Senate Bill No. 378
(By Senators Helmick, Fanning, Ross,
Kessler, Prezioso, White, Anderson and Sprouse)
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[Introduced February 2, 1998; referred to
the Committee on Banking and Insurance.]
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A BILL to amend and reenact section thirty-five, article four,
chapter thirty-one-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
reproduction of checks and other records; disposition of
originals; and clarifying certain trust and fiduciary
recordkeeping requirements for banking institutions.
Be it enacted by the Legislature of West Virginia:
That section thirty-five, article four, chapter thirty-one-a
of the code of West Virginia, one thousand nine hundred thirty- one, as amended, be amended and reenacted to read as follows:
ARTICLE 4. BANKING INSTITUTIONS AND SERVICES GENERALLY.
ยง31A-4-35. Reproduction of checks and other records;
admissibility of copies in evidence; disposition of originals; record production generally.
(a) Any bank may cause to be copied or reproduced, by any
photographic, photostatic, microphotographic or by similar
miniature photographic process or by nonerasable optical image
disks (commonly referred to as compact disks) or by other records
retention technology approved by rule of the commissioner of
banking, all or any number of its checks, and all or any part of
its documents, books, records, correspondence and all other
instruments, papers and writings, in any manner relating to the
operation of its business, other than its notes, bonds, mortgages
and other securities and investments, and may substitute such
copies or reproductions either in positive or negative form for
the originals thereof. Thereafter, such copy or reproduction in
the form of a positive print thereof, shall be deemed for all
purposes to be an original counterpart of and shall have the same
force and effect as the original thereof and shall be admissible
in evidence in all courts and administrative agencies in this
state, to the same extent, and for the same purposes as the
original thereof, and the banking institution may destroy or
otherwise dispose of the original, but every banking institution
shall retain either the originals or such copies or reproductions
of its records of final entry, including, without limiting the
generality of the foregoing, cards used under the card system and
deposit tickets for deposits made, for a period of at least six years from the date of the last entry on such books or the date
of making of such deposit tickets and card records, or, in the
case of a banking institution exercising trust or fiduciary
powers, the accounting and legal records shall be retained until
the expiration of six years from the date of termination of any
trust or fiduciary relationship by a final accounting, release,
court decree or other proper means of termination, and the
supporting documentation for fiduciary account transactions shall
be retained for six years from the date of entry.
All circumstances surrounding the making or issuance of such
checks, documents, books, records, correspondence and other
instruments, papers or writings, or the photographic, photostatic
or microphotographic copies or optical disks or other permissible
reproductions thereof, when the same are offered in evidence, may
be shown to affect the weight but not the admissibility thereof.
Any device used to copy or reproduce such documents and
records shall be one which correctly and accurately reproduces
the original thereof in all details and any disk or film used
therein shall be of durable material.
(b) When a subpoena duces tecum is served upon a custodian
of records of any bank in an action or proceeding in which the
bank is neither a party nor the place where any cause of action
is alleged to have arisen and the subpoena requires the
production of all or any part of the records of the bank relating to the conduct of its business with its customers, the bank shall
be entitled to a search fee not to exceed ten dollars, together
with reimbursement for costs incurred in the copying or other
reproduction of any such record or records which have already
been reduced to written form, in an amount not to exceed seventy- five cents per page. Any and all such costs shall be borne by
the party requesting the production of the record or records.
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(NOTE: The purpose of this bill is to clarify certain trust
and fiduciary recordkeeping requirements for banking
institutions.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.)