A custodian of records affidavit is a sworn statement from the person responsible for a provider's records saying how the medical records were made and kept and that the copies produced are true and complete. It lets a set of records be offered as business records without calling that person to testify, when the court's rules allow it.
What a custodian of records affidavit states
A custodian of records affidavit states who the custodian is, that the records were made at or near the time by someone with knowledge and kept in the provider's regular course of business, and that the copies are true and complete. Most forms add the page count. This is a general description, not legal advice.
The federal model for those statements is the business records exception. The Federal Rules of Evidence, Rule 803 on Cornell LII, read on 2026-10-16, sets out in paragraph (6) the conditions for a record of a regularly conducted activity: the record was made at or near the time by, or from information passed on by, someone with knowledge; it was kept in the course of a regularly conducted activity; and making it was a regular practice of that activity. Paragraph (6)(D) says those conditions can be shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification.
Read a custodian of records affidavit as a short list of claims, each of which can be checked against what arrived:
- Identity and role. The signer's name, title and employer, and a statement that they are the custodian or are otherwise qualified to certify the records.
- The records covered. The patient's name, the date range searched and the record types included, such as office notes, imaging reports, images or billing records.
- How the records were made. The business-record conditions in plain words: made at or near the time, by or from someone with knowledge, kept in the regular course of business.
- Completeness. A statement that the attached copies are true and complete copies of the records described.
- Page count. The number of pages, or the number of discs or files, produced.
- Signature and oath. The signature, the date, and either a notary's seal or a declaration under penalty of perjury, depending on the form.
State forms differ in wording, order and what they require. A state may have its own statute or court form for records affidavits, and may require specific language. Confirm the required form for the jurisdiction with counsel or the court's rules before relying on any template.
Who signs a custodian of records affidavit?
A custodian of records affidavit is usually signed by someone in the provider's health information management or release of information department, or by a copy vendor that handles record requests for the provider. It is rarely the treating doctor. The signer speaks to how the records were kept, not to the care described in them.
The federal rule is written broadly. Rule 902 of the Federal Rules of Evidence on Cornell LII, read on 2026-10-16, lists in paragraph (11) a certification "of the custodian or another qualified person". That wording does not limit the signer to someone with the title "custodian". Whether a particular signer counts as qualified is a question for counsel and the court's rules.
In practice, who signs follows who handles the request:
- Hospitals and health systems. The health information management department or its release of information desk usually signs. A large system may have one custodian for all its hospitals, or one per facility.
- Practices using a copy vendor. A vendor that processes requests for a practice often signs on the practice's behalf, with a statement that it is acting as the provider's agent.
- Small practices. An office manager or practice administrator may sign, since that person keeps the charts.
- Billing companies. When billing is handled outside the practice, the billing company or the practice's billing office may be the right custodian for the ledger.
A treating doctor can be asked to sign, but doctors are usually asked about the care, not the filing system. Asking a doctor to certify record-keeping can slow the request and may produce a form the doctor is not the right person to sign.
Custodian affidavit versus a records custodian deposition
A custodian affidavit is a written substitute for live testimony about how the records were made and kept. A records custodian deposition puts the custodian under oath to answer questions in person or by written questions. Court rules, not the person requesting the records, decide when the affidavit is accepted in place of testimony.
Under the federal rules the substitute is explicit. Rule 803(6)(D) allows the business-record conditions to be shown by a certification complying with Rule 902(11), and Rule 902(11) treats a certified domestic business record as self-authenticating. Rule 902(11) also sets a condition: before the trial or hearing, the party offering the record must give the other side reasonable written notice and make the record and certification available for inspection, so the other side has a fair chance to challenge them.
The advisory committee note on the 2000 amendment to Rule 902, printed on the same Cornell page, says a declaration that satisfies 28 U.S.C. 1746 would satisfy the declaration requirement of Rule 902(11), as would any comparable certification under oath. Under the federal rule, then, a declaration under penalty of perjury can serve without a notary. State forms may still require notarization. Check the rule that applies.
A deposition still has its uses. When the other side challenges the records' trustworthiness, when the records have obvious problems such as missing pages or altered entries, or when the court's rules do not accept affidavits for that purpose, live testimony may be needed. Rule 803(6)(E) says the exception applies only if the opponent does not show that the source or the method of preparation indicates a lack of trustworthiness. Whether to rely on an affidavit or schedule a deposition is a decision for the attorney.
