Procedural defects in subpoena served by California AG on EES

Bob:
You asked us to determine whether there are defects on the face of the
subpoena served upon EES which may prevent its enforcement in superior
court. Assuming the court holds the subpoena to the standard of a
"deposition subpoena" - and we think it should - it is defective in at least
two respects. First, it was not served upon Enron by personal service as
required by CCP o2020(f). Second, Government Code o1189 provides that the
Attorney General must first file a petition in superior court to require the
custodian of records to appear and testify. While the subpoena requests a
deposition of the Enron EES custodian of records, the AG did not file such a
petition. In addition, Government Code o1185 provides that a person served
with such a subpoena is not obliged to attend as a witness if he or she does
not reside or do business within 50 miles of the court in which he or she is
asked to appear.
At your request we are now researching and will draft over the weekend a
memorandum to address three issues arising from this subpoena: (1) whether
EES has substantive grounds to refuse to comply with the subpoena or to
disqualify the AG from enforcing it (2) whether EES may successfully remove
any compliance proceeding brought by the AG to federal court; and (3) the
consequences to EES if it should be held in contempt for refusal to comply.
A discussion of the defects in the EES subpoena follows:
There are three defects in the subpoena served on Enron Enery Services
("EES") on May 25, 2001, pursuant to California Government Code section
11180-11189. The subpoena purports to require EES to produce its custodian
of record on June 25, 2001, to "testify and to answer questions" and to
"produce documents responsive to the document requests." (Subpoena at
2:1-5). Accordingly, its demands are in the nature of a subpoena for
deposition and we analyze it on this basis.
1. Defective Service
The subpoena appears defective because it was served by mail
instead of personal service. Service of a deposition subpoena pursuant to
California Code of Civil Procedure section 2020(f) requires that the
subpoena be served personally, not by mail. For the reasons discussed
below, we believe that the subpoena served on EES is deposition subpoena
subject to the personal service requirements of C.C.P. o 2020(f).
First, the subpoena is a deposition subpoena because it
seeks to compel oral testimony from EES's custodian of records. The method
of taking oral testimony in California outside of court is by way of
deposition. C.C.P. o 2002, et seq. Here, the subpoena commands EES'
custodian of records "to testify and to answer questions." (Subpoena at
2:1). It also states that the custodian of records "will be questioned
under oath regarding methods of compliance and whether all documents
described in this subpoena have been produced." (Subpoena at 7:5).
Moreover, the subpoena is issued "pursuant to the powers conferred by
California Government Code sections 11180-11189...". Government Code
section 1189 is entitled "Depositions; petition; order; enforcement"
(emphasis supplied). The subpoena should thus properly be considered a
deposition subpoena.
Second, the requirements of the California Code of Civil
Procedure governing deposition subpoenas applies to the subpoena served on
EES. Government Code section 11185 provides that in the case of deposition
subpoenas, the deposition is governed by the California Code of Civil
Procedure. The Attorney General has also issued a formal opinion stating
that the Code of Civil Procedure governs subpoenas issued pursuant to Gov.
Code o 11180:
Presumably [Gov. Code o 11180] authorizing
the head of the Department to issue a subpoena for the production of books,
papers, or documents would be governed by the general law relating to
subpoenas duces tecum. (see Sec. 1985, C.C.P).

9 Attorney General's Opinions 35, Opinion No. 46-341; see also, 11 Attorney
General's Opinions 66, Opinion No. 48-21 (service of subpoena pursuant to
Gov. Code o 11184 must comply with Code of Civil Procedure o 410).

Because the subpoena is a deposition subpoena subject to the
Code of Civil Procedure, the requirement that it be served personally, not
by mail, should apply.

2. The Subpoena is Defective Because the Attorney General Failed to
First File a Petition in Superior Court and Obtain a Court Order Requiring
the Custodian of Records to Appear and Testify

Government Code section 11189 provides:

In any matter pending before a department
head, the department head may cause the deposition of persons residing
within or without the state to be taken by causing a petition to be filed in
the Superior Court in the County of Sacramento reciting the nature of the
matter pending, the name and residence of the person whose testimony is
desired, and asking that an order be made requiring the person to appear and
testify before an officer named in the petition for that purpose.

The Attorney General, while purporting to serve the subpoena pursuant to
this section ("Pursuant to the powers conferred by California Government
Code section 11180-11189..."), failed to comply with Government Code section
11189 by first filing a petition and obtaining a court order permitting the
taking of testimony. For this reason, the subpoena should be considered
defective.

3. The Supoena is Defective for Purporting to Compel Attendance by the
Custodian of Records at a Location More than Fifty Miles from His Residence

Government Code section 11185 provides:

a person is not obliged to attend as a
witness in any matter under this article at a place out of the county in
which he resides, unless the distance is less than 50 miles from his place
of business. (emphasis supplied).

The subpoena is addressed to EES's custodian of records, and is "issued
primarily for the purpose of having [EES], through your most knowledgeable
person" testify and produce documents. (Subpoena at 2:4-6). Presumably,
EES's custodian of records who is most knowledgeable with respect to the
documents requested in the subpoena resides more than 50 miles from San
Francisco. If so, the subpoena would be defective, and EES's custodian of
records would not be obliged to attend as a witness.

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