Subpoena Duces Tecum
Don D
9,834 Posts
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.
Comments
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.
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.
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"
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
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
Editor, Mississippi Employment Law Letter
Watkins Ludlam Winter & Stennis, P.A.
(601) 949-4810
[email]pirby@watkinsludlam.com[/email]
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?