Regulation of Medicine

Article

Responding to Subpoenas for Personnel Records

By: Jason B. Malone, Jackson Lewis P.C.

August 6, 2020

What if your employee is involved in a legal matter that has nothing to do with your practice, and you receive a Subpoena Duces Tecum (subpoena) — a legal term for request for documents? You know the employee’s legal matter is completely unrelated to his employment. Do you have to respond to this subpoena? The short answer is yes.

A subpoena effectively operates as a court order directing the recipient to provide requested documents or to appear in person to provide testimony.1 In some jurisdictions, a subpoena must be issued by a court; in others, attorneys may issue the subpoena as officers of the court. Under either circumstance, the recipient must timely respond; failing to do so may result in monetary fines, legal fees to the issuing party, or, in certain cases, a judgment against the practice. How you respond, however, may depend a number of factors.

Consider the following:

1. Is the Subpoena Valid?
Employers are encouraged to consult their counsel of choice to review subpoenas to determine their validity, scope, time to respond, and whether there is a need to address procedural or substantive concerns. Most jurisdictions2 require a subpoena to contain certain minimal information to be deemed valid. Under the federal rules governing civil litigation, for instance, to be valid, the subpoena must: 1) state the name of the court that issued the subpoena; 2) provide the title of the relevant court proceeding and its civil-action number; 3) include a statement as to whether the subpoena is commanding the responding party to appear, testify, or produce records; and 4) provide information to the named party about their rights to object to the subpoena and duties to respond to the subpoena.3 The subpoena also will provide the time within which a response must be provided.

Although many states follow the federal rules for what it takes to issue a valid subpoena, other states maintain different or additional rules for issuing or responding to third-party subpoenas. A chart of illustrative states considerations appears at end of this article.

2. Can I Object to Responding to a Subpoena?
Yes, but the objections must be based on concerns with either the validity of the subpoena (i.e., it does not provide you with the statutory amount of time to respond; it was issued to an incorrectly named entity; or you need additional time to respond) or the nature or the substance of the requests (i.e., the requests are overly broad and unduly burdensome in that they seek 10 years of payroll records; or the request would require the production of trade secrets). An objection on grounds you do not want to be involved in the matter typically will not get you out of having to respond to the subpoena.

Factors to consider in making objections include:

a. How many documents are requested;

b. How much time will be needed to gather the information;

c. Are the categories of documents sought overly broad;

d. Are the documents sought protected by attorney-client privilege or other protected classifications such as trade secrets or confidential or proprietary business information;

e. Does the subpoena provide a reasonable amount of time to respond; and

f. Will the employer take on substantial expense in collecting or producing the requested information?

If there are concerns with the subpoena, contact the issuing party sooner, rather than later, to see if you can work out an informal resolution. Thus, for example, if you need additional time to pull responsive documents from storage, let the issuing party know and try to agree on a new date, time, and manner of production. Provide written confirmation to the issuer outlining the date of your request, to whom you spoke, the agreed upon resolution, and the new date on which the parties have agreed the production will occur. Similarly, if you have agreed to provide two years of payroll records rather than 10 years as set forth in the subpoena, for instance, that agreement should be fully documented and confirmed in writing with the issuing agent.

If you and the issuer cannot reach an informal agreement, then you may need to get the court involved by filing formal, written objections to the subpoena. In most jurisdictions, you will need your legal counsel to assist with court filings. Be mindful of your deadline to respond or raise objections to the subpoena. If you miss the deadline to respond to the subpoena, then you also may have waived your ability to raise objections.

You may ask the court to quash, or deny, the subpoena in whole or in part, or you may ask the court to modify certain requests in the subpoena. Generally, if formal objections to the subpoena have been filed with a court, such filing typically will hold the time for you to respond to the subpoena until the judge has issued a ruling on your objections.

