SUBPOENA PROBLEMS: CUSTODIANS OF RECORD (Part 1)
Subpoenas are a mechanism for obtaining discovery from non-party witnesses or organizations, usually in the form of documents or testimony. During the course of a personal injury lawsuit, several rounds of subpoenas end up being issued by defense attorneys to obtain the medical and employment records of the plaintiff from medical providers and current or former employers.
Because these types of records generally contain private, privileged, and confidential records or information, there are several safeguards contained in the procedure to protect against improper disclosure.
Unfortunately, in my experience, most medical offices and employers are not familiar enough with the procedures and/or fail to follow the instructions and limitations contained in the subpoena. The following is a brief synopsis of some of the problems that lead to improper disclosure of information:
- The custodian of the subpoenaed records is not personally served with the subpoena.
- The custodian of the subpoenaed records does not abide by the limitations on what should be produced.
- The custodian ignores the objections asserted by the plaintiff’s attorney.
- The custodian produces records early.
The challenge for a California plaintiff’s attorney is to find an effective way to address the problems that lead to improper disclosure of their client’s records within the statutory framework of the Code of Civil Procedure.
Please be sure to review the subsequent parts of this topic, where the above issues are explored in more depth.