10 AN ACT
concerning civil procedure; relating to subpoenas of records of
11 a business not a
party; notice; amending K.S.A. 1999 Supp. 60-245a
12 and repealing the
existing section.
13
14 Be it enacted by the Legislature of the
State of Kansas:
15 Section
1. K.S.A. 1999 Supp. 60-245a is hereby amended to read as
16 follows: 60-245a. (a) As used in this
section:
17 (1) "Business"
means any kind of business, profession, occupation,
18 calling or operation of institutions,
whether carried on for profit or not.
19 (2) "Business
records" means writings made by personnel or staff of
20 a business, or persons acting under their
control, which are memoranda
21 or records of acts, conditions or events
made in the regular course of
22 business at or about the time of the act,
condition or event recorded.
23 (b) A subpoena
duces tecum which commands the production of
24 business records in an action in which the
business is not a party shall
25 inform the person to whom it is directed
that the person may serve upon
26 the attorney designated in the subpoena
written objection to production
27 of any or all of the business records
designated in the subpoena within
28 14 days after the service of the subpoena
or at or before the time for
29 compliance, if the time is less than 14
days after service. If such objection
30 is made, the business records need not be
produced except pursuant to
31 an order of the court upon motion with
notice to the person to whom the
32 subpoena was directed.
33 Unless the personal
attendance of a custodian of the business records
34 and the production of original business
records are required under sub-
35 section (d), it is sufficient compliance
with a subpoena of business records
36 if a custodian of the business records
delivers to the clerk of the court by
37 mail or otherwise a true and correct copy
of all the records described in
38 the subpoena and mails a copy of the
affidavit accompanying the records
39 to the party or attorney requesting them
within 14 days after receipt of
40 the subpoena.
41 The records described
in the subpoena shall be accompanied by the
42 affidavit of a custodian of the records,
stating in substance each of the
43 following: (1) The affiant is a duly
authorized custodian of the records
2
1 and has authority to certify records;
(2) the copy is a true copy of all the
2 records described in the subpoena;
and (3) the records were prepared by
3 the personnel or staff of the
business, or persons acting under their con-
4 trol, in the regular course of the
business at or about the time of the act,
5 condition or event recorded.
6 If the business
has none of the records described in the subpoena, or
7 only part thereof, the affiant shall
so state in the affidavit and shall send
8 only those records of which the
affiant has custody. When more than one
9 person has knowledge of the facts
required to be stated in the affidavit,
10 more than one affidavit may be made.
11 The copy of the
records shall be separately enclosed in a sealed en-
12 velope or wrapper on which the title and
number of the action, name and
13 address of the witness and the date of the
subpoena are clearly inscribed.
14 If return of the copy is desired, the words
"return requested" must be
15 inscribed clearly on the sealed envelope or
wrapper. The sealed envelope
16 or wrapper shall be delivered to the clerk
of the court.
17 The reasonable costs
of copying the records may be demanded of the
18 party causing the subpoena to be issued. If
the costs are demanded, the
19 records need not be produced until the
costs of copying are advanced.
20 (c) The subpoena
shall be accompanied by an affidavit to be used by
21 the records custodian. The subpoena and
affidavit shall be in substantially
22 the following form:
23
Subpoena of Business Records
24 State of Kansas
25 County of ________
26 (1) You are
commanded to produce the records listed below before
27 ______________________
___________________________
28 (Officer at Deposition)
(Judge of the District
Court)
29 at
_____________________________________________________
30
(Address)
31 in the City of _________________ , County
of ___________________ , on the ______
32 day of _______________ , 19____, at ______
o'clock ____ m., and to testify
33 on behalf of the
____________________________ in an action now pending
34 between ________________________ ,
plaintiff, and ______________________ ,
35 defendant. Failure to comply with this
subpoena may be deemed a contempt of the court.
36 (2) Records to be
produced: __________________________________________________
37
______________________________________________________________________________
38
______________________________________________________________________________
39 (3) You may make
written objection to the production of any or all of the records
listed
40 above by serving such written objection
upon ________________ at __________________
41
(Attorney) (Attorney's
Address)
42 (within 14 days after service of this
subpoena) (on or before ______________ , 19______).
43 If such objection is made, the records need
not be produced except upon order of the court.
3
1 (4) Instead
of appearing at the time and place listed above, it is sufficient
compliance
2 with this subpoena if a custodian of
the business records delivers to the clerk of the court
3 by mail or otherwise a true and
correct copy of all the records described above and mails a
4 copy of the affidavit below to
5
_________________________________________ at
_______________________________
6
(Requesting Party or Attorney)
(Address of Party or Attorney)
7 within 14 days after receipt of this
subpoena.
