February 18, 2020

February 18, 2020

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February 17, 2020

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How A Public Records Act Request Can Be Better Than A Subpoena Duces Tecum

The California counterpart to the Freedom of Information Act (aka FOIA) is the Public Records Act, Government Code Section 6250 et seq.  In a recent unpublished decision, the Court of Appeal succinctly explains why submitting a Public Records Act request may yield more comprehensive results than a subpoena:

Generally, a California Public Records Act request is more beneficial to the requesting party than a deposition subpoena duces tecum. In Wilder v. Superior Court (1998) 66 Cal.App.4th 77, 79-80, the appellate court was presented with a situation in which, before initiating a lawsuit, an individual filed public records requests.  The government agency refused to produce some of the requested documents, and the individual filed a petition for a writ of mandate to compel their production. (Id. at p. 81.)  The trial court dismissed the petition, concluding that the individual could obtain the documents by filing a lawsuit and propounding discovery. (Ibid.)  In reversing the trial court, the appellate court noted: “Putting aside for the moment the time, effort, and financial resources required to institute a lawsuit against a governmental entity and to promulgate discovery requests, discovery is limited to matters ‘relevant to the subject matter involved in the pending action’ which are themselves ‘admissible in evidence’ or ‘appear[] reasonably calculated to lead to the discovery of admissible evidence.’ [Citation.] A [California Public Records Act] request can cover anything the person making the request suspects the agency might have in its files.  As a member of the public, petitioner is entitled to the broader categories of documents available under the [California Public Records Act].” (Id. at p. 83.)

Grissom v. Dealer Servs. Corp., 2014 Cal. App. Unpub. LEXIS 3876, 22-23 (Cal. App. 4th Dist. May 29, 2014). Regarding the prohibition on citing unpublished opinions, see California Rules of Court, Rule 8.1115(a).

“Where there are friends, there are riches!”

The above quote uses the abbreviation “ibid.” which should be familiar to all lawyers.  “Ibid.” is an abbreviation of the Latin ibidem, which is a combination of the adverb ibi meaning there or in that place and the demonstrative suffix dem.  We find the same suffix in modern English words such as “tandem”.  The Roman poet comedic poet, Titus Maccius Plautus, used ibidem in several of his plays, including Truculentus in which Phronesium says “ubi amici, ibidem opes” (where there are friends, there are riches).  Act IV, Scene 4, l. 31.

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About this Author

Keith Paul Bishop, Corporate Transactions Lawyer, finance securities attorney, Allen Matkins Law Firm

Keith Paul Bishop is a partner in Allen Matkins' Corporate and Securities practice group, and works out of the Orange County office. He represents clients in a wide range of corporate transactions, including public and private securities offerings of debt and equity, mergers and acquisitions, proxy contests and tender offers, corporate governance matters and federal and state securities laws (including the Sarbanes-Oxley Act of 2002 and the Dodd-Frank Act), investment adviser, financial services regulation, and California administrative law. He regularly advises clients...