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IN THE SPOTLIGHT

  

Jessica L. Conn
Jessica L. Conn, Esq.

Jessica practices business law with a focus on commercial lending and government guaranteed lending. In that capacity, she represents banks, credit unions and certified development companies in closing and funding loans. Jessica has extensive experience in reviewing due diligence and drafting and negotiating loan documents for the finance of a variety of transactions including construction, asset purchases, stock purchases, refinance, working capital, equipment purchases and real estate purchases.

With respect to government guaranteed lending, Jessica has closed loans under both the SBA 504 loan program and the 7(a) loan program, including CAPline and Export Working Capital loans. Jessica has also worked on financings under the USDA B&I loan program. In addition to closing and funding government guaranteed loans, Jessica also consults with lenders and lender service providers on eligibility issues related to loan structuring.

Jessica has counseled business entities with regard to entity formation, capitalization, employment contracts and other general business matters, including the preparation and successful defense of an application by a nonprofit to IRS for 501(c)(3) exempt status.

ADMISSIONS:
* Pennsylvania
* New Jersey
* New York 

To read more about Jess, click here.

 



Lynn Ozer / Executive Vice President / Susquehanna Bank

 

Knowing that the attorneys at Starfield & Smith, PC are dedicated to keeping abreast of every change and nuance in ALL of the SBA's SOPs gives me the comfort that I need when assigning a loan to their firm for documentation, servicing situations or collection dilemmas. When the attorneys from this firm are the ones teaching the trade association "how to" I know that my confidence in their work product is justified. Our bank has used this firm for many years and have received excellent service and "spot on" advice. Their attention to every detail is the reason SBA lenders should depend on this firm!


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FeatureArticle FEATURED ARTICLE 

Best Practices: Dealing with Custodian of Records Subpoenas & Depositions

 

By: Jeffrey S. Feldman, Esquire  

  

Jeffrey S. Feldman
Jeffrey S. Feldman, Esquire
Banks and lenders often find themselves served with subpoenas seeking their customers' financial information.  While the majority of these subpoenas only seek the production of documents, occasionally they will require that a "custodian of records" to appear at a deposition and bring the responsive documents with her or him.  Complying with these "custodian of records" subpoenas (sometimes referred to as subpoenas duces tecum) can be significantly more burdensome and expensive because, in addition to locating the responsive electronic and paper documents, reviewing them for privileges and immunities from discovery, preparing them for production to the party issuing the subpoena, and asserting any necessary objections, the recipient of the subpoena is also obligated to locate an appropriate witness and prepare her or him for being deposed.  Worse yet, the witness is typically pulled away from her or his work responsibilities twice-first to be prepared to testify in a dispute that she or he often knows little about, and then again to actually testify.  Can lenders do anything to avoid or limit this situation?
 
First, banks and lenders should retain legal counsel familiar with the rules, laws and practices of the local jurisdiction that issued the subpoena.  Local rules regarding subpoena compliance vary widely; some jurisdictions require that written objections to the subpoena be served within a specific period of time or they are waived.  Other jurisdictions have rules that require the subpoenaed party's counsel to document her or his attempts to resolve any discovery disputes as a condition to being able to seek relief from the Court.  Finally, courts apply different standards for the extent to which a party is required to produce electronically stored information, the format in which electronic information must be produced, the duration of any witness depositions, and the ability to conduct depositions by telephone or videoconference.  Consulting with knowledgeable legal counsel will avoid waivers of the lender's legal rights and ensure that the subpoena compliance process proceeds as efficiently as possible.
 
Second, lenders or their counsel should ask the party serving the subpoena whether the deposition of the custodian of records could be avoided by submitting a written certification that satisfies the business records exception to the hearsay rule.  For example, in the federal courts, the exception to the hearsay rule for business records, Federal Rule of Evidences 803(6), provides that, in lieu of live testimony, the foundation for the admissibility of a business record may be established by a certification that complies with Federal Rule of Evidence 902(11).  Rule 902(11) provides parties to a lawsuit with a way to satisfy their evidentiary requirements for authenticating business records in certain circumstances without incurring the expense and time-consuming inconvenience of producing a live witness (or "custodian of records").  Many states have adopted a version of this federal rule.  (For example, Pennsylvania has a nearly identical rule:  Pennsylvania Rule of Evidence 902(11)).
 
Thus, a lender who has been served with a custodian of records subpoena should confer with its legal counsel to determine whether submitting a Rule 902(11) certification is an option. If so, it should authorize its counsel to contact counsel for the party issuing the subpoena and propose that a certification be submitted in lieu of conducting a deposition.  The certification will need to be signed subject to the penalties of perjury by a qualified person and verify that the records being produced meet all of the requirements for the business records exception to hearsay under the local rules.  This typically means certifying that the custodian of records is qualified to make the certification, that the copies of the records being produced in response to the subpoena are true and correct copies of the documents in the lender's file, that the records being produced were made at or near the time of the matters described in them by persons with knowledge of what happened, and that the records were both made and kept in the ordinary course of the lender's business.  Once this certificate is completed and signed, it becomes the functional equivalent of the live testimony that the custodian of records would offer at her or his deposition, and it serves the same purpose as the custodian's testimony authenticating the records being produced.  If the party issuing the subpoena agrees to accept the certificate, as prepared by the lender, the testimony of a live witness will no longer be needed.
 
Third, and finally, if a Rule 902(11) certificate is not an option-either because the local rules do not provide for them or because counsel for the party issuing the subpoena will not agree to accept one in lieu of taking the custodian of records' deposition-the lender should take care to ensure that it selects and prepares a witness who is qualified to serve as a "custodian of records."  While the bar for being a "qualified" custodian of records witness is not particularly high, she or he must have sufficient knowledge of the business' recordkeeping processes to establish their trustworthiness.  This would include having personal knowledge of the processes for both the creation and maintenance of the records at issue.  While it is not necessary that she or he able to identify the specific individuals who had first-hand knowledge of the contents of the records, she or he must be able to show that it was the regular practice of the business to base its records upon information transmitted from persons with knowledge of the facts.  Failing to produce a qualified witness for deposition by the party serving the subpoena duces tecum will typically result in both a longer deposition and a demand that a second, more qualified witness be produced to address the issues that the first witness was not qualified to address.  Having multiple depositions will significantly increase (if not multiply) the legal fees incurred and the inconveniences experienced by the lender. 

 

For more information regarding how to deal with custodian of records Subpoenas and Depositions, please contact Jeff at [email protected] or at 215.542.7070.  

  

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WEBExpress: Avoid Closing and Documentation Pitfalls

 

Presented By:  NAGGL
Dates:  February 5, 2014  *** Today *** 
Location:  Webinar  
Instructor: David W. Starfield & Tom Hofstetter

 

For more information about this event and/or to register, click here.

CTAGGL Luncheon

 

Presented By:  Central Texas Association of Government Guaranteed Lenders
Dates:  February 5 - 6, 2014 *** Today & Tomorrow *** 
Location:  San Antonio, Texas & Austin, Texas
Instructor:  Ethan W. Smith  

 

2014 Southeastern Small Business Lenders Conference

 
Dates:  February 9 - 11, 2014
Location:  One Lake Oconee Trail, Greensboro, GA  
 
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Date:  March 12 - 14, 2014
Location:  Seven Springs Mountain Resort, Champion, PA

 

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Date:  May 6 - 8, 2014

 

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