(1) A
judge of a court of record may order the production of records.
(2) A court may order the production of records under this section to require
the production of records in the actual or constructive control of a business entity:
(a) That have been stolen or embezzled;
(b) That are designed or intended for use as a means of committing a
criminal offense;
(c) That are or have been used as a means of committing a criminal offense;
(d) The possession of which is illegal;
(e) That would be material evidence in a subsequent criminal prosecution in
this state, another state, or federal court;
(f) The seizure of which is expressly required, authorized, or permitted by a
statute of this state or the United States; or
(g) That would aid in the detection of the whereabouts of or in the
apprehension of a person for whom a lawful arrest order is outstanding.
(3) (a) A court shall order the production of records only on receipt of an
affidavit sworn to or affirmed before the judge and relating facts sufficient to:
(I) Identify or describe, as nearly as may be, the business entity that is in
actual or constructive control of the records;
(II) Identify or describe, as nearly as may be, the records that shall be
produced;
(III) Establish the grounds for issuance of the court order for production of
records or probable cause to believe the grounds exist; and
(IV) Establish probable cause that the records described are in the actual or
constructive control of the business entity.
(b) The affidavit required by paragraph (a) of this subsection (3) may include
sworn testimony reduced to writing and signed under oath by the witness giving the
testimony before the issuance of the court order for the production of records. A
copy of the affidavit and a copy of the transcript of testimony taken in support of
the request for a court order for the production of records shall be attached to the
court order for the production of records filed with the court.
(4) (a) If the court is satisfied that grounds for the application exist or that
there is probable cause to believe that the grounds exist, the court shall issue a
court order for the production of records, which shall:
(I) Identify or describe, as nearly as may be, the business entity that is in
actual or constructive control of the records;
(II) Identify or describe, as nearly as may be, the records that shall be
produced;
(III) State the grounds or probable cause for its issuance; and
(IV) State the names of the persons whose affidavits or testimony have been
taken in support of the motion.
(b) The court order for the production of records may also contain other and
further orders that the court deems necessary to comply with the provisions of this
statute, or to provide for the custody or delivery to the proper person of the records
produced and seized under the order, or otherwise to accomplish the purpose of the
order.
(c) Unless the court otherwise directs, every court order for the production of
records shall authorize a Colorado criminal investigator or peace officer:
(I) To serve the order during normal business hours of the business entity or
at any other convenient time for the business entity that is in actual or constructive
control of the records; and
(II) To receive the records during normal business hours of the business
entity that is in the actual or constructive control of the records.
(5) (a) A court order for the production of records may be granted to a
Colorado criminal investigator or peace officer whose affidavit supports the
issuance of the order. The Colorado criminal investigator or peace officer granted
the order need not have authorization to execute a search warrant in the jurisdiction
in which the business entity is located.
(b) A court order for the production of records shall be served upon the
business entity to whom it is directed within fourteen days after its date.
(c) A court order for production of records may be served in the same
manner as a summons in a civil action or by personal service on a manager or
supervisor of the business entity that is in actual or constructive control of the
records or through any electronic or other means established and utilized by the
business to receive service of process.
(6) (a) A business entity that is properly served with a court order for the
production of records shall deliver the records, or copies of the records, identified
in the court order to the officer who is designated in the court order within thirty-five days after the date the court order is served. The business entity shall also
provide a notarized attestation of accuracy that the records produced represent
complete and accurate copies of all records identified in the court order that are in
the actual or constructive control of the business entity. If the business entity does
not produce all records identified in the court order for production of records, the
records not produced shall be identified. The attestation of accuracy shall be
signed by the records custodian, or an officer or director of the business entity, who
shall attest to the truth of the attestation to the best of the person's knowledge,
information, and belief. The attestation may also attest to any one or all of the
following: That the records were made at or near the time by, or from information
transmitted by, a person with knowledge; that the records were kept in the course
of a regular business activity; and that it was the regular practice of the business to
record the information contained in the records. The business entity need only
provide a copy of the attestation at the time of providing the records to the officer
and may provide the original of the attestation to the officer within fourteen days
after providing the records. The records and attestation of accuracy shall be
sufficient to establish the authenticity of the records produced, without further
necessity of extrinsic evidence.
(b) A business entity that is served with a court order for the production of
records may file a motion in the court that issued the court order to allow for an
extension of time in which to comply with the court order. The motion shall be filed
within the time period required to produce the records. The motion shall state with
particularity the reasons why the business entity cannot comply with the court
order. The motion shall be served upon the Colorado criminal investigator or peace
officer named in the court order.
(c) Upon the filing of a motion for an extension of time, the court shall hold a
hearing within fourteen days, unless the business entity and the Colorado criminal
investigator or peace officer named in the court order agree to a later time. The
court may grant an extension for a reasonable time for the business to produce the
records upon good cause shown or by agreement with the Colorado criminal
investigator or peace officer named in the court order.
(d) Failure of the business entity to comply with the requirements of a court
order for the production of records shall support a finding of contempt of court.
(e) Upon receiving the records from the business entity, the criminal
investigator or peace officer named in the court order shall file a return and
inventory with the court indicating the records that have been received and the date
upon which the records were received. The criminal investigator or peace officer
named in the court order may also file with the court the original of the attestation
of authenticity and completeness.
(7) Records produced pursuant to a court order for the production of records
may be supplied in any form or format that is convenient for the business entity and
that may be accessed by the Colorado criminal investigator or peace officer named
in the court order or his or her agency or department. Production of records using
proprietary software or another method that is not accessible shall not constitute
compliance with the requirements of the court order. The court may order the
defendant pay the cost of production of records.
(8) A cause of action shall not lie against a business entity or an officer,
director, or employee, for providing records pursuant to a court order for the
production of records.
(9) Nothing in this section shall preclude a Colorado criminal investigator or
peace officer from seeking a search warrant.
(10) The provisions of this section shall govern the procedures for court
orders for the production of records. Motions to suppress evidence seized pursuant
to a court order for the production of records shall be governed by the rules of
criminal procedure.
(11) As used in this section, unless the context otherwise requires:
(a) Actual or constructive control means the records are maintained or
stored in any form or format on the premises of the business entity or at another
location or facility under the custody or control of the business entity or a parent or
subsidiary business, including pursuant to an agreement or contract with the
business entity or any parent or subsidiary business and third-party service
provider, in Colorado or elsewhere.
(b) Business entity means a corporation or other entity that is subject to
the provisions of title 7, C.R.S.; a foreign corporation qualified to do business in this
state pursuant to article 115 of title 7, C.R.S., specifically including a federally
chartered or authorized financial institution; a corporation or other entity that is
subject to the provisions of title 11, C.R.S.; or a sole proprietorship or other
association or group of individuals doing business in the state.
(c) Colorado criminal investigator means an employee of the Colorado
department of regulatory agencies, the Colorado department of labor and
employment, or the Colorado department of revenue who has been classified as a
criminal investigator by the director of the employing department.
(d) Peace officer means a peace officer as described in section 16-2.5-101.
(e) Records shall include all documents, electronic notations, journal
entries, data, reports, statements, financial documentation, correspondence,
electronic mail, or other information retained by a business entity in connection with
business activity, but shall not include an item that is privileged pursuant to section
13-90-107, C.R.S., unless the person who possesses the privilege gives consent.