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§ 13-1-245. Disclosure of bank customer's records

Codes > Mississippi Code > Title 13 > Chapter 1 : Discovery Proceedings > 13-1-245. Disclosure

13-1-245. Disclosure of bank customer's records

(1) As used in this section:

(a) “Bank” means any state or national bank located in Mississippi.

(b) “Custodian” includes a bank's operations officer and any other person who is an official custodian of the bank's records, as well as their deputies and assistants.

(c) “Customer” means any person or authorized representative of a person who has maintained or is maintaining an account or deposit of any type, or has utilized or is utilizing any service of a bank, or for whom a bank has acted or is acting as a fiduciary in relation to an account or deposit maintained in the person's name.

(d) “Financial record” means any record in any form, or information derived from such record, that is maintained by a bank and pertains to a deposit or account of a customer, a service of the bank utilized by a customer or any other relationship between a customer and the bank.

(e) “Governmental authority” includes the state, any political subdivision, district and court, and any agency, department, officer or authorized employee of any of those entities.

(2) In any state court proceeding, if any party, including a governmental authority, requests a subpoena duces tecum (to be construed hereinafter to include a court order) to require a bank to assemble or provide a customer's financial records, and the bank is not a party to the proceeding or is a party solely by reason of its holding assets of another party defendant with no cause of action alleged against the bank, the party requesting the subpoena shall pay to the court conducting the proceeding all reasonable charges of the bank in searching for, reproducing and transporting the records. This payment shall be made promptly when the copy of the records is delivered to the proper person, as provided in subsection (4) of this section, whether or not the financial records are entered into evidence, and the amount of the payment shall be the amount certified by the custodian in the affidavit required by subsection (6) of this section. The payment of these reasonable charges shall be in addition to any witness fees.

(3) Except as hereinafter provided, when a subpoena duces tecum is served upon a custodian of records of any bank in any state court proceeding in which the bank is not a party, or in which the bank is a party solely by reason of its holding assets of another party defendant with no cause of action alleged against the bank, and such subpoena requires the production of a customer's financial records, it shall be deemed sufficient compliance if the custodian shall furnish a true and correct copy of all records described in the subpoena.

(4) The copy of the records shall be separately enclosed in an inner envelope or wrapper, sealed, with the title and number of the action, name of witness and date of subpoena clearly inscribed thereon. The sealed envelope or wrapper shall then be enclosed in an outer envelope or wrapper, sealed, and directed as follows: If the subpoena directs attendance in court, to the clerk of such court or to the judge thereof; if the subpoena directs attendance at a deposition, to the officer before whom the deposition is to be taken, at a place designated in the subpoena for the taking of the deposition or at his place of business; in other cases, to the officer, body or tribunal conducting the hearing, at a like address.

(5) Unless the sealed envelope or wrapper is returned to a witness who is to appear personally, the copy of the records shall remain sealed and shall be opened only at the time of trial, deposition or other hearing, upon the direction of the judge, court, officer, body or tribunal conducting the proceeding, in the presence of all parties who have appeared in person or by counsel at such trial, deposition or hearing. However, the sealed envelope or wrapper may be opened and the records examined prior to the trial, deposition or hearing upon written consent of all parties or their counsel of record.

(6) The records shall be accompanied by an affidavit of a custodian stating in substance: (a) that the affiant is a duly authorized custodian of the records and has authority to certify such records; (b) that the copy is a true copy of all the records described in the subpoena; (c) that the records were prepared by the personnel of the bank, bank officers or persons acting under the control of either, in the ordinary course of the bank's business at or near the time of the act, condition or event reported therein; and (d) certifying the amount of the reasonable charges of the bank for furnishing such copies. If the bank has none of the records described or only part thereof, the custodian shall so state in the affidavit and furnish the affidavit and such records as are available. The furnishing of the affidavit with respect to such reasonable charges shall be sufficient proof of such expense, which shall be taxed as costs of the court. All reasonable charges paid hereunder shall be remitted to the bank not later than final determination of the suit by the court where the suit is initiated.

(7) The copy of the record shall be admissible in evidence to the same extent as though the original thereof were offered and the custodian had been present and testified to the matters stated in the affidavit. The affidavit shall be admissible in evidence and the matters stated therein shall be presumed true in the absence of a preponderance of evidence to the contrary.

(8) In rare cases where the personal attendance of the custodian may be required, the subpoena duces tecum shall contain a clause which reads: “The procedure authorized pursuant to subsection (3) of this section will not be deemed sufficient compliance with this subpoena.”

(9) In rare cases where the personal attendance of the custodian and the production of the original record may be required, the subpoena duces tecum shall contain a clause which reads: “Original records are required and the procedure authorized pursuant to subsection (3) of this section will not be deemed sufficient compliance with this subpoena.”

If the bank does not have such original record, it shall furnish such copies as it may have and shall be compensated as provided for in this section.

(10) Original records may be withdrawn after introduction into evidence and copies substituted, unless otherwise directed for good cause by the court, judge, officer, body or tribunal conducting the hearing. The custodian may prepare copies of original records in advance of testifying for the purpose of making substitution of the original record, and reasonable charges for furnishing such copies shall be taxed as costs of the court. If copies are not prepared in advance, they can be made and substituted at any time after introduction of the original record, and reasonable charges for furnishing such copies shall be taxed as costs of the court.