The Subpoena for Records
By: Richard S. Leslie, J.D.
      Of Counsel

The Therapist
(September/October 1989)

Perhaps the most common question I am asked by members is "What do I do, I just got served with a subpoena for my records?" This article will address both the technical and the practical aspects of dealing with a subpoena for records, technically called a deposition subpoena (for civil proceedings) or a subpoena duces tecum (for civil or criminal proceedings).

A deposition subpoena (for records only) compels a non-party (witness) in a civil proceeding to produce records, with no attendance required at the deposition. A subpoena duces tecum is a writ or order directed to a person (witness) requiring him/her to bring or produce any books, records, or other items under the witness' control which he/she is bound by law to produce in evidence. Generally, subpoenas are issued either by the clerk of the court or by an attorney of record in the particular legal action or proceeding. Your first instinct upon receipt of a deposition subpoena or a subpoena duces tecum (for records) should be to claim the psychotherapist-patient privilege and not to produce the records. It may result that the privilege will not apply and that records will have to be produced, but early and blind compliance could result in trouble for the unwary therapist (a breach of confidentiality complaint by patient against therapist in a separate lawsuit or a complaint to the BBSE for unprofessional conduct).

Before proceeding to a technical and practical analysis of the issue, a few other preliminary comments are in order. First, it is important to ascertain who issued the subpoena, e.g. your patient's attorney or the attorney representing the adverse party in the lawsuit. Most often, based upon the telephone calls I receive, the subpoena is issued by the adverse party's attorney, e.g. the defendant in a lawsuit your patient is pursuing as a plaintiff. In divorce/custody proceedings, the subpoena is often issued by the spouse of your patient. This is usually ascertained by reading the subpoena carefully, or can be determined by asking the attorney who issued the subpoena. When doing so, be sure not to reveal any information pertaining to the treatment of the patient.

Secondly, you should determine whether the proceedings involve a civil or criminal matter. Criminal matters are always entitled "People of the State of California" vs. the defendant. All other matters are civil proceedings. In criminal matters the attorney representing the "People" will usually be a deputy district attorney or a deputy city attorney. It is important to remember that since January 1, 1986, licensed marriage, family and child counselors are covered by the psychotherapist-patient privilege in civil and criminal proceedings, like psychiatrists and psychologists. Additionally, since January 1, 1987, registered interns are covered by the privilege in both civil and criminal proceedings. As of January 1, 1989, MFCC trainees who are gaining hours of experience in their required practicum are covered by the privilege in civil cases only. The importance of being covered by the privilege is simple - it requires the licensee, intern or trainee to assert the privilege when records are being sought and the patient or his/her attorney is not present to assert the privilege.

The Technical Provisions
The technical provisions of the law are included for several reasons. One reason is so that you will have access to some basics concerning the process, should you ever be in a position to discuss/argue the issue with the subpoenaing attorney or with your patient's attorney. The second reason is to assist your attorney, should it ever be necessary for you to retain an attorney to represent your interests. My experience has been, based upon your telephone calls to me, that the overwhelming majority of attorneys do not comply with this section of law, thus providing you, the witness, with technical grounds upon which the subpoena could be resisted, if that were necessary in a particular matter. Finally, should the subpoenaing attorney give you a hard time regarding the production of records, you could read the technical parts of this article to him/her and ask him/her why the process used does not appear to be in compliance with Section 1985.3 of the Code of Civil Procedure. I have not included every detail or every exception to the general rules because to do so would make this difficult area of law even more complex. Section 1985.3 does not apply to criminal proceedings or to workers' compensation cases. Those matters can be handled as indicated in the section entitled "The Practical Approach."

Section 2020 and section 1985.3 of the Code of Civil Procedure deal with the subpoena for production of personal records (called a deposition subpoena or a subpoena duces tecum) in civil proceedings. "Personal records" is defined as the original or any copy of books, documents, or other writings pertaining to a consumer (the patient) and which are maintained by any "witness," which is defined, among others, as a "physician," "hospital," or "psychotherapist" as specified in Section 1010 of the Evidence Code. Licensed MFCCs, MFCC Registered Interns and certain trainees, as described earlier, are included within this section of law. "Consumer" means any individual who has used the services of the witness.

The law then requires that the date specified in a subpoena for the production of personal records in a civil proceeding be not less than 20 days from the date the subpoena is issued. Additionally, the law requires that prior to the date called for in the subpoena duces tecum for the production of the personal records, the subpoenaing party (the person causing the subpoena to be issued or served) shall serve or cause to be served on the consumer (patient) whose records are being sought a copy of the subpoena duces tecum, the affidavit supporting the issuance of the subpoena, and a notice. The notice is intended to notify the patient in a timely manner that his/her records are being sought from the witness and to advise the patient what to do if he/she objects to the witness furnishing the records. The service of the above papers may be made on the patient's attorney when the patient is a party to the lawsuit (one of the named litigants - usually plaintiff or defendant, or petitioner/respondent).

Service of the notice described above shall not be less than 10 days prior to the date for production specified in the subpoena duces tecum, and shall be at least five days prior to service of the subpoena upon the custodian of records. These periods of time may be lengthened if service is by mail (generally, five additional days). Prior to the production of the records, the subpoenaing party shall either serve upon the witness (therapist) a proof of service attesting to compliance with the service of the notice requirements specified above, or furnish the witness with a written authorization to release the records signed by the consumer or by his/her attorney. The witness (therapist) may presume that any attorney purporting to sign the authorization on behalf of the consumer acted with the consent of the consumer. With respect to service of the subpoena duces tecum upon the witness, the law states that the service shall be "in sufficient time to allow a witness a reasonable time to locate and produce the records or copies thereof."

