B. Duty To Notify The Client
1. Rules Requiring Client Notification
Shelter grantees receiving state and federal funds must “…make reasonable attempts to provide notice to victims affected by the disclosure” and “…take steps necessary to protect the privacy and safety of persons affected by the release.”56
56 VAWA (C)(i), (ii)
V. NOTIFYING THE CLIENT 44
If a subpoena requests information about a nonresident client or former client, protocols should include guidelines for client notification. Client agencies are thus required to notify a client of a subpoena that requests any information that might identify the client, including their name.
Shelters and crisis centers receiving federal funds through Texas HHSC are legally obligated to protect client privacy and safety. Every effort should be made to notify a client or former client that a subpoena is requesting information concerning the client.
If the client cannot be reached, or if no efforts were made to reach the client, the burden is on the agency to protect the client’s safety and privacy. If the client has not released the agency to disclose information through a subpoena, the agency must use every means available to challenge disclosure of client information.
2. Subpoena compelling client information
When the custodian of records receives notice of intent to serve a subpoena, or when the subpoena has been served, consider inviting the client to review the documents that may be subject to disclosure. If the client is willing to share some or all of the information, it is wise to have the client execute a written release that corresponds with the information to be released in response to the subpoena. If the client is unreachable, the agency must operate under the assumption that the client would not agree to disclosure of any information.
We recommend that agencies have a procedure in place to document attempts to notify the client or former client about the subpoena provided that the client contact information is safe:
Telephone: Document the times and dates the client was called about the subpoena.
Letter: Send a letter to the client to her last known address by certified mail before the
V. NOTIFYING THE CLIENT 45
deadline to respond to the subpoena. The cover letter should inform her that:
• Your agency has received a subpoena requesting information or records about her,
• The court, cause number and nature of the proceeding, if known,
• The deadline to produce the information, and
• Whether subpoena compels testimony, documents, or both.
NOTE: A crisis center must weigh the consequences of failure to inform the client of the subpoena buy every reasonable means against the need to keep her current address confidential. The client's address or other identifying information should be redacted from correspondence prior to disclosure.
3. Subpoena compelling client as witness
If personal service is attempted on a client, former client, or shelter resident, she client should be informed right away, even if service is initially unsuccessful. We recommend that shelters and crisis centers decide in advance which staff member will be responsible for informing the resident or client that service is being attempted.
VI. SUBPOENA PROTOCOLS 47
VI. Subpoena Protocols
A. Developing Protocols for Service and Notice of Subpoenas
Each agency should develop protocols for handling notice and service of subpoenas, and train its staff and volunteers in those protocols. If your agency has subpoena protocols in place, a periodic review of procedures will protect the agency and the clients it serves.
1. Developing internal protocols
When developing an agency protocol on handling subpoenas, some considerations might include:
Who should be named custodian of records?
• Who should be designated as the custodian of records: This person is responsible for producing records or faces the possibility of contempt for failure or refusal to comply. In order to maintain a uniform and consistent response and to keep track of the kind and number of subpoenas, the custodian of records should be limited to on individual.
• Where the custodian should keep records and have an office: The custodian of the records should not have an office at the shelter. The custodian should work in the administrative office if there is one separate from the shelter.
What type of training is needed?
• Procedures setting forth who is authorized to accept subpoenas.
• Instructions on what to when a process server appears to serve a subpoena or law enforcement arrives to execute a search warrant.
VI. SUBPOENA PROTOCOLS 48
• Agency policies on responding to subpoenas and making the policies known to staff, board members and volunteers.
• Training receptionists or front desk people on what to do and who to inform when notice is received or service is attempted.
• Train agency staff on the importance of refusing to confirm or correct information requested by someone serving a subpoena or a warrant.
When do we need to contact an attorney?
• Decide who is responsible for attorney contact and follow-up.
• Contact your attorney for all subpoenas requiring testimony. For discovery subpoenas, the custodian of records can decide whether attorney assistance is needed.
• Have the attorney’s contact information, including fax number, readily available.
2. Developing external protocols
How can we collaborate with local law enforcement?
• It makes sense to collaborate with the constable and sheriff ’s office on a well-defined procedure for service and acceptance of subpoenas as well as other legal documents requiring service (like citations and writs) on your agency.
• Set up a meeting with local law enforcement to collaborate on process-related issues.
• Determine mutually preferred days and times for service on shelter residents.
• Determine mutually preferred days and times for service on the custodian of records.
• Discuss how arrest and search warrants might be executed in the least threatening and intrusive manner possible.
B. Developing Protocols for Challenging Subpoenas
How far should we go with a subpoena challenge?
