60-245a. Subpoena of records of a business not a party.
60-245a
60-245a. Subpoena of records of a business not aparty.(a) As used in this section:
(1) "Business" means any kind of business, profession, occupation,calling or operation of institutions, whether carried on for profit or not.
(2) "Business records" means writings made by personnel or staff of abusiness, or persons acting under their control, which are memoranda orrecords of acts, conditions or events made in the regular course ofbusiness at or about the time of the act, condition or event recorded.
(b) A subpoena duces tecum which commands the production of businessrecords in an action in which the business is not a party shall inform theperson to whom it is directed that the person may serve upon the attorneydesignated in the subpoena written objection to production of any or all ofthe business records designated in the subpoena within 14 days afterthe service of the subpoena or at or before the time for compliance, if thetime is less than 14 days after service. If such objection is made, thebusiness records need not be produced except pursuant to an order of thecourt upon motion with notice to the person to whom the subpoena was directed.
Unless the personal attendance of a custodian of the business records andthe production of original business records are required under subsection(d), it is sufficient compliance with a subpoena of business records if acustodian of the business records delivers to the clerk of the court bymail or otherwise a true and correct copy of all the records described inthe subpoena and mails a copy of the affidavit accompanying the records tothe party or attorney requesting them within 14 days after receipt of thesubpoena.
The records described in the subpoena shall be accompanied by theaffidavit of a custodian of the records, stating in substance each of thefollowing: (1) The affiant is a duly authorized custodian of the recordsand has authority to certify records; (2) the copy is a true copy of allthe records described in the subpoena; and (3) the records were preparedby the personnel or staff of the business, or persons acting under theircontrol, in the regular course of the business at or about the time of theact, condition or event recorded.
If the business has none of the records described in the subpoena, oronly part thereof, the affiant shall so state in the affidavit and shallsend only those records of which the affiant has custody. When more thanone person has knowledge of the facts required to be stated in theaffidavit, more than one affidavit may be made.
The copy of the records shall be separately enclosed in a sealed envelopeor wrapper on which the title and number of the action, name and address of thewitness and the date of the subpoena are clearly inscribed. If return of thecopy is desired, the words "return requested" must be inscribed clearly on thesealed envelope or wrapper. The sealed envelope orwrapper shall be delivered to the clerk of the court.Thirty days after termination of the case, records which are not introducedin evidence or required as part of the record may be destroyed or returned tothe custodian of the records who submitted them if return has been requestedafter notice is given.
The reasonable costs of providing the copying of the recordsmay be demanded of the party causing the subpoena to be issued. If the costsare demanded, the records need not be produced until the costs of copying areadvanced.
(c) The subpoena shall be accompanied by an affidavit to be used by therecords custodian.
(d) Any party may require the personal attendance of a custodian ofbusiness records and the production of original business records by causinga subpoena duces tecum to be issued.
(e) Notice of intent to request the issuance of a subpoena pursuant tothis section where theattendance of the custodian of the business records is not required shall begiven to all parties to the action at least 10 days prior to the issuancethereof by the party requesting issuance of the subpoena. A copy of theproposed subpoena shall also be served upon all parties along with such notice.In the event any party objects to the production of the documents sought bysuch subpoena prior to its issuance, the subpoena shall not be issued untilfurther order of the court in which the action is pending.If receipt of the records makes the taking of a depositionunnecessary, the party who caused the subpoena for the business records tobe issued shall cancel the deposition and shall notify theother parties to the action in writing of the receipt of the records andthe cancellation of the deposition.
After the copy of the record is filed, a party desiring to inspect orcopy it shall give reasonable notice to every other party to the action. Thenotice shall state the time and place of inspection. Thirty days aftertermination of the case, records which are notintroduced in evidence or required as part of the recordmay be destroyed orreturned to the custodian of the records who submitted them if return has beenrequested after notice has been given.
History: L. 1985, ch. 196, § 1;L. 1997, ch. 173, § 25;L. 2000, ch. 145, § 1;L. 2004, ch. 176, § 1; July 1.