Responding to Subpoenas for Health Department Records

HEALTH LAWNumber 82 September 2005RESPONDING TO SUBPOENAS FORHEALTH DEPARTMENT RECORDS John Rubin and Aimee WallGeneral Principles 2Mechanics of Subpoenas 5General Points to Consider in Responding to Subpoenas 9Responding to Subpoenas for Confidential Medical Information 13Local health departments, like most public entities, accumulate a lot of personalinformation about the people that they serve. Often, the information relates to aperson’s health condition or medical care. On the one hand, health departments musthold in confidence information protected by law. On the other hand, suchinformation may be relevant in a range of legal proceedings. In a criminal case, forexample, the health department may have important information about the victim ofthe crime or the defendant. Although the health department, not being a party to thecase, would not have a direct interest in the outcome of the case, it wouldnonetheless be drawn in because it has information that the parties want.The subpoena is the typical mechanism for obtaining records from someone whois not a party to a case. A subpoena directs the person named in it to appear at adesignated time and place, often with certain records. In responding, a healthdepartment and its employees must balance their duty to protect confidentialinformation against their duty to respond to the subpoena’s commands.Through questions and answers, this bulletin discusses these potentiallyconflicting obligations. The first two sections discuss the basic rules governingsubpoenas—how they are issued and served, when a person can obtainreimbursement for expenses, and so on. The remaining sections deal with the processof responding to subpoenas, discussing the differences in responding to subpoenasfor confidential versus non-confidential information.________________________John Rubin specializes in criminal law and procedure; Aimee Wall specializes inpublic health law, including medical confidentiality law. Both are Institute ofGovernment faculty members.

Health Law Bulletin No. 82 September 2005The assumption throughout this bulletin is thatthe health department is not a party to the case. Whenit is a party to a case, the opposing party will usuallyuse devices other than a subpoena to obtaininformation, such as interrogatories or requests toproduce documents, and the opposing party willnormally contact the department’s counsel first, whocan then advise the department how to proceed. Incontrast, when a health department is not a party to acase, the party seeking the records ordinarily willdeliver a subpoena directly to the departmentemployee thought to have the records, not to thedepartment’s counsel. This bulletin is therefore aimedat the health department employee who has receivedor may receive a subpoena and who must decide, atleast initially, how to proceed. 1Readers should keep in mind that this bulletinoffers general guidance only. It merely sketches outsome of the records that health departments musthold in confidence; it does not attempt to specify thevarious kinds of records within each category.Further, health departments should decide on aprocedure for responding to subpoenas that meetstheir own needs. Some may want to alert theircounsel whenever they receive a subpoena. Othersmay decide to adopt a protocol for departmentpersonnel to follow, consulting with counsel asquestions arise. Readers should feel free toincorporate any of the information in this bulletin indeveloping their own procedure for responding tosubpoenas.1. Other articles are available on the responsibilities ofmental health facilities and schools in responding tosubpoenas. See John Rubin and Mark Botts, Responding toSubpoenas: A Guide for Mental Health Professionals,POPULAR GOVERNMENT, Summer 1999, at 27–38 (posted atwww.sog.unc.edu/pubs/electronicversions/pg/botts.pdf);John Rubin, Subpoenas and School Records: A SchoolEmployee’s Guide, SCHOOL LAW BULLETIN, Spring 1999, at1–11 (posted at www.sog.unc.edu/pubs/electronicversions/slb/sp990111.pdf). Those articles were written before the2003 changes to Rule 45 of the North Carolina Rules ofCivil Procedure, the general rule governing subpoenas.Those changes are identified where relevant in this bulletin,but they do not affect the basic approach recommended inthe previous articles on how to balance the obligations torespond to a subpoena and protect confidential information.General PrinciplesQuestion 1. Are there different types ofsubpoenas?Yes. There are two basic types:• a subpoena to testify (also called a witnesssubpoena), which directs the person namedin the subpoena to appear for the purpose ofgiving testimony; and• a subpoena to produce documents (alsocalled a document subpoena or subpoenaduces tecum), which directs the namedperson to appear and produce documents.The subpoena that you as a health departmentemployee receive may not be specifically labeled as awitness subpoena or document subpoena, but it willstate whether you are being called to testify, producedocuments, or both. The attached form subpoena,issued by the North Carolina Administrative Officeof the Courts, contains boxes that the subpoenaingparty checks off (in the section entitled “YOU ARECOMMANDED TO”), which indicate the purposefor which you are being subpoenaed. 2 The form istypically used in state court proceedings, but it is notrequired and the subpoena you receive may beformatted differently.Question 2. In what kinds of proceedingscan a subpoena be used?A subpoena can be used to summon its recipientto a wide range of proceedings, including:• civil and criminal trials and hearings(including juvenile court proceedings) instate or federal court;• depositions in civil cases, which areproceedings before trial in which the partiesto the case (the plaintiff and defendant) havethe opportunity to question witnesses andexamine documents;• arbitrations, which are like trials except thatthe “judge” who hears the evidence anddecides the case is often a private attorneyselected by the parties; and2. See ADMINISTRATIVE OFFICE OF THE COURTS,NORTH CAROLINA JUDICIAL DEPARTMENT FORMS MANUAL,AOC-G-100 (Oct. 2003) (posted at www.nccourts.org/Forms/Documents/556.pdf).2

September 2005 Health Law Bulletin No. 82• hearings before an administrative law judge,administrative agency, or professionallicensing board.In all of these proceedings, the general principlesgoverning subpoenas are the same. There are somedifferences, however, in the procedural details, suchas how a subpoena is issued or how far a person canbe compelled to travel.This bulletin concentrates on trials, other in-courthearings, and depositions in state court, theproceedings for which health department employeesare most likely to receive a subpoena. Rule 45 of theNorth Carolina Rules of Civil Procedure, a set ofprocedures followed in state court, governssubpoenas for in-court proceedings (trials andhearings) in both civil and criminal cases. 3 Withminor differences, the rules on subpoenas areessentially the same for both types of cases. Rule 45also applies to subpoenas for depositions, which areused primarily in civil cases. For purposes of thisbulletin, the most important difference between an incourtproceeding, such as a trial, and a deposition isthat at a deposition, no judge is present to rule onwhether a subpoena is proper. This difference mayaffect the way you respond to a subpoena,particularly one that calls for the production ofconfidential information (see Question 29, below).Question 3. Does a case have to bepending before a subpoena may be used?Generally, yes. For a party to obtain a subpoena,a case must have been initiated and must be pendingin the particular forum (civil court, criminal court,administrative agency, and so on). It is generallyimproper for a party to issue a subpoena when nocase is pending. 43. See G.S. 8-59, -61; G.S. 15A-801, -802.4. See North Carolina Rules of Professional Conduct,Ethics Op. 236 (North Carolina State Bar Ethics Comm.,Jan. 1997) (State Bar finds that it would be improper forattorney to issue subpoena if no case is pending; opinionalso states that it would be improper for attorney to issuesubpoena for time and place when no proceeding isscheduled, but revised Rule 45 now authorizes such asubpoena in the circumstances described in this bulletin); Inre Superior Court Order, 70 N.C. App. 63, 318 S.E.2d 843(1984) (Rule 45 does not authorize issuance of subpoenabefore action has commenced), rev’d on other grounds, 315N.C. 378, 338 S.E.2d 307 (1986).Before the 2003 changes to Rule 45 of the NorthCarolina Rules of Civil Procedure, there also had tobe some sort of proceeding scheduled to which therecipient was being subpoenaed. The 2003 changesmodified this requirement for subpoenas fordocuments (but not subpoenas to testify). Forexample, under the former rule, a party in a civil casewould have to schedule a deposition, to which theparty would then subpoena the custodian, even if theparty merely wanted to inspect documents in thecustodian’s possession and did not want to take anytestimony. Under the revised rule, a party may obtaina subpoena in a pending case directing the recipientto produce documents at a designated time and place,such as the issuing party’s office, even though nodeposition or other proceeding is scheduled for thattime and place. 5In limited circumstances, a party may obtain asubpoena or its equivalent before a case is filed. Thus,some North Carolina agencies are authorized to issuesubpoenas for information necessary to the agency’sinvestigation. See, e.g., G.S. 15A-298 (authorizing StateBureau of Investigation to issue administrative subpoenasto compel carriers to produce telephone records that arematerial to active criminal investigation). In the absence ofa statute authorizing the issuance of a subpoena before acase is filed, a party must ask a judge to issue an order forproduction of records. See, e.g., In re Superior Court Order,315 N.C. 378, 338 S.E.2d 307 (1986) (court has inherentauthority in some circumstances to issue order compellingproduction of records).5. The change in Rule 45 authorizing this proceduremay not be readily apparent. It is reflected in the followingitalicized portion of revised Rule 45(a)(2): “A command toproduce evidence may be joined with a command to appearat trial or hearing or at a deposition, or any subpoena maybe issued separately.” See Bill Analysis, S.L. 2003-276,prepared by Trina Griffin, North Carolina GeneralAssembly Research Division (June 27, 2003) (sointerpreting quoted language); Memorandum to CourtOfficials Re: S.L. 2003-276, prepared by Pamela WeaverBest, Administrative Office of the Courts Division of Legal& Legislative Services (Sept. 29, 2003) (so interpretingquoted language). These memos are available from theauthors. The revised language is comparable to Rule45(a)(1) of the Federal Rules of Civil Procedure, which hasauthorized a similar procedure in federal cases. See 9JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE §45.02, at 16–17 (3d ed. 2005).3

