Volume 2, Number 1
|Table of Contents|
Subpoenas -- How To Make Them Stick
As many employers already know, it's essential in employment litigation to obtain information and documents from third parties, such as prior employers and health care providers, to successfully defend against often groundless claims. Actually receiving that critical information, however, can be very difficult. One litigation tool that can be invaluable in that effort is a subpoena.
During the discovery phase of the litigation (the pretrial exchange of facts and documents) and then finally at trial, the subpoena can get you the valuable information needed to win your case and can open doors of information about your adversary. It's a simple yet effective tool if used properly.
The following are five simple rules to follow to make this tool work and make the subpoena "stick" -- once a subpoena is "attached" to a person, organization, or medical provider, you have the court's jurisdiction over them to ensure full compliance.
The first rule is proper jurisdiction. Jurisdiction will most likely be the U.S. district court since most employment issues deal with federal questions. The subpoena form is obtained from the court, and you may request as many as you need for your purposes.
Now that you have the form, be mindful to fill it out entirely. Most information you seek will be in the state of Maryland, but if it isn't, use the Internet to see if the distance from the court to the recipient's address exceeds 100 miles. If it's more than 100 miles and the case is in the U.S. district court, you must use a U.S. district court subpoena that's within a 100-mile radius of the recipient. You can note the original jurisdiction of the case above the case number on the subpoena form. For all other subpoenas besides federal, the original jurisdiction is valid even if the recipient is outside a 100-mile radius of the court.
Now that you have ensured the court's hold over the recipient, you can have that witness you need for trial or records from your adversary's previous employers.
Get medical records
Subpoenas are also useful in obtaining medical records. Here are some tips for obtaining them.
You must first figure out what sort of medical records you want to obtain -- physiological or psychological. Most adversaries won't give you a signed authorization that complies with the Health Insurance Portability and Accountability Act. If they do, the authorization must follow the new federal guidelines or it will be denied. Therefore, if you want to obtain medical records and you have only a doctor's name, the Internet can be very helpful. In all states, the medical provider must be licensed and using an Internet site called "AIM" (Administrators in Medicine). You can look up any physician, physician's assistant, or psychiatrist.
The site allows you to look up a name by last name and first name. If you don't have a correctly spelled last name, you can do a "wildcard" search using the first two letters of the last name and an asterisk. From there, you will find the doctor you need records from and all his current licensing information. The AIM site will also tell you if the physician's license is nonrenewed, thus saving you the time of drafting the subpoena in the first place.
Most of your adversary's physicians will currently be in practice, however. Some doctors will have more than one office, but since the fields on the AIM website are limited to one address, you can use www.yellowpages.com to find all the doctor's listings. Be sure to obtain the telephone number of the doctor since that will be vital for the last tip of this article.
For psychological records, a subpoena simply isn't enough. Who the provider is and where she's located is very important. You need to check the rules of discovery for each state to see if psychological records are obtainable. Generally, Maryland doesn't hold psychological records as privileged if the person filing the suit claims psychological damage. That includes social workers and nurses in the field. Some psychiatric inpatient hospitals, however, defer to their private-sector rules and will ignore a subpoena if the patient didn't authorize the release of the records.
In many cases, using a certification of subpoena of mental health care records in accordance with Md. Code Ann., Health Gen'l § 4-307, with a copy of Maryland rules and/or the federal rule attached will help you obtain your adversary's mental health records. The certification is basically a brief memo using the heading of a pleading, citing the rules of Maryland that state the documents aren't privileged.
Serve the subpoena properly
This brings us to the third tip -- proper service. All requests for psychiatric records must be served by private process. Subpoenas for trial must also be served by private process. For physiological records and other organizations' records, you may serve the subpoena by certified mail, return receipt requested. Be sure to hold on to the return receipt so that if you need the court to obtain the documents, you have proof of service. Private-process servers will automatically create an affidavit of service and file it with the court once service is complete.
Give adequate time to respond
The time allotted for subpoenas is also important in ensuring that your subpoena "sticks." Subpoenas basically give a deadline to the recipient for when (and where) the records should be produced. According to Maryland rules, the minimum is 30 days. But since a copy is given to your adversary's counsel, they only need five days to object or quash the subpoena. Common courtesy will allow for 30 days, but if you're stuck in a pinch and you need a person for trial, five days is the minimum. In the U.S. district court's jurisdiction, the minimum is 15 days.
If you want records, time is important because most medical providers and large corporations need at least 15 days to produce them. Usually, they will send the subpoena through their own legal department to see if it's "good." If you want your subpoena response fast, call ahead and ask how the recipient would process a subpoena, therefore clearing through a lot of red tape.
Follow up, follow up, follow up!
Even by strictly adhering to the above tips, the fifth is most important: Follow up. To get records before the court steps in, you must make good-faith efforts to contact the recipient. By making phone calls and sending letters, you can remind the recipient that he's bound by the court to produce the records -- remember, a subpoena is only as strong as the person who sends it is diligent.
In the instance of a subpoena for trial, if the recipient doesn't show up for trial, he may be arrested by the sheriff's office. A simple reminder of that fact to the recipient usually is sufficient to ensure compliance with your subpoena.
By using the above tips for your subpoena, you can make your subpoena stick.
Copyright © 2004 M. Lee Smith Publishers LLC; Rayna J. Conetta. First appeared in 14 NO. 4 Md. Emp. L. Letter 3, Maryland Employment Law Letter, January 2004
Copr. (C) 2005 West, a Thomson business. No claim to orig. U.S. govt. works. This article is reprinted with permission from West, a primary sponsor of the General Practice, Solo and Small Firm Division.