Responding to Subpoenas for Health Department Records

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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

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