You’re sitting at your desk opening your mail.
You get to a letter from someone you don’t know. After opening the letter and looking at the document inside, you realize it’s a subpoena.
Your heart jumps a little.
You don’t like dealing with this stuff. It’s stressful and it’s a waste because it takes away from your time to do therapy and help people.
That’s all true, but you still have a subpoena in your hands, so what should you do?
First thing to do is read the subpoena carefully. In fact, you’ll want to read it multiple times because subpoenas tend to be confusing.
Utah subpoenas come in packets and are broken up in to a few different sections:
- The subpoena itself. You’ll know it’s the subpoena because on the first page, next to where it says who the parties to the lawsuit are, it will say something like “Subpoena Duces Tecum” or “Subpoena to Appear.”In the subpoena you’ll find two important pieces of information: (1) how much time you have to respond to the subpoena (usually fourteen or twenty-eight days), and (2) what the attorney wants you to do (e.g., provide documents or appear to testify).
- HIPPA authorization form. Some subpoenas will come accompanied by HIPPA authorization forms. For example, if both parents are undergoing a custody evaluation, and the evaluator needs a child’s therapy records, the parents will both sign an authorization form allowing you to release the therapy records.
- Notice to Persons Served with Subpoena. This is a document meant to explain what a subpoena is, how to correctly respond to it, how to object to a subpoena if you feel it necessary, and what might happen after you object.
- Objection to Subpoena. This is the court form you use if you object to the subpoena. Remember, you can only object based on legal grounds, not based on what’s good for your client. Also, if you object, send copies of the objection to the attorney who sent you the subpoena, the court, and to the attorney for the other person listed as a party to the case.
Second, determine whether you will object to the subpoena; and, if you do, file the objection ASAP.
To do this properly, you should forward the subpoena to your attorney and get his or her advice. Let your attorney talk to and negotiate with the attorney who sent the subpoena.
Also, if you decide to object, let your attorney handle that paperwork — legal objections are often not intuitive, and you don’t want to create more hassle by invoking the wrong legal objection.
Whatever you do, object quickly. If you go past the subpoena deadline, you may not be able to object, which will create a whole new set of problems.
Third, if you decide to answer a subpoena requesting records, start gathering them now.
Most subpoenas therapists receive are a “subpoena duces tecum.” This is a request for documents. Records can take a while to track down, especially for clients you haven’t seen in a while, so start gathering records now. You’d be surprised how quickly fourteen days goes by, and you don’t want to find yourself on day thirteen scrambling.
Fourth, if you’re asked to testify and you’re going to comply with that request, meet with your attorney to talk about your testimony, and bring your attorney with you.
If you’ve been asked to testify, you’ll do that either in a deposition or in court. Either way, you want to be prepared. The only way to do that effectively is to meet with your attorney, discuss the situation and possible questions, and decide how you will respond.
And you want your attorney with you when you testify to ensure your interests and ethical obligations are expressed and considered.
Subpoenas are annoying, but they don’t have to be scary. Deal with the subpoena upfront, and spend some money to have a good attorney on hand to help you.