Obtaining financial records with a ‘Subpoena Duces Tecum’

Frequently, CFEs who investigate financial crimes are tasked with obtaining financial records from banks, credit unions, credit card companies, investment houses, mortgage lenders and other institutions to help determine whether a financial crime has been committed and the dollar dimension of the crime.

While individual victims and other witnesses might voluntarily produce their own financial records to an investigator, the investigator should get records directly from the financial institution(s) in question. These records will be more complete, they’ll be authenticated by the subpoenaed institution, they won’t have passed through anyone else’s hands and they’ll be easier to get admitted in court during the trial process.

Financial institutions usually require a valid legal order commanding them to produce these records, and a typical legal order instrument is the Subpoena Duces Tecum, also known in some jurisdictions as a Subpoena for Production of Evidence. It’s literally a subpoena that orders a person to bring documents or other tangible evidence to court. (Black’s Law Dictionary Free Online Legal Dictionary 2nd Ed.) The Subpoena Duces Tecum is also often used to order the institution to produce records with no court appearance required if so stated on the instrument.

The format of the Subpoena Duces Tecum varies by jurisdiction, and you should always ensure that you have the correct form. In my experience, the subpoena service requirements can vary institution by institution; some will accept service by the U.S. Postal Service, fax or email, while others might require personal service on a designated office location or registered agent.

Typically the Subpoena Duces Tecum form will include an affidavit-of-service form that the server completes and notarizes when service is made; the affidavit and a copy of the subpoena should be kept with the case file.

The Subpoena Duces Tecum should be as expansive as possible about the type and date range of the records to be produced unless you need a known, deliberately limited set of records. Far too often, I’ve seen limited types of records ordered — for example, only monthly statements from a bank account — that often don’t reflect the payor or payee of a transfer. This is critical information that requires another subpoena to obtain. It’s much more time efficient to frontload the scope of required records at the outset and get more information than you think you need.

Depending on the format of your subpoena instrument, the records-required section can be imported into the body of the subpoena or appended as an exhibit to the subpoena. Certain types of recommended records are common to all the financial institutions discussed in this column. Also, certain types of records are specific to each institution. Below is language for the type and range of records I typically subpoenaed for financial crime cases on which I worked. You’re welcome to use these “laundry lists” as starters for your own subpoenas.

Exhibit A: all financial institutions

You, (the correct legal name of the bank/credit card issuer/financial institution/lender), are commanded to produce the following items, records or documents:

Copies of any and all records, documents, and electronic files regarding account number (if known) held in the name of account holder name (birthdate and/or Social Security number, or taxpayer or employee identification numbers if known), for the time period (specific beginning date) through (specific end date), including but not limited to:

• The original account application(s) including signatures.
• Copies of all periodic reports/statements, monthly or otherwise, reflecting all activity on said account(s) including mailing address for the statements.
• Copies of any letters, memoranda or written correspondence sent to or received from any individual regarding the relevant account(s). 
• Recordings of any telephonic communications regarding the relevant account(s).
• Identification of any electronic/wire transfers to or from the account(s) and any documentation related to each wire/electronic transfer including the transferor and transfer recipient names and account numbers.
• Any power of attorney or other instrument affecting ownership and/or authorization to conduct transactions on said account, and any instruments cancelling or otherwise amending the original instrument.

Exhibit A: specific to banks or credit unions

• Authorized user signature card(s).
• Copies of all photo identification, Social Security card, or other forms of identification of authorized user(s).
• Copies of all items deposited to account (front and back of each financial instrument), and copies of all deposit slips associated with each deposit.
• Copies of fronts and backs of all checks written from the account(s).
• Copies of all withdrawal slips from the account(s).
• Copies of all official checks, bank checks and/or cashier’s checks (front and back of each check) purchased with funds from the account(s).
• Any verifications of deposit generated in connection with the account(s).
• Any debit card or ATM cards issued (card numbers; identity of card holder).

Exhibit A: specific to credit cards

• Identities of all individuals issued credit cards from the relevant account(s).
• Any and all checks (front and back) written from the relevant account(s).
• Identities of all individuals authorized to sign on credit card accounts, the effective date of each individual’s authorization and the identity of the individual who authorized it. 
• Any electronic files or activity made on any and all credit card account(s).
• Copies of any payments (front and back of checks) paid to the relevant account(s).
• Documentation regarding any cash advances on the account (if electronic, identify account to which advance was transferred; if by check, produce front and back of negotiated check).

Exhibit A: specific to investment accounts

• Account holder and/or other authorized user signature card(s).
• Copies of all photo identification, Social Security card or other forms of identification of authorized user(s).
• Copies of all items deposited to account (front and back of each financial instrument).
• Copies of all checks written from the account (front and back of each negotiated check).
• Copies of all official checks and/or cashier’s checks (front and back of each check) purchased with funds from the account(s).
• Any and all distribution requests with signature of person requesting the distribution.
• Copies of fronts and backs of distribution checks.
• Identification of address to which distribution check was mailed.
• Identification of account institution, account holder and account number to which a distribution was paid by electronic transfer.

Exhibit A: specific to mortgage lenders

Copies of any and all records, documents, and electronic files regarding mortgage(s) bearing MERS® System Mortgage Identification Number (MIN) listed below, for the known property address listed below, and in the name of the borrower listed below, including, but not limited to: account information; loan/mortgage files; loan applications; credit reports; financial records; mortgages; contracts; property appraisals; agreements; correspondence; disbursements; payment history; account statements; copies of financial instruments used for withdrawals from and payments on such mortgage, customer service contact notes or data; and collection notes or data, whether stored in hard copy paper form or in electronically stored data.

• (Provide account number if known.)
• (Provide legal description and city, county and state of property if known.)
• (Provide buyer/borrower names if known.)

In addition to using these exhibits to help craft Subpoenas Duces Tecum, you can use them for search warrants and subpoenas for production of evidence.

It can be helpful to subpoena records covering a date range six months prior to the onset of the suspected financial crime up to the present day. Although the lists are lengthy, it’s important to get all records related to an account or accounts, and financial institutions are very exacting in their reading of the language of the subpoena. If you don’t ask specifically for it, you won’t get it. That’s a promise.

Typically, the subpoenaed institution will include with its subpoena compliance a business records declaration that authenticates the records and a copy of the subpoena; keep this declaration and the subpoena with the records themselves. Once you receive these records, make a working paper copy of them and place the originals in your agency’s evidence room.

If the records produced by the financial institution are paper records, don’t write on the originals; instead, scan the paper records, store the scan in your computer system and use your paper working copy for mark-ups.

If the case is charged, these financial records will probably have to be disclosed to the defense, and it is vastly preferable to disclose copies that are in the same condition as the financial institution produced them. If the case goes to trial, the prosecutor needs unaltered, unadulterated copies of these records to offer in court.

If the production is on disc, in PDF or other imaged format, simply make a print of all of the contents and, again, place the source disc in your agency’s evidence room. You can then use the working copy for your subsequent financial analysis, and you can highlight and underline to your heart’s content.

Don’t reinvent Subpoena Duces Tecum

Hopefully, this is of some help to CFEs who are tasked with obtaining financial records for their fraud cases. This isn’t the most exciting reading, and it’s only a beginner’s tool. But documents drive our cases, and there’s no need to keep re-inventing the wheel with each new fraud that lands on our desks.

Annette Simmons-Brown, CFE, most recently was a senior paralegal at the Hennepin County Attorney’s Office in Minneapolis, Minnesota. She’s now working in administrative law and statutory rulemaking for regulated professions and occupations in Tallahassee, Florida. Her email address is: simmonsbrown22@msn.com.