Health Law Bulletin No. 82 September 2005Question 4. May I disclose confidentialinformation in response to a subpoenaalone?Unless other conditions are satisfied, a subpoenais usually not sufficient to authorize disclosure ofconfidential information. Most confidentiality laws—including those dealing with medical information—contain some provision permitting disclosure ofconfidential information in legal proceedings. Someallow disclosure in response to a subpoena, but mostimpose stricter conditions, such as entry of an orderby a judge or prior notification of the individual whois the subject of the records. If you receive asubpoena for confidential information, you mustconsider the particular statute or regulation governingthe information and determine the conditions underwhich you may disclose it. Questions 26 through 32discuss those conditions.An attorney who issues a subpoena shouldlikewise be wary of examining confidentialinformation on the strength of the subpoena alone. Insome circumstances, an attorney who reviewsconfidential information without appropriateauthorization may be subject to sanctions or evencivil liability. 6 For this reason, if they anticipate thatrecords contain confidential information, someattorneys (particularly in criminal cases) prefer toapply directly to a judge for an order for productionof records rather than issue a subpoena themselves. 76. See Bass v. Sides, 120 N.C. App. 485, 462 S.E.2d838 (1995) (before obtaining judge’s permission, plaintiff’sattorney reviewed confidential medical records ofdefendant that records custodian had sealed and mailed toclerk of court in response to subpoena; judge orderedplaintiff’s attorney to pay defendant’s attorney fees,totaling approximately $7,000, and prohibited plaintifffrom using records at trial); Susan S. v. Israels, 67 Cal.Rptr. 2d 42 (Cal. Ct. App. 1997) (attorney read anddisseminated patient’s confidential mental health recordsthat treatment facility had mistakenly sent directly to him inresponse to subpoena; court allowed patient’s suit againstattorney for violation of state constitutional right ofprivacy); North Carolina Rules of Professional Conduct,Ethics Op. 252 (North Carolina State Bar Ethics Comm.,July 1997) (attorneys should refrain from reviewingconfidential materials inadvertently sent to them byopposing party).7. In criminal cases, such an application by a criminaldefendant has come to be known as a Ritchie motion,named after a U.S. Supreme Court decision authorizingcriminal defendants to obtain access to potentiallyexculpatory information, even if confidential, in the handsResponding to such an order is discussed further inQuestion 25, below.Question 5. What happens if I discloseconfidential information when notpermissible?Several adverse consequences may follow. Youor your health department could be subject to afederal investigation and possibly civil penalties orcriminal prosecution, depending on the circumstancessurrounding the disclosure. 8 You could be subject tocriminal prosecution under state law for disclosingconfidential information. For example, improperdisclosure of information identifying a person withcertain communicable diseases is a misdemeanor. 9As an employee of the health department, you couldalso be subject to discipline (including discharge) forfailing to comply with confidentiality laws or healthdepartment confidentiality policies. In rare cases, theperson whose privacy has been compromised maybring a private lawsuit requesting money damages orof a third person. See Pennsylvania v. Ritchie, 480 U.S. 39(1987); 1 JOHN RUBIN, THOMASIN HUGHES & JANINEFODOR, NORTH CAROLINA DEFENDER MANUAL § 4.7A, at35–38 (May 1998) (describing procedure to obtain courtorder for production of records); see also In re AlbemarleMental Health Center, 42 N.C. App. 292, 256 S.E.2d 818(1979) (in certain circumstances, prosecutor may obtaincourt order for production of records held by custodian ofrecords).8. 42 U.S.C. §§ 1320(d)(5), (6) (outlining civil andcriminal penalties for violations of the administrativesimplification provisions of the Health InsurancePortability and Accountability Act of 1996 [HIPAA]); 70Fed. Reg. 20,224 (April 18, 2005) (interim final regulationgoverning imposition of civil monetary penalties forviolations of the HIPAA Privacy Rule); Scope of CriminalEnforcement Under 42 U.S.C 1320d-6, Mem. Op. forGeneral Counsel, U.S. Dept. of Health and Human Servicesand Senior Counsel to the Deputy Attorney General, U.S.Dept. of Justice (available at www.usdoj.gov/olc/2005opinions.htm) (interpreting scope of HIPAA’scriminal penalties).9. See G.S. 130A-143 (establishing permissibledisclosures of information identifying persons with certaincommunicable diseases); 130A-25 (making violations ofChapter 130A a misdemeanor); 14-3(a) (classifying anyunclassified misdemeanors as Class 1 misdemeanors).4

September 2005 Health Law Bulletin No. 82other relief against you, the health department, or thecounty. 10Question 6. What are permissibleresponses to a subpoena?Ordinarily, you must respond to a subpoena insome fashion even if you believe that the subpoenaalone does not permit you to disclose the confidentialinformation it seeks. You have several possibleoptions.Before the proceeding commences, you maycontest the subpoena—that is, you may challengeit—if you believe it is objectionable. You may do thisby making a motion to quash or modify, which asksthe court to invalidate or at least limit the subpoena.In the case of a subpoena to attend a deposition (or toproduce records when no proceeding is scheduled),you may submit written objections to the party whoissued the subpoena in lieu of filing a motion with thecourt (see Question 23, below). To contest asubpoena, ordinarily you will need to consult with anattorney.In some circumstances, you may be able to makealternate arrangements before the proceedingcommences with the party who issued the subpoena,as he or she has the authority to excuse you from thesubpoena’s requirements. 11 For example, a party maybe willing to excuse you from appearing if youprovide the requested records in advance. You mayagree to such an arrangement if the records are notconfidential, but ordinarily you may not if they areconfidential (see Question 21, below). If you receivea subpoena for documents, you also may be able tomail the records to the court ahead of time and avoidappearing; but, if the records are confidential, youmay be unable to use this procedure (see Questions20 and 30, below).Often the easiest course is to appear at theproceeding as directed by the subpoena. It isimportant, however, to understand the limits on youractions when the subpoena seeks confidentialinformation, either through your testimony or fromrecords. If the patient or other subject of confidentialinformation has not given you proper authorization to10. See, e.g., Jennings v. Univ. of North Carolina atChapel Hill, 340 F. Supp. 2d 666, 678 (M.D.N.C. 2004)(summarizing North Carolina law related to the commonlaw tort of invasion of privacy).11. See generally G.S. 8-63 (witness summoned toappear in court may be excused by party at whose instancewitness was summoned).disclose the information, you may appear at theproceeding but ordinarily may not disclose theinformation without an order from the judge. Theoption of appearing at the proceeding and awaitingfurther direction by the judge is discussed inQuestion 29, below.Question 7. Are there any circumstancesin which one does not have to respond toa subpoena?Very few. A subpoena is a form of court order,commanding you to appear at the time and placeindicated with the requested materials. If you ignore asubpoena and a judge later finds that it was validlyissued, you could be held in contempt. 12 In essence, afinding of “contempt” signifies that you purposelydisobeyed a court order, such as a subpoena,exposing you to a fine or, in extreme cases,imprisonment. Only in the rarest of circumstanceswould it be safe for you to disregard a subpoena (seeQuestion 14, below, on subpoenas for out-of-stateproceedings).Mechanics of SubpoenasQuestion 8. Who can issue a subpoena?Any North Carolina judicial official may issue asubpoena for a case in state court. Judges,magistrates, and clerks of court all are judicialofficials. An attorney for a party to the case also mayissue a subpoena, and often the subpoena you receivewill be from an attorney. Under the 2003 changes toRule 45 of the North Carolina Rules of CivilProcedure, a party to a case who is not represented bycounsel may no longer issue a subpoena; he or shemust apply to a judicial official, such as the clerk ofcourt. 13Question 9. Does a judicial official have toreview a subpoena before it is issued byan attorney?No. An attorney may issue a subpoena withoutobtaining permission from a judicial official. But, as12. See N.C. R. CIV. P. 45(e); see also G.S. 8-63(providing for monetary penalties for violation ofsubpoena).13. See N.C. R. CIV. P. 45(a)(4).5

