Responding to Subpoenas for Health Department Records

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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

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