AMARILLO, TX – Litigation includes private litigation, criminal actions, and regulatory enforcement actions. Litigation can be in state court, federal court, administrative law courts. It is not uncommon for a DME supplier to receive a subpoena commanding it to provide information, typically in the form of the production of documents or electronic data, to a third party. The third party will be a governmental or quasi-governmental agency. Alternatively, a subpoena may be served by a private litigant in a civil lawsuit.

Regardless of the source, a company that has been correctly served with a valid subpoena usually must act. Please note that the company needs to “act,” not necessarily to “respond,” and certainly not necessarily to produce all the documents that are being requested.

What is a subpoena?
A subpoena is a legal document that commands the recipient to perform a certain act as part of a legal proceeding. The subpoena could order that the recipient appear and give testimony at a deposition or at a court proceeding. It could order that the recipient answer written questions under oath. It might require the recipient to gather and produce written and/or electronic information. Sometimes the subpoena orders the party to appear for testimony and bring documents. Typically, the subpoena will have the signature of a legal officer (judge, attorney, etc.) and be served by certified mail or personal service by a law enforcement official or private process server.

A subpoena carries with it the force of law, meaning that failure to timely and properly respond to a validly issued subpoena can subject the recipient to punishment by a court of law. This punishment can include civil penalties, fines, and, in the most egregious situations, imprisonment.

Because of the potential for punishment for failing to respond, a company or individual will need to comply with a validly issued and served subpoena. The first question, then, is whether the subpoena is valid.

Was the subpoena validly issued?
A company or individual only has a duty to respond to a valid subpoena because, otherwise, the subpoena does not carry the force of law. There are a number of factors that relate to this issue, which require an analysis of the applicable state and/or federal laws in play, as well as an analysis of the legal ability of the individual or entity who issued the subpoena. These questions can only be answered by analyzing the subpoena and the applicable law. Too often a recipient of a subpoena will assume that a subpoena is valid when it is not.

Was the subpoena served correctly?
The next question is whether the subpoena was properly served. Most often this issue arises when the subpoena is directed to a business entity, as individuals almost always must be personally served. The rules of service on an entity vary by state, and federal subpoenas likewise have different rules. Typically, service can be accomplished by serving a company’s registered agent or by serving certain officers of the company. However, a company should always consult with its attorney and ensure that a subpoena was validly issued before responding.

Was the subpoena issued from a different state?
In this ever-shrinking world, many companies constantly provide services or products in many different states, so often we see that companies forget that state lines do matter in legal proceedings. This is especially true with subpoenas. A company or individual is not necessarily subject to the laws and legal commands of a court, attorney, or governmental agency in a different state. Typically, the company or individual will need to analyze its relationship to the state in which the subpoena originates in order to determine whether or not they are required to respond. Typically, the more involvement a company or individual has with a state, the more likely they must respond to a subpoena from that state.

If a company or individual does not have ties to a foreign state, they can still be compelled to respond to a subpoena that originates in that state. Each state has a procedure that can be followed that “localizes” a foreign subpoena. For example, if a Colorado attorney seeks records from a Texas company with no ties to Colorado, the Colorado attorney can take steps to have a valid Texas subpoena issued to compel the Texas company to comply with the subpoena. This is a state-specific procedure, so you must make sure that the subpoena is valid in the original state and that the localized subpoena is also valid. 

Are there HIPAA issues with the requested documents?
Assuming that a subpoena was validly issued and validly served, a company or individual served with the subpoena has the ability to object to and seek protection from the subpoena. There are a number of different reasons why a company or individual may seek to avoid complying with a subpoena. One of the most common we see relates to the disclosure of protected health information (“PHI”). HIPAA and related state laws and regulations provide significant protections for patients’ PHI. If a subpoena seeks information or documents that will include a person’s PHI, the company or individual served with the subpoena must comply with HIPAA and similar state laws.

This may require the subpoena recipient to redact PHI. The recipient may need to obtain adequate assurances that a protective order has been or will be obtained to protect PHI. The recipient may need to notify the affected individual or individuals. As you might expect, this is a complicated and fact-specific issue that must be analyzed on a case-by-case basis. It is imperative that these laws and regulations be followed, as the failure to do so can subject the recipient to legal penalties.

Does the subpoena seek confidential or proprietary information?
Another common issue is the subpoena that seeks confidential or proprietary information of the recipient. This is especially true when the subpoena seeks private company information, such as financial information, contracts, processes, and policies. While laws may provide protection to companies from having to produce this information, typically the company must take an active step of seeking an agreement from the requesting party or a protective order from a court in order to avoid producing confidential or proprietary information. Again, this is dependent on the jurisdiction of the subpoena and the company and depends on the reasons why the company seeks to avoid producing the documents. The key here is that your company may be able to avoid producing sensitive information, but it must take active steps to do so.

Even if the recipient cannot avoid producing the documents, often it can still obtain a protective order from a court that limits who can seek the information, how the information must be kept, and what must be done with the information at the end of the legal proceeding.

Jeffrey S. Baird, JD, is chairman of the Health Care Group at Brown & Fortunato, a law firm with a national health care practice based in Texas.  He represents pharmacies, infusion companies, HME companies, manufacturers, and other health care providers throughout the United States. Baird is Board Certified in Health Law by the Texas Board of Legal Specialization and can be reached at (806) 345-6320 or [email protected].