Health Law Bulletin No. 82 September 2005discussed in Question 3, above, there is a thresholdrequirement: A case must be pending before anattorney may issue a subpoena.Question 10. Is a subpoena issued by anattorney considered a court order even ifit has not been reviewed by a judicialofficial?Yes. A lawfully issued subpoena is considered acourt order no matter who issues it. If you fail torespond, you could be held in contempt.Question 11. How are subpoenas served?The law specifies both who may serve asubpoena and the procedure they must follow. Asubpoena can be served by a sheriff, a sheriff’sdeputy, a coroner, or any other person who iseighteen years of age or older, but the person servingthe subpoena cannot be a party to the case.Ordinarily, service must be made by delivering acopy of the subpoena by hand to the person named inthe subpoena (called personal delivery) or by mailinga copy—by registered or certified mail, return receiptrequested—to the named person. If the subpoenarequires the person only to appear and testify, and notto produce documents, it may be served by atelephone call to that person by the sheriff, a persondesignated by the sheriff, or a coroner. 14 The rules donot authorize anyone else to serve a subpoena bytelephone. Nor do they authorize service of asubpoena by fax or e-mail. It is permissible, however,for you to accept service of a subpoena by a methodnot specified in the rules. For example, thesubpoenaing party may ask you if you would bewilling to accept service of a subpoena by fax, andyou may (but are not obligated to) agree to thatmethod of service.If you are not properly served with a subpoena(and you have not agreed to accept service by amethod not specified in the rules), you may not beobligated to respond. 15 Disregarding a subpoena is14. See N.C. R. CIV. P. 45(b)(1); G.S. 8-59 (notingthat a witness served by telephone who fails to appear maynot be held in contempt until he or she has been servedpersonally).15. See, e.g., Smith v. Midland Brake, Inc., 162 F.R.D.683 (D. Kan. 1995) (court refused to enforce subpoenawhere service was defective); but see Vaughn Furniture Co.v. Featureline Mfg., Inc., 156 F.R.D. 123 (M.D.N.C. 1994)risky, however. If you are wrong about the adequacyof service, you could be found in contempt; even ifyou are right, defending against a motion to compelcompliance or a charge of contempt could be timeconsumingand expensive. Thus, even if service istechnically defective, the most prudent course is torespond—by complying with the subpoena,contesting it, or making other arrangements with theissuing party. 16Question 12. How long in advance of aproceeding must a subpoena be served?As a general rule, there are no formal time limitson service of a subpoena. You might receive it weeksbefore the date and time when you are supposed toappear or right before your scheduled appearance.There are some steps that you can take, however, ifyou cannot appear or do not have enough time toassemble the documents requested in the subpoena(see Question 24, below).Question 13. Can the recipient berequired to appear anywhere withinNorth Carolina?If the subpoena directs you to appear in court,you can be required to go anywhere within the state.Thus, a person residing in one part of North Carolinacan be subpoenaed to appear at a trial in a distant partof the state.(subpoena directed to custodian of records of corporationwas properly served even though not served on actualcustodian; subpoena was served on another employee ofcorporation, who was agent of corporation); King v. CrownPlastering Corp., 170 F.R.D. 355 (E.D.N.Y. 1997) (courtcompelled witness to comply with subpoena although itwas not served by hand, finding that service is sufficient aslong as it reasonably ensures actual receipt of subpoena bywitness).16. The 2003 revisions to Rule 45 of the NorthCarolina Rules of Civil Procedure also require in civil casesthat a copy of the subpoena be served on all parties to thecase, not just on the person named in the subpoena. Thisrequirement does not apply to service of subpoenas incriminal cases. See N.C. R. CIV. P. 45(b)(2) (service onother parties to case must be made in manner prescribed byRule 5(b) of Rules of Civil Procedure); G.S. 15A-801, -802(stating that service requirements in Rule 45 apply tocriminal cases except for requirement of service of copy ofsubpoena on other parties).6

September 2005 Health Law Bulletin No. 82A subpoena to appear at a deposition is morelimited. For cases in state court, a North Carolinaresident is required to attend a deposition only in thecounty where he or she lives, is employed, orconducts business in person. 17 If the subpoena directsyou to attend a deposition outside these areas, youmay contact the issuing party and request that the sitebe changed. If the issuing party is unwilling tochange the site of the deposition, you should consultwith an attorney about submitting written objectionsor making a motion to quash the subpoena.Revised Rule 45 of the North Carolina Rules ofCivil Procedure does not contain geographic limitsfor subpoenas to produce records at a person’s officewhen no deposition is scheduled; however, the samegeographic limits may apply as with subpoenas fordepositions. 18Question 14. Can the recipient berequired to go out of state?The answer depends on the type of proceeding.A subpoena issued under the authority of a court ofanother state and served on a person in NorthCarolina is ineffective. For example, a subpoenaissued under the authority of a Georgia state courtwould be ineffective to require a Raleigh resident toattend a proceeding in this state or in Georgia. (Thecaption of the subpoena should identify the courtfrom which the subpoena is issued.) This is one of thefew situations in which you may safely disregard asubpoena. Even here, however, you probably should17. See N.C. R. CIV. P. 30(b)(1); Wilson v. Wilson,124 N.C. App. 371, 477 S.E.2d 254 (1996) (person wholived, was employed, and transacted all business inGuilford County could not be held in contempt for failingto comply with subpoena for deposition in ForsythCounty). Ordinarily, a person who is not a resident of NorthCarolina may be required to attend a deposition only in theNorth Carolina county in which he or she is staying orwithin fifty miles of the place of service of the subpoena.See N.C. R. CIV. P. 30(b)(1). For cases in federal court, therules differ on how far a person may be required to travelwithin North Carolina. See FED. R. CIV. P. 45(b)(2).18. Revised Rule 45(c)(4) and (5) do specify where amotion to quash or compel compliance must be filed—namely, in the court of the county in which the documentsare to be produced. But, those provisions do notspecifically address where the document production may bescheduled.consult with an attorney before deciding how toproceed. 19Federal courts have greater authority to compelwitnesses to travel outside their home states. In acriminal case in federal court, a subpoena potentiallycould direct a witness to attend a trial anywhere inthe United States. In civil cases in federal court, thegeneral rule is that a subpoena may require a personin one state to attend a proceeding in another state ifthe proceeding is within one hundred miles of theplace of service of the subpoena. 20Question 15. Is the recipient entitled toany fees in responding to a subpoena?You are entitled to an appearance fee of fivedollars for each day of your attendance plus travelexpenses (discussed further in the next question). Theprocedure for obtaining these fees differs in civil andcriminal cases. In civil cases (including both trialsand depositions), the party who subpoenaed you is19. See Minder v. Georgia, 183 U.S. 559 (1902)(establishing that a subpoena is ineffective beyond statelines); see also Wilson v. Wilson, 124 N.C. App. 371, 477S.E.2d 254 (1996) (disobeying order entered by court thatlacks jurisdiction does not amount to contempt). Otherdevices may be used to direct a witness to attend an out-ofstateproceeding or at least to obtain a witness’s testimony.A party may use the Uniform Act to Secure Attendance ofWitnesses from without a State in Criminal Proceedings(G.S. 15A-811 through 15A-816) to compel a witness toattend a criminal proceeding in the court of another state.The party seeking the witness’s attendance must apply foran order from both the state court in which the criminalproceeding is pending and the home state of the witness.See also Jay M. Zitter, Annotation, Availability underUniform Act to Secure the Attendance of Witnesses fromwithout a State in Criminal Proceeding of Subpoena DucesTecum, 7 A.L.R. 4th 836 (1981) (under Uniform Act, outof-statewitness may be required to produce documents aswell as give testimony). There is no procedure forcompelling a person who is not a party to the case to attenda civil proceeding in the court of another state; however, aparty may be able to require a person to submit to adeposition in North Carolina for use in a proceeding inanother state. See N.C. R. CIV. P. 28(d).20. See FED. R. CRIM. P. 17(e) (stating rule in criminalcases); FED. R. CIV. P. 45(b)(2) (stating general rule forsubpoenas in civil cases and noting possible exceptions). Incases in federal court, a party also may compel a nonpartyto submit to a deposition in North Carolina for use in aproceeding in another state. See FED. R. CIV. P. 45(a)(2).7

