Read this first · checked 18 August 2026 · not legal advice
A subpoena is not a court order, and claiming the privilege is not optional.
In short
A subpoena arrived for my client's records. What do I do?
Do not produce, call the attorney line on your policy, and assert the privilege the Evidence Code requires you to assert
0 judges have read it before it reaches youTwo sentences of California law decide most of what happens next, and almost nothing written for therapists says them plainly. An attorney of record can sign and issue a subpoena with no judge involved. And the Evidence Code does not say you may claim your client’s privilege — it says you shall. Here is what the paper actually is, what clock you are on, and who to phone today.
What to do todayWhat the paper isYou must claim itThe clockRecords or testimonyWhat never helpsSources
Before anything else
Three things to do today, in this order.
Acknowledging that somebody is or was your client is itself a disclosure. Nothing on the paper requires you to answer it today, and the deadline on it is later than it looks — see the clock below.
This is the sentence most worth reading on this page. On this site’s own reading of the public record, a subpoena for records is the most commonly reported use of a California therapist’s liability policy — not being sued. The policies carry subpoena assistance and deposition sublimits, some at $10,000, and an attorney line you have already paid for. Which policies carry what →
The production date, the date you were served, and how you were served all matter, because the notice periods below run from them. Write down when it arrived while you still remember.
What this page is
An explanation of the document and the procedure around it, with every rule linked to the statute it comes from. It is not legal advice, it cannot be, and no page can be: what you should do turns on the case, the client, the court and what is actually being asked for. The point of it is to make the first hour calmer and better informed, and to make the call to a lawyer a shorter one.
The distinction everything else rests on
It is court paper. That is not the same as a judge having ordered anything.
California’s Code of Civil Procedure says that “the clerk of the court in which the action is pending shall issue a deposition subpoena signed and sealed, but otherwise in blank” — and then, in the very next subdivision, that “an attorney of record for any party may sign and issue a deposition subpoena.” That is section 2020.210. A subpoena is a demand made by one side of somebody else’s lawsuit. It carries real consequences and it cannot be ignored, and it has also never been read by a judge.
A court order is the other thing. A judge has considered the question and decided it, and the difference is not academic: under the federal privacy rule, with a court order a covered entity may disclose only “the protected health information expressly authorized by such order”, while a bare subpoena requires satisfactory assurance that the person was notified and given a chance to object, or that a qualified protective order is in place. Same file, two entirely different duties.
| Subpoena | Court order | |
|---|---|---|
| Who signed it | An attorney for one of the parties, or the clerk in blank | A judge |
| Has anyone weighed your client’s privacy | No | Yes, that is what the order is |
| What you disclose | Nothing yet — the privilege question comes first | Only what the order expressly authorizes |
| Can it be challenged | Yes — objection, or a motion to quash under section 1987.1 | It has already been decided; compliance is the question |
Federal duties from 45 CFR 164.512(e); issuance from Code of Civil Procedure section 2020.210. Both linked below.
The sentence nobody quotes
You are not deciding whether to protect the record. You are required to.
California Evidence Code section 1015, in full
“The psychotherapist who received or made a communication subject to the privilege under this article shall claim the privilege whenever he is present when the communication is sought to be disclosed and is authorized to claim the privilege under subdivision (c) of Section 1014.”
The privilege belongs to the patient, not to you — section 1014 makes the patient the holder, and lets the psychotherapist claim it on their behalf when the holder is not there to do it. Section 1015 then turns that permission into a duty. So the question people arrive with, am I allowed to refuse, has the wrong shape. Asserting the privilege and letting a court resolve it is the ordinary course. Producing the file because the paper looked official is the thing that goes wrong.
None of that means the privilege always wins. There are exceptions, a client can waive it, a client who has put their own mental condition in issue may have already narrowed it, and a judge can order production after hearing the argument. It means the decision is not yours to make quietly, on your own, on the day the envelope arrives.
The clock you are actually on
The procedure assumes your client gets a chance to object, and builds in the days for it.
