Gemini Legal Enforces Workers’ Compensation Non-Party Witness Fee Policy

Effective August 1, 2025, Gemini Legal will not provide witness fees or copying fees in response to Subpoena Duces Tecum (SDT) served on parties to an action. By making this change, Gemini Legal is in compliance with California Evidence Code § 1563(b) and governing Workers’ Compensation procedures.

How are Workers’ Compensation Subpeonas Different from Other Subpeonas?

A subpoena is a court order demanding that a person “do” something, such as provide records or other evidence, or appear at a hearing, deposition, or trial.  Subpoenas allow attorneys to obtain the information necessary to help prove their client’s case by conducting discovery.

There are many more subpoenas that can be used in this process. These subpoenas are created and issued by the Judicial Council of California and can be found on their website. The different types of civil subpoenas that may be used include:

• Subpoena for Personal Appearance at Trial or Hearing (SUBP-001)

• Subpoena Duces Tecum for Personal Appearance and Production of Documents at Trial or Hearing (SUBP-002)

• Deposition Subpoena for Production of Business Records (SUBP-010)

• Deposition Subpoena for Personal Appearance (SUBP-015)

• Deposition Subpoena for Personal Appearance and Production of Business Records (SUBP-020)

Civil subpoenas may not be served on parties to the case. There are different discovery methods available to obtain discovery from a party on the case. Business records are defined by Evidence Code section 1560(a)(2): “A 'record' includes every kind of record maintained by a business”. 

Unlike other subpoenas, the subpoenas used in workers’ compensation cases are issued by the Workers' Compensation Appeals Board (WCAB). These subpoenas request records or attendance at a deposition (the SDT) or command an appearance at the WCAB for a hearing or trial. Workers’ compensation subpoenas may be served on anyone who needs to appear or produce records, including the carrier and employer on a case, who are parties to the case. 

How Does the Subpoena Service Process Work for Workers’ Compensation?

Parties to an action include a person or group taking one side of a question, dispute, or contest (California Judicial Branch). Multiple binding decisions, consistent with Labor Code § 5710 and Code of Civil Procedure § 2025.220, indicate parties to a case are not entitled to compensation for responding to discovery requests that do not require appearance or testimony. 

If the records the subpoena is asking for are the records of anyone other than the person issuing the subpoena (through their attorney), Gemini Legal will serve a Notice to the Consumer (the person whose records are being asked for) to give the consumer time to object. 

This is done by serving a copy of the subpoena to whoever’s records are being requested, or their attorney, and giving them 10 days to object (add 5 days for mail, if the notice to consumer was mail served). Once that time has passed, and no objection is received, the subpoena can be served to the location, and we can attempt to obtain the records. 

Notices by Gemini Legal are issued using the WCAB-approved SDT form as a valid and recognized method for requesting documentary evidence under these statutes.

Some organizations may need to adjust their internal policies to ensure compliance with applicable discovery laws and procedures. Those who wish to confer with Gemini Legal on this topic are welcome to contact me via this form.