Health Law Bulletin No. 82 September 2005responsible for paying the fees. Some parties willinclude a check for appearance and travel fees withthe subpoena, but a party is not obligated to pay youin advance of the proceeding. If the party does notpay you once you have appeared, you have the rightto sue. In light of the small potential recovery,however, a lawsuit rarely would be worth the time orexpense. The clerk of court will certify yourattendance and travel expenses should you need proofthat you appeared at a proceeding. 21In criminal cases, appearance and travel fees arepaid from state funds if you apply for payment withinthe statutory time limits. If you wish to be paid, applyto the clerk of court immediately after yourappearance. 22Health department employees should remain atfull salary for any time they are absent from workwhile complying with a subpoena for departmentrecords or other information relating to their officialduties. Employees should consult departmental orcounty policies when deciding whether to retain thetravel reimbursement or the appearance fee.Question 16. What travel expenses can berecovered?If you reside within the county where you arerequired to appear, you are not entitled to receive anytravel expenses. If you reside outside the county andless than seventy-five miles from the place ofappearance, you are entitled to mileagereimbursement for each day of travel at the rateauthorized for state employees. If you reside outside21. See G.S. 6-51, -53; 7A-314 (witness fees in civilcases). A person subpoenaed in a civil case has anadditional remedy if he or she has to appear for more thanone day. Under G.S. 6-51, if the subpoenaing party doesnot pay the appearance and travel fees due after the firstday, the party cannot compel the witness to remain. Thisprovision does not apply if the subpoenaing party is thestate of North Carolina or a municipality.22. See G.S. 6-51, -53; 7A-314 through 7A-316(witness fees in criminal cases). A form application forwitness fees is available from the clerk of court. SeeADMINISTRATIVE OFFICE OF THE COURTS, NORTH CAROLINAJUDICIAL DEPARTMENT FORMS MANUAL, AOC-CR-235(Apr. 2000) (posted at www.nccourts.org/Forms/Documents/76.pdf). In limited instances (in civil andcriminal cases), the court may require payment of an expertwitness fee, which may be significantly higher than thenominal appearance fee due most witnesses. See G.S. 7A-314(d); N.C. R. CIV. P. 26(b)(4)(B).the county and more than seventy-five miles from theplace of appearance, you are entitled to mileagereimbursement at the state rate for one round-trip; ifyou are required to attend the proceeding for morethan one day, you are entitled to your actual expensesfor lodging and meals (up to the maximumauthorized for state employees) in lieu of dailymileage. 23Question 17. Is the recipient entitled toreimbursement for time spent incompiling records?In most cases, no. Although often burdensome,responding to subpoenas is considered a civicobligation, and normally neither you nor youremployer is entitled to be reimbursed for time spentdoing so. If a subpoena is unduly burdensome,however, you may move to quash it (or submitwritten objections for certain subpoenas). In ruling onthe motion (or objections), the judge may require thesubpoenaing party to pay the reasonable cost ofproducing the records. 24You are not usually entitled to copying costseither if you produce copies instead of the originalrecords (see Question 19, below, on complying witha subpoena for documents). In some circumstances,however, the party seeking the records may ask youto provide copies for his or her use, and you may askthe party to pay copying costs (assuming, of course, itis permissible for you to release the records). 2523. See G.S. 7A-314(b).24. See N.C. R. CIV. P. 45(c)(5), (6).25. See note 29 below and accompanying text(discussing depositions and document productions). Inthose instances in which a health department may chargecopying costs, what should the department charge? Stateand federal law provide little guidance. The HIPAAPrivacy Rule allows providers to charge patients and theirrepresentatives a “reasonable, cost-based fee” if the patientrequests a copy of his or her health information. 45 C.F.R.164.524(c)(4). The charges must be limited to the cost of“copying, including the cost of supplies for and labor ofcopying” and postage. Id. Although the Privacy Ruleprovision does not authorize the charging of copying costsfor responding to subpoenas generally, the fee guidelinesset in the rule could be used as a benchmark for thoseinstances in which a health department is permitted tocharge copying costs. North Carolina has one statute thataddresses fees a provider may charge when a patient or thepatient’s representative requests copies of records forpersonal injury cases. G.S. 90-411. That law might also8

September 2005 Health Law Bulletin No. 82General Points to Consider inResponding to SubpoenasQuestion 18. What should one do uponreceiving a subpoena for documents?You should first determine exactly which recordsthe subpoena seeks, whether you have them, andwhether they are confidential. Only after you makethese determinations will you be able to decide on anappropriate response. This part of the bulletinreviews the general rules for responding to subpoenasand leaves to the concluding part the morespecialized rules on subpoenas for confidentialinformation.The wording of the subpoena itself will tell youjust which records it seeks. The records being soughtwill be described in the subpoena itself or in anattached list. Unless otherwise specified, you shouldconsider the record description as including bothpaper and electronically-stored records. 26 For mostdocument subpoenas, particularly those directing youto produce documents at a trial or other in-courthearing, you should produce printouts of electronicrecords. If you believe that retrieving or printingelectronic records would be unduly burdensome,contact your attorney. 27Once you determine the records sought by thesubpoena, you must determine whether you have“possession, custody, or control” of them. Possessionprovide some guidance to providers. The fees authorized inthat law, however, are quite high (up to $.75 per page) andthe law allows a minimum fee of $10.00. Id. Note that it ispossible that those fees may not be considered “reasonable,cost-based fees” and therefore would be preempted by theHIPAA Privacy Rule when a patient is requesting copies ofhis or her records. See 45 C.F.R. 160.203(b) (providing thata state law that is contrary to HIPAA is preempted unless itis “more stringent” than the Privacy Rule); 45 C.F.R.160.202 (definition of more stringent encompasses lawsthat permit “greater rights of access”).26. See generally N.C. R. CIV. P. 34 & Comment (ruleallowing party to request documents from another party tocase provides that “documents” include “data compilationsfrom which information can be obtained . . . throughdetection devices”; comment states that rule applies toelectronic data compilations and that in many instancesresponding party will have to supply printout of electronicinformation).27. For a comprehensive discussion of the issuesinvolved in discovery of computer-based information, see 7JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE §37.01 et seq. (3d ed. 2005).means actual, physical possession; custody andcontrol mean that you have the right to obtain therecords upon request. To comply with a subpoena,the person named in it must produce all of therequested records that are within his or herpossession, custody, or control.For example, assume you are the healthdepartment’s custodian of records and you receive asubpoena for all documents concerning a particularpatient. If you intend to comply, you would have toproduce those records located in your own office(because they are within your actual possession) aswell as those in your department’s files (because theyare within your custody or control). You may nothave to produce materials kept by individualdepartment employees, such as private notes made bya child services coordinator for his or her own use.Whether you, as the department’s record custodian,have custody or control of such notes would dependon the department’s policies on records maintainedby individual employees.Question 19. How does one comply with asubpoena for documents?To comply with a subpoena for documents,ordinarily you must appear at the indicated time andplace with the requested records and remain thereuntil the person who issued the subpoena, or thecourt, excuses you. If you do not have any of therequested documents, you still must appear at theproceeding unless you have been excused fromappearing.Many health departments and other custodians ofmedical records are wary of releasing original recordsand so will produce copies instead. If the copies arelegible and accurate reproductions of the originals,this practice is likely unobjectionable. 28 If you do28. Earlier articles recommended that original recordsbe produced in response to a subpoena. See Rubin andBotts, Responding to Subpoenas: A Guide for MentalHealth Professionals, supra note 1, at 31–32 (questions 16,18); Rubin, Subpoenas and School Records: A SchoolEmployee’s Guide, supra note 1, at 6–7 (questions 16, 18).This advice has been reconsidered in light of thewidespread practice of producing copies and the adequacyof copies in most instances. See also N.C. EVID. R. 1003(“A duplicate is admissible to the same extent as an originalunless (1) a genuine question is raised as to the authenticityof the original or (2) in the circumstances it would be unfairto admit the duplicate in lieu of the original.”); N.C. R. CIV.9

