Many auctioneers licensed by the state in which they operate are required to maintain records (contracts, advertising, settlement statements, etc.) for a prescribed period of time.
For instance, my home state of Ohio requires I maintain Ohio auction records for a minimum of two (2) years. In Ohio (and some other license-states) not turning over [producing] records can constitute a contempt of court charge, as detailed here:
The department may compel by subpoena the attendance of witnesses to testify in relation to any matter over which it has jurisdiction and that is the subject of inquiry and investigation by it, and require the production of any book, paper, or document pertaining to that matter. In case any person fails to file any statement or report, obey any subpoena, give testimony, or produce any books, records, or papers as required by such a subpoena, the court of common pleas of any county in the state, upon application made to it by the department, shall compel obedience by attachment proceedings for contempt, as in the case of disobedience of the requirements of a subpoena issued from that court, or a refusal to testify therein.
So would an auctioneer ever refuse to produce his copy of his contact, audio or video recordings, copies of advertising, etc.? Yes, auctioneers sometimes reject such requests when they feel the documents would not favor their case.
For example, several years ago an auctioneer had advertised an absolute auction and sold everything to the highest bidder. The seller cried foul, as many of his items had reserves as noted in the contract.
A lawsuit followed where the auctioneer claimed he misplaced or lost the file — including the contract and copies of all advertising. Later it was discovered that the auctioneer indeed had all these records (at his attorney’s office) and the court ruled in the seller’s favor.
State laws can dictate auction-related record retention, but that doesn’t mean those records are necessarily housed nor produced when requested. This auctioneer withheld these records because they incriminated him in the lawsuit.
In a license-state or jurisdiction, failing to produce records in compliance with license law/regulation would likely result in license suspension or revocation. As we recently discussed, there is a presumption of innocence, but when records aren’t produced, often courts and/or regulatory agencies presume guilt.
Here’s that previous article https://mikebrandlyauctioneer.wordpress.com/2019/12/23/can-auctioneers-be-presumed-guilty/ where presumption of innocence should be the default position.
As an attorney recently confided in me (in another case,) he had recommended records be withheld in light of the penalty for lack of production being hopefully less than the likely punishment necessitated by the details in those records.
Record retention? Always a good idea. Record production? Maybe a good idea.
Mike Brandly, Auctioneer, CAI, CAS, AARE has been an auctioneer and certified appraiser for over 30 years. His company’s auctions are located at: Mike Brandly, Auctioneer, RES Auction Services and Goodwill Columbus Car Auction. He serves as Distinguished Faculty at Hondros College, Executive Director of The Ohio Auction School, an Instructor at the National Auctioneers Association’s Designation Academy and America’s Auction Academy. He is faculty at the Certified Auctioneers Institute held at Indiana University and is approved by the The Supreme Court of Ohio for attorney education.
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