Protecting Privileged Information When Subpoenaed

Protecting Privileged Information When Subpoenaed

Getting a subpoena for privileged information can be really stressful and confusing. As a regular person, you might not totally get your rights and responsibilities when it comes to following a subpoena. This article will walk you through the key stuff you gotta know and potential ways to handle it if you get a subpoena asking for private documents or testimony.

What is a subpoena?

A subpoena is a court order that says you have to give over documents, info, or testimony related to a court case or government investigation. Subpoenas get issued under the authority of the court handling the case. Lawyers, people representing themselves, or government agencies can issue subpoenas.

There’s a few important types of subpoenas:

• A subpoena duces tecum demands that you produce documents.
• A subpoena ad testificandum demands that you testify at a trial, hearing, or deposition.
• A grand jury subpoena demands documents or testimony for a grand jury investigation.

If you don’t follow a subpoena, you could be held in contempt of court and face fines or even jail time. So you gotta take any subpoena seriously.

What is privileged information?

Privileged information is stuff that’s protected by law from being disclosed. There’s a few types of privilege:

• Attorney-client privilege – Covers confidential communications between an attorney and client for the purpose of legal advice.
• Doctor-patient privilege – Protects medical info patients tell their doctor.
• Priest-penitent privilege – Covers confessions to a priest or clergy.
• Spousal privilege – Protects private communications between spouses.

The person the privilege belongs to (like the client, patient, etc) is the only one who can decide to waive the privilege and allow the info to come out.

What if a subpoena asks for privileged info?

If you get a subpoena requesting privileged information, you have a legal right to withhold it. The subpoena itself doesn’t cancel out privilege – you still have to formally assert the privilege.

There’s a few ways you can try to protect privileged info if a subpoena demands it:

1. File a motion to quash – Ask the court to cancel or modify the subpoena because it calls for privileged or irrelevant material.
2. File a motion for a protective order – Ask the court to limit how subpoenaed info can be used so your privilege isn’t violated.
3. Assert the privilege – During testimony, assert that you cannot answer certain questions due to privilege.

You may need to get help from a lawyer to effectively argue privilege, especially if the other side challenges you on it. It can get legally complicated.

How to file a motion to quash a subpoena

Filing a motion to quash is asking the court to cancel or modify the subpoena. Here’s how it works:

1. Draft the motion – Explain why the subpoena should be quashed or modified, like it asks for privileged info. Cite relevant laws.
2. File the motion – File it with the court that issued the subpoena, following any local rules.
3. Serve the motion – Send copies to the party who issued the subpoena.
4. Wait for a response – The other party may file a response opposing your motion.
5. Court hearing – The judge may hold a hearing to decide on the motion.
6. Court order – The judge will issue an order either granting or denying the motion.

If your motion is granted, the subpoena will either be cancelled or you won’t have to provide the privileged info. If it’s denied, you’ll likely have to comply with the subpoena.

How to file a motion for a protective order

A motion for a protective order asks the court to limit how subpoenaed information can be used. It assumes you’ll hand over the info but wants it protected. Here’s how it works:

1. Draft the motion – Explain why you need restrictions on the use of subpoenaed materials to protect privilege.
2. File and serve it – Just like with a motion to quash.
3. Court review – The judge reviews and rules on your motion.
4. Court order – If granted, the court enters a protective order detailing how the info can be used.

For example, the court may order that only the attorneys can view privileged materials, or that your testimony can’t be made public. This helps safeguard your rights.

What happens if you ignore a subpoena?

It’s usually a bad idea to just ignore a subpoena. The party that issued it can file a motion with the court to hold you in contempt. The judge could order fines or jail time to force you to comply.

If you have a valid reason, like privilege, get legal help to formally fight the subpoena. But outright ignoring it likely won’t end well.

Exceptions to privilege

There are situations where privilege gets broken:

• If information relates to child abuse, elder abuse, or threats to harm others, privilege may not apply.
• If a client consults a lawyer to further criminal activity or fraud, privilege gets lost.
• If a third party who isn’t the lawyer or client is present, conversations likely aren’t privileged.

So privilege isn’t bulletproof. But in many cases, you can fight to protect confidential info from disclosure. Get legal help to be sure.

Conclusion

Subpoenas for privileged information can put you in a tough spot. But you have options like filing motions to quash or for protective orders. Get a lawyer’s help to formally assert privilege and disobeying a subpoena outright is risky. Know your rights and be proactive in protecting sensitive information.

Sources:

• Maintaining Client Confidences and Secrets in the Face of Subpoena
• Protecting Privileged Information – Social Work Today Magazine
• Options When a Federal Subpoena Requests Privileged Information
• Protecting patient privacy when the court calls – American Psychological Association
• [PDF] Protecting patient privacy when the court calls
• attorney-client privilege | Wex | US Law | LII / Legal Information Institute