Health Law Bulletin No. 82 September 2005produce originals in response to a subpoena for aproceeding in court, you should make copies foryourself ahead of time because the court may retainthe originals while the case is pending. If you aresubpoenaed to a deposition (or to produce records ata person’s office), the party who issued the subpoenais responsible for having copies made; he or she doesnot have a right to retain the originals. 29Remember that producing the records is not thesame thing as disclosing them. If the records containconfidential information, you may not be authorizedto disclose them until ordered to do so by a judge.See Question 29, below.Question 20. Can I mail copies to thecourt instead of producing them inperson?Perhaps. There are two considerations. The firstis whether the subpoena rules permit the mailing in ofrecords. Rule 45(c)(2) of the North Carolina Rules ofCivil Procedure contains a “mail-in” procedure forcertain types of records only. In lieu of appearing andproducing the requested documents, the personsubpoenaed may send certified copies of the records,along with an affidavit (a sworn statement) ofauthenticity, to the judge presiding over the case (orthe judge’s designee, such as the court clerk). If theperson subpoenaed does not have any of therequested documents, he or she may send an affidavitso stating. 30The mail-in procedure is available only if (1) thesubpoena is directed to a custodian of hospitalmedical records or public records and (2) thesubpoena requires the custodian to appear for the solepurpose of producing those records. The definition of“hospital medical records” is broad enough to covermany of the types of medical records maintained byhealth departments, and most other health departmentP. 45(c)(2) (when mailing-in of records is permissible, it issufficient to mail true and correct copies).29. Various arrangements can be made for copyingrecords subpoenaed to a deposition or document production(assuming it is permissible to disclose them). There is noset rule. For example, if you produce the originals, thesubpoenaing party may decide to photocopy particulardocuments; or you and the subpoenaing party may agreethat you will photocopy all of the documents (before orafter your appearance date) and that the subpoenaing partywill pay the costs.30. Sample affidavits will be available on www.medicalprivacy.unc.edu.records are public records (such as mostenvironmental health records). 31 However, thesecond condition allows the party who issues thesubpoena to eliminate the mail-in option byindicating in the subpoena that the custodian mustappear and testify as well as produce documents. Onthe subpoena form attached to this bulletin, theissuing party would check two boxes—one requiringthe custodian to appear and testify and anotherrequiring the custodian to produce documents. Someattorneys will check both boxes even though they justneed the custodian to produce the records and attestto their authenticity. If that is the sole reason you arebeing asked to appear, you may be able to use themail-in procedure assuming that the procedure isotherwise permissible. If you are unsure of why youare being subpoenaed, contact the issuing attorney toclarify.Assuming Rule 45 authorizes use of the mail-inprocedure, a second consideration is whether theconfidentiality laws governing the particular31. Rule 45(c)(2) states that hospital medical recordsare as defined in G.S. 8-44.1. That section states thathospital medical records are “records made in connectionwith the diagnosis, care and treatment of any patient or thecharges for such services except that records covered byG.S. 122-8.1 [now, G.S. 122C-52], G.S. 90-109.1 andfederal statutory or regulatory provisions regarding alcoholand drug abuse, are subject to the requirements of saidstatutes.”Rule 45(c)(2) does not define “public record.”However, since one of the purposes of the mail-inprocedure in Rule 45(c)(2) is to allow a party to introducecertified copies of certain records without having to call awitness at trial to authenticate the records, the pertinentrules in the North Carolina Rules of Evidence onauthentication of public records may supply the appropriatedefinition. See NORTH CAROLINA EVIDENCE RULE 902(4)(for purposes of admission of certified copies of publicrecords without the testimony of an authenticating witness,“public record” means “[a] copy of an official record orreport or entry therein, or of a document authorized by lawto be recorded or filed and actually recorded or filed in apublic office, including data compilations in any form,certified as correct by the custodian or other personauthorized to make the certification, by certificatecomplying with . . . any law of the United States or of thisState”); see also 2 KENNETH S. BROUN, BRANDIS & BROUNON NORTH CAROLINA EVIDENCE § 243, at 264–65 & n.32(6th ed. 2004) (discussing Rule 902 of the North CarolinaRules of Evidence and Rule 45(c) of the North CarolinaRules of Civil Procedure).10

September 2005 Health Law Bulletin No. 82documents allow release of the records by mail. Thisconsideration is discussed in Question 30, below.Question 21. Is there any other way toproduce the records without appearing atthe proceeding?Yes. The person who issued the subpoena maybe willing to excuse you from appearing if youprovide him or her with the records in advance of theproceeding. Generally you can agree to such anarrangement as long as the documents are notconfidential. If the records are confidential, youshould not disclose them to the issuing party inadvance of the proceeding without appropriatepermission by the individual who is the subject of therecords (see Question 28, below, on HIPAAcompliantauthorization forms).If you do have to appear, you should contact theparty who issued the subpoena. He or she may beable to give you a more specific time to appear,cutting down on your waiting time in court, or maybe able to put you on “telephone standby,” allowingyou to remain at work or home until needed. Whenpossible, have the issuing party put in writing anychange in the time of your appearance.Question 22. On what grounds can asubpoena for documents be contested?Rule 45 lists various grounds for contesting asubpoena. 32 Probably the most common complaintabout subpoenas (other than that they call forconfidential information, discussed in the nextsection) is that they are too broad and impose tooheavy of a burden on the person who must respond.In legal terms, the subpoena is unduly burdensome,unreasonable, or oppressive. For example, asubpoena might be considered unreasonable if itcalled for all medical records of a patient without anylimitation as to time, date, or contents, when the32. See N.C. R. CIV. P. 45(c)(3), (5) (grounds includethat subpoena fails to allow reasonable time forcompliance, requires disclosure of privileged or otherprotected matter and no exception or waiver applies to theprivilege or protection, subjects a person to an undueburden, is otherwise unreasonable or oppressive, or isprocedurally defective).proceeding concerns a narrow part of the patient’slife. 33If you believe that a subpoena is too broad orburdensome, contact the party who issued thesubpoena, or have your attorney contact the party, todetermine whether he or she would be willing tonarrow it. If you decide to contest the subpoena, youalmost certainly will need the assistance of anattorney.Question 23. What is the procedure forcontesting a subpoena for documents?To contest a subpoena to produce documents incourt, you must file a motion to quash or modify thesubpoena. Under revised Rule 45(c)(5), you mustmake the motion within ten days after receiving thesubpoena or, if you receive the subpoena less than tendays before the scheduled production date, on orbefore that date. Previously, the rule did not set aspecific time limit on such a motion other than that itbe filed promptly and no later than the time of thescheduled appearance.To contest a subpoena directing you to producedocuments at a deposition (or at a person’s officewithout a deposition), you likewise may file a motionto quash or modify within ten days after receiving thesubpoena or, if you receive the subpoena less than tendays before the scheduled production date, on orbefore that date. Alternatively, you may contest asubpoena for a deposition (or production of records ata person’s office) by submitting written objections tothe party who issued the subpoena. You must specifywhy you are unwilling to produce the records—forexample, the records contain information protectedby the physician-patient privilege. You must servethe objections on the issuing party within the sametime frame allowed for motions to quash a subpoena.In this context, service may be accomplished byregular mail to the party who issued the subpoena orto the party’s attorney, by fax to the party’s attorney,or by hand-delivery to the party or party’s attorney. 34It is then up to the issuing party to file a motion withthe court to compel compliance. Until the court rules33. See generally State v. Love, 100 N.C. App. 226,395 S.E.2d 429 (1990) (quashing subpoena), remanded tofederal district court for further proceedings, Love v.Johnson, 57 F.3d 1305 (4th Cir. 1995) (state court erred inquashing subpoena without first reviewing requestedrecords to determine their relevancy, and federal districtcourt erred in dismissing habeas corpus petition).34. See N.C. R. CIV. P. 5(b).11

Health Law Bulletin No. 82 September 2005on your objections, you are not required to appear atthe deposition or turn over the requesteddocuments. 35Question 24. What if a subpoena arrivesso late that it is impossible to compile thedocuments in time or attend theproceeding?If you cannot compile the documents in time,you or your attorney should call the party who issuedthe subpoena and try to work out an alternatearrangement. If you cannot reach a satisfactoryarrangement, your best course is to go to theproceeding and explain why you could not assemblethe documents. Alternatively, you may make amotion to quash (or submit written objections forcertain subpoenas) if the subpoena is served so lateand is so burdensome that it would be unreasonableto require compliance. 36The trickier situation occurs when you cannotattend the proceeding at all and do not have time tomake any formal response. Rule 45(e)(1) of the NorthCarolina Rules of Civil Procedure states that thefailure to obey a subpoena may be treated as acontempt of court only if the failure is “withoutadequate excuse.” Courts have recognized thatinability to comply with a subpoena is a defense to acharge of contempt. 37 Thus if you truly cannot bepresent, you should be protected from a contemptcharge. You should try to let the subpoenaing partyknow that you cannot attend and, if the subpoena isfor a proceeding in court, let the clerk of court knowas well.Question 25. You mentioned in Question4 that attorneys sometimes will obtain anorder directly from a judge requiring theproduction of records. What are myoptions if I receive that kind of orderrather than a subpoena?Although Rule 45 does not govern such orders,your options in responding are similar. You mayrespond by producing the records at the designatedtime and place. Further, because an order forproduction is signed by a judge, you may beauthorized to disclose the records without furtherorder of the court. In contrast, a subpoena is usuallyissued by an attorney so, although you may producethe records at the designated time and place,confidentiality rules may forbid you from disclosingthe records until a judge orders disclosure. 38Typically, an order for production directs that youprovide the records to the court, so if you haveconcerns about disclosing the records without afurther court order, you may bring your concerns tothe judge. See Question 29, below, on obtaining aruling from a judge on a subpoena for confidentialrecords.You also may be able to contest an order forproduction by filing a motion with the court. As withsubpoenas, you may not know ahead of time that anorder for production is being sought. Therefore,although Rule 45 does not specifically apply toorders for production, the grounds listed in that rulefor contesting subpoenas may likewise apply toorders for production—for example, the order mightbe contested as unduly burdensome or calling forconfidential information not relevant to the35. Revised Rule 45(c)(4) clarifies that you are notrequired to appear at the scheduled deposition or documentproduction until the court has ruled on your objections.Previously, if you submitted objections, you were notrequired to produce the records but still had to go to thedeposition.36. See N.C. R. CIV. P. 45(c)(3)a. (failure to allowreasonable time for compliance is ground for contestingsubpoena); see also Ward v. Taylor, 68 N.C. App. 74, 314S.E.2d 814 (1984) (quashing subpoena).37. See, e.g., United States v. Bryan, 339 U.S. 323(1950); Desmond v. Hachey, 315 F. Supp. 328 (D. Me.1970); see also Icehour v. Martin, 44 N.C. 478 (1853)(witness was subpoenaed to two different proceedings intwo different places on same day; witness could not bepenalized for complying with one subpoena and not theother).38. You should probably respond to a subpoena signedby a judge in the same way that you would respond to asubpoena signed by an attorney—that is, you should notdisclose confidential records without a further order by thejudge. When a judge or other judicial official signs andissues a subpoena on request of an attorney or party, thesubpoena is typically issued in blank, and the attorney orparty fills it out. The issuing official does not review orapprove the contents of the subpoena. In contrast, a personseeking an order for production must identify thedocuments being sought and the reasons for producingthem; and in issuing the order the judge balances the needfor the documents against the interest in confidentiality. See1 JOHN RUBIN, THOMASIN HUGHES & JANINE FODOR, NORTHCAROLINA DEFENDER MANUAL § 4.7A, at 35–38 (May1998) (describing procedure to obtain court order forproduction of records).12

