The Workers’ Compensation Appeals Board has approved new and updated subpoena forms.The fillable forms are posted on the DWC website and will also be made available at the district offices.
There are two types of subpoenas. The first, called subpoena, compels a person to testify before a court, or other legal authority.
The second, called subpoena duces tecum (pronounced “doo-seez tee-kum”), requires a person to produce documents, materials, or other tangible evidence. A subpoena may be requested in any kind of litigation. But these new subpoenas are to direct the appearance of persons or the production of documents or other tangible things before the Workers’ Compensation Appeals Board.
Subpoenas can also be used to compel the attendance of a witness or the production of documents at a deposition.
There is now a new form for a Subpoena (DWC WCAB 30), as well as a new form for a Subpoena Duces Tecum (DWC WCAB 32)
Both a subpoena and a subpoena duces tecum require personal service of the subpoena on the witness. Service of a subpoena should be accomplished by a registered process server, or peace officer. There are alternatives such as when the witness agrees to accept the subpoena in some other way, or to voluntarily appear and produce.
Service of subpoenas may be costly and time consuming.
An alternative to actually physically serving a subpoena on a party, is a process known as a “Notice to Appear” or “Notice to Produce.”
One of the WCAB Rules of Practice and Procedure (California Code of Regulations, Title 8, Section 10532) states that “A notice to appear or produce in accordance with Code of Civil Procedure Section 1987 is permissible in proceedings before the Workers’ Compensation Appeals Board.”
CCP Section 1987 then specifies that service of a subpoena on “a party to the record of any civil action or proceeding or of a person for whose immediate benefit an action or proceeding is prosecuted or defended or of anyone who is an officer, director, or managing agent of any such party or person,” is not required if you use a Notice to Appear more than 10 days before appearance is required. And documents can be required by way of a Notice to Produce if served more than 20 days before required.” However a Notice to Appear and Produce cannot be used on a non-party. Non-parties must always be served with a subpoena.
There are other requirements specified in CCP Section 1987 that must be carefully followed to use this alternative.