Usually I can get a 3rd party’s records by asking. Sometimes I have to file a subpoena for them (called a Subpoena Duces Tecum). The SDT calls for the record-keeper to appear with the records at a specific date, time and place. Normally I send a letter with the SDT saying that if they produce the records I will cancel the SDT. But sometimes the other people are cranky and refuse the courtesy. So I have to appear and take the records deposition. It doesn’t take long but it does increase the problems. Key questions to be asking are:
- Name, job title, etc.
- Are you an authorized representative of company X, with personal knowledge of knowledge of the records/documents identified in the SDT
- Are the records you provided copies of records maintained in the ordinary course of the business of your company?
- Are you the custodian of the records [or a person familiar with and with access to the records] that you provided?
- How are the records maintained, what software is used to maintain/access computer records, who has input access, what record does the system keep of who is inputting what?
- What efforts were used to find the records?
- What efforts were used to locate the records that can’t be located?
- If ESI is involved, than ask them to describe the process of their electronic search?
- Was the record was made at or near the time by — or from information transmitted by — someone with knowledge;
- Was the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
- Was making the record was a regular practice of that activity;
- Did you bring the records related to the issues identified in the SDT
- Are the records you brought are true and accurate copies
- Are the records deponent brought are every record that company X has that are related to the issues identified in the SDT
Identify each document as an exhibit on the record as needed.
