Subpoena Threat Over a 10-Year-Old Appraisal
Q.
An attorney emailed me with a Custodian of Records affidavit attached, along with what he claims is a copy of an appraisal I prepared in 2015 for a purchase loan. His cover letter says that if I sign and notarize the affidavit, he won’t serve me with a subpoena to appear at a trial set to begin in a few days.
I don’t destroy files the minute they reach five years, but I also don’t keep them for ten, so I no longer have a copy of the report.
I vaguely recall the assignment: a fairly new, two-story office building built out for multiple tenants.
The affidavit states the attached report is an “accurate version” of what I prepared in 2015. The report is over 100 pages long. Without my own copy to compare it to, how could I know whether anything has been altered?
I sent what I thought was a polite response explaining that I no longer had my file and, without my copy of the appraisal, I could not sign an affidavit attesting that his version was accurate.
He apparently didn’t like that answer.
I received a rather nasty reply saying I could authenticate the report based solely on my signature. He claimed he was trying to make things easy for me, but if I refused to sign, he would have no choice but to serve me with a subpoena and that I should be prepared to accept service.
Do I really have to go to court next week? Believe it or not, I’m busy. I have appointments scheduled and reports to finish. And how could a ten-year-old appraisal even be relevant to his case?
A:
You were right to respond as you did. Without your own copy of the appraisal, there is no practical way to authenticate the version provided to you.
This attorney has likely known about the trial date for months. Serving a witness subpoena only a week before trial is generally unreasonable. Hopefully, his response was driven by frustration rather than a genuine intent to serve you at the last minute.
If you are served, contact us immediately. Your policy includes Subpoena Response coverage. We will retain local counsel to assist you and, if appropriate, intervene in what appears to be an unreasonable request.
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