9
AN ACT concerning civil procedure; relating to
subpoena of business
10 records; delivery to
the court; amending K.S.A. 1997 Supp. 60-245a
11 and repealing the
existing section.
12
13 Be it enacted by the Legislature of the
State of Kansas:
14 Section 1. K.S.A.
1997 Supp. 60-245a is hereby amended to read as
15 follows: 60-245a. (a) As used in this
section:
16 (1) ``Business'' means
any kind of business, profession, occupation,
17 calling or operation of institutions,
whether carried on for profit or not.
18 (2) ``Business records''
means writings made by personnel or staff of
19 a business, or persons acting under their
control, which are memoranda
20 or records of acts, conditions or events
made in the regular course of
21 business at or about the time of the act,
condition or event recorded.
22 (b) A subpoena duces
tecum which commands the production of
23 business records in an action in which the
business is not a party shall
24 inform the person to whom it is directed
that the person may serve upon
25 the attorney designated in the subpoena
written objection to production
26 of any or all of the business records
designated in the subpoena within
27 14 days after the service of the subpoena
or at or before the time for
28 compliance, if the time is less than 14
days after service. If such objection
29 is made, the business records need not be
produced except pursuant to
30 an order of the court upon motion with
notice to the person to whom the
31 subpoena was directed.
32 Unless the personal
attendance of a custodian of the business records
33 and the production of original business
records are required under sub-
34 section (d), it is sufficient compliance
with a subpoena of business records
35 if a custodian of the business records
delivers to the clerk of the court by
36 mail or otherwisemakes
available to the party or attorney requesting the
37 records a true and correct copy of
all the records described in the sub-
38 poena and mails a copy of the affidavit
accompanying the records to the
39 party or attorney requesting them within 14
days after receipt of the
40 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
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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 courtmade available to
17 the party or attorney requesting the
records.
18 The reasonable costs of
copying the records may be demanded of the
19 party causing the subpoena to be issued. If
the costs are demanded, the
20 records need not be produced until the
costs of copying are advanced.
21 (c) The subpoena shall
be accompanied by an affidavit to be used by
22 the records custodian. The subpoena and
affidavit shall be in substantially
23 the following form:
24
Subpoena of Business Records
25 State of Kansas
26 County of ________
27 (1) You are commanded to
produce the records listed below before
28
_______________________________________________
29
(Officer at Deposition) (Judge
of the District Court)
30 at _________________________
31
(Address)
32 in the City of ________, County of
________, on the ____ day of _______ ,
33 19__, at ____ o'clock __ m., and
to testify on behalf of the ________ n an
34 action now pending between ________,
plaintiff, and ________, defendant. Fail-
35 ure to comply with this subpoena may be
deemed a contempt of the court.
36 (2) Records to be
produced: ______________________________
37
___________________________________________________
38
___________________________________________________
39
___________________________________________________
40 (3) You may make written
objection to the production of any or all of the records listed
41 above by serving such written objection
upon
42
at
43
(Attorney)
(Attorney's Address)
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1 (within 14 days after service of this
subpoena) (on or before ________, 19__). If
2 such objection is made, the records
need not be produced except upon order of the court.
3 (4) Instead of
appearing at the time and place listed above, it is sufficient
compliance
4 with this subpoena if a custodian of
the business records delivers to the clerk of the
court
5 by mail or otherwisemakes available to the party or attorney requesting the
records a true
6 and correct copy of all the records
described above and mails a copy of the affidavit below
7 to
8
at
9
(Requesting Party or Attorney)
(Address of Party or Attorney)
10 within 14 days after receipt of this
subpoena.
11 (5) The copy of the
records shall be separately enclosed in a sealed envelope or
wrapper
12 on which the title and number of the
action, name and address of the witness and the date
13 of this subpoena are clearly inscribed. If
return of the copy is desired, the words ``return
14 requested'' must be inscribed clearly on
the sealed envelope or wrapper. The sealed enve-
15 lope or wrapper shall be delivered
to the clerk of the courtmade available to the party
or
16 attorney requesting the records.
