Session 2000
Effective: July 1, 2000
SENATE BILL No. 447
An Act concerning civil procedure; relating to subpoenas of
business records;
amending K.S.A. 1999 Supp. 60-245a and repealing the
existing section.
Be it enacted by the Legislature of the State of Kansas:
Section 1. K.S.A. 1999 Supp.
60-245a is hereby amended to read as
follows: 60-245a. (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
a business, or persons acting under their control, which are
memoranda
or records of acts, conditions or events made in the regular course
of
business at or about the time of the act, condition or event
recorded.
(b) A subpoena duces tecum which commands
the production of
business records in an action in which the business is not a party
shall
inform the person to whom it is directed that the person may serve
upon
the attorney designated in the subpoena written objection to
production
of any or all of the business records designated in the subpoena
within
14 days after the service of the subpoena or at or before the time
for
compliance, if the time is less than 14 days after service. If such
objection
is made, the business records need not be produced except pursuant
to
an order of the court upon motion with notice to the person to whom
the
subpoena was directed.
Unless the personal attendance of a custodian
of the business records
and the production of original business records are required under
sub-
section (d), it is sufficient compliance with a subpoena of
business records
if a custodian of the business records delivers to the clerk of the
court by
mail or otherwise a true and correct copy of all the records
described in
the subpoena and mails a copy of the affidavit accompanying the
records
to the party or attorney requesting them within 14 days after
receipt of
the subpoena.
The records described in the subpoena shall be
accompanied by the
affidavit of a custodian of the records, stating in substance each
of the
following: (1) The affiant is a duly authorized custodian of the
records
and has authority to certify records; (2) the copy is a true copy
of all the
records described in the subpoena; and (3) the records were
prepared by
the personnel or staff of the business, or persons acting under
their con-
trol, in the regular course of the business at or about the time of
the act,
condition or event recorded.
If the business has none of the records
described in the subpoena, or
only part thereof, the affiant shall so state in the affidavit and
shall send
only those records of which the affiant has custody. When more than
one
person has knowledge of the facts required to be stated in the
affidavit,
more than one affidavit may be made.
The copy of the records shall be separately
enclosed in a sealed en-
velope or wrapper on which the title and number of the action, name
and
address of the witness and the date of the subpoena are clearly
inscribed.
If return of the copy is desired, the words "return requested" must
be
inscribed clearly on the sealed envelope or wrapper. The sealed
envelope
or wrapper shall be delivered to the clerk of the court.
The reasonable costs of providing the
copying of the records may be
demanded of the party causing the subpoena to be issued. If the
costs
are demanded, the records need not be produced until the costs of
cop-
ying are advanced.
(c) The subpoena shall be accompanied by
an affidavit to be used by
the records custodian. The subpoena and affidavit shall be in
substantially
the following form:
Subpoena of Business Records
State of Kansas
County of ______________
(1) You are commanded to produce the
records listed below before
_______________________________________________________________
(Officer at Deposition)
(Judge of the District Court)
at
_____________________________________________________________
(Address)
in the City of ______________, County of _____________, on the
___________
day of ______________, l9 ____, at ____ o'clock ____m., and to
testify on behalf
of the ____________ in an action now pending between
______________, plaintiff,
and __________, defendant. Failure to comply with this subpoena may
be deemed a
contempt of the court.
(2) Records to be produced:
_______________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
(3) You may make written objection to the
production of any or all of the records listed
above by serving such written objection upon ____________ at
________________
(Attorney) (Attorney's
Address)
(within 14 days after service of this subpoena) (on or before
____________, 19 ____).
If such objection is made, the records need not be produced except
upon order of the court.
(4) Instead of appearing at the time and
place listed above, it is sufficient compliance
with this subpoena if a custodian of the business records delivers
to the clerk of the court
by mail or otherwise a true and correct copy of all the records
described above and mails a
copy of the affidavit below to
________________________________ at
______________________________
(Requesting Party or Attorney)
(Address of Party or Attorney)
within 14 days after receipt of this subpoena.
