However, I've been able to resolve many of these situations by asking the agent or contacting the agent’s supervisor to reach some sort of agreement about what’s really being sought in the subpoena. I generally begin these conversations by saying I don’t believe it’s 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 that’s 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 names—some real, some fake—and 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 don’t want to interfere with a criminal investigation. It’s 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 don’t want to accidently cross the line.
The best solution is to contact your attorney if you’re served with one of these subpoenas. Do not provide all the documents on site just because an agent is intimidating or seems to think he’s 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 attorney’s blessing within the time lines provided.
No one wants you to hinder the law-enforcement responsibilities of the U.S. or local government. However, there’s a trust between you and your tenants that their information will be reasonably protected by you, if possible. Although there’s 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 you’re 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 .