Cranky Record-Keepers

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.

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