All you have to do is watch any of the hundreds of investigative television shows to understand how common it is to subpoena credit card and phone records. Of course, if you’re not being investigated for a crime, you don’t have to worry about it. We were wondering just how easy – or difficult – it is to get your hands on someone’s detailed credit card history for the purpose of litigation – civil or criminal.
First things first – we understand that each state has its own laws and their own “need to know” guidelines. Not only that, but there are different compliance issues depending on the type of case it is – such as criminal or civil and there are an entirely new set of rules lawyers and law enforcement must follow for a federal case. In no way does the information provided here serve as any kind of guidance for those facing legal proceedings. There are as many factors associated with various legal proceedings as there are people pursuing them. It is crucial you consult an attorney for any legal matters.
Rules and Regulations
Here’s what we found:
Business record subpoenas are used for those filing lawsuits and who are seeking various banking and credit documents. In order to do this using a third party, such as a bank or credit card company, there are specific rules and regulations that must first be in place. Not only that, but depending on what type of documents they are also plays a role in how many hoops there are to jump through. For instance, attempting to gain access to consumer files, such as credit history, phone bills or credit card charges will differ from those seeking to subpoena, say, employment records. The only common denominator is that both efforts are time consuming and adhering to every detail of the law is crucial. One small mistake can annihilate your efforts entirely.
If it’s an individual attempting to secure records, there are some states that will allow that individual to employ a deposition officer to handle the subpoenas – you’ll need to consult your own state’s laws. Also, because of many new laws, there must be a definitive need for one’s financial records – and what you think is justification enough might not even come close to what a court will believe.
There’s paperwork, of course; that’s just one of those necessary dynamics. Many forms, including a notice to the consumer or employee, a deposition subpoena, and others, require detailed information not only on the one whose records you’re attempting to gain access to you, but also information about you, the role you play and why you believe it necessary to break a person’s right to privacy. You’ll need to describe both the records you are seeking as well as your reasons. Once that paperwork is complete, you’ll most likely be directed to your county clerk (or other government agency), who will then record the request and making it an actual official court order.
Due to those new laws, privacy has become a crucial aspect and in order to protect the privacy of those you’re seeking to gain access to, there is almost always an additional procedure that includes a specific timeframe that allows that person to object to your efforts. In some states, it might be two weeks and in others, it could be 30 days or longer. The target must be provided amply time to object. Remember you’re basically asking to plunder through someone’s credit and financial history and if it were you being targeted, you’d want every precautionary effort made to ensure there’s no ulterior motive behind the request.
Further, any and all documentation must be memorialized. One way to achieve this is by requiring a signature from the recipient anytime documents are delivered. Then, there are different state requirements regarding other people signing for the paperwork – such as a spouse or child who opens the door. Once the documentation has been gathered, you must then provide all of it to the attorney or the court. It’s crucial you keep copies of everything – if you lose it, you’re back at square one and those you’ve provided the originals to are under no obligation to accommodate your request for replacements.
Back and Forth
If the target objects or files a motion to quash your request, you might be dead in the water, so to speak. You can file your own motions to compel anyone who objects to turn over the information. That doesn’t mean you’ll be able to gain access; however, you can go back and forth until a judge ultimately decides the fate of those records. Again, we strongly encourage to allow an experienced attorney handle these details.
- FTC Warns of Prepaid Card Scams – May 23, 2013