17 (6) The records
described in this subpoena shall be accompanied by the affidavit of
a
18 custodian of the records, a form for which
is attached to this subpoena.
19 (7) If the business has
none of the records described in this subpoena, or only part
20 thereof, the affidavit shall so state, and
the custodian shall send only those records of which
21 the custodian has custody. When more than
one person has knowledge of the facts required
22 to be stated in the affidavit, more than
one affidavit may be made.
23 (8) The reasonable costs
of copying the records may be demanded of the party causing
24 this subpoena to be issued. If the costs
are demanded, the records need not be produced
25 until the costs of copying are
advanced.
26 (9) The copy of the
records will not be returned unless requested by the witness.
27
____________________
28
Clerk of the District Court
29 [Seal of the District Court]
30 Dated ________, 19__.
31
Affidavit of Custodian of Business Records
32 State of ________
33 County of ________
34 I, ________, being first duly
sworn, on oath, depose and say that:
35 (1) I am a duly
authorized custodian of the business records of ________ and
have
36 the authority to certify those records.
37 (2) The copy of the
records attached to this affidavit is a true copy of the
records
38 described in the subpoena.
39 (3) The records were
prepared by the personnel or staff of the business, or persons
40 acting under their control, in the regular
course of the business at or about the time of the
41 act, condition or event recorded.
42
____________________
43
Signature
of Custodian
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1 Subscribed and sworn to
before the undersigned on ________.
2
____________________
3
Notary
Public
4 My Appointment Expires:
5 ____________________
6
Certificate of Mailing
7 I hereby certify that
on ________, 19__, I mailed a copy of the above affidavit to
8
at
9
(Requesting Party or Attorney)
(Address of Party or Attorney)
10 by depositing it with the United States
Postal Service for delivery with postage prepaid.
11
____________________
12
Signature
of Custodian
13 Subscribed and sworn to before the
undersigned on ________.
14
____________________
15
Notary
Public
16 My Appointment Expires:
17 ____________________
18 (d) Any party may
require the personal attendance of a custodian of
19 business records and the production of
original business records by caus-
20 ing a subpoena duces tecum to be issued
which contains the following
21 statements in lieu of paragraphs (4), (5),
(6), (7) and (8) of the subpoena
22 form described in subsection (c):
23 The personal attendance of a
custodian of business records and the
24 production of original records is required
by this subpoena. The proce-
25 dure for delivering copies of the
records to the clerk of the court shall
26 not be deemed sufficient compliance
with this subpoena and should be
27 disregarded. A custodian
of the records must personally appear with the
28 original records.
29 (e) Notice of the
issuance of a subpoena pursuant to this section
30 where the attendance of the custodian of
the business records is not
31 required shall be given to all parties to
the action at least 10 days prior
32 to the issuance thereof. A copy of the
proposed subpoena shall also be
33 served upon all parties along with such
notice. In the event any party
34 objects to the production of the documents
sought by such subpoena prior
35 to its issuance, the subpoena shall not be
issued until further order of the
36 court in which the action is pending.
37 (f) Upon receipt
of business records the clerk of the court shall so
38 notify the party who caused the
subpoena for the business records to be
39 issued. If receipt of the
records makes the taking of a deposition unnec-
40 essary, the party who caused the
subpoena for the business records to be
41 issued shall cancel the deposition
and shall notify the other parties to the
42 action in writing of the receipt of the
records and the cancellation of the
43 deposition.
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1 After the copy of the
record is filed, a party desiring to inspect or copy
2 it shall give reasonable notice to
every other party to the action. The notice
3 shall state the time and place of
inspection. Records which are not intro-
4 duced in evidence or required as part
of the record shall be destroyed or
5 returned to the custodian of the
records who submitted them if return
6 has been requested.
7
Sec. 2. K.S.A. 1997 Supp. 60-245a is hereby repealed.
8 Sec. 3. This
act shall take effect and be in force from and after its
9 publication in the statute book.
10
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