We are a national bank and recently have been receiving several subpoenas that require a huge amount of work. For example, a recent grand jury subpoena that was faxed to our bank required us to provide full historical documentation for twelve accounts, among other documents. The subpoena did not provide a reasonable amount of time for a bank of our size to respond. This issue also is common in civil cases, such as divorce cases requiring voluminous financial information. Can we require that subpoenas be sent by mail or delivered in-person, instead of faxed? How can we protect ourselves against subpoenas that require hours of investigation involving multiple employees and mounds of paper?

May 9, 2019

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We contacted your primary federal regulator, the OCC, without identifying your bank. While the OCC attorney we spoke with stated that national banks are required to fully comply with subpoenas, including any deadlines stated in the subpoenas, they also opined that national banks and federal savings associations must look to state law when responding to subpoenas that are issued in that state. Illinois law includes cost reimbursement provisions that might help secure additional time for your bank to respond to these subpoenas.

The Illinois Banking Act provides that banks must be reimbursed for the costs of responding to a subpoena. The Illinois Administrative Code includes specific rates of reimbursement for personnel costs ($20 per hour), reproduction costs (30 cents per exposure), and transportation costs (31.5 cents per mile), and states that all other costs must be reimbursed “at actual cost.” Banks may prepare an estimate of these costs before beginning the work of preparing a response, and importantly, “delivery of the requested documents may be delayed until final reimbursement of all costs is received.”

The OCC attorney also noted that banks must have appropriate policies and procedures in place to handle routine subpoenas and observed that many community banks hire outside counsel to assist them when responding to subpoena requests. The role of an attorney in these situations would be to guide the bank’s response to a subpoena by first confirming that it is legitimate and has been validly served (e.g., not by fax). From there, an attorney could assist your bank by interpreting the subpoena, contacting the issuing attorney, and formally petitioning the court for extensions of time to respond, as well as for limitations on the scope of the subpoena and any necessary clarifications.

For resources related to our guidance, please see:

Illinois Banking Act, 205 ILCS 5/48.1(g) (“A bank shall be reimbursed for costs that are reasonably necessary and that have been directly incurred in searching for, reproducing, or transporting books, papers, records, or other data required or requested to be produced pursuant to a lawful subpoena, summons, warrant, citation to discover assets, or court order. The Commissioner shall determine the rates and conditions under which payment may be made.”)

Illinois Banking Act, 205 ILCS 5/2 (“‘Bank’ means any person doing a banking business whether subject to the laws of this or any other jurisdiction.”)

Illinois Administrative Rules, 38 Ill. Adm. Code 356.20 (“(a) Personnel costs incurred in locating, retrieving, reproducing and preparing financial records shall be reimbursed at the rate of $20 per hour per person.
(b) Reproduction costs incurred in making photocopies of documents shall be reimbursed at 30 cents per exposure. Reproductions of microfilm, microfiche, photographs, films and other materials shall be reimbursed at actual cost.

(c) Transportation costs incurred in transporting bank personnel to locate and retrieve material, and to convey the material to the place of examination, shall be reimbursed at the rate of 31.5 cents per mile or, if a mail or courier service is used, at the actual cost of such service.

(d) All other costs, including, but not limited to, telephone calls, telegrams and shipping costs, incurred in searching for, reproducing and transporting data pursuant to a request for financial records, shall be reimbursed at actual cost.”)
Illinois Administrative Rules, 38 Ill. Admin. Code 356.40 (“At the bank’s or corporate fiduciary’s option, it may prepare one or more reasonable estimates of the ultimate reimbursement of costs associated with a search for financial records in the form prescribed in Section 356.30 of this Part and require one or more partial payments before proceeding with the work of locating and reproducing the requested documents. Delivery of the requested documents may be delayed until final reimbursement of all costs is received.”)

Illinois Administrative Rules, 38 Ill. Admin. Code 356.30 (“The bank or corporate fiduciary shall provide to the person requesting such records an itemized invoice indicating in specific detail the costs for: (a) personnel; (b) reproduction; (c) transportation; and (d) all other costs incurred in searching for, reproducing and transporting data pursuant to a request for financial records.”)