(a)

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Terms Used In Tennessee Code 24-7-116

  • Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
  • Deposition: An oral statement made before an officer authorized by law to administer oaths. Such statements are often taken to examine potential witnesses, to obtain discovery, or to be used later in trial.
  • Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
  • Person: includes a corporation, firm, company or association. See Tennessee Code 1-3-105
  • Property: includes both personal and real property. See Tennessee Code 1-3-105
  • Record: means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in a perceivable form. See Tennessee Code 1-3-105
  • Subpoena: A command to a witness to appear and give testimony.
  • Subpoena duces tecum: A command to a witness to produce documents.
  • Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
(1) In any judicial proceeding in which a telephone company is subpoenaed to produce records of customer service or billing charges, it shall be sufficient compliance with the subpoena if the custodian or other authorized agent of the company shall, either by personal delivery or by certified or registered mail, file with the court clerk a true and correct copy of all records described in such subpoena. The records shall be accompanied by an affidavit of the custodian stating in substance:

(A) That the affiant is duly authorized custodian of the records and has authority to certify the records;
(B) That the copy is a true copy of all the records described in the subpoena; and
(C) That the records were prepared by the personnel of the company acting under the control of the company, in the ordinary course of business.
(2) If the company has none of the records described, or only part thereof, the custodian shall so state in the affidavit and file the affidavit and such records as are available.
(b)

(1) Where the personal attendance of the custodian of telephone company records is required, the subpoena duces tecum shall contain a clause which reads:

“The custodian must personally attend in order to comply with this subpoena.”

(2) Where both the personal attendance of the custodian and the production of the original record are required, the subpoena duces tecum shall contain a clause which reads:

“The custodian must personally attend and produce the original records in order to comply with this subpoena.”

(3) Where the personal attendance of the custodian is required, the reasonable cost of producing the records and attendance of the custodian shall be taxed as costs of court, subject to review by the court after notice and hearing to the involved parties and to the telephone company.
(c)

(1) If the records are confidential by state or federal law, the copy of the records shall be separately enclosed in an inner envelope or wrapper, sealed, with the title and number of the action, name of witness and date of subpoena clearly inscribed thereon. The sealed envelope or wrapper shall then be enclosed in an outer envelope or wrapper, sealed, and directed as follows:

(A) If the subpoena directs attendance in court, to the clerk of such court or to the judge thereof;
(B) If the subpoena directs attendance at a deposition, to the officer before whom the deposition is to be taken, at the place designated in the subpoena for the taking of the deposition or at the officer’s place of business; and
(C) In other cases, to the officer, body or tribunal conducting the hearing, at a like address.
(2) Unless the sealed envelope or wrapper is returned to a witness who is to appear personally, the copy of the records shall remain sealed and shall be opened only at the time of trial, deposition, or other hearing, upon the direction of the judge, court, officer, body or tribunal conducting the proceeding, in the presence of all parties who have appeared in person or by counsel at such trial, deposition or hearing. Records which are not introduced in evidence or required as part of the records shall be returned to the person or entity from whom received.
(d)

(1) The copy of the record shall be admissible in evidence to the same extent as though the original thereof were offered and the custodian had been present and testified to the matters stated in the affidavit.
(2) The affidavit shall be admissible in evidence and the matters stated therein shall be presumed true in the absence of a preponderance of evidence to the contrary.
(e) In view of the property right of a telephone company in its records, original records may be withdrawn after introduction into evidence and copies substituted, unless otherwise directed for good cause by the court, judge, officer, body or tribunal conducting the hearing. The custodian may prepare copies of original records in advance of testifying for the purpose of making substitution of the original record, and the reasonable charges for making such copies shall be taxed as costs of court. If copies are not prepared in advance, they can be made and substituted at any time after introduction of the original record, and the reasonable charges for making such copies shall be taxed as costs of court.
(f) Notwithstanding any other law to the contrary, telephone company records that have been subpoenaed may be delivered by facsimile to local law enforcement officials. The custodian or other authorized agent of the company subsequently, by registered or certified mail, shall file with the court clerk a true and correct copy of all records described in such subpoena.
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