Response to a Subpoena for Documents and Business Records
In our prior articles in this series, we talked about subpoenas for evidence (Subpoena Duces Tecum), what they consist of and what they are used for, and then about the proper way to react when such a subpoena is served upon you. This article will address how to make a response to such a subpoena, what we refer to you in legal circles as “making a production.”
You have reviewed the subpoena with counsel, and a decision has been made to comply with the subpoena instead of challenging it. Let’s say counsel has negotiated an extension on the due date, and the agency that issued the subpoena has also agreed to a “rolling production”, that is, receiving the various responsive documents in increments. So it is now time to make the first production, but what is the best way of doing so?
First, several cardinal rules regarding the response. We cannot emphasize enough that the subpoena must be thoroughly reviewed so that you have a good understanding of exactly what is being requested and you develop an accurate idea of what documents under your control and custody need to be produced. Second, as soon as you review the subpoena, you must make efforts to prevent the destruction of documents potentially responsive to the subpoena so that they are made available for counsel’s review before production. How best to ensure the preservation or “hold” of evidence, commonly referred to as a “litigation hold”, within your organization is an issue you should address with legal counsel. Third, and most importantly, never make a production directly; productions should only be made through legal counsel after the proposed production is reviewed for responsiveness and privilege.
Next, it is important that counsel understand where the records are stored and the form they are stored in (digital, hard copies, etc.). Sometimes it may even be a good idea to have counsel come to your office and view the records before a decision is made how to gather and then transfer the records. Next a decision on how best to transfer the proposed production to counsel in a secure and HIPAA -compliant manner must be made – can the documents be emailed through encrypted email or should they be produced via thumb drive, CD, share file or drop box arrangement? If the records are hard copies do you or counsel’s office scan them? Appropriate discussions must take place to identify the responsive documents, gather them and transfer them to counsel’s office in a way that maximizes security while at the same time minimizes the adverse impact on your office or organization.
Once the records are transferred to counsel a review of the documents should take place to ensure responsiveness to what was requested and to identify any documents that may be privileged, such as documents protected by the attorney-client privilege. Counsel may have questions regarding the documents and content of the proposed production, so communications and dialogue with counsel should be ongoing. If any documents are identified as privileged, a “production log” will be made and later discussed with the agency that issued the subpoena. All documents to be produced should be bates stamped (a unique, sequential identification number assigned to each page of the production) by counsel’s office. An accurate copy of the exact production is critically important and must be made. Counsel will then coordinate with the issuing agency and determine the best method for transfer of the records and completion of the production.
Remember a subpoena for business records and other related documents is serious business; it is not cause for procrastination nor something to be ignored. It has to be properly assessed, and then either complied with or challenged. Disregard of the subpoena or otherwise failing to comply could result in contempt of court proceedings, and could also affect the course of the investigation to which the subpoena is related. There are more legal issues pertinent to a subpoena duces than one would expect, so it is important that the subpoena be immediately addressed with counsel. It is not simply a matter of making a copy of records and handing them to the government.
How Frier Levitt Can Help
As we have stated in this series of articles all aspects of a subpoena for evidence (duces tecum) and any response i(production) to the subpoena are not to be taken lightly. With that in mind Frier Levitt stands ready to assist healthcare providers and pharmacies regarding the service of a government or regulatory subpoena upon your practice, office, or business and the appropriate response. Our team includes former Federal and State prosecutors and longstanding health care and life sciences defense attorneys who are experienced in all aspects of dealing with subpoenas and the investigations in which subpoenas are utilized. Contact us today for further information on our White Collar Defense and Government Investigations Practice.