<strong>Health</strong> Law Bulletin No. 82 September 2005If the subpoena directs you <strong>to</strong> appear and testifyat a deposition, a judge will not be present <strong>to</strong> issue anorder on the spot. There<strong>for</strong>e, you should contact thesubpoenaing party in advance and explain that youwill need a court order <strong>to</strong> disclose confidentialin<strong>for</strong>mation in the course of the deposition. Withenough advance notice, the subpoenaing party maybe able <strong>to</strong> secure a court order be<strong>for</strong>e the depositionor may withdraw the subpoena. If the subpoenaingparty does not respond accordingly, you shouldappear at the deposition and decline <strong>to</strong> answerquestions that call <strong>for</strong> confidential in<strong>for</strong>mation untilthe subpoenaing party obtains a court orderauthorizing you <strong>to</strong> disclose the in<strong>for</strong>mation. Yourat<strong>to</strong>rney can go with you <strong>to</strong> the deposition <strong>to</strong> assistyou in responding appropriately.Revised Rule 45 permits a witness <strong>to</strong> file amotion <strong>to</strong> quash a subpoena <strong>to</strong> testify at a courtproceeding (or submit written objections or a motion<strong>to</strong> quash <strong>for</strong> a subpoena <strong>to</strong> testify at a deposition)even if the subpoena is unaccompanied by a request<strong>for</strong> documents. 61 But, such a challenge may not besuccessful. Until the questioning of the witnessactually begins, a court may be reluctant <strong>to</strong> quash asubpoena <strong>for</strong> the simple reason that it cannot becertain of all the questions that will be asked.If it is impossible <strong>for</strong> you <strong>to</strong> 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 lawen<strong>for</strong>cement officer comes <strong>to</strong> the officewith a search warrant <strong>for</strong> confidentialrecords?A search warrant alone may not be sufficient <strong>to</strong>override protections <strong>for</strong> confidential in<strong>for</strong>mation, andyou can so advise the officer. 62 But, if the officerfinding that disclosure is necessary <strong>to</strong> the properadministration of justice); G.S. 8-53.13 (state nurse-patientprivilege also authorizing disclosure in response <strong>to</strong> 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 <strong>to</strong> a search warrant without anyadditional process. The Privacy Rule allows disclosuresthat are “required by law,” and that term is defined <strong>to</strong>include “court-ordered warrants.” See 45 C.F.R. 164.512(a)(authorizing disclosures required by law);164.512(f)(1)(ii)(A) (authorizing disclosures <strong>to</strong> lawwants <strong>to</strong> go ahead and obtain the records pursuant <strong>to</strong>the warrant, you should comply. Refusing <strong>to</strong> do somay constitute the crime of resisting, delaying, andobstructing an officer. 63 Nevertheless, lawen<strong>for</strong>cemen<strong>to</strong>fficers should be wary of using searchwarrants <strong>to</strong> obtain confidential in<strong>for</strong>mation. Whilethe officer may succeed in seizing the records withthe warrant, the warrant may not provide the officerwith the legal authority <strong>to</strong> read the records or revealthem <strong>to</strong> others, such as the district at<strong>to</strong>rney’s office. 64Question 33. Should I keep a record ofin<strong>for</strong>mation I disclose in response <strong>to</strong> asubpoena, court order, or warrant?If the records are subject <strong>to</strong> the HIPAA PrivacyRule, the health department is required <strong>to</strong> documentthe disclosure in an accounting of disclosures unlessthe subpoena, court order, or warrant wasaccompanied by the patient’s authorization. 65 Theaccounting requirement applies <strong>to</strong> disclosures of bothwritten records and oral testimony. The accountingmust specify:• the date of the disclosure,• who received the in<strong>for</strong>mation (e.g., name ofen<strong>for</strong>cement officials pursuant <strong>to</strong> a warrant); 164.103(defining “required by law” <strong>to</strong> include court-orderedwarrants). State privilege laws, however, require a distric<strong>to</strong>r superior court judge (rather than a magistrate) <strong>to</strong> orderdisclosure based on a finding that disclosure is necessary <strong>to</strong>the 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. <strong>Records</strong> 1970) (“ifyou got a warrant, I guess you’re gonna come in”).64. Search warrants are often issued by magistrates,who are not authorized <strong>to</strong> override the privilege <strong>for</strong>confidential medical in<strong>for</strong>mation 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 in<strong>for</strong>mation 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-en<strong>for</strong>cement officer may befound civilly liable <strong>for</strong> obtaining confidential records withsearch warrant).65. 45 C.F.R. 164.528. A series of frequently askedquestions related <strong>to</strong> the accounting of disclosures isavailable at www.medicalprivacy.unc.edu.18
September 2005 <strong>Health</strong> Law Bulletin No. 82court and case number would suffice ifrecords were delivered <strong>to</strong> a clerk of court or“Mr. Jones, at<strong>to</strong>rney <strong>for</strong> Ms. Smith” in thecase of testimony in a deposition),• a brief description of the in<strong>for</strong>mationdisclosed, and• a brief statement of the purpose of thedisclosure, which may simply be a copy ofthe subpoena, court order, and/or warrant.If the in<strong>for</strong>mation is not subject <strong>to</strong> the PrivacyRule, the accounting of disclosures is not legallyrequired. The health department may, however, wish<strong>to</strong> establish a uni<strong>for</strong>m policy <strong>for</strong> tracking suchdisclosures. For example, it would be relativelysimple <strong>to</strong> 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 <strong>to</strong> 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 at<strong>to</strong>rneybecause your local policies <strong>for</strong> responding <strong>to</strong>subpoenas may differ from the general guidanceoffered in this bulletin.This bulletin is published by the School of Government <strong>to</strong> address issues of interest <strong>to</strong> government officials. Public officials may print ou<strong>to</strong>r pho<strong>to</strong>copy the bulletin under the following conditions: (1) it is copied in its entirety; (2) it is copied solely <strong>for</strong> distribution <strong>to</strong> other publicofficials, employees, or staff members; and (3) copies are not sold or used <strong>for</strong> 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 <strong>to</strong>tal 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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