive to resolve these issues informally since they are not bound by the costs and litigation of subpoenas. The defendant pays for the privilege of their subpoenas. And even if they do agree to withdraw the amendment, or hold the records have been produced, the copy service ofttimes attempts to collect on a cancelled subpoena anyway. Plus, yous have the cost of the DOR filing, the preparation, the appearance and perchance, farther litigation of the matter.

Trick #four- The generic or overly-general affidavit/declaration of good cause

The Code of Civil Procedure §1985 states that a amendment may be issued by "… an attorney at police who is the attorney of record in an activity or proceeding, may sign and issue a subpoena." Anyone else who wants to send out a subpoena must take it issued by the Clerk of the Superior Court. This department further states, (b) A copy of an affidavit shall exist served with a subpoena duces tecum issued before trial, showing proficient cause for the production of the matters and things described in the subpoena, specifying the verbal matters or things desired to be produced, setting forth in total detail the materiality thereof to the issues involved in the case, and stating that the witness has the desired matters or things in his or her possession or under his or her control.

If the defendant truly pays attending to the mass of paperwork that accompanies a amendment, they will start to observe that the affirmation submitted is quite oftentimes generic with a limited statement. A few I have seen over the years include, "Any and all documents and records pertaining to the employment of said employee …," "documents necessary to determine compensability of the claim and/or to testify injury," or even "documentation to be provided to address IMR awarding."

These generic descriptions neglect to constitute practiced cause for a number of reasons: they practice not identify a specific document, or any unique traits of whatsoever documents being sought.

They are inadequate in explaining to the reader or later, the trier of fact every bit to the need for these documents to be provided. One must retrieve that adept cause is fact-based. It is not merely a conclusory statement. Documents must exist more than than only a "need" for the applicant. There must be more to substantiate practiced cause than just indicating that other ways of discovery may non result in obtaining these records. The defense side is constantly told that there are other methods to obtain documentation. And then why should the applicant not exist subject field to the aforementioned standard?

Per Harding Lawson & Assoc. v. Superior Court , ten CA4th 7, 12 CR2d 538, the defendant failed to state why whatsoever evidence as to the stated issues of nature and extent of injury and loss of earnings could non have been obtained through normal discovery processes such every bit the deposition and medical evaluations of the applicant. The aforementioned argument applies for other discovery methods, such equally subpoenas.

Trick #5- Multiple subpoenas at the request of new counsel

To review, per viii CCR § 9982(due east)(one), the claims administrator is non liable for payment of records previously obtained past the same party from the same location unless the applicant also provides a Declaration of good cause. The "same political party/location/source" also applies to a substitution of attorney and new counsel. 8 CCR § 9982 (e)(one)(a) states that adept cause includes new counsel seeking records. Discovery of this kind is permitted.

So why am I bringing this up if this discovery is permitted? Because I believe and contend that the aforementioned timeline for compliance of service of records even so applies. A substitution of attorney document tin can potentially trigger the 30-24-hour interval requirement. Therefore, I tell my clients to treat a substitution certificate as an introduction and need letter.

The copy services I deal with regularly state that this code section and the Labor Code in general practice non say anything about this event existence subject to the 30-24-hour interval requirement. The counter argument is that these subpoenas would create duplication in the process. They are inefficient. They are unnecessary unless the defendant does not provide the records. And they create unnecessary litigation. And let'due south be honest. From a commonsense standpoint, does it really brand sense?

Trick #6- JUST BECAUSE!

8 CCR §10626, states, "Discipline to Labor Code department §3762, and except as otherwise provided by police force, all parties, their attorneys, agents and physicians shall be entitled to examine and brand copies of all or any part of physician, hospital, or dispensary records that are relevant to the claims made and the problems pending in a proceeding before the Workers' Compensation Appeals Board." Nothing in this section limits discovery simply for the defendant. I am enlightened of iii large copy service providers making this department as a primary argument correct on their website. Over again, this is more than than a uncomplicated review and interpretation of a code or regulation.