September 2005 Health Law Bulletin No. 82proceeding. 39 If you wish to contest an order forproduction, you should consult an attorney.Responding to Subpoenas forConfidential Medical InformationQuestion 26. How should I respond to asubpoena for confidential medicalinformation?How you respond depends on the particularconfidentiality laws that apply to the informationbeing sought. Most personal medical informationheld by local health departments is protected by stateand federal confidentiality laws. In addition tomedical information, other types of information mayalso be confidential under state or federal law, suchas public benefits information. Depending on the typeof information requested, multiple confidentialitylaws might apply. Some confidentiality laws allowhealth departments to disclose information inresponse to a subpoena but most do not.Health departments must evaluate and complywith all applicable confidentiality laws whendeciding whether and how to disclose recordscontaining medical information. This bulletin is notintended to provide a comprehensive review of themedical confidentiality laws that apply to healthdepartment records. Every local health department inNorth Carolina is required to have a privacy official.That official should be aware of the relevant laws thatapply to information maintained by the department. 4039. The American Bar Association’s standards ondiscovery from third parties in criminal cases recognize thatif a third party does not have notice when a court issues anorder for production of records, the party should be able tomove to quash the order on grounds similar to the groundsfor moving to quash a subpoena (undue burden, privilege,or order otherwise unreasonable). AMERICAN BARASSOCIATION STANDARDS FOR CRIMINAL JUSTICE:DISCOVERY, STANDARD 11.3.1(c) & commentary (3d ed.1996).40. For more information on state and federal medicalconfidentiality laws, see www.medicalprivacy.unc.edu.Question 27. What steps should I shouldtake in deciding whether to disclosemedical information in response to asubpoena?In general, you should evaluate the informationbeing requested to determine (a) whether any stateand federal confidentiality laws apply to thatinformation and, if so, (b) whether those laws placeany limitations on your ability to disclose theinformation in response to a subpoena. If more thanone law applies to the information, you will thenhave to determine how the laws work together.Specifically, if one of the laws requires a court orderand the others do not, you should await a court orderbefore disclosing the information. The followingexample illustrates the process for evaluating theapplicable confidentiality laws and deciding whetherthose laws permit disclosure in response to asubpoena.A health department receives a subpoena for apatient’s medical record. The subpoena is notaccompanied by a written authorization signed by thepatient or the patient’s representative. Thedepartment identifies three confidentiality laws thatapply to the information.• The information is subject to the stateconfidentiality law governing local healthdepartments. 41 This law allows healthdepartments to disclose information inresponse to a subpoena if the disclosure isotherwise authorized or required by law.• The information is subject to the federalHIPAA Privacy Rule. 42 The Privacy Ruleallows disclosure in response to a subpoenaif certain conditions are satisfied.• The information is subject to the state lawestablishing a physician-patient privilege. 43This law does not allow disclosures inresponse to a subpoena. It requires either the41. G.S. 130A-12.42. 45 C.F.R. § 164.512(e). HIPAA refers to theAdministrative Simplification provisions of the HealthInsurance Portability and Accountability Act of 1996, 42U.S.C. 1320d-1320d(8). HIPAA directed the U.S.Department of Health and Human Services to developregulations governing the privacy of health information.See 45 C.F.R. Parts 160 and 164 (hereinafter “PrivacyRule”).43. G.S. 8-53 (physician-patient privilege); see alsoG.S. 8-53.13 (nurse privilege).13

Health Law Bulletin No. 82 September 2005patient’s permission or an order issued by ajudge or the Industrial Commission.The department must review and comply with allof these laws. While the first two laws identifiedabove would likely allow disclosure of information inresponse to a subpoena (as long as HIPAA’sconditions are satisfied), the third law would not.Therefore, the department must await a court orderbefore disclosing the information requested in thesubpoena.This example highlights an important and highlyrestrictive state law—the physician-patient privilege.It is important for health departments to rememberthat information subject to this privilege (or otherprivileges such as the nurse privilege 44 ) must not bedisclosed in response to a subpoena. Either a courtorder or the patient’s permission is required by statelaw.Once the health department has evaluated theconfidentiality laws that apply to the requestedrecords, it must decide how to respond. The responsewill depend on whether the subpoena is accompaniedby an authorization from the patient.Question 28. How should I respond if thesubpoena for confidential medical recordsis accompanied by an authorization formsigned by the patient?Occasionally an attorney will send anauthorization form with a subpoena. In such cases, ifthe accompanying authorization form is valid (seediscussion below), you should disclose the records asdirected in the subpoena or authorization form. Forexample, if an assistant district attorney is gatheringevidence for a domestic violence prosecution and isseeking copies of the victim’s medical records fromthe health department, the attorney may be able toobtain the victim’s authorization to obtain copies ofthe records. 45When presented with a subpoena and anauthorization form (or an authorization form byitself), a health department should review theauthorization form to determine whether it complies44. G.S. 8-53.13.45. Note that, unless a specific law providesotherwise, district attorneys and other lawyers with publicagencies are subject to the same limitations on theirauthority to obtain information as private attorneys. Theirstatus as public officials or public servants does notestablish additional rights of access to information.with all applicable legal requirements. One of themost specific laws in this regard is the HIPAAPrivacy Rule. For medical information subject to thatlaw, an authorization form must include thefollowing core elements to be valid:• A specific description of the information tobe disclosed• The name of the person or organizationauthorized to disclose the information• The name of the person or organizationauthorized to receive the information• A description of the purpose of thedisclosure 46• An expiration date or event 47• The signature of the patient or the patient’srepresentative 48• A statement explaining the patient’s right torevoke the authorization• A statement explaining the department’sability or inability to place conditions upon apatient’s decision to sign the authorization 49In addition to specifying these core elements, theHIPAA Privacy Rule imposes additionalrequirements and restrictions on authorizationforms. 50 Because of these strict requirements, healthdepartments should either insist upon using their ownHIPAA-compliant authorization forms or carefullyreview authorization forms from other sources toensure that they meet all of HIPAA’s requirements.If the form complies with all applicable laws, thehealth department should disclose the records to theperson specified in the authorization. For example,the authorization form may request that copies of therecords be sent directly to the requesting attorney.46. If the patient initiates the authorization and doesnot wish to describe the purpose of the disclosure, the formmay state “at the request of the individual.” 45 C.F.R.164.508(c)(1)(iv).47. The expiration date or event must relate either tothe individual or to the purpose of the disclosure. 45 C.F.R.164.508(c)(1)(v).48. If it is signed by a patient’s representative, theform must also describe the representative’s authority to actfor the individual (such as “parent,” “guardian,” or “powerof attorney”). 45 C.F.R. 164.508(c)(1)(vi).49. The HIPAA Privacy Rule limits a provider’sability to condition treatment, payment, or enrollment oreligibility for benefits on the authorization. 45 C.F.R.164.508(b)(4).50. 45 C.F.R. 164.508(b).14

