What is a Subpoena for Documents and Records?
Simply put a subpoena is a legal document that compels under penalty of law either testimony or the production of documents, records, and other tangible evidence. There are two primary forms of subpoenas: a subpoena for testimony, (ad testificandum) and a subpoena that requires the production of evidence (duces tecum). This series of articles will address the latter, a subpoena duces tecum for business records issued by a federal or state authority with criminal and/or regulatory investigative authority, the most common form of subpoena we deal with in the health care and life science spaces.
There are a number of different types of subpoenas duces tecum, depending on the issuing authority. The most concerning is a grand jury subpoena, which signals an ongoing criminal investigation or the initiation of one. There are also HIPAA subpoenas, DEA subpoenas, and OIG subpoenas, issued by different regulatory agencies, which could indicate an administrative investigation or could signal parallel proceedings such as corresponding criminal, administrative and or civil investigations. There are also Civil Investigative Demands (CID) issued in False Claim Act investigations, and purely administrative subpoenas issued by state licensing and regulatory boards, such as a State Medical Board or a Board of Pharmacy. Although there are similarities in these diverse subpoenas for evidence, there are also important differences based on various natures of investigations and corresponding scopes, as well as applicable laws and procedures.
A subpoena duces tecum will identify those records to be produced, usually in a “Schedule A” or “Schedule B” attached to the subpoena, along with a due date. The subpoena could be for hard copy records, electronic/digital records, or both. The subpoena will be for records that are under your control, possession, or ownership (records you have access to). They normally request what comes under the broad heading of “business records,” such as:
- Bank Statements
- Corporate Documents
- Account statements
- General Business records
- Medical Records
- Billing Records
- Client/Patient Files
- Communications including correspondence, texts and emails
- Phone Records
The subpoena will also contain the authority (statute or regulation) under which it is issued, and it will identify the agency that is issuing the subpoena. It will be addressed to the owner or managing partner, or the to the Custodian of Records, who is normally the business or practice administrator. It will also identify the issuing agency’s contact person or persons (a prosecutor, agent or the investigator working on the case) with a corresponding office telephone number and address.
A subpoena generally cannot require one to create documents, only to turn over what you already have under your custody and control. It does not require you to explain business records or documents, and it is not authority for an interrogation. Except in the highly unusual case of a “forthwith subpoena”, a subpoena cannot require business records or other evidence to be turned over immediately. It is not a search warrant that allows agents to disrupt your day while digging through your home or place of business for evidence of a crime. If you receive a subpoena, you should have the presence of mind to refrain from conversation, decline to answer any questions, and contact legal counsel immediately.
How Frier Levitt Can Help
Responding to Government or regulatory subpoenas is not a simple thing and must not be taken lightly. They can be a legal minefield depending on the type of subpoena and scope of inquiry or investigation. Although many times there may be no grounds in terms of opposing them, there is a lot that can be done in making them reasonable and not going beyond their stated purpose, and in enhancing legal protection of the client. 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. 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.