Thursday, June 30, 2011

The Subpoena: Ethical Use and Unethical Myth-Use - Myth No. 3

Myth No. 3:  If I subpoena documents to the Courthouse, but the witness drops them off at my office by mistake, or out of convenience, I can go ahead and look at them and then decide if I want to go ahead and file them, or just throw them away.

Once subpoenaed, all parties have a right to look at the documents.  KBA E.423.  Failure to give notice to opposing counsel violates RPC 3.4(a) by obstructing the party’s access to evidence.  If by chance or by courtesy the custodian delivers them to your office, you should follow one of two paths, depending upon the circumstance.

Prior Court Approval:  If the documents are being produced after a hearing has already been held and a court order has been issued allowing you to have them, you can open the file and look at the documents.   You still must file the contents in the court file, however, as it is information produced pursuant to a court order, and available to all parties and the court.  Throwing them away risks a destruction of evidence charge. 

If it is critical that you examine your client’s medical records, social security records or other documents relating to him, without incurring the obligation of having to turn them over, use a release.  Then you only have to turn over those documents you intend to introduce at trial, or which you show to an expert you expect to call live at trial, and that is only if there is an obligation of reciprocal discovery.

No Prior Court Approval.  If there has not been a hearing concerning the discoverability of the documents, and the Court has not otherwise ordered that you are entitled to see them, then you should not look at the documents, but should place the sealed envelope into the court file and schedule a hearing, asserting your right to look at the documents.  If you look at the contents, or publish them to someone else, only to find out later that the documents were privileged and should have been revealed to you, if at all, only after an in camera inspection, you could open yourself up to sanctions for abuse of process and place at risk your ability to use the documents in trial.

KRS 422.305 specifically governs subpoenas of medical records, and KRS 422.330 specifically provides that the psychiatrist-patient privilege is to remain intact.  Hence, subpoenaing a person’s mental health records and looking at them without prior court permission can subject the attorney to contempt of court or a finding of misconduct.

Other statutes preserve confidentiality or privacy interest, even while allowing the confidential or private records to be subpoenaed.  One example of the risks associated with using such subpoenaed documents prior to court authorization occurred recently in the defense of a “doctor shopping” case tried by a colleague of mine.  “Doctor shopping” refers to an alleged illegal attempt to obtain a prescription for a controlled substance by knowingly misrepresenting to, or withholding information from, a practitioner licensed to dispense drugs, in violation of KRS 218A.140.    The “doctor shopper” theoretically goes from doctor to doctor to doctor attempting to get multiple prescriptions for the same drug in a short period of time.

To combat this practice, the Cabinet of Human Resources maintains an electronic system for monitoring controlled substances, whereby each practitioner who prescribes or dispenses drugs provides data including the name and address of the person to whom each prescription was given.  The Cabinet is authorized to provide this data to any state, federal or municipal officer whose duty is to enforce the drug enforcement laws of Kentucky or the United States, and who is engaged in a bona fide specific investigation involving a designated person.  KRS 218A.202.  The drug enforcement officer can then use the data obtained to obtain a warrant, effect an arrest, procure an indictment, or perform any other legitimate police task.

In my colleague’s case, the authorities used a subpoena to obtain the compilations of data from the Cabinet’s database.  However, upon obtaining the data, the authorities rushed into the grand jury room, presented the results of the data, and procured indictments for doctor shopping against his client.  This was a misuse of the materials and an abuse of the statute, which provides in pertinent part:  “A person who receives data or any report of the system from the cabinet shall not provide it to any other person or entity except by order of a court of competent jurisdiction.”  Because the government had not sought a court order prior to publishing the information to a grand jury the data was suppressed as illegally obtained evidence.

The moral is, just because you got something by a subpoena, it does not mean you can use it anyway you want; other rules of privilege or confidentiality may limit the usage.

an excerpt from The Subpoena: Ethical Use and Unethical Myth-Use by Scott West