1536.5
. (a) If a government agency seizes business records from an
entity pursuant to a search warrant, the entity from which the
records were seized may file a demand on that government agency to
produce copies of the business records that have been seized. The
demand for production of copies of business records shall be
supported by a declaration, made under penalty of perjury, that
denial of access to the records in question will either unduly
interfere with the entity's ability to conduct its regular course of
business or obstruct the entity from fulfilling an affirmative
obligation that it has under the law. Unless the government agency
objects pursuant to subdivision (d), this declaration shall suffice
if it makes a prima facie case that specific business activities or
specific legal obligations faced by the entity would be impaired or
impeded by the ongoing loss of records.
(b) (1) Except as provided in paragraph (2), when a government
agency seizes business records from an entity and is subsequently
served with a demand for copies of those business records pursuant to
subdivision (a), the government agency in possession of those
records shall make copies of those records available to the entity
within 10 court days of the service of the demand to produce copies
of the records.
(2) In the alternative, the agency in possession of the original
records, may in its discretion, make the original records reasonably
available to the entity within 10 court days following the service of
the demand to produce records, and allow the entity reasonable time
to copy the records.
(3) No agency shall be required to make records available at times
other than normal business hours.
(4) If data is recorded in a tangible medium, copies of the data
may be provided in that same medium, or any other medium of which the
entity may make reasonable use. If the data is stored
electronically, electromagnetically, or photo-optically, the entity
may obtain either a copy made by the same process in which the data
is stored, or in the alternative, by any other tangible medium
through which the entity may make reasonable use of the data.
(5) A government agency granting the entity access to the original
records for the purpose of making copies of the records, may take
reasonable steps to ensure the integrity and chain of custody of the
business records.
(6) If the seized records are too voluminous to be reviewed or be
copied in the time period required by subdivision (a), the government
agency that seized the records may file a written motion with the
court for additional time to review the records or make the copies.
This motion shall be made within 10 court days of the service of the
demand for the records. An extension of time under this paragraph
shall not be granted unless the agency establishes that reviewing or
producing copies of the records within the 10 court day time period,
would create a hardship on the agency. If the court grants the
motion, it shall make an order designating a timeframe for the review
and the duplication and return of the business records, deferring to
the entity the priority of the records to be reviewed, duplicated,
and returned first.
(c) If a court finds that a declaration made by an entity as
provided in subdivision (a) is adequate to establish the specified
prima facie case, a government agency may refuse to produce copies of
the business records or to grant access to the original records only
under one or both of the following circumstances:
(1) The court determines by the preponderance of the evidence
standard that denial of access to the business records or copies of
the business records will not unduly interfere with the entity's
ability to conduct its regular course of business or obstruct the
entity from fulfilling an affirmative obligation that it has under
the law.
(2) The court determines by the preponderance of the evidence
standard that possession of the business records by the entity will
pose a significant risk of ongoing criminal activity, or that the
business records are contraband, evidence of criminal conduct by the
entity from which the records were seized, or depict a person under
the age of 18 years personally engaging in or simulating sexual
conduct, as defined in subdivision (d) of Section 311.4.
(d) A government agency that desires not to produce copies of, or
grant access to, seized business records shall file a motion with the
court requesting an order denying the entity copies of and access to
the records. A motion under this paragraph shall be in writing, and
filed and served upon the entity prior to the expiration of 10 court
days following the service of the demand to produce records specified
in subdivision (a), within any extension of that time period granted
under paragraph (6) of subdivision (b), or as soon as reasonably
possible after discovery of the risk of harm.
(e) A hearing on a motion under subdivision (d) shall be held
within two court days of the filing of the motion, except upon
agreement of the parties.
(f) (1) Upon filing a motion under subdivision (d) opposing a
demand for copies of records, the government agency may file a
request in writing, served upon the demanding entity, that any
showings of why the material should not be copied and released occur
in an ex parte, in camera hearing. If the government agency alleges
in its request for an in camera hearing that the demanding entity is,
or is likely to become, a target of the investigation resulting in
the seizure of records, the court shall hold this hearing outside of
the presence of the demanding entity, and any representatives or
counsel of the demanding entity. If the government agency does not
allege in its request for an in camera hearing that the demanding
entity is, or is likely to become, a target of the investigation
resulting in the seizure of records, the court shall hold the hearing
in camera only upon a particular factual showing by the government
agency in its pleadings that a hearing in open court would impede or
interrupt an ongoing criminal investigation.
(2) At the in camera hearing, any evidence that the government
agency may offer that the release of the material would pose a
significant risk of ongoing criminal activity, impede or interrupt an
ongoing criminal investigation, or both, shall be offered under
oath. A reporter shall be present at the in camera hearing to
transcribe the entirety of the proceedings.
(3) Any transcription of the proceedings at the in camera hearing,
as well as any physical evidence presented at the hearing, shall be
ordered sealed by the court, and only a court may have access to its
contents, unless a court determines that the failure to disclose the
contents of the hearing would deprive the defendant or the people of
a fair trial.
(4) Following the conclusion of the in camera hearing, the court
shall make its ruling in open court, after notice to the demanding
entity.
(g) The reasonable and necessary costs of producing copies of
business records under this section shall be borne by the entity
requesting copies of the records. Either party may request the court
to resolve any dispute regarding these costs.
(h) Any motion under this section shall be filed in the court that
issued the search warrant.
(i) For purposes of this section, the following terms are defined
as follows:
(1) "Seize" means obtaining actual possession of any property
alleged by the entity to contain business records.
(2) "Business" means an entity, sole proprietorship, partnership,
or corporation operating legally in the State of California, that
sells, leases, distributes, creates, or otherwise offers products or
services to customers.
(3) "Business records" means computer data, data compilations,
accounts, books, reports, contracts, correspondence, inventories,
lists, personnel files, payrolls, vendor and client lists, documents,
or papers of the person or business normally used in the regular
course of business, or any other material item of business
recordkeeping that may become technologically feasible in the future.