Q: I was a partner of a Nebraska limited partnership that began in 1954 and ended June 2007. If the partnership agreement contained no record-keeping requirements, what length of time would the books, records and materials regarding the partnership and its activities need to be retained by the general partner?
A: There's no statutory requirement in NE. However, the IRS would generally require any legal entity to maintain its records for at least seven years. So, the failure to do so, would be a breach of due care by the general partner. Which makes seven years the operative duration.
Q: If the partnership agreement did state a length of time for document retention, would that requirement persist beyond the end of the partnership?
A: Yes. Because the IRS could still come back and audit the organization.
Q: In other words if the partnership agreement specified a three-year document retention period, would the general partner be required to still maintain possession of the records today for a partnership that ended in June 2007?
Q: It is the 1993 Restated Partnership Agreement that I need a copy of. If the general partner has failed in his duty of record retention, what are the consequences? Can a court make a determination that this failure was intentional?
A: You could sue for breach of due care, and yes, the court could find that the action was willful.
Q: If the successor LLC contains the language: "WHEREAS, the Members (defined below) are all of the partners of a previously created Nebraska general partnership under the name M&M pursuant to a partnership agreement dated as of October 1, 1954 and a Restated Partnership Agreement dated as of December 22, 1993, and WHEREAS, the Members desire to convert the Partnership into a Missouri limited liability company, NOW, THEREFORE the Members agree as follows:" referencing the Restated Partnership Agreement, would the Manager of that LLC be required to retain a copy of that restated Agreement for three years if the LLC Operating Agreement contained this language: "5.5 COMPANY INFORMATION. Upon request, the Manager shall supply to any Member information regarding the Company or its activities. Each Member or his authorized representative shall have access to and may inspect and copy all books, records and material in the Manager's possession regarding the Company of its activities." The language "all .. material(s) in the Manager's possession" makes it sound like he can avoid responsibility by discarding or simply claiming not to have any particular document. Can he do that?
A: He could, but he would appear pretty silly to a court, in my view.
Q: What, if anything, can be done about it?
A: Sue for breach of due care.
Q: Is there any way to compel the draftor of the Restated Partnership Agreement (a law firm) to produce the document, if they have it?
A: Yes. By subpoena. The attorney-client privilege begins and ends with communications between attorney and client. It does not extend to a document that was intended for third parties. But, if the document isn't signed, then there's no way to know if what the attorney has is actually the final draft used by the partnership.
Q: Are they likely to be retaining a copy of an agreement they drafted in 1993?
A: Yes, unless they turned over their file to the client - which is possible.
Q: Can I make demand for a copy from them simply by having been a partner of M&M?
A: You would have to sue the partnership or its former members. Then you could subpoena the document. Otherwise, the law firm doesn't have to comply with your request.
Q: My mailing address is the same today as it was in 1993. How would one locate that law firm if their identity was unknown?
A: Sue the partnership and its former members and then force disclosure of the law firm's identity.
Q: If I do know the identity of the law firm, and I believe I do, how should they be approached on the subject?
A: With a subpoena, after suing the former partners and the partnership. Otherwise, you'll be wasting your time.