Under the Federal Rules of Civil Procedure, Rule 45 provides that a court, on timely motion, must quash or modify a subpoena that: 1) fails to allow a reasonable time to comply; 2) requires travel of more than 100 miles; 3) requires disclosure of privileged matters; or 4) subjects a person to undue burden.4 The timing of such motion is defined by the federal, state, or local court rules.

Additionally, with a timely motion, a court may quash or modify a subpoena if it requires: 1) disclosing a trade secret or other confidential information; or 2) disclosing an unretained expert’s opinion or information that does not describe specific occurrences in dispute.5 A court may hold the employer in contempt if it fails or refuses to comply with a subpoena without adequate excuse.6

3. What am I Required to Produce?
What you are required to produce will depend, in part, on what requests have been made by the subpoena and about whom those requests pertain.

Before any documents are produced, confirm that your employee (or his attorney) has been advised that the subpoena has been issued. Your employee may have grounds to raise objections to the requests. If such formal objections are raised with the court, then your obligation to produce such records generally will be put on hold until the court issues a ruling. It is not enough for an employee to simply tell you that he objects to the requested documents being produced. Unless you have (written) confirmation from the issuing party or a court order quashing or modifying the subpoena, you remain obligated to respond to the subpoena as written.

In response to a subpoena for employment records, generally, all documents from an employee’s personnel records should be produced, unless state or local law specifically exempts certain documents from production. That said, absent a court order to the contrary, for example, employers should remove sensitive and confidential information from personnel records before producing to the requesting party. For example, employers should endeavor to remove information such as protected health information, medical records, and wage garnishment records. Some jurisdictions provide specific requirements in this regard. In Georgia, for instance, employers must protect an employee’s records concerning mental illness treatment, developmental disability treatment, alcohol and drug treatment, and AIDS.7 While many jurisdictions do not provide specific guidance on what records employers must keep confidential, employers should be cautious in producing employees’ medical and other confidential information to third parties (such as child garnishment orders).

In some circumstances, a subpoena specifically may request an employee’s medical records. When this occurs, an employer must ensure that either 1) the employee’s signed release has been provided with the subpoena or 2) you obtain a release from the employee whose records are being sought.

Finally, employers should be mindful that personnel records that may contain references to, or information about, other employees. Investigations memoranda, internal complaints, and disciplinary files frequently focus on multiple employees, and are often cross-referenced in employee files. Additionally, documents that memorialize an entire team’s or group’s work performance may include potentially sensitive information about other employees. Due consideration, along with consultation with your counsel, should be given to whether documents regarding an employee who is not subject to the subpoena should be redacted or withheld.

4. To Whom Should the Employer Produce the Documents?
After gathering the requested documents and removing medical information, an employer should serve the documents on the requesting party, with a copy to non-requesting parties as well. Reasonable copy or delivery fees can be charged for duplicating, and for the logistics of producing, the records. Your attorneys’ fees generally are not recoverable for standard responses to third-party subpoenas for documents.

Click here for a chart of state-specific guidelines.

 

If your organization has employment practices liability (EPL) coverage with MagMutual and has any specific employment-related questions, please utilize the Jackson Lewis P.C. Hotline by calling 1-866-758-6874.

 

1 A subpoena also may command the appearance of a witness to provide testimony at a court or arbitration hearing or a deposition.
2 There are some federal and state government agencies that also have subpoena powers that may issue subpoenas directly from the agency.
3 Fed. R. Civ. P. 45 (a)(1)(A)(i-iv).
4 Fed. R. Civ. P. 45 (d)(3)(A)(i-iv).
5 Fed. R. Civ. P. 45(d)(3)(B)(i-ii).
6 Fed. R. Civ. P. 45 (g).
7 O.C.G.A. § 9-11-34(d).

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Disclaimer

The information provided in this resource does not constitute legal, medical or any other professional advice, nor does it establish a standard of care. This resource has been created as an aid to you in your practice. The ultimate decision on how to use the information provided rests solely with you, the PolicyOwner.