Med-Legal, Inc. Copy Service Tables

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1 Med-Legal, Inc. Copy Service Tables Table 1. Deposition Subpoena - Nonparty - Notice Delivery of Records Notice Authority Copied by Copy Service Records Only Deposition Subpoena of nonparty where records copied by copy service at place of records Five days to Designate a Date before Deposition Within five business days of receipt of notice from copy service, the witness must designate a copy date that is before the deposition date. EC 1560(e) CCP ; 20/15 days of CCP (c) not applicable. CCP (e) Copied by Copy Service Authorization. Original records copied by copy service at place of records. Delivered by Custodian Records Only Deposition Subpoena of nonparty where nonparty delivers sealed records to deposition officer on the date and time set for the deposition. Disobedience is punishable by contempt. Five days Promptly, but no later than 5 days after presentation of the Authorization Before 15 days. Records must be received at copy service within 15 days from service of subpoena (and must be double-wrapped with case title on both envelopes) Evidence Code 1158 (third paragraph) Copying by facility not permitted. Evidence Code 1158 (second paragraph) Evidence Code 1560(b)(2) CCP (c) (20/15 days); CCP Table 2. No Appointment to Copy Permitted Method Only Limitation Authority Deposition Subpoena During a 6 hour continuous time window, Evidence Code 1560(e) during normal business days and hours. Authorization During business hours Evidence Code 1158 Table 3. Requirement of Affidavit by facility Type Affidavit by business required Deposition Subpoena Yes (Evidence Code 1561) Authorization No 1

2 Type of request Deposition Subpoena Note: Only nonparties are entitled to a copy fee. Evidence Code 1563(b) $15.00 Copy Service Makes Copies On-site Shall not exceed $15 (regardless of the number files kept by the facility EC 1563), plus actual cost of third party record retrieval and return if records are held offsite, plus 20 cents per page if records are printed from microfilm. Evidence Code 1563(b)(6) Authorization $15.00 Shall not exceed $15 (regardless of the number files kept by the facility EC 1563) plus actual cost of third party record retrieval and return if records are held offsite. Evidence Code 1158 (6 th ) Table 4. Nonparty Fees Facility Delivers Copies Reasonable clerical costs Up to maximum of $24/hour, 10 cents per page, 20 cents per page if on microfilm, actual postage, actual costs of third party record retrieval and return if records are held offsite. Itemized statement required before payment is made. Evidence Code 1563 If personal delivery (appearance) is made at the date and time of deposition the facility is not entitled to an additional witness fee ($35) and mileage unless served with a subpoena that specifically states the witness must appear. Evidence Code Reasonable clerical costs at $16/hour billed at $4 increments, 10 cents per page, 20 cents per page if on microfilm, actual costs for reproduction of oversized documents, actual postage, actual costs of third party record retrieval and return if records are held offsite. Evidence Code 1158 (5 th ) Time of payment Time of Service of Deposition Subpoena If the copy service is to copy the records, fee is to be paid when the deposition subpoena is served. Labor Code 131; CCP (b) If the facility is allowed to copy and deliver the records the charges for the copies are not due until actual delivery of the records and an itemized statement must be submitted. Evidence Code 1563(b)(2) No specific provision. Table 5. Penalty for demanding excess copy fees Subpoena Reimbursement if excessive fee if paid, plus reasonable costs and attorney fees under Evidence Code 1563(b)(4) to enforce the section. Contempt CCP 1991 Authorization Payment of reasonable expenses and attorney fees. CCP

3 Table 6. Discovery Methods Authority Authorization Evidence Code 1158 Order to show cause for failure of medical provide to supply records CCP Deposition Subpoena Nonparty - Records Only Authority The deposition subpoena is done by the copy service. Oral depositions, below, are arranged and conducted by the attorney. No approved board form. Use WCAB form 32 with additions to indicate it LC 5710; CCP et seq.; CCP is a deposition subpoena. Must serve all parties ; LC (service) Affidavit or declaration of good cause for deposition subpoena for copying LC 5710; CCP (c); CCP (last business records under CCP is not required. sentence) Notice to Consumer is not required in workers compensation or with CCP (j) (medical and personal records) & authorization (i) (employment records) Naming a particular person is not required. Custodian of Records or CCP (e); (a)(3) for oral Person Most Knowledgeable deposition of party Identify exact documents is not required CCP (a); (a)(4) for party Witness file number or policy number or dates of service or dates of CCP (b) treatments not required. No separate notice of deposition. Deposition subpoena serves as notice CCP ; Notice of deposition when getting records from a nonparty. is required for party deposition. Distance limitations not applicable to deposition subpoena CCP only applies to oral depositions Fees specified in Evidence Code 1563 (See Table 4, above) CCP Oral Deposition of Party LC 5710 For oral deposition do not have to personally serve witness or an employee CCP or agent of party, e.g. adjuster. The notice is sufficient. Notice to all parties can be served by mail 10 days if delivered 15 days if CCP ; No board form for notice. mailed Oral depositions have distance limitations. 75/150 miles CCP ; Oral depositions may be taken by telephone or video conference. CCP Oral deposition where deponent is not a natural person, entity must CCP designate and produce an individual to testify who is most qualified. Oral Deposition of Party and Production of Documents LC 5710 For oral deposition do not have to personally subpoena on an employee or CCP agent of party, e.g. adjuster. The notice is sufficient. Can describe document by category Notice to Produce not permitted in workers compensation 3

