Flow Chart, Treatment of Anxiety Disorders

Why Psychologists Should Care About Outcome Measurement

HIPAA Update: Security Rule

HIPAA and Standards
of Encryption

Childrens' Rights to Confidentiality of
Treatment Records and Interaction with HIPAA

Professional Liability
Insurance: Chapter 3,
"The Paper Office"

Professional Liability
Insurance: "Shopping Tips"

Professional Will

Responding to a
Subpoena

Responding to a Subpoena
By James R. Moats, OPA General Counsel, and Brian T. Johnson
Carlile Patchen & Murphy, LLP

The term “subpoena” (Latin for “under penalty”) generally evokes negative emotions. Receiving a subpoena can be intimidating—and even frightening. Most professionals would like to avoid receiving a subpoena if possible. However, as our society becomes more litigious, subpoenas are becoming more common. In fact, if you are a practicing psychologist, it is likely that you too will someday be served with a subpoena ordering you to turn over documents or appear to testify. Therefore, it is important to understand the context in which a subpoena is generally served, what a subpoena is and what options you have by way to respond.

The context of a subpoena

A subpoena is most often served in the context of a civil lawsuit between two or more adversarial parties engaged in some type of dispute. As part of the litigation process, the parties to a lawsuit are allowed to investigate the facts underlying the dispute in a process called “discovery.” Subpoenas are most often served upon people or entities as part of this discovery process and usually seek information or documentation relevant to the dispute. You may also receive a subpoena instructing you to appear to testify at a hearing or trial.

What is a subpoena?

A subpoena is a court order that directs the person named to appear at a designated time and place to testify, produce or allow the inspection of documents, or both. It is used to obtain testimony or records from a person who is not a party to a case.

Any judicial official, judge, magistrate, clerk of court, attorney, court reporter and even a party to the case may invoke the power of the court and issue a subpoena. A subpoena should not be ignored. Like any court order, ignoring a subpoena could result in serious sanctions, including being found in contempt of court and liability for expenses and attorney fees.

Depending upon the particular court through which a subpoena is issued (i.e., either state or federal courts), certain things must be included in the subpoena. For example, a subpoena must state the name of the court from which it is issued, the title of the underlying action, the case number and must further command the person to whom it is directed to attend and give testimony or to produce and permit inspection of documents at a particular time and place. In addition, pursuant to Ohio Rules of Civil Procedure 45(B), if you reside outside the county where the court is located, you are entitled to payment of witness fees and mileage costs by the party who has issued the subpoena.

What should you do when you receive a subpoena?

When you are properly served with a valid subpoena, whether in person, by an officer of the Court, or by regular or certified mail, you are required to comply with its instructions.

As a courtesy, the attorney requesting your testimony or documents may contact you in advance to get the dates and times that are convenient for you to appear. If the attorney identified on the subpoena does not contact you directly, it is always a good idea to contact the attorney yourself to clarify exactly what the subpoena seeks, to obtain additional time to respond if necessary or perhaps to agree on a new date or time that is more convenient for you.

The party or attorney who has issued the subpoena is obligated under Ohio Rules of Civil Procedure 45(C) to take reasonable steps to avoid imposing any undue burden or expense on the person or entity subject to the subpoena.

Further considerations – confidentiality

Any time you receive a subpoena requesting disclosure of patient or client records, it is important to consider confidentiality issues.

The documents or testimony sought may be confidential or privileged communications subject to the protection afforded by section 2317.02 of the Ohio Revised Code (“Privileged Communications”), section 4732.19 of the Ohio Revised Code (“Privileged Communications”), and/or section 4732-17-01(G) of the Ohio Administrative Code which focuses on “Confidentiality.” Your first step should be to make that determination. If a confidentiality or privilege claim must be asserted, you should do so immediately with the attorney issuing the subpoena. If the attorney does not agree with your claim and intends to continue with the discovery, then you can either appear at the appointed time and assert your claim of confidentiality or privilege on the record or you, or your counsel, can file a motion to quash the subpoena with the Court from which the subpoena was issued.

If you are unsure whether the documents or testimony sought are protected by the rules of confidentiality or privilege, then you should seek immediate guidance on this issue before responding to the subpoena.

Contesting a subpoena

The Ohio Rules of Civil Procedure provide that within 14 days after service of a subpoena or before the time specified for compliance (if such time is less than 14 days after service), you may serve upon the party or attorney who issued the subpoena written objections to production. If you object in this way, the party who has requested the information shall not be entitled to it unless a court order is obtained. In response to such a motion, the Court may issue an order to modify the subpoena or order appearance or production only under specified conditions, or the Court may choose to quash the subpoena in its entirety. The Court must first determine if the subpoena does any of the following:
fails to allow reasonable time to comply;
requires disclosure of privileged or otherwise protected matter and no exception or waiver applies;
requires disclosure of expert witness materials 1) from an expert not hired for litigation purposes; and 2) not related to the underlying litigation or to matters at issue in the underlying litigation; or,
subjects a person to undue burden.

Conclusion

Because a subpoena constitutes a court order, it should never be ignored or carelessly disobeyed, or you run the risk of serious consequences. When you receive a subpoena, you have several options as to how to respond. It is always wise to talk with the person issuing the subpoena, consider whether confidentiality or privilege needs to be asserted and then respond accordingly.

Reprinted with permission of the Ohio Psychological Association (OPA) from the Ohio Psychologist Update, December 2004, Volume 51, Issue 4. The Ohio Psychologist Update is published as a service to members of OPA.

We acknowledge and thank Division 42 member Dennis Kogut, PhD, who arranged for the reprinting of this article. Dr. Kogut may be contacted at Central Behavioral Healthcare, 5965 Renaissance Place, Toledo, OH 43623. Email: DKogut@cbhpsych.com.