September 2005 Health Law Bulletin No. 82If an attorney sends the health department a validauthorization form but no subpoena, the departmentmay still disclose the records. A subpoena istechnically not necessary. The authorization formalone provides sufficient authority for the healthdepartment to disclose confidential information to anattorney or the court.Question 29. How should I respond if thesubpoena for confidential medical recordsis not accompanied by an authorizationform?If the subpoena requests information that issubject to a confidentiality law that requires a courtorder or patient permission, such as the physicianpatientprivilege, the health department should notautomatically disclose the information. It must,however, respond to the subpoena. As a first step, thedepartment (or the department’s attorney) maycontact the attorney requesting the records andexplain that they are confidential. The requestingattorney may choose to withdraw the subpoena ormay take the necessary steps to authorize disclosure(such as obtaining a court order or permission fromthe person who is the subject of the records). If thatdoes not happen, the health department should eithercontest the subpoena (discussed in Question 23,above) or appear at the proceeding with the recordsand await further direction from the court (discussedbelow). You may follow either approach whensubpoenaed to a proceeding in court. 5151. Revised Rule 45(c)(5) establishes a time limit formoving to quash or modify a subpoena that is served morethan ten days before the proceeding—namely, such amotion must be made within ten days of service. (The rulewas not materially revised for subpoenas served less thanten days before the proceeding—the responding party maystill raise challenges at the time of the proceeding.) In ourview, if a subpoena for confidential records is served morethan ten days before a court proceeding, a custodian maybut is not required to make a motion to quash. A custodianstill may bring the records to the proceeding, as directed bythe subpoena, and await further direction from the courtbefore disclosing them. We believe this to be so for tworeasons. First, a custodian who produces records in thismanner is not seeking to quash or modify the subpoena.Nor is the custodian disregarding the subpoena. Rather, thecustodian is seeking to comply with the subpoena’scommands without violating confidentiality laws. Second,confidentiality laws are not personal rights of the custodian,which the custodian may waive by not making a motion toIf you appear at the proceeding with therequested records, you should not immediately turnthem over to the subpoenaing attorney or the court.Because the records are confidential, the healthdepartment has a duty to take affirmative steps toensure that the records are only disclosed aspermitted by law. The exact way to handle eachsituation will depend on the confidentiality laws thatapply, but the approach will be similar in mostinstances. For example, a health department mayreceive a subpoena directing the records custodian toappear in court with certain patient records that areprotected by the physician-patient privilege. Thephysician-patient privilege law allows a district orsuperior court judge to order disclosure of records ifhe or she finds that disclosure is “necessary to theproper administration of justice.” 52 In this situation,the custodian may appear in court with the requestedrecords on the date and at the time specified in thesubpoena. The custodian should not release therecords ahead of time to the party who issued thesubpoena.Once the proceeding begins and the custodian isasked for the records, the custodian should explain tothe judge that the records are protected by thephysician-patient privilege and that a court order isrequired to disclose them. If the records containsensitive information, the custodian (or an attorneyrepresenting the custodian) may request that thejudge review the records in camera—that is, inprivate, in his or her chambers—before decidingwhether to release them. 53 If the records are notquash. Rather, they establish the conditions under whichdisclosure may be ordered by a court (or would bepermissible without a court order, as when the subject ofthe records properly consents to disclosure). In contrast,other grounds for withholding documents in response to asubpoena, such as undue burden, are personal to the recordscustodian and may be waived if not timely asserted.52. G.S. 8-53.53. See, e.g., Pennsylvania v. Ritchie, 480 U.S. 39(1987) (discussing procedure); Zaal v. State, 602 A.2d1247 (Md. 1992) (court may conduct review of records inpresence of counsel or permit review by counsel alone, asofficer of court, subject to restrictions protectingconfidentiality); see also Rios v. Read, 73 F.R.D. 589(E.D.N.Y. 1977) (judge may require in disclosure order thatparties who receive records not reveal their contents exceptto those connected with litigation). In the context ofinformation related to communicable diseases, stateconfidentiality law authorizes in camera review if it isrequested by the subject of the information. See G.S. 130A-143(6).15

Health Law Bulletin No. 82 September 2005relevant to the proceeding, the judge may refuse toallow disclosure or may narrow the information thatmust be disclosed. 54 Once the judge orders disclosureof the records, the custodian may safely do so. 55 Thecustodian should consider bringing a copy of anyapplicable laws to court to assist the attorneys andcourt officials.The option of appearing at the proceeding andenlisting the judge’s assistance in determining theextent of disclosure is not feasible when you havebeen subpoenaed to a deposition (or to producerecords at a person’s office) because a judge willalmost never be present. If you believe the recordsare confidential and cannot be disclosed without theorder of a judge, contact your attorney aboutcontesting the subpoena. See Question 23, above, forcontesting a subpoena for a deposition or to producerecords.Question 30. Is there any way that I cancomply with a subpoena for confidentialrecords without appearing at theproceeding?As mentioned above in Question 20, there is a“mail-in” procedure available for “hospital medicalrecords.” Many health departments have relied onthis procedure to avoid the time and expenseassociated with appearing at court proceedings. Forrecords subject to the physician-patient privilege,health departments must proceed carefully to ensurethat the records are not disclosed without the courtorder required by that law.The mail-in procedure followed by most healthdepartments is:• seal the records in an envelope,• include an affidavit stating that the copiesare true and correct copies and that the54. See State v. Adams, 103 N.C. App. 158, 161, 404S.E.2d 708, 710 (1991) (upholding trial court’s orderprohibiting party from examining medical records or crossexaminingcustodian of those records about their content).55. The custodian is not required to appeal the judge’sruling, even if it appears to be wrong. The right to appealan order requiring compliance with a subpoena is beyondthe scope of this bulletin. See generally 9A CHARLES A.WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE ANDPROCEDURE CIVIL § 2466, at 87–91 (2d ed. 1995). If youwant to contest a judge’s ruling requiring disclosure,consult an attorney.records were made and kept in the regularcourse of business,• include a letter or memo outside the sealedenvelope indicating the case for which thedocuments have been requested, and statingclearly that the documents are privileged andshould not be disclosed without a courtorder, and• deliver the records to the clerk of court (andobtain a receipt) or send them by registeredmail or certified mail (return receiptrequested).This mail-in procedure is still allowed understate law but, if the requested records are subject tothe HIPAA Privacy Rule, the health department mustnow comply with additional administrativerequirements before mailing the records to thecourt. 56The Privacy Rule requires either (a) a good faithattempt to notify the patient or (b) a qualifiedprotective order issued or approved by a court. 57 In56. The HIPAA Privacy Rule applies to uses anddisclosures of identifiable health information. The mail-inprocedure authorized in North Carolina’s law implicatestwo possible “disclosures” under the Privacy Rule. First,sending the records to the clerk of court—even in a sealedenvelope—may fit within HIPAA’s broad definition ofdisclosure. See 45 C.F.R. 160.103 (defining the term“disclosure” as the release, transfer, provision of access to,or divulging in any other manner of information outside theentity holding the information). Second, North Carolinalaw may allow the parties to the case to review the recordssent to the clerk before the court has ordered disclosure.See N.C. R. CIV. P. 45(c)(2) (rule states that hospitalmedical records mailed to the court are not open toinspection except to parties to case); but see Bass v. Sides,120 N.C. App. 485, 462 S.E.2d 838 (1995) (beforeobtaining judge’s permission, plaintiff’s attorney reviewedconfidential medical records of defendant that recordscustodian had sealed and mailed to court clerk in responseto subpoena; judge ordered plaintiff’s attorney to paydefendant’s attorney fees, totaling approximately $7,000,and prohibited plaintiff from using records at trial); 1 JOANG. BRANNON & JAN S. SIMMONS, NORTH CAROLINA CLERKOF SUPERIOR COURT PROCEDURES MANUAL 52.7–52.8(Sept. 2003) (cautioning clerks about releasing sealedevidence without further order of a judge). Because of thesepotential disclosures, the health department must alsocomply with the subpoena procedures in the HIPAAPrivacy Rule, discussed above, before following this “mailin”procedure.57. See 45 C.F.R. § 164.512(e).16