4 4 Oral Deposition of Nonparty LC 5710; CCP Witness required to appear is entitled to witness fee and mileage. CCP ; Requires notice of deposition served on all parties Requires personal service of subpoena on witness Board form WCAB form 30 Witness must be given reasonable notice CCP Witness fee is $35 plus mileage both ways at $.20 per mile CCP Oral Deposition of Nonparty with Production of Documents LC 5710 Requires notice of deposition with affidavit served on all parties No form for notice. CCP Requires personal service of subpoena duce tecum on witness Use WCAB form 32 for subpoena. Witness must be given reasonable notice CCP Invalid unless affidavit of good cause served CCP Table 7. Getting a Witness to Appear at Trial - Methods Notice to Appear at Trial Party Only Can be served by mail. Do not have to personally serve. 8 CCR 10505; 10532; CCP 1987(b) Notice required: 10 days if delivered, 15 days if mailed CCP 1987(b) Notice to Appear and Produce at Trial Party Only Can be served by mail. Do not have to personally serve. 8 CCR 10505; 10532; CCP 1987(b) Documents must be described exactly. CCP 1987(b) Notice required: 20 days if delivered, 25 days if mailed CCP 1987(c) Good cause and materiality only required after objection. CCP 1987(c) Subpoena - Nonparty to Appear at Trial 8 CCR 10530; CCP 1985, 1987 Must be on board form. WCAB form 30 8 CCR Subpoena must be personally serviced. CCP 1985 Witness fee is $35 plus mileage both ways at $.20 per mile Subpoena Duces Tecum - Nonparty to Appear and Produce at Trial 8 CCR 10530; CCP 1985; ; EC 1560 Must be on board form. WCAB form 32 8 CCR SDT must be personally serviced. CCP 1987(a) A subpoena duces tecum is invalid without an affidavit or declaration of CCP 1985(b); good cause. Not applicable to deposition subpoena. Documents must be described exactly. CCP 1985(b) Only reasonable notice. That can be as little as one day. CCP 1987(a) Notice to Consumer is not required in workers compensation. CCP (j) (medical and personal records) & (i) (employment records)

5 Table 8. Protected or Privileged Records in Workers Compensation A) Definition of Attorney work product Absolutely protected: Attorney s impressions, conclusions, opinions, legal research, or theories. CCP (a) Qualified protection: Any other material produced by the attorney that is not absolutely protected is discoverable only if withholding it would unfairly prejudice the party seeking discovery. CCP (b) B) Definition of Attorney client privilege Communications that were 1) made in confidence, 2) between an attorney and his or her client and, 3) made in the course of the attorney-client relationship. Evidence Code 950 et seq., Cal. Civil Discovery Practice CEB 3 et seq. The communication must be made to or from a representative of the party and their attorney in order to be privileged. For example, a witness statement from an employee who is not management and does not represent the employer to the employer s attorney would not be protected. An example of a privileged communication would be a letter from the employee s manager to the employer s attorney made in confidence. EC 952, 955 Important: 1) The request for records through Med-Legal, Inc. specifically excludes all documents protected or privileged, therefore, the facility is not being asked to produce protected documents. There is no reason for an objection or to file a Motion to Quash or not produce. 2) All unprotected records must still be produced; just because the file contains a protected document doesn t create the right to not produce anything. 3) An objection that the file may contain protected documents is not valid. Deponent must have specific knowledge that a protected document is in the file and produce all other documents. Civil Proc. Before Trial, Rutter Group 8:202 Steps required to claim protection for work product or privilege Attorney must have standing to object. An attorney who represents the carrier may not represent the employer or a medical provider and has no standing to interfere, or claim any privilege on behalf of employer. CCP ; Evidence Code 951 Must serve written objections to oral Notice of Deposition at least three calendar days before the deposition or the error or irregularity is waived. CCP Motion for Protective Order can be made at any time but must include an affidavit showing a good faith effort to resolve the dispute informally. CCP The protected documents must be identified to the opposing party so that a determination may be made by the judge as to its protected status. Hardesty v WCAB 41 CCC 111,116 5