Asking for a custodian of records affidavit with the records request
The simplest way to get a custodian of records affidavit is to ask for it in the original records request. Send the affidavit form the jurisdiction expects, ask the provider to complete it for the records produced, and ask that the page count be filled in. Requesting it later often means a second fee and a second wait.
What to include with the request:
- The form itself. Many providers will complete a form you supply, as long as it is the kind they recognize. If the jurisdiction has a statutory or court form, use that one.
- A clear description of the records. The same patient name, date range and record types as the request. If the request asks for images and billing records too, say whether the affidavit should cover them.
- A line for the page count. Ask the provider to state the number of pages, or the number of discs and studies for images. A blank page count makes the affidavit hard to check later.
- Signature instructions. Say whether the form needs a notary or a declaration under penalty of perjury, based on what counsel has confirmed.
The legal basis for the records request itself, authorization, subpoena or court order, is covered in which authorization a records retrieval request needs. If you use a retrieval service, tell it at the start that you want certified records; the overview of what a retrieval service should deliver at the end explains where certifications fit in its handoff, and the broader guide to medical record retrieval services covers the rest of the job.
Image studies need extra wording. A disc is not counted in pages, so ask the affidavit to name the studies and dates on the disc. The guide to requesting radiology images for a legal case covers how to name those studies in the request.
Does each provider need its own custodian of records affidavit?
Each provider, and often each custodian within a provider, needs its own custodian of records affidavit. One affidavit covers only the records that signer keeps. A hospital's chart, its billing records and its image archive may each have a different custodian, and a practice with several locations may keep records separately at each one.
Common splits that call for separate affidavits:
- Clinical and billing records. A hospital's health information department may certify the chart while a separate business office, or an outside billing company, keeps the itemized bill and payment history.
- Imaging. The image archive may be run by the imaging department or an outside company. The custodian who certifies the radiology reports may not be able to certify the images.
- Several locations. A practice with offices in different towns may keep separate charts at each. Ask whether one custodian can certify records from all locations.
- Separate legal entities. An emergency physicians' group, an anesthesia group or a radiology group may bill and keep records apart from the hospital where they work. Each is its own custodian.
Plan the affidavits when you plan the requests. A request log with one row per custodian, not one per provider name, shows at a glance which affidavits are still outstanding.
Custodian affidavits that do not match the records produced
A custodian affidavit that does not match the records produced needs fixing before anyone relies on it. The usual mismatches are a page count that differs from what arrived, a date range that differs from the request, a missing signature or notarization, and billing or imaging records left out of what the affidavit describes.
Check every affidavit against the delivered set as soon as it arrives. Count the pages yourself. If the records will be Bates numbered, the numbers make that count easy to repeat; the format is explained in what a Bates number on a medical record looks like.
Affidavit check table
Every value below is fictional and is here only as an example.
| Item | What the affidavit states | What arrived | Match? |
|---|---|---|---|
| Custodian | Jordan Sample, Health Information Manager, Northfield Example Clinic | Records from Northfield Example Clinic | Yes |
| Patient | Dana Example, DOB 1984-05-17 | Same name and DOB on every page | Yes |
| Date range | 2025-01-01 to 2026-06-30 | Visits from 2025-01-14 to 2026-06-02 | Yes |
| Record types | Office notes, imaging reports, billing records | Office notes, imaging reports, itemized bill | Yes |
| Page count | 214 pages | 211 pages | No: 3 pages short |
| Signature | Signed and dated 2026-07-09 | Signed and dated | Yes |
| Notarization | Notary seal, commission number shown | Seal present | Yes |
In this example, the affidavit is otherwise in order but certifies three more pages than arrived. Before anyone relies on it, ask the provider which pages are missing and whether they were left out of the copy or miscounted on the form. Either the provider sends the missing pages or it issues a corrected affidavit with the right count.
Other mismatches to look for:
- Wrong date range. The affidavit covers 2025 only, but the request asked for 2025 and 2026. The 2026 records may exist and be uncertified.
- Missing signature or oath. An unsigned form, a missing date, or a form that needs notarization but has no seal.
- Billing records left out. The affidavit lists clinical records only, though billing records arrived in the same package.
- Generic wording. The form names no patient, no date range or no page count, so it could describe any set of records.
When a provider states that no records exist for some dates, that is a different statement with a different purpose; it is covered in no-records certifications when the gap is real. Whether a flawed affidavit can still be used is a question for counsel and the court's rules.
Schema Care reads fields such as encounter dates, problem lists, allergies and vitals from medical records, and charges and balances from billing statements, as the homepage list of document types describes; it does not request, count or certify records.