Help! Someone Has Served Me With a Subpoena For My Bank Records!
Served With Subpoena for Bank Records? Business Litigation Law Firm shares the following tips:
Occasionally, we will get contacted by clients who have been served with a subpoena demanding that person or business turn over its general ledgers, bank statements, tax returns, or other financial records. They often question whether they are, in fact, required to produce this information. The answer, of course, is “it depends.”
In situations where you are not a party to a lawsuit and you are served with a subpoena for documents, you may have grounds to refuse to produce your financial records. Article I, section 23, of the Florida Constitution grants every “natural person” a “right to be let alone and free from governmental intrusion into the person’s private life.” Florida state courts have found that this provision grants individuals an expectation of privacy in their financial records. This right of privacy is not absolute and may be overridden by a court. Nevertheless, a party in litigation seeking to get access to a non-party’s financial records must first demonstrate to a court a need for the records that justifies overriding the individual’s right of privacy. Courts usually require the party to show a “compelling” need for financial documents from a non-party, and the court customarily holds an evidentiary hearing in order to balance one’s need for the documents against the constitutional right of privacy.
The term “natural person” is not defined, and no court has clarified whether it applies only to individual persons or whether it also extends to corporations and other artificial business entities. Some courts have questioned whether a business entity can be a “natural person,” but even so, courts have recognized that businesses also have some expectation that their financial records will be kept private.
If you’re a party to a lawsuit, and you’re served with a discovery request seeking financial documents, you still have an expectation of privacy in your financial records. Nevertheless, the party seeking those records need not make a “compelling” showing of need in order to get access. When you’re a party, the test is one of relevance – if your financial documents are relevant to a claim or defense in the case, the opposing party has a right to inspect those records.
Note that this analysis changes in federal court. If the case is a “diversity” case, then Florida’s constitutional right of privacy should provide some shield to discovery of a person’s financial records. If, on the other hand, the case involves “federal question” jurisdiction, the Florida right of privacy will not apply. Federal courts – at least in the Southern District of Florida – have not been consistent in their treatment of financial privacy issues. At a minimum, however, the party seeking financial documents has to show that the documents are relevant to some claim or defense in the case.
Even in the event you are ultimately required to disclose your financial records pursuant to a subpoena or a document request, you can still request that the documents be subject to a confidentiality order to limit the number of people who have access to your private financial information.
If you get served with a subpoena or want advice about disclosing your private financial information in a legal proceeding, give us a call.