VI. SUBPOENA PROTOCOLS 49
Discuss how far the agency is willing to go to challenge a subpoena.
Options include:
• Respond to the subpoena in whole or in part.
• Release nothing and risk contempt.
• Object to the subpoena on the basis of defective service, no witness fee or other objectionable grounds.
• Ask the issuer to modify the scope of the subpoena or cure the defect.
• Admit to responsive information but fight disclosure based on privilege.
• Ask the judge to review the documents privately (in camera) to determine what documents might be privileged.
• If the motion to quash is denied, take the case to a higher court or tribunal through mandamus or appeal.
What effect would it have on the agency and client if a legal challenge should fail?
Consider the potential impact if the legal challenge fails and client information is released. As a nonparty, the agency may not know in advance how the subpoenaed information might be used at trial. The outcome of the case could hinge on the very information supplied, or it might not be used at all.
• If the challenge expends considerable time and resources and nonetheless results in failure, consider what could have been done differently and what can be learned from the experience.
• If the court refuses to protect information despite the challenge, under what circumstances the judge should be subject to mandamus or appeal?
• Would there be any impact on the agency’s standing in the community?
• How would the agency deal with the client following a loss?
• If the court orders release of documents or information, a program may need to re-assess its options, such as whether to risk contempt if the motion to quash fails.
SAMPLE FORM: SUBPOENA INTAKE CHECKLIST 51
SAMPLE FORM:
Subpoena Intake Checklist
* This document is for internal use only. Do not list client name or contact information. Do not retain this form in client file.
____________________________Name of person completing form SUBPOENA INTAKE CHECKLIST
________________ Deadline (date for witness’ appearance or release of documents) _____________________________ Name of subpoenaed person
Person Subpoenaed is:
______ Custodian of Records ______ Employee or volunteer ______ Client or former client Notice and Service
_______________ Date notice of intent to serve subpoena received in mail (for discovery subpoenas)
_______________ Date subpoena served
_______________ Date subpoena and/or notice faxed to agency attorney Type of Subpoena is: (check all that apply):
_______ discovery subpoena (production of documents) _______ CPS
_______ deposition subpoena (on written questions or oral) _______ trial subpoena (court testimony)
Client Information:
_______________ No record of client or former client (no information)
SAMPLE FORM: SUBPOENA INTAKE CHECKLIST 52
_______________ Client’s executed release or waiver of information is on file _______________ Date release signed by client
_______________ Expiration date of release Client Documents:
________ Yes ________ No Responsive documents are in client file.
Client Notification:
__________________ Date of first attempt to notify client ________ personal meeting
________ telephone
________ letter (certified to last known safe address)
________ date subpoena and/or notice (if client represented by attorney) faxed to client’s attorney
Document additional attempts to notify client:
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
________________
Client Response to Subpoena:
________ Client failed to respond (attempts documented above).
________ Client responded
_____________________ Date of response Subpoena was discussed with client:
________ by telephone with staff or caseworker ________ by meeting with staff or caseworker
SAMPLE FORM: SUBPOENA INTAKE CHECKLIST 53
Client wants to:
________ challenge release of all requested information ________ release all information (per release)
________ disclose some information but not all Agency Response to Subpoena:
________ No responsive information about client on file
______________________ Date issuing party was informed of no information _______ by telephone
_______ by mail
_______Responsive information about client exists
______ modify/narrow scope of subpoena by agreement or court order ______ move to quash subpoena
______ comply with subpoena
______________ date documents produced _____ copies mailed to issuer (certified)
_____ produced for inspection or copying at agency/shelter _____________ Date subpoenaed witness appeared (deposition or trial) Expenses:
_________ Travel _________ Copies
_________________________Date subpoena matter closed/resolved
SAMPLE FORM: MOTION TO QUASH 55
SAMPLE FORM:
Motion to Quash
NO. _________________
__________________ § IN THE DISTRICT COURT
§
VS § _______TH JUDICIAL DISTRICT
§
____________________ § _____________COUNTY, TEXAS
MOTION TO QUASH SUBPOENA
Comes now ______________________ [person under subpoena], Movant, and files this Motion to Quash Subpoena. In support, Movant shows the following:
1. Movant was served with subpoena on _________________ [date] at the request of __________________________ [attorney or party requesting information], ordering Movant to personally appear as stated in the subpoena on ___________________________ [date] at _________________ [location/place].
A copy of the subpoena is attached to this Motion.