September 2005 Health Law Bulletin No. 82most cases, the health department will not beresponsible for notifying the patient or moving forthe protective order. 58 Rather, the department will berelying on written documentation from thesubpoenaing party demonstrating that he or she hascomplied with the HIPAA procedures.The types of documentation the healthdepartment should look for will vary depending onwhether the subpoenaing party complied with thenotice provisions or the qualified protective orderprovisions. If the subpoenaing party complied withthe notice requirements, the health department shouldexpect a written statement explaining that thesubpoenaing party has made an attempt to providewritten notice to the patient (which may be bymailing the notice to the patient’s last knownaddress) and “accompanying documentation”demonstrating that fact. While the Privacy Rule doesnot define the term “accompanying documentation,”in this context it could mean (a) a copy of the noticeand (b) a copy of any official court record indicatinghow objections to the subpoena (if any) wereresolved by the court or the parties. It must be clearfrom the statement and/or the accompanyingdocumentation that the patient had an opportunity toobject to the disclosure and the patient either did notobject or objected and the objection was resolved.If the subpoenaing party complied with thequalified protective order requirements, the healthdepartment should expect a written statementexplaining that the subpoenaing party has eitherrequested a qualified protective order from the courtor the parties to the dispute have agreed in advance to58. The Privacy Rule does allow the health departmentto take the initiative to provide notice to the patient or seeka qualified protective order. 45 C.F.R. 164.512(e)(vi).While a department may wish to pursue one of theseoptions, it must balance the administrative burdens of theseefforts against the burdens associated with complying withthe subpoena without using the mail-in procedure. It maybe that written notice to the patient would be relativelysimple, but the notice must meet all of the criteria inHIPAA. Specifically, the notice must identify the litigationand offer the individual an opportunity to raise an objectionto the court. After giving notice, the health departmentmust refrain from disclosing any information until the timeperiod in which the individual may object has elapsed andeither no objections were filed or all the individual’sobjections were resolved in a manner that permits thedisclosure. If the department elects to follow theseprocedures, it should have clear, written policies andprocedures for staff members to follow and require staffmembers to carefully document their efforts.a qualified protective order and have presented theorder to the court. The term “qualified protectiveorder” has a particular meaning in this context. 59 Inshort, it is an order that limits the use and disclosureof the information and requires that the information(including any copies made) be returned ordestroyed. The “accompanying documentation” inthis context would likely be a copy of the motion fora protective order and possibly any court recordsdemonstrating that the motion has been submitted(which may simply be a stamp on the face of theorder itself).In the absence of documentation related to eitherpatient notice or a qualified protective order, thehealth department should not follow the mail-inprocedure. Rather, it should appear in court at thedesignated time. Remember that the mail-inprocedure is optional; a health department could electto establish a policy of always appearing in person toobtain a court order. While such a policy could meanmore administrative burdens for the department, itwould ensure that confidential records are protecteduntil the court issues its order. When records aremailed in, the health department has no way ofknowing whether they remained under seal until thecourt ordered disclosure.Question 31. How should I respond if thesubpoena directs me to testify in court orat a deposition and I anticipate that thequestions will solicit confidentialinformation?A subpoena directing you to testify will specify atime and place for you to appear. If the subpoenarequires you to come to court to testify, you shouldmake every effort to appear at the designated timeand place. When asked to disclose information that isconfidential under state or federal law, you shouldbriefly explain the legal restrictions to the presidingjudge. If the judge orders you to disclose theinformation, then you may do so. Disclosingconfidential information when ordered to do so by ajudge is allowed under state and federal law. 60 Thecourt’s order is not required to be in writing.59. 45 C.F.R. 164.512(e)(1)(v) (outlining therequirements of a qualified protective order).60. See 45 C.F.R. 154.512(a) (HIPAA Privacy Ruleprovision authorizing disclosures required by law,including court ordered disclosures); G.S. 8-53 (statephysician-patient privilege law authorizing disclosure whenordered to do so by a district or superior court judge upon a17

Health Law Bulletin No. 82 September 2005If the subpoena directs you to appear and testifyat a deposition, a judge will not be present to issue anorder on the spot. Therefore, you should contact thesubpoenaing party in advance and explain that youwill need a court order to disclose confidentialinformation in the course of the deposition. Withenough advance notice, the subpoenaing party maybe able to secure a court order before the depositionor may withdraw the subpoena. If the subpoenaingparty does not respond accordingly, you shouldappear at the deposition and decline to answerquestions that call for confidential information untilthe subpoenaing party obtains a court orderauthorizing you to disclose the information. Yourattorney can go with you to the deposition to assistyou in responding appropriately.Revised Rule 45 permits a witness to file amotion to quash a subpoena to testify at a courtproceeding (or submit written objections or a motionto quash for a subpoena to testify at a deposition)even if the subpoena is unaccompanied by a requestfor documents. 61 But, such a challenge may not besuccessful. Until the questioning of the witnessactually begins, a court may be reluctant to quash asubpoena for the simple reason that it cannot becertain of all the questions that will be asked.If it is impossible for you to appear at the time orplace directed in the subpoena, you should not ignorethe subpoena. You should contact the subpoenaingparty and possibly the clerk of court as discussed inQuestion 24, above.Question 32. What should I do if a lawenforcement officer comes to the officewith a search warrant for confidentialrecords?A search warrant alone may not be sufficient tooverride protections for confidential information, andyou can so advise the officer. 62 But, if the officerfinding that disclosure is necessary to the properadministration of justice); G.S. 8-53.13 (state nurse-patientprivilege also authorizing disclosure in response to an orderfrom a district or superior court judge).61. See N.C. R. CIV. P. 45(c) (3), (5).62. The HIPAA Privacy Rule would likely allowdisclosure in response to a search warrant without anyadditional process. The Privacy Rule allows disclosuresthat are “required by law,” and that term is defined toinclude “court-ordered warrants.” See 45 C.F.R. 164.512(a)(authorizing disclosures required by law);164.512(f)(1)(ii)(A) (authorizing disclosures to lawwants to go ahead and obtain the records pursuant tothe warrant, you should comply. Refusing to do somay constitute the crime of resisting, delaying, andobstructing an officer. 63 Nevertheless, lawenforcementofficers should be wary of using searchwarrants to obtain confidential information. Whilethe officer may succeed in seizing the records withthe warrant, the warrant may not provide the officerwith the legal authority to read the records or revealthem to others, such as the district attorney’s office. 64Question 33. Should I keep a record ofinformation I disclose in response to asubpoena, court order, or warrant?If the records are subject to the HIPAA PrivacyRule, the health department is required to documentthe disclosure in an accounting of disclosures unlessthe subpoena, court order, or warrant wasaccompanied by the patient’s authorization. 65 Theaccounting requirement applies to disclosures of bothwritten records and oral testimony. The accountingmust specify:• the date of the disclosure,• who received the information (e.g., name ofenforcement officials pursuant to a warrant); 164.103(defining “required by law” to include court-orderedwarrants). State privilege laws, however, require a districtor superior court judge (rather than a magistrate) to orderdisclosure based on a finding that disclosure is necessary tothe proper administration of justice. G.S. 8-53 et seq.63. See G.S. 14-223; see also Grateful Dead, Truckin’,on AMERICAN BEAUTY (Warner Bros. Records 1970) (“ifyou got a warrant, I guess you’re gonna come in”).64. Search warrants are often issued by magistrates,who are not authorized to override the privilege forconfidential medical information in G.S. 8-53 et seq.; onlya district or superior court judge may override the privilege.See also ROBERT L. FARB, ARREST, SEARCH, ANDINVESTIGATION IN NORTH CAROLINA 78–79, 107 n.133 (3ded. 2003) (court may preclude use of information obtainedin violation of federal law protecting records of federallyassistedalcohol or substance abuse program); Doe v.Broderick, 225 F.3d 440 (4th Cir. 2000) (discussingcircumstances in which law-enforcement officer may befound civilly liable for obtaining confidential records withsearch warrant).65. 45 C.F.R. 164.528. A series of frequently askedquestions related to the accounting of disclosures isavailable at www.medicalprivacy.unc.edu.18

September 2005 Health Law Bulletin No. 82court and case number would suffice ifrecords were delivered to a clerk of court or“Mr. Jones, attorney for Ms. Smith” in thecase of testimony in a deposition),• a brief description of the informationdisclosed, and• a brief statement of the purpose of thedisclosure, which may simply be a copy ofthe subpoena, court order, and/or warrant.If the information is not subject to the PrivacyRule, the accounting of disclosures is not legallyrequired. The health department may, however, wishto establish a uniform policy for tracking suchdisclosures. For example, it would be relativelysimple to maintain a copy of the subpoena with theoriginal record as part of the standard recordkeepingprocedures.Question 34. What should I do if I haveadditional questions about subpoenas?You should feel free to contact the authors withquestions about subpoenas. John Rubin may bereached at (919) 962-2498 or rubin@iogmail.iog.unc.edu, and Aimee Wall may be reached at (919) 843-4957 or aimee_wall@unc.edu. You should alsoconsider contacting your department’s attorneybecause your local policies for responding tosubpoenas may differ from the general guidanceoffered in this bulletin.This bulletin is published by the School of Government to address issues of interest to government officials. Public officials may print outor photocopy the bulletin under the following conditions: (1) it is copied in its entirety; (2) it is copied solely for distribution to other publicofficials, employees, or staff members; and (3) copies are not sold or used for commercial purposes.Additional printed copies of this bulletin may be purchased from the School of Government. To place an order or browse a catalog ofSchool of Government publications, please visit the School’s Web site at www.sog.unc.edu, or contact the Publications Sales Office, School ofGovernment, CB# 3330 Knapp Building, UNC Chapel Hill, Chapel Hill, NC 27599-3330; e-mail sales@iogmail.iog.unc.edu; telephone (919)966-4119; or fax (919) 962-2707. For general inquiries, call the School of Government’s main number, (919) 966-5381.The School of Government of The University of North Carolina at Chapel Hill has printed a total of 365 copies of this public document at acost of $387.88 or $1.06 each. These figures include only the direct costs of reproduction. They do not include preparation, handling, ordistribution costs.©2005School of Government. The University of North Carolina at Chapel HillPrinted in the United States of AmericaThis publication is printed on permanent, acid-free paper in compliance with the North Carolina General Statutes19

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