Regardless of whether you decide to comply with the subpoena or contest it, it is important that you respond to the subpoena, even if it is merely to note your objection. If you are uncertain how to do this, a properly drafted civil subpoena will explain this process in the final pages. So if you read the subpoena carefully, as you should with any legal document, the process for responding is contained in the document itself.
To summarize this process, it is important to understand what the subpoena is seeking. In the civil realm, there are two types of subpoenas: 1) a subpoena requiring your appearance for testimony at a deposition or trial, or 2) a subpoena duces tecum, requiring production of documents or inspection of premises.
If you are served with a subpoena to appear for testimony, you must either appear at the time in the subpoena or obtain a protective order from a judge, excusing your presence. If you are served with a subpoena for production of documents or inspection of premises, you must either comply with the request, or serve a written objection to the production. The written objection must be served by the production date in the subpoena, or within 14 days, whichever is sooner.
It is important to understand that a subpoena may require both the production of documents and your appearance to testify. I mention this because some attorneys will send a subpoena requiring your appearance if you fail to produce documents by a certain date. In these instances, simply serving an objection to the subpoena is not enough; you need to either appear or obtain an order from a judge.
Now while the above process may seem relatively simple, you would be surprised how often this process is abandoned. One of the main reasons that businesses seem to deviate from the above process is concern over compliance with HIPAA 45 C.F.R. § 164.512. Unfortunately, production of protected health care information is not specifically referenced in the Washington subpoena language, which is a shame; I think that it would go a long way toward clearing up compliance issues. With that said, a properly issued civil subpoena in Washington should not conflict with the protections under HIPAA.
According to HIPAA, there is a general prohibition from disclosing protected health care information, unless an exception applies. While there are a number of exceptions to the protections of HIPAA, for the purpose of this discussion, the relevant exceptions are: 1) there is an order signed by a judge or administrative agency requiring the disclosure; or 2) written assurance is provided that the patient has been notified of the subpoena and is given a proper opportunity to obtain a protective order. Since Washington allows attorneys to issue civil subpoenas, the first exception is often not met because the majority of civil subpoenas are issued by attorneys. However, a properly issued subpoena for health care information will meet the second exception, because Washington has a special advance notice requirement to comply with HIPAA under RCW 70.02.060. In order to obtain health care information, the requesting party must provide 14 days advance notice to both the provider and the patient. If the attorney has complied with the notice requirements, the health care provider must provide the records as requested unless a protective order is obtained excusing the production.
I have seen businesses get burned a time or two for refusing to comply with subpoenas on the basis of HIPAA. Some businesses will even adopt blanket policies, refusing to comply with a request absent court order. While I can understand the desire to have a court order from a liability standpoint, the fact is that Washington does not require an order for production of documents. While I am usually understanding if a health care provider asks for a court order, not all attorneys take the same approach. I have actually seen a health care provider held in contempt of court for failing to properly respond to a subpoena. Even if you are concerned about violating HIPAA, it would appear to me that there are ways to voice your concerns under the law without also exposing yourself to sanctions. The penalty for a HIPAA violation can be severe, but there is a line that you can walk where you are protected.
Finally, I will also note that it is important to ensure that the proper procedures have been followed before you comply with a subpoena. An out of state subpoena is generally not valid, unless the attorney has also received a reciprocal order from the state where you are served. If an order is obtained from the proper state, you are generally only required to appear in the county where you reside or do business in person. Additionally, for a subpoena to be valid, it must be properly served. Fax, email and mail are not acceptable methods of service, unless you consent to service in this fashion. It may be more convenient to accept service of legal documents via fax and email, but it can also leave you scrambling when you receive an unexpected request.
Matthew T. Blum is an attorney for the Law Offices of Carolyn M. Drew, P.S., focusing on Family Law, Estate Planning & QDRO drafting, and Probate matters. He can be reached at 360-690-0822, or matt@carolynmdrew.com. The above editorial contains general information concerning laws relating to subpoenas in the state of Washington. If you have questions about specifics of your own case, you should consult with an attorney.
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