Subpoena Checklist

After the Federal Privacy Regulation (HIPAA) became effective, April 14, 2003, the Oregon Legislative Assembly enacted changes to the Oregon Rules of Civil Procedure, the rules that establish the requirements for a valid Oregon subpoena. These changes have occurred in Oregon Rules of Civil Procedure (ORCP), Rule 55H and Rule 55I, both of which address subpoenas for PHI. The first change introduces a requirement under ORCP 55H that the attorney issuing the subpoena provide the health care provider with “satisfactory assurance” that a reasonable effort has been made to give the patient or the patient’s representative written notice of health information requested in the subpoena or to obtain a Qualified Protective Order. A Qualified Protective Order is an order of the court agreed to by both parties to the litigation that requires the return or destruction of the information when the litigation is concluded. If a Qualified Protective Order is attached to the subpoena, the notice requirements do not apply. ORCP 55I was repealed.

The requirements of ORCP 55H apply to both civil subpoenas and criminal subpoenas that request health information for use in trial. ORCP 55H does not apply to grand jury subpoenas.

The following is for general information purposes only and is not intended as legal advice. Requirements for a valid Oregon subpoena appear to include:

1. The subpoena is accompanied by a witness fee and mileage payment.

2. The subpoena states the name of the court and the title of the action.

3. A subpoena is issued by any of the following: an attorney of record in the case, a judge, a justice, a court clerk in which the action is pending or by any other officer empowered by the laws of the United States to take testimony or administer oaths.

4. The subpoena is addressed to someone; for example, the physician or the physician or hospital “records custodian.” If the physician is called upon to appear and testify without an option of sending the records, then that person must obey the subpoena. If the subpoena states the records custodian must appear, then the practice or hospital may designate whomever they want to make the appearance.

5. If the subpoena calls for the production and disclosure of something, likely it will be PHI. Most often, the subpoena calls for the practice to release, “any and all information in your possession concerning the patient…” and then goes on to list: “including but not limited to (a number of specific items). Carefully review the request and then examine the PHI to determine if it contains specially protected information. It will take a court order or patient authorization for release of this information.

6. There are satisfactory assurances of notice. This will take the form of an attorney affidavit or declaration accompanied by supporting documentation demonstrating:

   1. That the party has made a good faith attempt to provide written notice of the requested disclosure to the individual or their attorney more than 14 days before the subpoena was served. If the individual is not represented and the individual’s location was not known, then the notice was sent to the last known address of the individual; and

   2. That the notice included the proposed subpoena described the litigation or proceeding and described the PHI being requested; and

   3. That the time for the individual to raise an objection has lapsed and either no objection to the requested disclosure of PHI was raised, or any objections were resolved and the information sought by the subpoena is consistent with that resolution. OR The party obtained a qualified protective order that meets the requirements of 45 CFR § 164.512(e)(v) and ORCP 55H(1)(b) and a copy of the order is attached; and

   4. That upon request, the party will allow the individual or their attorney to inspect and copy of the records received pursuant to the subpoena.

You can find a sample affidavit on the OMA’s website, http://www.theoma.org or the Oregon Association of Hospitals and Health Systems website at www.oahhs.org under “Sample Forms/Policies". If the subpoena you received does not contain all of the elements listed above, contact the attorney who issued the subpoena. Let them know what is missing and that you will comply when it is received.

With any subpoena, consider consulting legal counsel. OMA’s Medical-Legal Affairs department or legal counsel at OAHHS may provide general legal information and where necessary, refer you to an attorney.

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