8 (5) The
copy of the records shall be separately enclosed in a sealed
envelope or wrapper
9 on which the title and number of the
action, name and address of the witness and the date
10 of this subpoena are clearly inscribed. If
return of the copy is desired, the words "return
11 requested" must be inscribed clearly on the
sealed envelope or wrapper. The sealed enve-
12 lope or wrapper shall be delivered to the
clerk of the court.
13 (6) The records
described in this subpoena shall be accompanied by the affidavit of
a
14 custodian of the records, a form for which
is attached to this subpoena.
15 (7) If the
business has none of the records described in this subpoena, or
only part
16 thereof, the affidavit shall so state, and
the custodian shall send only those records of which
17 the custodian has custody. When more than
one person has knowledge of the facts required
18 to be stated in the affidavit, more than
one affidavit may be made.
19 (8) The
reasonable costs of copying the records may be demanded of the
party causing
20 this subpoena to be issued. If the costs
are demanded, the records need not be produced
21 until the costs of copying are
advanced.
22 (9) The copy of
the records will not be returned unless requested by the
witness.
23
___________________________
24
Clerk
of the District Court
25 [Seal of the District Court]
26 Dated ________, 19____.
27 Affidavit of Custodian of Business
Records
28 State of ______________________
29 County of ______________________
30 I, __________, being
first duly sworn, on oath, depose and say that:
31 (1) I am a duly
authorized custodian of the business records of __________ and
32 have the authority to certify those
records.
33 (2) The copy of
the records attached to this affidavit is a true copy of the
records
34 described in the subpoena.
35 (3) The records
were prepared by the personnel or staff of the business, or
persons
36 acting under their control, in the regular
course of the business at or about the time of the
37 act, condition or event recorded.
38
_____________________
39
Signature
of Custodian
40 Subscribed and sworn
to before the undersigned on ___________________________
41
_________________
42
Notary
Public
43 My Appointment Expires:
4
1 ________________
2
Certificate of Mailing
3 I hereby certify
that on ________, 19______, I mailed a copy of the above affi-
4 davit to
5
___________________________________________ at
__________________________________
6
(Requesting Party or
Attorney) (Address of
Party or Attorney)
7 by depositing it with the United
States Postal Service for delivery with postage prepaid.
8
______________________
9
Signature
of Custodian
10 Subscribed and sworn to before the
undersigned on ________________________________
11
_____________
12
Notary
Public
13 My Appointment Expires:
14 ________________
15 (d) Any party may
require the personal attendance of a custodian of
16 business records and the production of
original business records by caus-
17 ing a subpoena duces tecum to be issued
which contains the following
18 statements in lieu of paragraphs (4), (5),
(6), (7) and (8) of the subpoena
19 form described in subsection (c):
20 The personal
attendance of a custodian of business records and the
21 production of original records is required
by this subpoena. The proce-
22 dure for delivering copies of the records
to the clerk of the court shall
23 not be deemed sufficient compliance with
this subpoena and should be
24 disregarded. A custodian of the records
must personally appear with the
25 original records.
26 (e) Notice of the
issuance of a subpoena pursuant to this section
27 where the attendance of the custodian of
the business records is not
28 required shall be given to all parties to
the action at least 10 days prior
29 to the issuance thereofservice of such subpoena. A copy of the proposed
30 subpoena shall also be served upon all
parties along with such notice. In
31 the event any party objects to the
production of the documents sought
32 by such subpoena prior to its issuance, the
subpoena shall not be issued
33 until further order of the court in which
the action is pending.
34 (f) Upon receipt
of business records the clerk of the court shall so
35 notify the party who caused the subpoena
for the business records to be
36 issued. If receipt of the records makes the
taking of a deposition unnec-
37 essary, the party shall cancel the
deposition and shall notify the other
38 parties to the action in writing of the
receipt of the records and the can-
39 cellation of the deposition.
40 After the copy of the
record is filed, a party desiring to inspect or copy
41 it shall give reasonable notice to every
other party to the action. The notice
42 shall state the time and place of
inspection. Records which are not intro-
43 duced in evidence or required as part of
the record shall be destroyed or
5
1 returned to the custodian of the
records who submitted them if return
2 has been requested.
3 Sec. 2. K.S.A. 1999 Supp.
60-245a is hereby repealed.
4 Sec. 3. This act
shall take effect and be in force from and after its
5 publication in the statute book.