Responding to Subpoenas for Health Department Records

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