If you work in a defense law firm, you have most likely been forced to surrender to a subpoena servicing company at the direction of your client. These companies have persuaded insurance companies to contract their services by promising their clients certain advantages such as controlling costs, providing online repository, and implementing special technology features. What clients fail to see is that these advantages come with consequences.
There are legal issues that may be of special interest to law firms when utilizing these subpoena servicing companies. An extra feature the companies offer is indexing the records prior to delivery to the client and law firm. Indexing includes reorganizing the records, preparing an index preface, and inserting index cover sheets for each separate indexed section. After the documents are indexed, they are Bates numbered in the order of the indexer’s reorganization. Additionally, they will enhance and alter the records for clarity and legibility. There are many questions to consider here. Does this constitute tampering with evidence? Will this nullify the records custodian’s authentication? Section 918.13(1)(b), Florida Statutes, states that “No person . . . shall . . . make, present, or use any record, document, or thing, knowing it to be false.” In this situation, the company is the only party with an exact duplicate of the original documents supplied by the non-party. Once the documents have been altered, enhanced, reorganized and indexed, they may no longer be a duplicate of the original records. Section 90.953(2), Florida Statutes, states “a duplicate is admissible to the same extent as an original, unless . . . a genuine question is raised about the authenticity of the original . . . ” and Rule 1003, Federal Rules of Evidence, states that a duplicate of the original may be used as long as it “is the product of a method which insures accuracy and genuineness.” While in most cases a genuine question will likely not be raised, a situation could possibly arise if a document is enhanced, indexed or organized in such a way as to prejudice a party.
Another question to consider: Does the records custodian declaration comply with the relevant evidence rule, Section 90.902(11), Florida Statutes, or Rule 803(6), Federal Rules of Evidence? To authenticate an original or duplicate, specific language must be included in the declaration from the custodian of records. If this specific language is not included, the document is not self-authenticated and could be ruled as hearsay. Most of these companies prepare and submit their own declarations for the records custodians’ signature. Currently, there is no requirement in the Federal Rules of Evidence or the Florida Statutes for this declaration to be an original or notarized.
While we may not have access to the corporate contracts between our clients and these companies, it is obvious that they have gained a competitive edge in the market. The insurance companies likely are attracted to the sales pitch of controlling costs and paying nominal fees to the subpoena servicing companies versus $90+ an hour for paralegal costs. By forcing the law firms to undergo training and utilize the company’s website to manage the discovery process, the cost becomes a clerical cost and, therefore, the law firm is required to absorb that cost. The companies make their profits by forwarding correspondence to all parties involved in the suit contemporaneously with the notice of production from non-party requesting those parties directly contact them to obtain copies of the non-party records for a charge. If no agreements or contracts have been made otherwise, nothing prohibits the law firm from providing copies of the documents directly to the parties to the lawsuit in response to a request for copies.
While law firms may not be able to avoid working with these subpoena servicing companies, there are steps that can be taken to avoid the negative consequences. To avoid any situation involving genuineness of a duplicate, the law firm could request the companies provide an exact copy of the records as produced by the non-party prior to indexing and enhancing. Requesting to review the proposed records custodian declaration to determine whether it complies with the evidence rules would prevent later problems of authentication. The law firm and the client would both benefit by clarifying the billable hours versus clerical tasks involved with communicating with these companies prior to the initial use of the subpoena servicing company’s services. And that is the Bottom Line.
Author: Krisi Currie, ACP, FRP
Ms. Currie is a litigation paralegal at Beggs & Lane. For more information about Beggs & Lane, click here.