For years I've heard reports of the occasional self-storage operator receiving some sort of all-encompassing subpoena from a law-enforcement agency, meaning a subpoena to produce information about all facility occupants. However, in the last six to eight months, Ive noticed a marked uptick in these reports.
These subpoenas tend to come from federal agencies such as the FBI or Immigrations and Custom Enforcement, and are normally delivered by an agent who expects you to produce all the documentation requestedoften a list of your tenants names, addresses, Social Security numbers, credit card info, etc. Some even go so far as to request full copies of all your files. Onsite staff is asked to make a decision about patriotism while an agent flashes a badge and waits for a response. Here are some guidelines for self-storage operators facing this dilemma.
Can Agencies Do This?
Except where the FBI is investigating a drug case, there doesnt seem to be authority for a federal agency to fish with blanket subpoenas for information at a self-storage facility, or anywhere else for that matter. Generally, the existence of the subpoena is supposed to be made known to the person about whom information is being requested.
However, there are obviously investigations in which providing notice to people that their information is being subpoenaed would lead to interference. Thus, it doesnt appear every self-storage tenant needs to be notified by the agency that a subpoena has been issued before you respond, but a blanket subpoena is really a different matter.
Do you have to give the information while the agent is standing there? Certainly not. In general, a Duces Tecum Subpoena indicates youre supposed to provide information within a certain period of time. The Federal Rules of Civil Procedure seem to indicate the minimum amount of time to provide information under a subpoena is seven days. The subpoenas my clients have recently been served have given them 24 to 48 hours to respond, but thats at least enough time to follow the advice in this column and contact your attorney.
Compliance and Finding Middle Ground
The answer to whether you should comply is complex. If youve been properly subpoenaed and you believe the agent to be a legitimate person issuing a lawful request (as opposed to a guy checking on his ex-girlfriends new boyfriend), then more likely than not, youre required to comply.
However, I've been able to resolve many of these situations by asking the agent or contacting the agents supervisor to reach some sort of agreement about whats really being sought in the subpoena. I generally begin these conversations by saying I dont believe its absolutely necessary for the agency to subpoena the operator's entire tenant list, and some of the information may not even be available, such as a screening or tenant report.
I also warn the agency that the facility operator and I believe we must notify every tenant that his information was subpoenaed. No federal agency likes citizen calls from senators or congressmen, so it will generally negotiate at this point. If asked, it will usually back down on the blanket subpoena because it's really only seeking information about who entered the facility at a certain time or a specific list of names. By asking for this information, I can often negotiate the subpoena to request info thats more specifically targeted to what the agency wants.
For example, if an agent is looking for anyone who entered the facility between 4 p.m. and 8 p.m. on a certain date, providing the gate log for four hours is a much easier pill to swallow than handing over the names, addresses, Social Security numbers, etc., of all your tenants. Conversely, the agent may be looking for certain people. He could give you a list of 20 namessome real, some fakeand you could tell him whether those files exist. Then he could specifically subpoena those files, or you could provide specific information from the files.
What You Should Do
Naturally, you dont want to interfere with a criminal investigation. Its neither your responsibility nor your duty to disclose anything to your tenants until the information has been tendered and you come to an agreement with the agency about how long the information exchange must be kept secret. You dont want to accidently cross the line.
The best solution is to contact your attorney if youre served with one of these subpoenas. Do not provide all the documents on site just because an agent is intimidating or seems to think hes entitled to it. Let your attorney negotiate with the agency to figure out what really needs to be turned over, if anything. Then provide the information with your attorneys blessing within the time lines provided.
No one wants you to hinder the law-enforcement responsibilities of the U.S. or local government. However, theres a trust between you and your tenants that their information will be reasonably protected by you, if possible. Although theres no law on the subject of their privacy, once a subpoena is served, that expectation is probably out the window. The more you can do to keep an appropriate buffer between you and tenant lawsuits and avoid impeding a criminal investigation, the better off you are.
Your safest course is to contact your attorney to negotiate these subpoenas as quickly as possible after youre served. Then follow his advice in a timely manner.
This column is for the purpose of providing general legal insight into the self-storage industry and should not be substituted for the advice of your own attorney.
Jeffrey J. Greenberger is a partner with the law firm of Katz Greenberger & Norton LLP in Cincinnati and is licensed to practice in Kentucky and Ohio. Mr. Greenberger primarily represents the owners and operators of commercial real estate, including self-storage owners and operators. To reach him, call 513.721.5151; visit www.selfstoragelegal.com .
