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An Effective And Money-Saving Alternative To Gathering Records

Going through a divorce can be draining for so many reasons. One of the most tedious and time consuming tasks clients are often faced with is obtaining years of records for bank and credit card accounts. More often than not, lawyers will request three to five years of these types of records in a contested divorce case. Clients must then track down all of the records, shuffle them to their lawyers, who in turn have to inventory, review and process them for eventual reproduction to the opposing party’s lawyer. Clients often send this information on a piecemeal basis which adds additional layers of complexity.

This process can be incredibly time consuming and thus very expensive for the client. Because clients often have a hard time understanding how all of that information could be useful, they fight their own lawyers on it, creating more problems and larger bills. Other times clients do not have access to the information (online or otherwise). Even when the information is available online, there are often limitations on how far back one can download paperless records or what is even available. For those clients who work in demanding professions or who have responsibilities for young children, just finding the time to obtain all of the requested information can be difficult. As they then find out, delays in obtaining information result in delays in ultimately getting divorced, along with more attorney fees.

A simple solution to this problem is a records subpoena issued under 735 ILCS 5/2-1101 and/or Illinois Supreme Court Rule 204. A records subpoena is a document issued by an attorney (or the clerk of court) which is sent to a custodian of records requesting the production of certain specified information. The records subpoena includes a “rider” which is a detailed list of the records that are being requested. In the example above, it could be a request for five years of bank account statements and check images for John Doe’s checking account #1234. If the account number is not known, the request can be made by including the social security number of the account holder asking for any records related thereto. The “rider” can be narrowly tailored or broadly drafted to suit your particular needs.

Provided that there are no legitimate objections to the scope of the subpoena or the records being requested, the custodian simply processes the request for information and returns it all to the individual who issued the subpoena. Generally the request is made for the records be produced within 14 days; however, custodians often need more time to process the request and they may ask for reasonable continuations of that deadline. Often the information is produced electronically on a CD or USB Drive in a concise and chronological format which facilitates an efficient inventory, review and reproduction by the lawyer. Records subpoenas can also be issued repeatedly so that, as time goes by, more updated information can be obtained.

There are certain costs associated with issuing a records subpoena, such as drafting the rider, mailing it via certified mail, and paying the custodian of records’ copy and data collection fees. However, more often than not, those fees pale in comparison to the time and expense associated with having the client gather all of the records, convey them to their lawyer, who then conveys them to the opposing party’s lawyer.

There are some other limitations associated with records subpoenas. For example, a case does have to be pending for one to be issued, so they will not work in those situations where a global resolution is being negotiated before a case is even filed. Also, notice must be provided to the opposing party that the subpoena was issued, and, once the records are obtained, they must be reproduced to the opposing party. Thus, there are certain strategic scenarios where it may make more sense to try to obtain the records directly yourself.

The next time your lawyer asks you to produce a bunch of account statements, think about taking the records subpoena approach. You will be glad you did.

J. Matthew Linstroth is an Associate with Katz & Stefani.

Katz & Stefani

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Katz & Stefani, LLC
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