2. Movant is _____________________ [position] at ______________ [agency], a [describe your agency or program, i.e. “nonprofit incorporated under section 501(c) (3) of the Internal Revenue Code”]
3. The subpoena is subject to objection.
________Movant requests that the subpoena be quashed based on one or more of the
SAMPLE FORM: MOTION TO QUASH 56
following objections:
______ No witness fee. The subpoena was served without $10 witness fee required by Tex. Civ. P. & Rem. Code §22.002.
______ Out of subpoena range. Movant is out of the range of the subpoena. Tex.
R. Civ. P. Rule 176.3; Tex. Civ. P. & Rem. Code §22.002.
_____Request is unduly burdensome, broad, or vague. The subpoena for documents and other things is so overly broad in scope as to render compliance unduly burdensome.
_____ Unreasonable time to comply. The subpoena does not allow sufficient or reasonable time to gather the information compelled to be produced.
_____ Inconvenient date. The subpoena compels appearance of the witness on a date that the witness is unavailable to appear due to a scheduling conflict.
_____ Undue burden – costs. The subpoena compels production of documents, the volume of which places an undue burden for both copying and the time involved with copying. The issuing party has not promised Movant reimbursement or advance payment for anticipated costs pursuant to Tex. R. Civ. P. Rule 205(f ).
_____ Unreasonable travel expenses. The subpoenaed witness will incur substantial travel costs in order to comply with the subpoena, and the issuing party has not offered Movant reimbursement or advance payment for anticipated costs over and above the
$10 witness fee.
Based on one or more of the foregoing objections, the subpoena should be quashed. Alternatively, the subpoena should be modified to address the grounds for objection.
SAMPLE FORM: MOTION TO QUASH 57
4. The subpoena should be quashed because it compels privileged information.
_______As additional grounds, the subpoena should be quashed on the basis that the information compelled is protected from disclosure by privilege. In support, Movant shows the following:
a. _____________ [agency]’s purpose is to provide services to individuals and families who have experienced family violence. Services may include individual or group therapy, temporary shelter, and referrals to other social services or community resources.
b. Movant has a duty to maintain the confidentiality of client communications sought to be compelled by the subpoena. The information sought to be compelled is protected by privilege in that:
______the communication was made by a person to a professional, a person
“reasonably believed” to be a professional who is “licensed or certified by the State of Texas in the diagnosis, evaluation, or treatment of any mental or emotional disorder [.]”57
______ the communication was made by a person to the professional “for purposes of diagnosis, evaluation, or treatment of [a]mental or emotional condition or disorder [.]”58
5. The subpoena should be quashed for other compelling reasons.
_______ The subpoena should be quashed based on other considerations unique to victims of family violence and the agencies that serve those victims. In support, Movant asks the court to consider the following:
57 Tex. R. Evid. 510(a) (1) (B); (D).
58 Tex. R. Evid. 510(a) (2) (A).
SAMPLE FORM: MOTION TO QUASH 58
________a. Federal and Texas laws recognize protection of victim information on privacy grounds.
Federal constitutional law supports nondisclosure of victim information. A recent opinion by the Texas Attorney General relied on the federal constitutional right to individual privacy to protect a victim’s personal information. A shelter was asked disclose its notary book, which included identifying information about clients served by the shelter. The information was sought through an open records request. The Attorney General decided that the notary book should be withheld because the privacy interests of victims of family violence outweighed the public’s right to information about them.59
______ b. Texas law should protect victims of family violence from forced disclosure of confidential information in the same way it protects victims of sexual assault.
Texas law currently shields information concerning victims of sexual assault from the public60, and victims of family violence should benefit from similar legal protections.
Victims of family violence are similarly situated to victims of sexual assault, and revealing personally identifying information could result in further harm or retaliation to the victim. Movant urges that the subpoena be quashed because Texas law protects information about another class of victims but does not protect victims of family violence.
_______ c. ________________________ ‘s [name of agency] funding is conditioned upon laws that require confidentiality of all identifying client information.
_____________________[name of agency]’s operating budget is supported by federal funds distributed to shelters and crisis centers by the Texas Health and Human Services Commission (HHSC) and the Criminal Justice Division (CJD). HHSC and
59 Office of Attorney General of Texas, Open Records Decision 09229 (2009), relying in part on Ramie v.
City of Hedwig Village, 765 F.2d 490 (5th Cir. 1985) Fadjo v. Coon, 633 F.2d 1172, 1176 (5th Cir. 1981).
