Subpoena for Plan Records

[Dougsbpc]

We have a former client who sponsored a 401(k) plan for more than 12 years. They left us for an insurance company about 3 years ago. We received a letter firing us 3 years ago.

The plan was always clean so its doubtful that anything is wrong with the plan.

A former employee is suing the plan sponsor. As part of that, we received a subpoena for plan all plan records. All 12 years and all records.

Question: For all the years we handled the plan, we provided the plan sponsor with excellent very detailed reports and plan documents. Can we bill the client for our time? It will involve a considerable amount of it when we are talking about 12 years of all records. That would be 5 years from when the employee became a participant and 7 years before she became a participant.

That plaintiff's attorney mentioned that they already enclosed the $15 check payable to us and that will be all we get.

We would not be looking to make money, just cover our costs.

[MoJo]

It depends on the jurisdiction you are in, but if you are not a party to the lawsuit, then you have every right to be paid not only for the work but for any copies produced. Usually, it is sufficient to make the records available in your office for inspection by counsel - and if that doesn't work, consult your own counsel who can advise you more appropriately.

[hr for me]

I agree I would consult my own counsel especially if you have some way of verifying you proved the records needed to the client and that they were responsible for maintaining them. I know at the very large HR consulting firm I worked for, we only saved records 7 years but did provide reports and copies of participant statements every quarter to the plan sponsor.