Section 16-3-301.1 - Court orders for the production of records - definitions(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.L. 2003: Entire section added, p. 978, § 17, effective April 17. L. 2004: (4)(a)(I), (6)(e), (11)(a), (11)(b), and (11)(d) amended, p. 1377, § 2, effective July 1. L. 2010: (4)(c)(I), (5)(c), (6)(a), and (11)(c) amended, (HB 10-1132), ch. 122, p. 406, §1, effective August 11. L. 2012: (5)(b), (6)(a), and (6)(c) amended, (SB 12-175), ch. 208, p. 843, § 59, effective July 1.