60 Tex. Health and Safety Code § 44.071
SAMPLE FORM: MOTION TO QUASH 59
CJD are required to monitor Texas’s compliance with federal laws authorizing the funds, namely the Family Violence Prevention Services Act (FVPSA) and federal Violence Against Women Act (VAWA). Grants to shelters and crisis centers from Texas HHSC are conditioned upon compliance with rules created by FVPSA, VAWA and HHSC. These require recipients such as __________________ [name of shelter]
to keep all client information confidential or risk losing funding due to legal noncompliance.61
Accordingly, If ______________________[agency] is compelled to release confidential information under this subpoena, the agency’s funding – and its financial survival as a nonprofit – is put at risk.
Wherefore, premises considered, Movant respectfully requests that the court quash the subpoena based on objections to the subpoena, applicable legal privileges, and the remaining aforementioned considerations.
61 HHSC confidentiality requirements mirror those of VAWA and FVPSA. As a condition of receiving funds through HHSC, each program must ensure that “all information will be kept confidential, including all personal information and all
communications, observations, and information made by and between or about adult and child residents and nonresidents, employees, volunteers, student interns, and board members.”
Tex. Admin. Code § 379.613(1)
SAMPLE FORM: MOTION TO QUASH 60
Tel.:
Fax:
Certificate of Service
I certify that a true copy of the above was served on _______________________
[name of attorney and/or requesting party] in accordance with the Texas Rules of Civil Procedure on ______________________.
___________________________
[Movant or Attorney signature]
SAMPLE FORM: ORDER GRANTING MOTION TO QUASH 61
SAMPLE FORM:
Order Granting Motion to Quash
NO. _________________
__________________ § IN THE DISTRICT COURT
§
VS § _______TH JUDICIAL DISTRICT
§
____________________ § _____________COUNTY, TEXAS
ORDER GRANTING MOTION TO QUASH SUBPOENA
On this day came to be heard _____________________’s Motion to Quash Subpoena.
The Court finds that the subpoena should be quashed based on the following:
______ No witness fee. The subpoena failed to include the $10 witness fee required by Tex. Civ. P. & Rem. Code §22.002.
______ Out of subpoena range. Movant is outside of subpoena range. Tex. R. Civ. P.
Rule 176.3; Tex. Civ. P. & Rem. Code §22.002.
_____Request is unduly burdensome and vague. The subpoena duces tecum is too vague and/or overly broad in scope.
_____ Unreasonable time to comply. The time to comply is unreasonably short given the volume of documents requested and/or the difficulty in obtaining them.
SAMPLE FORM: ORDER GRANTING MOTION TO QUASH 62
_____ Inconvenient date. The subpoena compels appearance of the witness on a date that the witness is unavailable to appear due to a scheduling conflict.
_____Excessive cost to produce documents. The cost of compliance with the subpoena duces tecum is unreasonably high and the issuing party has not provided Movant with advance payment nor promised reimbursement. Tex. R. Civ. P. Rule 205(f ).
_____ Excessive cost of travel. Travel costs for the subpoenaed witness are unreasonably high, and the issuing party has not provided Movant either reimbursement or advance payment for the cost of travel.
______ The Court further finds that the subpoena compels information that is protected from disclosure by the privilege protecting communications between mental health professionals and their clients. Tex. R. Ev. Rule 510 et seq.
_____ The Court further finds that victim information compelled by the subpoena is protected from disclosure by privacy rights recognized under federal constitutional law and specifically recognized in Texas.62
______ The Court further finds that in the interest of public safety and public policy, Movant and other victims of family violence similarly situated are entitled to the same protections guaranteed to Texas victims of sexual assault currently afforded them under Tex. Health and Safety Code § 44.071.
_____ The Court further finds that ___________________ is a Texas agency serving victims of family violence; that ________________________ receives funds from both state and federal sources; that in order to maintain funding from these sources ____________________________ is required to keep client information confidential, and that disclosure of information in response to the instant subpoena
62 Office of Attorney General of Texas, Open Records Decision 09229 (2009), relying in part on Ramie v.
City of Hedwig Village, 765 F.2d 490 (5th Cir. 1985) Fadjo v. Coon, 633 F.2d 1172, 1176 (5th Cir. 1981).
SAMPLE FORM: ORDER GRANTING MOTION TO QUASH 63
would violate the rules under which __________________ ‘s continued operation depends.
IT IS THEREFORE ORDERED that Movant’s Motion to Quash Subpoena is hereby GRANTED for the reasons stated.
____________________ Date of Order
_______________________________________
JUDGE PRESIDING
NOTES:
64
Notes:
Texas RioGrande Legal Aid 4920 N. IH-35, Austin, Texas 78751
email: [email protected] web: www.texascbar.org
Understanding Subpoenas
A G U I D E FO R TE X A S FA M I LY C R I S I S C E NTE R S
— 2011 Edition —