A subpoena for someone’s job records in a California civil case has to follow Code of Civil Procedure section 1985.6. The party issuing it must first serve the employee with the subpoena and a privacy notice, and the employee can object or move to quash before anything is produced. Employers meet this rule from both sides: defense counsel uses it to get a plaintiff’s old job records, and HR receives it when a worker is in someone else’s lawsuit. Either way, a missed step can stop production or create privacy exposure.
What records does section 1985.6 cover?
Almost anything about a person’s job. The statute defines employment records as “the original or any copy of books, documents, other writings, or electronically stored information pertaining to the employment of any employee maintained by the current or former employer of the employee,” and it reaches union files too.
“Employee” is just as broad. The definition includes “any individual who is or has been employed by a witness subject to a subpoena duces tecum.” So a subpoena to a plaintiff’s employer from ten years ago is covered the same way as one to the company that just let the plaintiff go.
Why do defendants subpoena a plaintiff’s prior employers?
Because those files often matter to the defense. Earlier performance problems, similar complaints against prior employers, résumé discrepancies, pay history for a lost-wages claim, and the reasons the plaintiff left earlier jobs can all bear on credibility, damages, or after-acquired evidence. A plaintiff claiming severe emotional distress from one termination may have a record that tells a more complicated story.
That doesn’t make every request proper. California courts protect employment records as private, and a subpoena asking for “all records” from every job the plaintiff ever held invites a motion to quash. The better practice is to tie each category to a claim or defense in the case, such as pay records for the damages period or the separation documents for a job the plaintiff says ended for reasons unrelated to performance.
What notice must the subpoenaing party give?
The employee has to receive the subpoena package before the employer does. Under section 1985.6(b), the subpoenaing party “shall serve or cause to be served on the employee whose records are being sought a copy of: the subpoena duces tecum; the affidavit supporting the issuance of the subpoena, if any; the notice described in subdivision (e); and proof of service.” If the employee is a party, service goes to their lawyer.
The statute sets minimum timing in subdivision (b), measured both from the production date and from service on the records custodian, with extra time when service is by mail. Calendar both. A subpoena that reaches the custodian too soon after the employee notice is defective.
The notice itself has to be in a typeface that calls attention to it. Per subdivision (e), it tells the employee that the records “may be protected by a right of privacy” and that an employee who objects “shall file papers with the court prior to the date specified for production.”
What can the employee do to stop production?
Two things, depending on whether the employee is a party. Any employee may bring a motion to quash or modify under section 1987.1. A nonparty employee has a simpler option. Under section 1985.6(f)(2), the nonparty may serve “a written objection that cites the specific grounds on which production of the employment records should be prohibited.”
Either step freezes the records. Subdivision (f)(3) says no witness “shall be required to produce employment records after receipt of notice that the motion has been brought by an employee, or after receipt of a written objection from a nonparty employee, except upon order of the court in which the action is pending or by agreement.” The party seeking the records then has to move to enforce, with a declaration showing a good faith attempt to resolve the dispute informally.
What should HR do when it receives a records subpoena?
Check the paperwork before producing anything. Section 1985.6(c) requires the subpoenaing party, before production, to either serve the employer with proof that the employee was served or furnish “a written authorization to release the records signed by the employee or by his or her attorney of record.”
If neither arrives, the employer has a clear answer. Subdivision (j) says “Failure to comply with this section shall be sufficient basis for the witness to refuse to produce the employment records sought by subpoena duces tecum.”
Producing too early is the real risk. An employer that hands over a worker’s medical notes, investigation files, or pay history without the required proof of service, or after an objection has been served, may face a privacy claim from its own employee. A short intake checklist for subpoenas, run by one person, prevents most of these problems.
Subpoena scenarios and the rule that controls
| Situation | What the employer should look for | Rule |
|---|---|---|
| Defense subpoenas plaintiff’s prior employer | Notice served on plaintiff’s counsel with timing met | CCP 1985.6(b), (e) |
| Company receives subpoena for a worker’s file | Proof of service on the worker, or a signed authorization | CCP 1985.6(c) |
| Nonparty worker serves a written objection | Stop production until a court order or agreement | CCP 1985.6(f)(2), (f)(3) |
| Subpoena asks for anonymized records only | Notice rules may not apply | CCP 1985.6(h) |
| Employee subpoenas only their own records | Self-notice not required | CCP 1985.6(k) |
Handling a records subpoena
- Hold the records named in the subpoena, plus any related emails, investigation files, and payroll data, so nothing is altered after the request arrives.
- Calendar the production date and the deadlines for objections or motions, and check whether the request touches a matter covered by an arbitration agreement or an EPLI policy.
- Identify who in HR or payroll keeps each category of records, and make sure no one treats the worker differently because their records were requested.
- Pull the subpoena, the proof of service on the employee, and any authorization, and compare the dates against the statute’s timing rules.
- Have counsel review before producing, objecting, or negotiating a narrower scope with the requesting party.
The firm’s page for California employment defense lawyers describes how it handles discovery in these cases. A related post covers employee requests for personnel files and payroll records.
Employment records subpoena questions from employers
Does section 1985.6 apply to Labor Commissioner and workers’ comp proceedings?
Not to many of them. Subdivision (i) says the section “does not apply to proceedings conducted under” listed divisions of the Labor Code, including Division 4, the workers’ compensation division. Those proceedings follow their own subpoena rules, so check which forum issued the subpoena before applying the civil procedure.
Can the requesting party shorten the notice period?
Only with a court order. Subdivision (g) allows an order “shortening the time for service” or waiving the notice requirements on good cause and a showing of due diligence. An employer receiving a subpoena with a short production date should ask for a copy of that order before producing.
Should the company tell the employee about the subpoena?
The subpoenaing party has the notice duty, not the employer. Still, many employers send a short courtesy notice to the worker when the request is sensitive, such as medical or investigation records. Counsel should approve the wording, because anything the company says can become evidence if the worker later challenges the production.
Can a defendant subpoena the plaintiff’s medical records the same way?
Medical records follow a parallel but separate rule for consumer records, and they carry stronger privacy protection. A plaintiff who puts emotional distress at issue may waive some of that protection, but the scope is often contested. Records requests touching therapy or medical care should be narrowly drafted and tied to the damages claimed.
If your company has received or needs to serve an employment records subpoena
If your company is defending an employment lawsuit and needs a plaintiff’s prior job records, or has been served with a subpoena for a worker’s file, the notice paperwork usually decides whether the records can be produced. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including discovery involving personnel and payroll records. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The statutes are Code of Civil Procedure section 1985.6 and section 1987.1.
This post is general information about California and federal employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.