The law then specifies that any consumer whose personal records are sought by a subpoena duces tecum may, prior to the date for production, bring a motion to quash or modify the subpoena duces tecum. Notice of the bringing of that motion shall be given to the witness prior to production. No witness is required to produce personal records after receipt of notice that such a motion has been brought, except upon order of the court in which the action is pending or by agreement of the parties, witnesses and consumers affected. This rather complicated section of law concludes by stating that failure to comply with its provisions shall be sufficient basis for the witness to refuse to produce the personal records sought by a subpoena duces tecum. If you receive a subpoena duces tecum for production of records in a criminal proceeding, no notice to consumer is required. However, Section 1985 of the Code of Civil Procedure requires that a subpoena duces tecum for the production of records in a criminal proceeding must be accompanied by a copy of the affidavit or declaration showing "good cause" for the production of records.

The Practical Approach
Now that you might be somewhat overwhelmed by the technicalities, let me try to set you at ease. In over 95% of the cases, handling the subpoena for records is rather easy. You need only follow a few basic rules.

It is important to remember that the holder of the privilege is the patient, so you will generally take direction from the patient, through his/her attorney. When initially served with the subpoena duces tecum, and since the patient will not be present, you should claim the privilege and not release any information. You should then call the patient and let him/her know that you received a subpoena for his/her records and that you need to speak with his/her attorney to get instruction on how to respond. Many patients do not realize that if they are suing for mental or emotional distress, the psychotherapist-patient privilege has probably been waived by them and the other side may well be entitled to all of your records, and later, your testimony, at trial.

After talking with the patient, promptly get in touch with the patient's attorney. You should then describe what you received, and the manner of receipt, to the attorney and ask him/her what you should do. If the attorney tells you that the privilege has been waived because the patient is suing for mental or emotional distress, or for some other reason, he/she will likely instruct you to release a copy of your records to the subpoenaing attorney. You should suggest that the records first be sent to your patient's attorney, so they can be perused by him/her before being sent to the adversary. It is possible that the attorney might want to seek a protective order from the court in an effort to not disclose certain portions of the file. At the time you make this suggestion, you should also ask the attorney to send you a signed authorization from the patient (especially if the patient was under the impression that the records were not going to be disclosed). If the attorney balks, you can ask the patient to come in and sign the authorization. While this step is probably not mandatory, it is a good practice to follow. Be sure to keep notes of the dates, times and content of your various conversations.

In the event that the patient's attorney tells you that the psychotherapist-patient privilege has not been waived by the patient (whether he/she is right or wrong) and that he/she does not want you to release any records to the subpoenaing attorney, request that he/she call or write the subpoenaing attorney to let that attorney know that you have been instructed to not release records and to assert the privilege. Sometimes the attorney will be reluctant to do this, but you should push the attorney further. Let him/her know that the privilege belongs to the patient and that you are supposed to follow the patient's (through his/her attorney) direction. If the attorney will not follow through, you can call or write the subpoenaing attorney and let him/her know that you have been told that the privilege has not been waived. In other words, try to manipulate the situation so that you put the two opposing attorneys in touch with each other, with you on the sidelines awaiting instructions. You can even suggest that they battle it out in front of a judge and that you will abide by the court's decision and order.

The above-described process will work in an overwhelming majority of cases. The basic rule to follow is that you will release information upon the authorization of your patient, through the patient's attorney, or pursuant to order of the court. The latter will usually occur either when you are in court or following arguments between the opposing attorneys in a proceeding to determine whether or not the psychotherapist-patient privilege applies. Some cases will be complicated by the fact that you may have seen a couple or an entire family, sometimes conjointly or in group sessions and individually. Questions of confidentiality and privilege in these circumstances are often complex. If you do not keep accurate and complete records you may have trouble determining what information was gained from what member of the family and at what session. In such cases take great care to insure that your release of records is with the consent of all of your patients. It may even be necessary or advisable in complicated matters such as this that you retain your own counsel to protect your interests. If you are insured by National Professional Group, the malpractice carrier recommended by CAMFT, you may be entitled to coverage for consultation with an attorney in these situations. Often, however, the attorney for your patient will assist you in obtaining the necessary consents or in resisting the subpoena on the grounds that compliance would mean breaking the privilege with respect to the other patient or patients. When your identified patient is the couple, your safest position is that you need the consent of both parties, or a court order, before you will provide records or information about either.

In the overwhelming majority of situations, there will be no need to resort to a technical resistance to an improper service of a subpoena duces tecum. Were you to voice your objections, the subpoenaing attorney could simply start over and serve the subpoena correctly. Usually, consultation with the patient's attorney will give you the direction you need.

In the event, however, that you are dealing with one of those cases that is not easily resolved, an awareness of Sections 2020 and 1985.3 of the Code of Civil Procedure may prove helpful in dealing with the subpoenaing attorney. Remember, in civil proceedings, the patient or his/her attorney is supposed to receive a notice, described above, that his/her records are being subpoenaed from you. Additionally, in criminal proceedings, Section 1985 requires that a copy of the affidavit or declaration showing cause must accompany the subpoena duces tecum. The reason why many attorneys do not comply with this section when issuing a subpoena, I suspect, is because of all the paperwork involved, and because the statute was amended, effective January 1, 1987, to apply to psychotherapists.

This article appeared in the September/October 1989 issue of The California Therapist, the publication of the California Association of Marriage and Family Therapists, headquartered in San Diego, California. This article is intended to provide guidelines for addressing difficult legal dilemmas. It is not intended to address every situation that could potentially arise, nor is it intended to be a substitute for independent legal advice or consultation. When using such information as a guide, be aware that laws, regulations and technical standards change over time, and thus one should verify and update any references or information contained herein.

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