Responding to Subpoenas for Health Department Records

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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
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Responding to Subpoenas for Health Department Records

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