5.59 - F. Subpoenas Duces Tecum For Corporate Records And The Duty Of Corporate Officers And Custodians With Respect To Them

• Jurisdiction: New York

F. Subpoenas Duces Tecum for Corporate Records
and the Duty of Corporate Officers and Custodians With Respect to Them

An officer of a corporation having possession of its records as described in a subpoena duces tecum directed to the corporation must produce these records or be held in contempt. “By virtue of the fact that [records are] the documents of the corporation in [the officer’s] custody, and not his private papers, he [is] under [an] obligation to produce them when called for by proper process.”⁹⁵³ Early on, the Supreme Court rejected a claim that contempt would not lie against a recalcitrant records custodian because a subpoena duces tecum has been directed to the corporation instead of the custodian by name or “in care of” him.⁹⁵⁴ “A command to the corporation is in effect a command to those who are officially responsible for the conduct of its affairs.”⁹⁵⁵ This axiom is applicable to professional or closely held corporations, typically ones that are the alter egos of their officers.⁹⁵⁶ Irrespective of the person named, all that due process requires is that the person served and charged with the duty to produce be in possession or control of the corporate documents subpoenaed.⁹⁵⁷ Possession, of course, may be physical, constructive or authoritative. A corporation’s warehouse manager has physical possession of its storage records while he is on the warehouse premises. At home, with the keys to the warehouse in his pocket, he is in constructive and, in a restricted sense, physical possession. The company’s chief executive, who need only lift up the telephone and order the manager to produce the records, has authoritative possession and control.⁹⁵⁸ A president, vice president, treasurer, sole stockholder, director or other high managerial agent—by virtue of his relationship to a corporation—is in such possession and control of its records that he may be held in contempt if he does not comply with a subpoena served on the corporation or take all necessary steps within his power to cause compliance.⁹⁵⁹ The obligation to produce corporate records inheres in the position or corporate officer because there can be no dispute “that the custodial function [is] an incident of [one’s] duty as corporate officer nor that [one is] bound to keep [corporate] books safely and produce them on demand.”⁹⁶⁰

For contempt purposes, it is sufficient to prove that a subpoena duces tecum directed to the corporation was served upon a corporate officer, and that the same...