A subpoena isn’t a magic wand that immediately requires a business to provide all documentation to the party requesting it. What if it’s requesting trade secrets? Confidential patient information? Should you ignore it?

As an Iowa business, you may receive subpoenas for a wide array of information, and occasionally it requires an employee or recordkeeper to appear for a deposition.  You don’t have to be a party in a lawsuit or some other kind of litigation to be subpoenaed, but the process is different and sometimes more limited in scope when you are not a party to the underlying litigation.

Confidential Information

Certain subpoenas like those used in an investigation by prosecuting attorneys or a grand jury limit who you can tell about the subpoena. The most common subpoena is a basic subpoena issued by an attorney for documents needed in a general civil case.

The type of subpoena you might receive depends on the nature of your company and industry. Healthcare is a particularly complicated industry because it has several exceptions to the standard subpoena process. Certain healthcare documents such as peer review, quality reports, and certainly individual healthcare records are all subject to heightened scrutiny and privacy protections that might not apply in other industries. 

In general, peer review is not subject to being produced and is fully confidential.  Specialized records such as HIV/AIDS and mental health documentation are governed not only by HIPAA/HITECH but also by state law. Records requests such as HIV/AIDS, testing, mental health, and in some instances, substance abuse records, require either a specific order of the court or patient consent in conjunction with the subpoena.  Financial institutions can have similar concerns when a subpoena is requesting individualized customer information, although slightly different rules apply.

Protecting Trade Secrets

Of particular concern to many businesses is a subpoena that appears to involve trade secrets. It is especially troublesome when the company is not a party to the lawsuit, providing one or all of the parties in litigation unfair information about the business and presenting the litigating parties with a competitive advantage. 

This issue was recently discussed in an Iowa lawsuit involving a horrific motor vehicle accident, and claims were filed in Louisiana regarding the manufacturing of a trailer hitch and whether the product was unduly dangerous. While filed in Louisiana, the parties sought information from companies in Iowa. 

This case focused on civil subpoenas issued typically during litigation.  In this instance, the subpoenas required not only testimony from a non-party but included 22 areas where knowledge would be required including the scope of the business, history of design, manufacturing, and sales, all patent applications and awards, all engineering drawings, customer reports, schematics, diagrams, and all communications or marketing information related to certain customers.

The Iowa companies involved moved to quash the subpoenas on the grounds they were overbroad, unduly burdensome, and likely to create an unfair competitive advantage for others. The court notes that civil subpoenas are appropriate but that the rules specially require that a “party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” This did not appear to be what was happening here. 

The court also notes that in this type of civil case there is likely a multi-part test to determine the appropriateness of the request which would include the: 

• Relevance of the information requested
• Need of the party for the documents
• Breadth of the documents request
• Time period covered by the request
• Specificity with which the documents are described and the burden imposed 

The court further emphasized the need to protect nonparties, noting, “while parties to a lawsuit must accept the burden of discovery…nonparties have a different set of expectations.”  The court determined that not all factors carry equal weight, and if the contesting subpoena shows that the information requested is not relevant, that can cause the request to fail.  The court notes that a litigant should obtain the information from other more readily accessible sources before placing the burden on a nonparty and that any subpoena should be narrowly tailored to avoid these issues.   

The Court also notes that subpoenas must not be unduly burdensome “when they are served,” and an overbroad subpoena should not be served as the starting point for a negotiation for a lesser set of records that a litigant may want. Ultimately, in this case, the subpoena did not pass the test.  A subpoena isn’t a magic wand that immediately requires you to provide all documentation to the party requesting it.

Common Mistakes

Do not ignore a subpoena. A common mistake is not having a process to assess and ensure the right person receives the legal document request or not understanding the nature and type of the subpoena or the documents requested.  If you believe that the documentation is being improperly requested, whether it’s HIPAA-protected or covered by the Trade Secrets Act, speak with legal counsel so that they can contact the attorney and potentially file what is called a Motion to Quash, (a Motion to have the Subpoena Set Aside). 

If the subpoena involves a specific person, do not automatically go to that person to speak with them. First, determine the type of subpoena you have received.  Some subpoenas, such as one from a grand jury, may not be disclosed to other people as part of the subpoena process. 

If you work with subpoenas regularly, such as in a hospital HIMS department, have clear policies and practices for how document production is addressed and know that certain complex areas may require additional information or consultation with your attorney. 

If you rarely receive a subpoena and you receive one out of the blue - don’t panic and don’t immediately throw all the records at the requesting party.  Check with your legal counsel to determine the appropriate process.