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Litigation Exception

The Act does not apply when financial records are sought through the Federal Rules of Civil or Criminal Procedure or through other rules in connection with any judicial proceeding to which the customer and the government are parties. 12 U.S.C. § 3413(e). Upon issuance of a trial subpoena, for the financial records of a criminal defendant, pursuant to Rule 17(c) of the Federal Rules of Criminal Procedure the notice, challenge, reporting and other requirements of the Act do not apply. Some financial institutions may insist upon issuance of a certificate of compliance in connection with a trial subpoena for records of a criminal defendant; such a certification that the Act is inapplicable by virtue of the litigation exception may be issued. For the reasons set out in the customer authorization section of this manual, no notice is required in connection with Rule 17(c) trial subpoenas even though the records sought are held in a joint husband-wife or partnership account.