Where the records sought are a person’s own — which is what a therapy file is — Code of Civil Procedure section 1985.3 puts a notice procedure in front of production. The person whose records they are gets told, and gets time. The day counts below are from the statute and the Sacramento County Public Law Library’s guide to it, read 18 August 2026.
| Step | When |
|---|---|
| The subpoena and a Notice to Consumer are served on the client whose records are sought | at least 25 days before the production date |
| Or, where the client is served personally | at least 20 days before |
| The subpoena is served on you, the record holder | at least 15 days before the production date |
| The client can serve a written objection | up to 5 days before the production date |
| Once an objection has been served, production | does not happen unless the court orders it |
Code of Civil Procedure section 1985.3. A client who is already a party to the case objects by moving to quash rather than on the form.
Two things follow that are worth saying out loud. First, the date on the paper is a production date, not a deadline to reply by return of post — there is room to take advice. Second, if the notice procedure was not followed properly, that is itself something to raise rather than something to quietly absorb.
Objection, or a motion to quash
Section 1987.1 lets a party, a witness, or the client whose records are sought ask the court to quash the subpoena entirely, modify it, or impose conditions — and it says the court may make any other order appropriate to protect a person from “unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person”.
You are the witness in that sentence. So is the file.
Two different documents, two different problems
What you do about a records subpoena is not what you do about a testimony subpoena.
It wants the file, or part of it. The questions are what is actually being asked for, whether the notice procedure was followed, whether the privilege is asserted, and — if production is eventually ordered — how narrow it can be made. You may never appear anywhere. This is the common one, and it is the one your policy is most often used for.
It wants you, in person, under oath. Everything above about privilege still applies, and now there is a second set of problems: what you can be asked, what you must decline to answer, and whether you are being treated as a fact witness or drifted into giving an expert opinion about someone you treated. Preparation for this is exactly what an insurer’s appointed attorney does.
California has a subpoena that commands production of records and the attendance and testimony of the person holding them. Read which one you have before deciding anything; people answer the wrong one.
The three that make it worse
Each of these is common, and each turns a manageable problem into a different one.
Over-production cannot be undone. The privilege question applies to what is asked for, and what is asked for is frequently broader than what the case could possibly need — which is precisely what a motion to quash or a protective order is for.
A subpoena not being a court order does not make it optional. It has a procedure attached, and the procedure includes the other side going to a judge. The distinction on this page buys you standing and time, not the ability to file it in a drawer.
This is the one that ends careers rather than cases. This site’s discipline library carries a case where a therapist told a state investigator the subpoenaed records had been shredded, in a matter where a client’s own signed form was later shown to have been altered. Whatever the file says, it says it. California expects records to be kept for seven years in any event — that arithmetic is on the records-storage comparison. The case →
If the request has arrived because of something you did rather than something a client is litigating, that is a different page: what the Board can do and what a policy covers is on the liability insurance page, and what you are required to tell clients about your own status is on the advertising and disclosure page.
Where every figure came from
Sources.
The two sentences the page turns on
- Evidence Code section 1015 - the psychotherapist “shall claim the privilege”
- The same section, as read for this page
- Evidence Code section 1014 - the patient is the holder, and when the psychotherapist may claim it
- Code of Civil Procedure section 2020.210 - the clerk issues in blank, and an attorney of record may sign and issue
- The same section, as read for this page
The procedure and the days
- Code of Civil Procedure section 1985.3 - notice to the person whose records are sought
- Sacramento County Public Law Library, business records subpoena for consumer records - the source of the 25, 20, 15 and 5 day counts above
- Code of Civil Procedure section 1987.1 - who may move to quash, and the protective orders a court may make
- The same section, as read for this page
- 45 CFR 164.512(e) - what may be disclosed for a judicial proceeding with a court order, and what a bare subpoena requires instead
Carried from pages on this site
- Liability insurance compared - that a records subpoena is the most commonly reported use of a policy, the subpoena and deposition sublimits, and the attorney helplines
- The discipline case in which subpoenaed records had been shredded
- Where the seven-year retention arithmetic is worked, and what each option costs
- The telehealth standard of practice, for what a recorded session already asks of you
leginfo blocks automated reading, so each statute above was read at the mirror linked beside it and leginfo is linked as the place to read the section itself. The day counts come from section 1985.3 and the law library guide and were checked on 18 August 2026. Nothing on this page is legal advice and no page can be: what to do about a particular subpoena depends on the case, the client and what is being asked for. Call the attorney line on your liability policy first — you have already paid for it. This site earns nothing from any link here and has no relationship with any insurer, law firm or vendor named on it.