This goes back to the intent of the legislature and why changes in SB863 and the development and implementation of a fee schedule were put into identify in the first place. I over again assert that the main reason for the changes was to avoid duplicative and unnecessary discovery. This basic argument with no other context defeats that purpose. Further, no one is asserting the applicant does not have this correct. Nosotros merely inquire for the correct rules and regulations to exist followed in the discovery process.

So, what can we practice to defend?

This article already contains some defenses and steps to have in mounting a successful defence. I wish to remind yous, beloved reader, that no one is perfect. We all have busy desks and improper subpoenas will come up across your desk that are never dealt with. But that does not mean that nosotros should not make diligent efforts to fight equally many as possible. I contend that the but mode these behaviors are changed is through diligent objections and litigation. Withal, this can be a hard proposition as there is cost involved with litigation. And the copy service providers know it. That beingness said, an objection and Petition to Quash goes a long way.

The starting time footstep is the objection. It needs to be clear, concise, provide an accurate explanation of the objection, and be completed in a timely manner. A copy to applicant's attorney and the location of the subpoena volition also be helpful. Side by side, the Petition to Quash needs to exist timely filed–before the production request appointment if at all possible. If not, an explanation needs to be provided as to why this did non occur. Once more, brand it a point to not only serve the copy service with your Petition, but the location to be subpoenaed as well.

Next, I believe filing for a hearing may be in order in addition to your Petition, to force applicant's attorney to the WCAB to address their behavior. While this may not always be necessary, it is frequently a practiced idea in practice. For me, many of these conferences have resulted in at least a general understanding betwixt the parties over the lack of a need for subpoenas and an agreement for more frequent service of records by the accused, if needed. Many times, applicant attorneys are unaware of the number of subpoenas being generated, which takes the states back to ane of the "tricks" noted to a higher place regarding the IMR process. Many conferences I take attended also upshot in a withdrawal of the subpoena itself and even an agreement for a withdrawal of billing.

I recommend we go on the offensive confronting repeat offenders. A Petition for Costs and Sanctions from applicant attorneys who refuse to attach to proper discovery should be held to account. While this is somewhat of a controversial position to accept, nosotros see Petitions filed against the defendant(s) all the time for a host of alleged bad behavior. Why should an attorney who is interim improperly not be held to the aforementioned standard? Information technology costs time and money to object. To file Petitions. To deal with phone calls and eventual liens. Bad behavior must be held to account.

Along the aforementioned lines can exist Petitions for Costs and Sanctions against the copy services, at the time they become a lien claimant or an official party to the activeness. While I would argue that they are a party from their first subpoena, they certainly are one when you implement the non-IBR dispute procedure and file your Petition and file for a hearing, or if they exercise. Or, if they file a lien. I too make information technology a point to seek out active discovery against them. I ask for copies of the original contract and wet signature with the applicant chaser'south firm to do business in the first place. See California Rules of Courtroom Dominion 2.257 for more data on the wet signature and inspection of the same.

Further discovery with copy services will become comprehensive and often fatigued out, every bit they practise non want to provide you with information. If you seek business concern records through a discovery order, they will argue that is not the proper method. If you lot seek out the records through personal service or a degradation-subpoena, they will argue that is non a proper method and the records are privileged and/or confidential. Just are they actually when the premise of the request is to address the reasonableness and scope of the discovery, and if in that location is liability to pay on the role of the defendant? I take had fifty-fifty the most liberal of WCJ'south at the most liberal WCAB's state that this is an interesting argument and, on some occasions, have ordered this information to be provided for review in some grade or another.

Make sure that you lot that yous are ambitious in your approach to these subpoenas. I wish to close by reminding you, love reader, that not all subpoenas are invalid. Non all are improper. And not all copy services are bad entities. I do non wish to paint with such broad strokes. Rather, I wish to bring to calorie-free many of the issues y'all may see on your daily adventure through the Workers' Compensation system and provide some suggestions for objection and eventual litigation. Best of luck to you!

Contact Writer Timothy Westward. Rose for more tips: 916-779-6246