6 Table 8. Protected or Privileged Records in Workers Compensation (continued) The following items are not protected Statements by witnesses. Greyhound Corp. v Superior Court 56 C2d 355, 15 CR 90; Martin v WCAB 59 CA4th 333, 69 CR2d 138, 62 CCC 1500, 25 CWCR 332; c.f. civil case D.I. Chadbourne, Inc.v Superior Court (1964) 60 Cal 2d 723 A document that was sent to the attorney from the defendant but does not fall under A or B, above. In other words, not every document sent to the attorney is privileged. The claims file is not protected, however, certain material in the claims file may be privileged if it is a confidential communication from or to the attorney. Employment records are not protected; however, certain material in the file may be protected if it is a confidential communication from or to the attorney. Investigator s report obtained by the insurance company before an attorney was hired is not protected. Wilson v Sub Ct 226 Ca2d 715, 38 CR 255; Hardesty v WCAB 41 CCC 111 A witness statement obtained by an investigator hired by the insurance company is not protected. Greyhound Corp. v Superior Court; Jefferson 3.56, Moreno v City of Los Angeles 21 CWCR 108; There is no insurer-insured privilege. c.f. Soltani- Rastigar v Superior Cour. (1989) 208 Cal App 3d 424 A letter from defendant to evaluating physician requesting the doctor to provide specific responses when preparing his report. Winchell s Donut Houses v WCAB 62 CCC A note from the adjuster to the claim service company. Winchel s Summary of recorded interview by claims adjuster. Winchel s Handwritten note to claim file. Winchel s Collection of adjuster s chronological history to the claim file. Winchel s A PD rating report from a rating service. Winchel s Employer s first report of injury. Winchel s Knowledge or facts possessed by a witness that is later communicated to an attorney. Time and manner to object. CCP

7 Table 9. Notice to Consumer/Employee This only applies to civil cases. Deposition officer is the copy service. 1 Notice to consumer/employee does not apply: 1. to workers compensation cases 2 2. where there is an authorization signed by the consumer/employee or his or her attorney if the subpoenaing party is obtaining his or her own records. 4 Copy Service Procedures where Notice to Consumer/Employee is applicable: 1. Prepare: a. Deposition Subpoena or notice of deposition with subpoena duces tecum with affidavit (set production date minimum of days plus 15 days); b. Notice to consumer/employee; c. Proof of service serving the consumer/employee by mail (consumer/employee to be served days before witnesses is served); 2. Serve consumer/employee by mail at the last known address or his or her attorney of record 5 and wait 5+5 days 6. (Can personally service.) 3. Personally serve the witness with the deposition subpoena or subpoena duces tecum and the proof of serving the consumer/employee or authorization 7. Service of deposition subpoena must be at least 15 days 8 before the document production date. 4. Copy records on or after date of production. Objection by consumer where consumer/employee is a party The consumer/employee can file and serve 5 days 9 before the production date a Motion to Quash. Objection by consumer/employee where consumer is not a party Consumer/employee must serve on the subpoenaing party, the custodian of records, and the deposition officer a written objection that cites the specific grounds. Within 20 days of service of the written objection the party subpoenaing the records can bring a motion directing compliance. 10 If objection is made by consumer If a written objection or a Motion to Quash from the consumer/employee is received by the copy service the copy service stops any further activities and notifies the subpoenaing attorney CCP (a)(4); (a)(1) 2 CCP (j); (i) 3 CCP (c)(2); (c)(2) 4 CCP (l); (k) 5 CCP (b)(1); (b)(1) 6 CCP (b)(3); (b)(3); 1013 ( if address is within California; days if address is outside California) 7 CCP (c); (c); (d) 8 CCP (b)(2), (b)(2); CCP (d) 9 CCP (g), CCP (g) 11 CCP (g); (f)(3) 7

8 Table 10 Service of Special Notice of Lawsuit Type of Service Persons authorized to accept service of process Individual, sole proprietorship or partner as an individual CCP Individual Person authorized to accept service 1 Partnership CCP (a) 3 Agent for service of process General partner General manager Corporation CCP (a) 3 Agent for service of process 5 President, CEO or other head Vice president Secretary or Assist. Secretary Treasurer or Assist treasurer Controller, CFO, General manager Person authorized to receive service of process 2 Personal Delivery CCP Leave with person apparently in charge of office and mailing first class to person to be served. CCP (a) Leave in presence of competent member of household or apparently in charge of office and mailing after reasonable diligence.ccp (b) Notice and acknowledgmen t of receipt 4 CCP Out of state mailing CCP Publication after due diligence and court order CCP Yes See next box Yes Yes 2 Yes 2 Yes Yes Yes Yes (reasonable diligence NOT required) Yes (reasonable diligence is NOT required; a person denying entry is a personapparently-incharge) NA Yes 2 Yes 2 Yes NA Yes 2 Yes 2 No (Can serve Secretary of State after due diligence and court order Corp C 1702) Notes: 1. Send everything to my attorney is authorizing attorney to accept. 2. If a person other than the one to serve signs the return receipt, Applicant has burden to show person signing receipt was authorized. CCP (a) This should always be tried. 3. Caption should state whether an individual or California Corporation or a Partnership. On proof of service person served must be one of the listed persons but person given the SNOL can be a person-apparently-in-charge of the office. 4. This method seldom results in a valid service. Try this method when other methods fail. 5. Not required to attempt service on agent as prerequisite to serving other officers. CCP first sentence. 6. See Workers Compensation Quarterly Summer 1999 Vol. 12, No. 2 on how to acquire jurisdiction over uninsured employer. 8