(5) The copy of the records shall be
separately enclosed in a sealed envelope or wrapper
on which the title and number of the action, name and address of
the witness and the date
of this subpoena are clearly inscribed. If return of the copy is
desired, the words "return
requested" must be inscribed clearly on the sealed envelope or
wrapper. The sealed enve-
lope or wrapper shall be delivered to the clerk of the court.
(6) The records described in this
subpoena shall be accompanied by the affidavit of a
custodian of the records, a form for which is attached to this
subpoena.
(7) If the business has none of the
records described in this subpoena, or only part
thereof, the affidavit shall so state, and the custodian shall send
only those records of which
the custodian has custody. When more than one person has knowledge
of the facts required
to be stated in the affidavit, more than one affidavit may be
made.
(8) The reasonable costs of copying the
records may be demanded of the party causing
this subpoena to be issued. If the costs are demanded, the records
need not be produced
until the costs of copying are advanced.
(9) The copy of the records will not be
returned unless requested by the witness.
____________________________________
Clerk of the District
Court
[Seal of the District Court]
Dated __________, 19 __.
Affidavit of Custodian of
Business Records
State of ______________________________
County of ____________________________
I, _______________, being first duly sworn, on
oath, depose and say that:
(1) I am a duly authorized custodian of
the business records of __________ and
have the authority to certify those records.
(2) The copy of the records attached to
this affidavit is a true copy of the records
described in the subpoena.
(3) The records were prepared by the
personnel or staff of the business, or persons
acting under their control, in the regular course of the business
at or about the time of the
act, condition or event recorded.
__________________________
Signature of Custodian
Subscribed and sworn to before the undersigned on
__________________________
__________________________
Notary
Public
My Appointment Expires:
___________________
Certificate of Mailing
I hereby certify that on _____________, 19 ____, I mailed a
copy of the above affidavit to
_______________________________ at
_________________________________
(Requesting Party or Attorney)
(Address of Party or Attorney)
by depositing it with the United States Postal Service for delivery
with postage prepaid.
____________________________
Signature of
Custodian
Subscribed and sworn to before the undersigned on
____________________________
____________________________
Notary Public
My Appointment Expires:
___________________
(d) Any party may require the personal
attendance of a custodian of
business records and the production of original business records by
caus-
ing a subpoena duces tecum to be issued which contains the
following
statements in lieu of paragraphs (4), (5), (6), (7) and (8) of the
subpoena
form described in subsection (c):
The personal attendance of a custodian of
business records and the
production of original records is required by this subpoena. The
proce-
dure for delivering copies of the records to the clerk of the court
shall
not be deemed sufficient compliance with this subpoena and should
be
disregarded. A custodian of the records must personally appear with
the
original records.
(e) Notice of the issuance of a
subpoena pursuant to this section
where the attendance of the custodian of the business
records is not
required shall be given to all parties to the action at
least 10 days prior
to the issuance thereof. A copy of the proposed 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 by such
subpoena prior
to its issuance, the subpoena shall not be issued until
further order of the
court in which the action is pending.
(f) Upon receipt of business
records the clerk of the court shall so
notify the party who caused the subpoena for the business
records to be
issued.
(e) Notice of intent to request the
issuance of a subpoena pursuant to
this section where the attendance of the custodian of the
business records
is not required shall be given to all parties to the action at
least 10 days
prior to the issuance thereof by the party requesting issuance
of the sub-
poena. A copy of the proposed subpoena shall also be served upon
all
parties along with such notice. In the event any party objects
to the pro-
duction of the documents sought by such subpoena prior to its
issuance,
the subpoena shall not be issued until further order of the
court in which
the action is pending. If receipt of the records makes the
taking of a
deposition unnecessary, the party who caused the subpoena for
the busi-
ness records to be issued shall cancel the deposition and
shall notify the
other parties to the action in writing of the receipt of the
records and the
cancellation of the deposition.
After the copy of the record is filed, a party
desiring to inspect or copy
it shall give reasonable notice to every other party to the action.
The notice
shall state the time and place of inspection. Records which are not
intro-
duced in evidence or required as part of the record shall be
destroyed or
returned to the custodian of the records who submitted them if
return
has been requested.
Sec. 2. K.S.A. 1999 Supp. 60-245a
is hereby repealed.
Sec. 3. This act shall take effect
and be in force from and after its
publication in the statute book.