Subpoena Duces Tecum

Don D

Related to another current question regarding PHI, when a subpoena duces tecum comes to your office requiring production of an employee's total and complete personnel file, do you consider that to include the medical file? And if so, which portion(s) of the medical file? Or, do you simply produce the non-medical information? Perhaps this calls for a legal opinion.

marc

I am very interested in responses to this question. I am sitting on a request for the info from a law firm- not yet a subpoena, but that is the likely next step when I do not provide the information requested. They have asked for every record we have related to an EE. They even have a release signed by the EE covering not only the personnel file, but attendance records, workers comp records, medical information, etc. They even have an affirmation, that is supposed to be notarized, that says I gave them all records.

On advice of counsel, I am not going to comply with the request, but that will generate the subpoena and then we will also need to get this question answered.

Forumites, your help is needed again.

Parabeagle

I have customarily provided whatever the subpoena asks for - and ONLY what the subpoena asks for. If it does not specify the types of records to be produced, the lawyer who wrote it is not doing his/her job. Unless specified, I would not provide medical records.

deniseE

We are routinely advised to respond to subpoenas as narrowly as possible. Respond only to the request and volunteer no additional information.

This is often hard when you become accustomed to interpreting ee's questions and concerns and basing a response on what you believe they meant to ask for!! We are often going above and beyond just by the nature of our position and personality.


But when it comes to the legal world....strict interpretation is best. If the attorney doesn't get what he's seeking, then he can issue another subpoena. If you're still not comfortable a response can be filed with the court citing the objection. Your attorney can handle that end.

Don D

What is asked for is 'the total and complete personnel file'. The judge's question to you might be, "By what authority did you assume that you could cull certain of the records maintained in your office and not produce them?" In a pure sense, the 'personnel file' means any and all records maintained in the personnel office regarding a particular employee, does it not? And if not, are we each allowed to define a personnel file however we like?

Parabeagle

If someone wants an "entire personnel file" on one of my employees, they get a jacket that contains payroll information, W-4, performance appraisals, application, etc. and little else. All medical information is kept separately in a separate medical file and if the attorney called me and asked, "What about his medical file?" I would direct them to issue another subpoena because a medical file is not a personnel file. In these days of HIPAA, that's a reasonable expectation, I think.

Rockie

I consider the "medical file" completely different from a "personnel file". Medical information is not kept in a personnel file. If they specified personnel file, then that's what they get.

Generally, a subpoena will be much more detailed than "personnel file". It may say "any and all personnel records, including medical, etc. and so on"

LeeR

I have three files per employee which are personnel, medical and benefit. I give them exactly what the subpeona asks for unless we decide to object.

Pork

"Dandy Don", I am surprised, you without a factual answer, clear and to the point!

I have always considered the personnel file to be just that; medical information (PHI) is medical information and we now, of course, further identify it as HIPAA, PHI.

Several years ago an attorney presentor in a "HR and the law", advised us to read very carefully and interpret the words as factual; when one gets a "shotgun blast" of words that would catch an uneducated HR and get everything, then his work is less and his hour clock continues to run. It reads like you have got one of those "shotgun blast", but I know you are not going to fall into his line of sight.

Without reading the exact order, I might not even lean toward and give them performance information, which is a seperate part of the personnel file. We consider the personnel file to contain the basic data of the individual; performance and wage increase or wage decrease.

Benefits enrollment and history like 401 K or vacation paid and used is also not considered a part of the personnel file, or credit union and savings activity, also are not apart of the personnel file.

INTERESTING THOUGHT I WILL BE ANXIOUS TO SEE THE RESPONSES, THEREFORE, I CHECK THE GONG BUTTON.

PORK

ray a

Shouldn't the complete personnel file include only the information appropos to the reason behind the request? If information is irrelavent, why include it?

Don D

I've never seen a subpoena that tells you why a lawyer wants anything. In that regard, I wouldn't be able to determine relevance accurately. I'm basically asking this question as a spinoff to the one going on the other thread about PHI. From what I've seen in response so far, to the thread you're reading now, each of us seems at liberty to define a personnel file. Ours for example are split three ways: Job Related, Personal, Medical; but, in combination, all would be considered "The Personnel File", just with restricted access per the ADA. Some of can recall the day when a personnel file was 3 inches thick and included any and everything representing the ee's history with the company.

A smart attorney will have about 7 commas in a subpoena so he won't be omitting training records, performance evaluations, vacation and absence history, special leave events, proof of right to work (I-9), garnishments, wage history, investigation history, complaints, etc, etc. Otherwise, all he's likely to get is bare-bones nothingness. And never will a lawyer of any intelligence tell you why he wants any of it.

Peyton Irby MS

pursuant to the ADA and HIPAA, medical information is to be kept in a file separate from other personnel records. there are HIPAA regulations setting out the persons who are to have access to any medical records. if you have a file with personnel [application, evaluations, etc.] documents only, then that file is the proper response to the subpeona for personnel records. if they ask for any medical records, make sure you have an HIPAA compliant [your medical insurer or TPA should have forms available]authorization for release of the information signed by the employee which is notarized.
Peyton Irby
Editor, Mississippi Employment Law Letter
Watkins Ludlam Winter & Stennis, P.A.
(601) 949-4810
[email]pirby@watkinsludlam.com[/email]

LarryC

Peyton,
To further distinguish medical information, I believe that work comp and employment related medical information (drug screens, pre-employment physical) are not covered under HIPAA. Am I correct?

Janet

We, too, have been advised only to release exactly what is requested. We do not consider medical or benefits information to be a part of the "personnel file"; this information is kept separate.