Skip to content

If we are subpoenaed for records....

Answer by: Barbara Hurst, BOL Guru
BIO AND CONTACT INFO

Question: If we get a subpoena for the last five year's records, do we have to produce them? One of our people seems to remember hearing someone from the U.S. Attorney's office saying we only have to produce the last two years or something like that.

Answer: It is our understanding that if you have the records, you have to produce them. That's the problem with holding on to records for longer than the required time. If you think five years is bad, wait until you get a subpoena that says "all records" and you find you have 30 years worth of records in boxes in the basement! We call those "box car" subpoenas - for obvious reasons.

First thing you should do is call the attorney noted at the bottom of the subpoena. Find out what they're really looking for ... and what the "drop-dead" date is for the production of the records. Often the only records needed are copies of the front and back of a single check and a copy of the statement. And the court has a habit of putting a due date of next Friday when actually the case doesn't come up for six months.

Second hint - DO NOT SEND ORIGINALS! Our experts say even if the subpoena calls for originals, you are then obliged to produce them in court. Sending them before court date might mean losing them. Send really good copies with the notation that you have the original. If you must send originals, it's not a bad idea to hand deliver and get an itemized, legibly signed receipt.

Third hint - do yourself a favor and push the button twice to make and hold copies of whatever you send ... especially if you're using film. The bigger the job, the better chance there is of the records being misplaced and another subpoena coming in telling you to do it all over again. It's one of the hidden laws of record production that Murphy wrote.

You've touched on a really good reason to get rid of records when you are no longer required to keep them. Your state statutes govern how long you have to keep most records. If you don't know your state's requirements, you might want to purchase ABA's Record Retention Book. You can get details on that publication by calling ABA at 800-338-0626. It could save you a lot of headaches.

Answer by: Carolyn Jones, BOL Guru
BIO AND CONTACT INFO

You've touched on a really good reason to get rid of records when you are no longer required to keep them. Your state statutes govern how long you have to keep most records> The only reason a record needs to be kept beyond two audit periods is because the law says so. You must have a retention schedule to get rid of records on a timely and efficient manner so you don't run into this type of problem, if your schedule (adopted by the board) says to keep records for 5 years you should keep them 5 years, not 5 years and one day. The longer you keep the record the more liability there is to have to produce them. You are safer getting rid of them than in keeping them.

Copyright © 1998 Bankers' Hotline. Originally appeared in Bankers' Hotline, Vol. 8, No. 4, 4/98

First published on 04/01/1998

Filed under: 
Filed under operations as: 

Search Topics