California Evidence Code 1561 requires the records custodian of a subpoenaed business to attach a signed affidavit to the records produced, and that affidavit must cover five specific points: the custodian’s authority, the accuracy of the copies, that the records were made in the ordinary course of business, a description identifying the records, and an explanation of how they were prepared. The affidavit is what lets the records come into evidence without the custodian showing up to testify in person, so getting its contents right is the whole point of the statute.
The Five Required Statements
The affidavit comes from the custodian of records or another qualified witness. It must address each of the following:
- Authority. The person signing is the authorized custodian or a qualified witness with authority to certify the records.
- Accuracy. The copies produced are true copies of everything described in the subpoena. If the requesting attorney copied the records on-site instead, the affidavit says so.
- Ordinary course of business. The records were made by business personnel in the normal course of business, at or near the time of the event they document.
- Identity. The affidavit describes which records are being produced.
- Mode of preparation. The affidavit explains how the records were created and maintained.
Each element exists for a reason. The “ordinary course” and “mode of preparation” statements are what establish the records as trustworthy enough to stand in for live testimony from the person who created them. Skipping one gives the opposing party a direct opening to challenge admissibility.1California Legislative Information. California Evidence Code 1561 – Production of Business Records
When Your Business Has No Records, or Only Some
Silence is not an option. Section 1561(b) requires the custodian to file an affidavit stating that the business has none of the requested records, or only a portion of them. Whatever records do exist must be delivered alongside that affidavit, using the delivery methods set out in Evidence Code 1560.1California Legislative Information. California Evidence Code 1561 – Production of Business Records
This is where businesses most often slip. The instinct when nothing responsive exists is to ignore the subpoena. That omission can be treated the same as refusing to produce records you actually have. The “we don’t have these” affidavit is itself the required response.
How the Affidavit Travels With the Records
Evidence Code 1560 handles the packaging. When the business is not a party to the case, the custodian delivers a true, legible, and durable copy of the records together with the Section 1561 affidavit.2California Legislative Information. California Evidence Code 1560 – Obedience to Subpoena
The records go inside an inner sealed envelope or wrapper marked with the case title and number, the witness’s name, and the subpoena date. That sealed inner envelope goes inside an outer sealed envelope addressed to the right recipient:
- A court subpoena: the clerk of the court.
- A deposition subpoena: the deposition officer at the location designated in the subpoena, or at the officer’s place of business.
- Other proceedings: the officer, body, or tribunal conducting the hearing.
The records stay sealed until the judge or officer presiding directs that they be opened, with all parties present. Originals that aren’t admitted get returned to the business. Copies may be destroyed.2California Legislative Information. California Evidence Code 1560 – Obedience to Subpoena
How Long You Have to Prepare and Deliver the Affidavit
The baseline clock comes from Evidence Code 1560:
- Criminal cases: five days after receiving the subpoena.
- Civil cases: fifteen days after receiving the subpoena.
- An agreed timeframe negotiated with the requesting party.
Deposition subpoenas for business records follow a different schedule under Code of Civil Procedure 2020.410: the compliance date must be no earlier than 20 days after issuance or 15 days after service, whichever is later.3California Legislative Information. California Code of Civil Procedure 2020.410 – Deposition Subpoena for Production of Business Records
Why the Affidavit Matters: Admissibility
The affidavit is not paperwork for its own sake. Evidence Code 1562 says that if the original records would have been admissible had the custodian appeared and testified to the facts in the affidavit, and if the records qualify as business records under Evidence Code 1271, the copies come in. The affidavit itself is also admissible, and the statements in it are presumed true.4California Legislative Information. California Evidence Code 1562
That presumption is a “presumption affecting the burden of producing evidence.” In practice, the records are treated as authentic unless the other side introduces evidence showing otherwise. Arguing the affidavit might be wrong is not enough; the opponent has to produce something. A thin or incomplete affidavit undermines the entire foundation that keeps those records in the case.4California Legislative Information. California Evidence Code 1562
What Happens If You Skip or Botch It
Code of Civil Procedure 1991 makes disobedience to a subpoena punishable as contempt of court.5California Legislative Information. California Code of Civil Procedure 1991 Contempt penalties under Code of Civil Procedure 1218 can reach a fine of up to $1,000, imprisonment for up to five days, or both. Family law cases escalate faster: a first finding can bring up to 120 hours of community service or jail time per violation, with repeat findings reaching 240 hours of each.6California Legislative Information. California Code of Civil Procedure 1218
For deposition subpoenas, Code of Civil Procedure 1991.1 allows contempt proceedings without first requiring the court to issue an order directing compliance. The court can move straight to sanctions.7California Legislative Information. California Code of Civil Procedure 1991.1
A court handling contempt can also order the non-compliant party to produce the records and pay the attorney’s fees of whoever had to bring the contempt motion. Those fees often sting more than the fine itself, especially when the requesting side spent weeks chasing records that should have been produced on time.
A Note on Consumer Records
Section 1561 governs the custodian’s affidavit, but if the records belong to a consumer, Code of Civil Procedure 1985.3 adds a separate notice step that falls on the party issuing the subpoena, not on the custodian. The consumer must be served with a copy of the subpoena and a written notice of their right to object, generally at least 10 days before the production date, and that service on the consumer must happen at least 5 days before the subpoena is served on the custodian.8California Legislative Information. California Code of Civil Procedure 1985.3
For deposition subpoenas involving consumer records, the custodian cannot release records before the date and time stated in the subpoena, and the subpoena must carry a boldface warning: “Do not release the requested records to the deposition officer prior to the date and time stated above.”9California Legislative Information. California Code of Civil Procedure 2020.430 – Compliance With Deposition Subpoena for Business Records Producing protected consumer records without confirming the notice step was completed can draw the custodian into a privacy dispute that had nothing to do with them.
If you are the custodian, build the affidavit first, confirm the records against each item of the subpoena, and send the two together through the sealed-envelope procedure. If you have nothing, send the affidavit saying so. The statute does not reward silence, and it does not forgive missing elements.