HR NOTEBOOK

It is not uncommon for human resources professionals to find themselves with the responsibility of producing personnel records in response to a subpoena. Undeniably, personnel records are sensitive. But the addition of medical information to those records –for example if an employee has requested accommodation of a disability or has taken a medical leave– creates additional responsibilities. You must balance your duty to protect confidential information against your duty to respond to the subpoena. The following Q&A provides you with a general framework for responding to a subpoena for personnel records that includes a request for an employee’s medical records or information.
 

1.  What is a subpoena anyway?

A subpoena is a form of court order directing the person named in the subpoena (this could be a specifically-named individual or a “custodian of records”) to appear at a designated time and place to testify, produce documents, or both. A subpoena requesting the production of documents is called a “subpoena duces tecum.” Unless the employer is a party to the particular lawsuit, the subpoena will not be sent to the employer’s attorney; instead, it will be delivered directly, by hand or mail, to the individual who is believed to have possession of the requested records. Any judge, and some administrative agencies, may issue subpoenas. Most often, however, subpoenas are issued by the attorneys representing one of the parties in a lawsuit or an administrative matter. Although not actually signed by a judge, a subpoena is considered a court order and the recipient can be held in contempt for failing to respond.
 

2. What should I do first?

When you receive a subpoena for personnel records, you should review it, and any attachments, to determine: who is requesting the records; what type of case is involved; what kinds of records are requested; whether you have the records; when the response is due; and how long you will need to compile the documents requested.

If a subpoena requests an employee’s “personnel file” and nothing more, you may not need to worry about the production of medical information. (Remember, an employee’s medical information should be kept separate from their personnel file.) Let’s assume, though, that the subpoena requests all personnel records, including medical information relating to FMLA/OFLA leave.
 

3. Is a subpoena alone sufficient to release medical information?

No. Individually identifiable health information, including medical records, may be obtained by subpoena in state court proceedings as provided in Oregon Rule of Civil Procedure (ORCP) Rule 55H. Under Oregon law, the attorney for the party issuing a subpoena requesting production of medical information must serve the custodian of the records with either a qualified protective order or a declaration, in addition to the subpoena.

A declaration must establish that:

1. The party requesting the records made a good faith attempt to provide written notice to the employee or the employee’s attorney;
    
2. The employee or the employee’s attorney had 14 days from the date of the notice to object;
    
3. The notice sent to the employee or the employee’s attorney included a copy of the proposed subpoena and sufficient information about the litigation to permit the employee or the employee’s lawyer to object;
    
4. The employee did not object within 14 days or, if objections were made, they were resolved and the information being sought is consistent with the agreement reached with the employee or the employee’s attorney regarding what records could be released; and
    
5. The party issuing the subpoena certifies that s/he will promptly on request permit the employee to inspect and copy the records received.

A qualified protective order is an order of the court, by stipulation of the parties, that prohibits the parties from using individually identifiable health information for any purpose other than the litigation and which requires the return of the information to the custodian of records or destruction of the information, including all copies, at the end of the litigation.

Subpoenas issued in federal court are governed by Rule 45 of the Federal Rules of Civil Procedure. There are a number of differences between the state and federal rules regarding subpoenas. For example, in federal court proceedings, a witness fee must be included with the subpoena and the subpoena must be served in person and within 100 miles of the place of the production.
 

4. What if I have questions about the subpoena?

If there are defects in the subpoena, for example no qualified protective order or declaration verifying notice to the employee, you or legal counsel should contact the person who issued the subpoena immediately and follow up with a written confirmation identifying what information is missing. Legal counsel also has the option of moving to quash the subpoena or moving for a protective order. This also applies when the subpoena is vague or requests too much – for example, asks for “all records and references” relating to a former employee.
 

5. How much notice is required?

There are no formal notice requirements other than “reasonable” notice. If you do not receive adequate notice to compile the documents, you or legal counsel should contact the party who issued the subpoena and request additional time. Failure to respond can result in being held in contempt of court. If you receive an extension of time to respond, it is important to confirm the extension in writing. If an extension of time cannot be arranged, you will need to respond by the time specified in the subpoena and explain why you were unable to compile the records within the time allowed. Failure to provide reasonable notice may also be a reason for your legal counsel to file a motion to quash the subpoena or motion for protective order.
 

6. What if the records do not exist?

It may be that the subpoenaed personnel records do not exist. This could be the case because the person was never an employee, or the person is a former employee and the records have been destroyed. In these situations, you should prepare a declaration or affidavit stating that there are no records to produce and send it to the person who issued the subpoena within the time period specified in the subpoena.
 

7. Do we get reimbursed for our time and costs?

In most cases, the time involved in reviewing the records and copying them is not reimbursed because responding to a subpoena is considered a civil obligation. However, if the request is unduly burdensome, you should speak with legal counsel about the excessive cost. Counsel may request reimbursement or file a motion to quash the subpoena.
 

8. What do I do with the records now that I am ready to produce them?

If the subpoena requires the personal attendance of the custodian of records, the custodian must appear. If no personal appearance is required, copies of the records may be mailed along with a declaration consistent with the language described in ORCP Rule 55 H(3).

With the recent rise in litigation and claims related to employees’ medical conditions, more employers find themselves being served with broad subpoenas asking for any and all medical files. If you have doubts about the validity of a subpoena, whether the employee has properly authorized the release of their records, and/or how to respond, you should contact legal counsel for assistance. The failure to respond to a subpoena or the production of records without proper authorization could lead to legal liability for the employer. 


* For 2011 Kathryn Hindman is serving as the General Counsel to the Portland Human Resource Management Association Board of Directors. Among other things, Kathy will periodically be writing a “General Counsel Column” for News and Views, PHRMA’s monthly newsletter. This Bullard Alert, which Kathy co-authored with Jennifer Warberg, appeared in the August 2011 News and Views and is reprinted here with permission from PHRMA.