It is not always necessary to lose a business employee for the day to sit at the courthouse or a deposition for an extended period of time when a subpoena for the records may instead be answered by copies of the records attached to an Affidavit of the records custodian in the form attached.

NOTE: The witness must nevertheless appear at the trial or deposition at the time indicated to submit the records and affidavit to the attorneys for both sides but that is a brief appearance merely to identify the records. In the alternative, if attorneys for both sides consent, the records and affidavit can be produced in advance and in lieu of an appearance.

Care must be taken, however, when the records are those of a customer, e.g. a bank depositor or borrower of the bank. Before any records are produced in advance, extra care should be taken to ensure the customer has no objection to the advance production. The reason is that at the time of the deposition or court appearance, that party has an opportunity to object to the introduction of those records, and you would be denying that party that objection if they are simply produced in advance.

Missouri statutes specifically authorize the form appearing on the next page to be used in lieu of attendance.

Use of this Web Site and review of this Article does not create an attorney-client relationship. The law and its application by the courts is constantly evolving and changing. As with all memoranda in these archives, the discussion of the law is for general informational purposes, is in general summary form, is not to be taken as a definitive guide, and should not be relied upon to determine all fact situations. Each set of facts must be examined separately with the current case and statutory law analyzed and applied accordingly.

STATE OF MISSOURI )
) SS.
COUNTY OF ST. LOUIS )

Affidavit

Before me, the undersigned authority, personally appeared _______, who being by me duly sworn, deposed as follows:
My name is _________, I am of sound mind, capable of making this affidavit, and personally acquainted with the facts herein stated:

I am the custodian of the records of [COMPANY]. Attached hereto are _ pages of records from [COMPANY] [pertaining to the account of ____________] These pages of records are kept by [COMPANY] in the regular course of business and it was the regular course of business of the Company, with knowledge of the act, event or fact recorded to make the record or transmit information thereof to be included in such record; and the record was made at or near the time of the act, event, or occurrence. The records attached hereto are the original or exact duplicates of the original._____________________

In witness whereof I have hereunto subscribed my name and affixed my official seal this _ day of ______, 20___.

Notary Public_______________

My commission expires: