Ethical, Civil Liability, and Tactical Issues

(Originally published May 6, 2008.)

This article will be updated periodically. When a section is updated the date of the revision will be noted after the section title. I will add material as important new cases come out.

The California Criminal Subpoena Duces Tecum Differs From the Civil Subpoena Duces Tecum (Updated 8/24/20)

In California, civil subpoena duces tecum practice has been developed by the statutory law, and criminal subpoena duces tecum practice has mainly been developed by the case law. There are differences between civil and criminal subpoena duces tecum practice. And those differences sometimes result in some oddities. One is that the attorneys who fight the criminal subpoenas duces tecum, by filing motions to quash, are civil practitioners who come to court launching the standard attacks used against the civil subpoena. Those attacks are often not applicable to the criminal subpoena.

When a criminal defense attorney serves a subpoena duces tecum on an institution, and the persons running the institution wish to fight the subpoena, they do not turn to the Yellow Pages to look up a criminal defense attorney to file the motion to quash. Instead they use the lawyers they already employ to handle their legal problems. And those lawyers are civil practitioners.

The civil practitioners filing motions to quash criminal subpoenas duces tecum frequently launch attacks that miss their target. An attorney thinking she is moving to quash under Code of Civil Procedure section 1987.1 fails to understand that her motion to quash is authorized by In re Finn (1960) 54 Cal.2d 807, 813 [8 Cal.Rptr. 741, 365 P.2d 685].) And when she asks for attorneys' fees under Code of Civil Procedure section 1987.2, she doesn't realize that she cannot recover attorneys' fees arising from the litigation of a criminal subpoena duces tecum. (See Fabricant v. Superior Court (1980) 104 Cal.App.3d 905 [163 Cal.Rptr. 895].)

Sometimes a party will move to quash on the ground that the subpoena lacks specificity. The party's attorney might rely upon Code of Civil Procedure section 1985 subdivision (b):

A copy of an affidavit shall be served with a subpoena duces tecum issued before trial, showing good cause for the production of the matters and things described in the subpoena, specifying the exact matters or things desired to be produced, setting forth in full detail the materiality thereof to the issues involved in the case, and stating that the witness has the desired matters or things in his or her possession or under his or her control.

But this statutory requirement of specificity does not apply to the criminal subpoena duces tecum. "[C]ivil discovery procedure has no relevance to criminal prosecutions." (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 536 [113 Cal.Rptr. 897, 522 P.2d 305].)

Petitioner initially urges that the affidavits in support of the subpoena duces tecum are insufficient to justify discovery because they fail to demonstrate "good cause" with adequate specificity as required by Code of Civil Procedure sections 1985 and 2036. The contention is premised on the erroneous assumption that the statutory provisions governing discovery in civil actions apply to criminal proceedings.

(11 Cal.3d at p. 535.) The affidavit requirements of Civil Procedure Code sections 1985 and 1987.5 do not apply to criminal trials or grand jury proceedings. (M.B. v. Superior Court (2002) 103 Cal.App.4th 1384, 1393-1394 [127 Cal.Rptr.2d 454].) The subject matter of subpoenas covered in Civil Procedure Code sections 1985 through 1987 is also covered by Penal Code sections 1326 through 1333. (Fabricant v. Superior Court, supra, 104 Cal.App.3d at p. 914.) If the Civil Procedure Code sections on specificity were applied to the criminal subpoena duces tecum, Fifth Amendment problems could arise. (Pitchess v. Superior Court, supra. 11 Cal.3d at p. 536.) Thus in a criminal case all that is required are general allegations which establish some cause for discovery. (Id. at p. 537.) However, while under Penal Code section 1326(a) there is no statutory requirement of a good cause affidavit, the requesting party must show good cause in response to a motion to quash. (Facebook v. Superior Court (Touchstone) (2020) 2020 WL 4691493, *6.) And part of that good cause showing is that the material sought is adequately described and not overbroad. (Id. at *8.)

The statement in Pitchess that all that is required are general allegations which establish some cause for discovery has limited application. Both the civil and criminal subpoenas duces tecum have heightened justification requirements depending upon what type of records are sought. The higher level criminal justification is the same as the lower level civil justification. I begin with the two levels for the civil subpoena.

Generally a person attempting to secure records with a civil subpoena must show good cause for discovery and that the documents sought are relevant to either the subject matter of the action or to the determination of any motion made in the action. (Save Open Space Santa Monica Mountains v. Superior Court (2000) 84 Cal.App.4th 235, 246 [100 Cal.Rptr.2d 725].) "Good cause" in a civil case means that the documents sought have been described, and will aid in the preparation of the subpoenaing party's case with no requirement that the documents have to be admissible in evidence. (Associated Brewer's Distributing Company, Inc. v. Superior Court (1967) 65 Cal.2d 583, 587-588 [55 Cal.Rptr. 772, 422 P.2d 332].) A showing that the documents are relevant is not enough by itself. (Johnson v. Superior Court (1968) 258 Cal.App.2d 829, 836 [66 Cal.Rptr. 134].) This is the Level 1 civil requirement. We now move to Level 2.

The Level 1 requirement does not suffice where the documents sought are protected by one's constitutional rights. Both the civil and criminal cases have litigated subpoena discovery where a person has resisted discovery on the basis of a constitutional right of privacy. A criminal case discussed below, Pacific Lighting Leasing Co. v. Superior Court (1976) 60 Cal.App.3d 552 [131 Cal.Rptr. 559], has analyzed the constitutional claim in terms of the federal and state right to be free of unreasonable searches and seizures. Thus in the case of a civil subpoena duces tecum, when the records sought are protected by a constitutional right of privacy, the subpoenaing party must show more than relevancy; there has to be a showing of compelling need for the discovery and that the compelling need is so strong that it outweighs the privacy interest in the records when the interests are carefully balanced. (Save Open Space Santa Monica Mountains v. Superior Court, supra, 84 Cal.App.4th at p. 252.) The requirement that a compelling need be shown is the Level 2 requirement for the civil subpoena duces tecum.

Before moving on to the levels for the criminal subpoena I will note something interesting about the compelling need requirement. The civil Level 2 requirement might not be as difficult to meet as it sounds. That is because the subpoenaing party can throw into the mix the proposition that the state has a compelling interest in finding the truth in its legal proceedings. (See id. at pp. 253-254.) And so that compelling interest will be present in every case.

The Level 1 requirement for the criminal subpoena duces tecum is the one we've already seen. All that is required are general allegations which establish some cause for discovery other than a mere desire to get all of the information in the prosecution's possession. (Pacific Lighting Leasing Co. v. Superior Court, supra, 60 Cal.App.3d at p. 562.) This is a less onerous standard that the civil Level1 requirement. But as is the case with the civil subpoena duces tecum, the criminal Level 1 (Pitchess) requirement will not suffice where the records sought are protected by constitutional rights. (Id. at p. 565.)

As indicated above, Pacific Lighting Leasing Co. v. Superior Court analyzed the constitutional issue in terms of the protection against unreasonable searches and seizures. "The civil discovery provisions requiring a showing of good cause are, moreover, merely an attempt by the Legislature to insure adequate protection against unreasonable search or seizure." (Id. at p. 564, emphasis added.) This quote is important because it reveals the logic of the argument that the criminal Level 2 requirement is similar to the civil Level 1 requirement. Since the court is concerned with unreasonable searches and seizures, and since that is also the concern of the Code of Civil Procedure's invocation of good cause, then criminal subpoenas duces tecum can satisfy constitutional concerns when they are justified by a good cause requirement. In a criminal case there are seven factors a court must consider in determining whether good cause has been show. These seven factors are set out below in the section "How The Criminal Subpoena Duces Tecum Works."

Language from other criminal cases supports the view that the criminal Level 2 requirement is similar to the civil Level 1 requirement. An important case discussed in Section 2 below, People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1320, fn. 7 [96 Cal.Rptr.2d 264], states that the defendant must have plausible justification (citing Pacific Lighting Leasing Co. v. Superior Court, supra.), or good cause (citing People v. Dancer (1996) 45 Cal.App.4th 1677, 1691-1692 [53 Cal.Rptr.2d 282]). While the cases have stated the good-cause requirement in the disjunctive, "plausible justification" or "good cause," the real showing is that of good cause. Plausible justification is the most significant factor that goes into the analysis of whether there is good cause. (Facebook v. Superior Court (Touchstone) (2020) 2020 WL 4691493 at *7, fn. 6.)

If the defense showing of the relevancy of the requested documents is challenged, further specificity can be set out in the in camera hearing discussed in the next section. Thus a defense attorney should almost always be able to successfully prevent the granting of a motion to quash upon the briefs alone. A civil attorney may expect to quash a criminal subpoena duces tecum on the ground that the affidavit served lacks specificity. But the defense attorney should take the position greater specificity can be shown in camera. Note, however, that in 2010 the California Supreme Court issued a major case on the criminal subpoena duces tecum, Kling v. Superior Court (2010) 50 Cal.4th 1068 [116 Cal.Rptr.3d 217, 239 P.3d 670]. In Kling the court said that the in camera proceedings were "extraordinary procedures," and should be limited to those hearings necessary to protect the rights of the defendant or the third party. (50 Cal.4th at p. 1079.) It thus appears that there is no automatic entitlement to an in camera hearing. Nevertheless, a motion to quash should still not be resolved on the movant's pleading and the subpoena alone for even Kling recognizes that if a third party objects to the subpoena, the party issuing the subpoena must make a plausible justification or good cause showing. (Id. at pp. 1074-1075.) So the whether in camera or not, the defense will be given an opportunity to justify the subpoena after a motion to quash.

While the Code of Civil Procedure sections on the civil subpoena duces tecum do not apply to the criminal subpoena, there is one Civil Procedure Code section that criminal defense attorneys need to pay attention to. That is section 1985.3 governing consumer notice. I discuss consumer notice in Section 2.

People v. Dickinson (1976) 59 Cal.App.3d 314 [130 Cal.Rptr. 561] gives us another possible and interesting difference between criminal and civil subpoena practice. Evidence Code section 1561 subdivision (b) allows a custodian of records to submit an affidavit stating that the custodian does not have some, or all, of the records sought by the subpoena. Dickinson says that even if Evidence Code section 1561 subdivision (b) would allow into evidence an affidavit asserting the absence of an entry in a business record in a civil case, it would not allow such evidence in a criminal case. (59 Cal.App.3d at pp. 319-320.)

A final difference between the civil and criminal subpoena has to do with judicial review. The requirement of judicial review of documents brought to court is one of the things that distinguishes the criminal subpoena duces tecum from the civil subpoena duces tecum. (Colleen M. v. Fertility & Surgical Associates of Thousand Oaks (2005) 132 Cal.App.4th 1466, 1480 [34 Cal.Rptr.3d 439].) And as we will see below, this has significance for the ethical and civil liability issues arising from the use of the criminal subpoena. (And we will also see that in some civil cases there will be judicial review of documents brought into court before they are released to the subpoenaing party.)

How the California Criminal Subpoena Duces Tecum Works (Updated 8/24/20)

The discussion of how the criminal subpoena duces tecum works is in three parts. In the first part I discuss the option between subpoenaing the records along with a live witness, and subpoenaing the records by themselves. The second part is more important. There I discuss the in camera hearing procedure. The in camera hearing procedure is important for understanding much of the rest of this article. In the third part I discuss third-party-notice.

Penal Code section 1326 subdivision (b) states that a subpoena duces tecum "shall direct" that the records be delivered as specified in Evidence Code section 1560 subdivision (b), and that Evidence Code subdivision (e) shall not apply in criminal cases. Penal Code section 1326 subdivision (c) states that no subpoena duces tecum in a criminal action shall issue in any manner other than that specified in Evidence Code section 1560 subdivision (b). Evidence Code section 1560 subdivision (b) simply provides that, unless the subpoenaing party requires the personal presence of the custodian of records, the records may be sent to the court with the affidavit described in Evidence Code section 1561. The affidavit described in Evidence Code section 1561 satisfies the requirements of the business records exception to the hearsay rule so that the records can be admitted into evidence under Evidence Code section 1271. Evidence Code section 1560 subdivisions (b) and (c) go on to further amplify the procedure set out in subdivision (b). Does Evidence Code subdivision (c) also apply to the criminal subpoena duces tecum? The answer is "yes." (People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737, 749 [76 Cal.Rptr.3d 276, 182 P.3d 600].)

I believe that Evidence Code section 1560 subdivision (d) might create a problem for the criminal defense attorney, and I discuss that problem in section 10 below. Subdivision (c) explains that the records must be sent in in two envelopes. First, the records have to be put into an envelope or wrapper that is sealed, and that contains the title, case number, name of the witness sending the records, and the date of the subpoena. The envelope or wrapper has to then be put into a second envelope or wrapper that is sealed, and addressed to the clerk of the court. I now turn to the in camera hearing procedure.

A criminal subpoena duces tecum does not require the person subpoenaed to turn the records over to the person issuing the subpoena, but instead requires the person subpoenaed to produce the records in court for inspection by the person who issued the subpoena. (People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1315 [96 Cal.Rptr.2d 264].) The subpoenaed party first submits the documents to the court to inspect them. (80 Cal.App.4th at p. 1320.) The party subpoenaed can move to quash the subpoena, and it has the opportunity to lodge objections, and raise claims of privilege against disclosure at an in camera hearing. (Id. at p. 1320.) Thus the subpoenaed party, or the party whose records are subpoenaed, gets an in camera hearing.

If the person subpoenaed moves to quash the subpoena, the defendant has the burden to show that the materials he seeks are relevant. (Ibid.) "Assuming CDC moved to quash the subpoena duces tecum by Barrett, the burden would be on Barrett to demonstrate the materials he seeks are relevant." (Ibid.) This shows that the civil attorneys moving to quash a criminal subpoena duces tecum should not get a ruling until the defense attorney has an opportunity to make a more specific in camera showing to supplement what is in the affidavit in support of the subpoena. If there is a motion to quash the subpoena, then the court must consider seven factors in order to determine whether the subpoena is supported by good cause. Those factors are: (1) Has the defendant carried his burden of showing plausible justification of getting the documents from a third party by presenting facts showing that the documents are either admissible or might lead to admissible evidence that will reasonably assist the defendant in preparing a defense? (2) Is the material sought adequately described and not overbroad? (3) Is the material sought reasonably available from the third party and not readily available from other sources? (4) Would production of the requested materials violate a party's confidentiality or privacy rights or intrude upon a governmental interest? (5) Is the defendant's request timely? (6) Would the time required to produce the information require an unreasonable delay of the trial? (7) Would production of the records put an unreasonable burden on the third party? (Facebook v. Superior Court (Touchstone) (2020) 2020 WL 4691493, **7-9.)

The defendant might be entitled to present his theories of relevance at an in camera hearing in order to protect his Fifth Amendment right against self-incrimination and his Sixth Amendment right to counsel. (People v. Superior Court (Barrett), supra, at pp. 1320-1321.) In addition, the in camera hearing protects the defense attorney's work product. (Id. at p. 1321.) Thus the defendant gets an in camera hearing. But note what I said in Section 1 about Kling v. Superior Court and about there being no automatic right to an in camera hearing.

The rights of the defendant and the rights of the person having a privacy interest in the records are balanced in the in camera procedures. (Susan S. v. Israels (1997) 55 Cal.App.4th 1290, 1295 [67 Cal.Rptr.2d 42].) The in camera hearing protects both the interests of the defendant in a fair trial and the interests of confidentiality in the records being subpoenaed. (Pennsylvania v. Ritchie (1987) 480 U.S. 39, 60.) Thus the in camera procedures set out in the case law are designed to take care of problems such as specificity, constitutional rights, and privileges of non-disclosure.

We have seen that there can be at least two in camera hearings. There may be one for the person whose records are subpoenaed, and one for the defendant subpoenaing the records. And the result of these procedures is that the defense does not get access to the records sought until the judicial determination is made that the defense is legally entitled to receive them. (Susan S. v. Israels, supra, 55 Cal.App.4th at p. 1296.) This fact not only distinguishes the criminal from the civil subpoena duces tecum, but we will see in Section 7 that it also can protect a criminal defense attorney from civil liability.

Note that I said that there cant be "at least" two in camera hearings. There may be more. A civil case, Save Open Space Santa Monica Mountains v. Superior Court (2000) 84 Cal.App.4th 235, 255-256 [100 Cal.Rptr.2d 725] shows that a party may have to make incremental in camera showings. That is, a party may have to return to the court in camera for a further hearing depending upon how the judge rules after the first in camera hearing. Save Open Space Santa Monica Mountains v. Superior Court also shows that where the in camera procedure is used in civil proceedings the subpoenaing party, as is the case in criminal law, will not get access to the records until a judicial determination is made that the party is legally entitled to receive them.

In Section 1, I said that while the Code of Civil Procedure sections on the subpoena duces tecum do not apply to the criminal subpoena, criminal defense attorneys need to pay attention to Code of Civil Procedure section 1985.3. The issue of whether Code of Civil Procedure section 1985.3 applies to a criminal case was raised by the parties, but not decided by the court, in People v. Superior Court (Broderick) (1991) 231 Cal.App.3d 584 [282 Cal.Rptr. 418].)

Some criminal defense attorneys comply with section 1985.3 when they subpoena the medical or mental health records of a witness. One reason they do this is to avoid litigation costs when the civil attorney hired by the person or entity served with the subpoena files a motion to quash on the ground that section 1985.3 was not complied with. While Civil Procedure Code section 1985.3 might not be the authority requiring "consumer notice" in criminal cases, there are legal principles that require such notice. Code of Civil Procedure section 1985.3 was adopted to protect a consumer's right of privacy under the California Constitution. (Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, 1848 [34 Cal.Rptr.2d 358].) Whether or not the Penal Code has any requirements for third party notice, the fact remains that third parties have constitutional rights to privacy and from unreasonable searches and seizures. Third-party notice should be given when a criminal subpoena duces tecum is issued. Sehlmeyer v. Department of General Services (1993) 17 Cal.App.4th 1072 [21 Cal.Rptr.2d 840] dealt with the administrative subpoena duces tecum. The Court of Appeal held that there was a constitutional and common law right of privacy requiring third party notice when one's personal records are being subpoenaed. (17 Cal.App.4th at p. 1077.) The court adopted the notice provisions and proceedings of Civil Procedure Code section 1985.3 for the administrative subpoena duces tecum. (Id. at pp. 1080-1081.)

As to medical records, third-party-notice is required by the federal HIPAA regulations. In Section 8 below, however, I argue that HIPAA preempts the California subpoena duces tecum procedure. But I also explain that, in my view of the proper way to comply with HIPAA, a criminal defense attorney will still be required to give notice to the third party whose medical records are sought.

In my opinion attorneys in criminal cases should not serve Civil Procedure Code section 1885.3 documents, but should instead draft their own third-party-notice documents. I think that third-party notice should be given after the records subpoenaed have been delivered to court. At that time the person whom the records concern should be given notice of his or her rights under the Barrett procedure discussed above. Such notice should be given when one is subpoenaing medical records, mental health records, or any other record in which a person has an arguable right of privacy under California statutory or constitutional law. A person's personnel records and employment history are protected by the state and federal constitutions. (San Diego Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4th 1083, 1097 [105 Cal.Rptr.2d 476].)

My view of third-party notice in the context of the criminal subpoena duces tecum has not been adopted by the courts. But in Kling v. Superior Court, supra, the California Supreme Court held that an alleged crime victim is entitled to notice when that person's records are being subpoenaed. (50 Cal.4th at p. 1080.)

The Confidential Records Defense (Updated 9/26/10)

Sometimes an agency moving to quash a subpoena duces tecum will cite statutes or regulations that make the records sought confidential. The argument is that since the records are made confidential by statute or regulation, they cannot be obtained by subpoena. I call this the "strong confidential records defense."
The strong confidential records defense is usually one of the most fallacious defenses a party can raise. A sophisticated attorney will not raise it unless the attorney can cite one of the relatively rare statutes that creates a privilege of non disclosure. The reason is that it is very likely that the statutory scheme cited to support the defense will have a provision that allows the records to be released by court order when necessary to serve the administration of justice. Such a provision shows that just because a statute says that certain records are confidential does not mean that an agency has an absolute privilege to refuse to disclose them when subpoenaed. The result will be that the attorney raising the defense will not appear to be knowledgeable in the law. The case law illustrates the fallacy.

Before I turn to the case law I will introduce the "weak confidential records defense." The original version of my discussion of the confidential records defense has been criticized by attorney Anthony Matricciani who found the discussion condescending. Anthony argues that there is a strategic value in raising the defense even if the defense is not successful in preventing the disclosure of all of the records sought. Anthony points out that there is what I call "the weak confidential records defense." I will present an expanded version of Anthony's argument at the end of this section.

In Pennsylvania v. Ritchie (1987) 480 U.S. 39 the defendant was charged with sexually abusing a thirteen-year-old girl. Ritchie served a subpoena duces tecum on the Children and Youth Services protective agency seeking records related to the charges. Ritchie also sought records, including a medical report, pertaining to an earlier abuse allegation. A state statute provided that all reports and information obtained in the course of a CYA investigation had to be kept confidential. There were various statutory exceptions including one allowing the agency to disclose records to a "court of competent jurisdiction pursuant to a court order." The United States Supreme Court rejected the government's argument that disclosure would override the state's interest in confidentiality. (480 U.S. at pp. 57-58.) Since the state statute provided that the material could be released under a court order, the Supreme Court had no reason to believe that "relevant information would not be disclosed when a court of competent jurisdiction determines that the information is 'material' to the defense of the accused." (Id. at p. 58.) So when you find the statutory provision allowing the agency to release confidential records under a court order, you can use the Pennsylvania v. Ritchie analysis.

Another case showing the fallacy in equating confidentiality with privilege is Department of Motor Vehicles v. Superior Court (Carmona) (2002) 100 Cal.App.4th 363 [122 Cal.Rptr.2d 504].) In Carmona the defendant was prosecuted for a vehicular homicide in 2000. Carmona had been in another accident in 1999, which Carmona blamed on his diabetic condition. In 1999 DMV placed Carmona's driver's license on medical probation. In the homicide case the prosecution issued a subpoena duces tecum requesting DMV to turn over all documents relating to Carmona's driving record including records of Carmona's lapses of consciousness. DMV provided many records, but redacted the records of Carmona's medical history. DMV took the position that records relating to physical or mental condition are absolutely privileged under Vehicle Code section 1808.5, and Evidence Code section 1040. Vehicle Code section 1808.5 provided that certain records are confidential:

Except as provided in Section 22511.58, all records of the department relating to the physical or mental condition of any person, and convictions of any offense involving the use or possession of controlled substances under Division 10 (commencing with Section 11000) of the Health and Safety Code not arising from circumstances involving a motor vehicle, are confidential and not open to public inspection.

In response to DMV's motions to relieve it from the requirement to produce the redacted material, the District Attorney filed an opposition and a motion to compel. The DA argued that since Carmona was planning to use a defense based on unconsciousness from a diabetic coma, production of the redacted medical records was justified as they would be relevant to the voluntary nature of any unconsciousness. Evidence of the defendant's knowledge of his condition, and eating, sleeping, and medication practices, were material to whether he had knowingly failed to exercise caution.

The major part of the opinion in Carmona is devoted to rejecting DMV's reliance upon a claimed absolute privilege, under Vehicle Code section 1808.5 and Evidence Code section 1040, not to disclose the medical records. "Characterizing information as confidential from public inspection is not the equivalent of establishing a privilege in a legal proceeding. Section 1808.5 does not use the term 'privilege' nor does it invoke the concept of privilege as that term is used in the Evidence Code or discovery statutes." (100 Cal.App.4th at p. 371.)

In Carmona the court pointed to other Vehicle Code sections that limited public disclosure of confidential information. One limitation was that a confidential address was not to be disclosed except to, among other agencies, a court or law enforcement agency. (See id. at p. 372.) The court said that the statutes did not show a legislative intent to create a privilege, but rather showed that confidential information might be necessary for disclosure in legal proceedings. (Ibid.) "In other words, if 'confidential' meant 'privileged,' it would be repugnant to include language allowing for the disclosure of such confidential information." (Ibid.)

In addition, the reasons that show why Vehicle Code section 1808.5 did not establish an absolute privilege to refuse to disclose confidential information also show why section 1808.5 is not a statute forbidding disclosure under Evidence Code section 1040. (Id. at p. 374.) "A statute that 'prohibits the disclosure of records' would invoke the absolute privilege of Evidence Code sections 1040 and 1041. A statute that 'provides for confidentiality,' would not." (Id. at p. 375.)

Carmona was an unusual case in that the defense joined in the prosecution's attempt to subpoena the records. The court finally held that DMV's interest in assuring physicians that medical evaluations they submit will not be disclosed to others outside DMV is outweighed by the prosecution and defense interests. (Id. at p. 377.) "A criminal defendant's right to discovery...is based on the fundamental proposition that [an accused] is entitled to a fair trial and an intelligent defense in light of all relevant and reasonably accessible information. Although Carmona did not initiate the production of the DMV's records, by joining in the People's motion, Carmona asserted his own right to their discovery." (Id. at p. 377, internal quotation marks and citations omitted.)

Carmona was followed by a case on the civil subpoena duces tecum, Trustees of the Southern California IBEW-NECA Pension Plan v. Los Angeles Unified School District (2010) 187 Cal.App.4th 621 [114 Cal.Rptr. 3d 440]. Trustees concisely make the point I have been making here: "Simply put, confidentiality does not equate with privilege." (187 Cal.App.4th at p. 631, fn. 7.)

Trustees is an important case because it collects cases and statutes that present examples of absolute privileges. (See id. at p. 630.) For a stature to create an absolute privilege against disclosure, and hence to make the confidential records defense work, "the language or structure of the statute must evince a legislative intent to bar disclosure even in the context of litigation." (Id. at p. 447.)

Anthony Matricciani's point is that even if the confidentiality of records does not give rise to an absolute privilege against disclosure, the fact that records are confidential at least gives the objecting party a chance to argue that he or she is entitled to an in camera hearing to explain why some of the records may otherwise be privileged. I will set out Anthony's argument in a later update.

The California Constitutional Right of Privacy Defense

The People v. Hammon Defense (Updated 4/13/11)

When the defense attempts to subpoena a person's mental health records, the agency possessing the records, or attorney's representing the person whose records are being sought, will often move to quash the subpoena by raising a defense based upon People v. Hammon (1997) 15 Cal.4th1117 [65 Cal.Rptr.2d 1, 938 P.2d 896]. People v. Hammon is important because it overruled People v. Reber (1986) 177 Cal.App.3d 523 [223 Cal.Rptr. 139]. In Reber defense attorney's attempted to subpoena the mental health records of two victims in order to show that the victims had a long history of mental illness accompanied by periods of delusion and hallucination. Reber held that the Sixth Amendment authorized pretrial discovery of the victim's records, and that the trial court should have conducted an in camera review of those records to determine which of them could be given to the defense. (177 Cal.App.3d at p. 532.) But the Hammon court upheld the trial court's denial of the in camera hearing used in subpoena duces tecum proceedings, given that the Sixth Amendment right is a trial right.

When faced with the Hammon defense, a defense lawyer needs to think about which person or agency holds the records he or she is trying to subpoena. If the records are held by a government agency, you will want to argue that you are entitled to pretrial discovery of the records under the Fourteenth Amendment as interpreted by Pennsylvania v. Ritchie (1987) 480 U.S. 39.

In Hammon the recipients of the subpoenas duces tecum were private psychologists. And the Hammon holding is limited to subpoenas directed at private parties: "Thus, in asking whether the trial court had a duty to review confidential or privileged records in camera, we are concerned exclusively with the records requested from the psychologists." (15 Cal.4th at p. 112, emphasis added.)

The California Supreme Court's focus in Hammon on private parties was necessary because of the United States Supreme Court opinion in Pennsylvania v. Ritchie. Pennsylvania v. Ritchie held that the Fourteenth Amendment Due Process Clause requires the use of in camera proceedings for subpoenas duces tecum issued for the records of alleged victims is sex abuse cases when those records are in the hands of government bodies. (480 U.S. at pp. 56-58.) In Hammon the California Supreme Court was well aware of Ritchie: "Applying the rule of Brady v. Maryland [Citation], which generally requires the prosecution to turn over to the defense all material exculpatory information in the government's possession, the court in Ritchie held that under the circumstances of that case due process principles required the trial court to review the agency records in camera to determine whether disclosure was required." (People v. Hammon, supra, 15 Cal.4th at p. 1125, emphasis in original.)

In addition to the California Supreme Court, other courts are aware that Pennsylvania v. Ritchie sets forth the rule when the records sought are in the hands of a government body.

Spath also failed to address the importance of who possessed the records he sought. In Ritchie, the issue was "whether and to what extent a State's interest in the confidentiality of its investigative files concerning child abuse must yield to a criminal defendant's Sixth and Fourteenth Amendment right to discover favorable evidence." Ritchie, 480 U.S. at 42-43, 107 S.Ct. 989 (emphasis added). In other words, in Ritchie, the records the defendant sought were actually held by a state agency, although the prosecution had not seen them. Idat 43-44, 44 n. 4, 107 S.Ct. 989. In this case, there is no evidence the State had seen or had access to Spath's girlfriend's medical records, nor is there any evidence any other state agency held her medical records.

(State v. Spath (N.D. 1998) 581 N.W.2d 123, 126-127, emphasis in original.)

The dispositive issue in Ritchie was the government's obligation under the Due Process Clause to provide discovery of records in its possession containing evidence both favorable to the accused and material to guilt or punishment. Id at 57, 107 S.Ct. at 1001 [Citations.] Impeachment evidence falls within that category. [Citations.] Here, however, J.H.'s records were not in the Commonwealth's possession and thus not within the holding in Ritchie.

(Commonwealth v. Barroso (Ky. 2003) 122 S.W.3d 554, 559, emphasis in original.)

The Hammon court rebutted the defendant's attempt to bring the subpoena of private records under the rule of Ritchie: "Defendant, however cites no decision concluding that records physically in the hands of private psychologists, and which have been sought through subpoenas directed to private parties, fall within Ritchie or Brady merely because the government referred the patient or paid for treatment." (People v. Hammon, supra, 15 Cal.4th at p. 1125, fn. 3, emphasis added.) The People v. Hammon defense should succeed where the records are subpoenaed from private persons. But even under Hammon the records can be re-subpoenaed for an in camera hearing at trial.

My claim that Hammon does not apply to records in the government's possession has to be qualified. In Pennsylvania v. Ritchie the government agency that held the records requested by the defense was an agency that investigated the charges made against the defendant. Thus it would seem for Ritchie's due process analysis to apply, the government agency in question would have to be one that is somehow tied to the prosecution.

The ''We'll Get Sued'' Defense

The Evidence Code Section 1040 Official Information Defense (Added 8/4/2009)

Evidence Code Section 1040 provides privileges for public entities to refuse to disclosure official information. Section 1040 subdivision (b) paragraph (1) sets out an absolute privilege allowing a public entity to refuse to disclose information when such disclosure is forbidden by an act of the United States Congress or by a California statute. Section 1040 subdivision (b) paragraph (2) sets out a conditional privilege allowing a public entity to refuse to disclose information when the necessity for preserving the confidentiality of the information outweighs the necessity for disclosure. (Register Div. of Freedom Newspapers, Inc. v. County of Orange (1984) 158 Cal.App.3d 893, 905 [205 Cal.Rptr. 92].) The subject of the official information privilege can become complicated, and a full discussion of the privilege is beyond the scope of this article. Here I discuss an interesting problem that can arise for the prosecution when a local government agency resists a subpoena duces tecum by attempting to invoke the privilege.

At times one gets the impression that the local county counsel or city attorney perceives their role as helping the District Attorney. The attorneys for these local public entities sometimes appear to be committed to slaying the defense dragon by raising every objection to a subpoena duces tecum they can think of. The invoking of the official information privilege, however, presents a threat to the prosecution. And that is because of Evidence Code section 1042.

Evidence Code section 1042 provides that if the conditional privilege is upheld in a criminal proceeding, then the court "shall make such order or finding of fact adverse to the public entity bringing the proceeding as is required by law upon any issue in the proceeding to which the privileged information is material." The District Attorney is the party bringing the criminal proceeding. Thus as pointed out by the court in Kelvin L. v. Superior Court (1976) 62 Cal.App.3d 823, 830 [133 Cal.Rptr. 325], "the sustaining of the official information privilege “is not an unmixed blessing to law enforcement.” A deputy county counsel can therefore undermine the prosecution by invoking the official information privilege. For example the refusal to comply with an order disclosing citizen complaints against a police officer for excessive force might result in a jury instruction to the effect that the officer has in the past used excessive force. (Carruthers v. Municipal Court (1980) 110 Cal.App.3d 439, 443 [168 Cal.Rptr. 33].)

The defense attorney might be able to use Evidence Code section 1042 to his or her advantage by pointing out the result of a successful invocation of the official information privilege. A deputy county counsel or deputy city attorney might be persuaded to back away from invoking the privilege by being made aware of the consequences of the invocation.

Finally, the threat to the prosecution from invocation of the official information privilege by an attorney from another agency has implications for the right of the District Attorney to participate in third party subpoena proceedings. The official information privilege is therefore discussed again in Section 10 below.

Ethical and Civil Liability Issues in the Use of the California Criminal Subpoena Duces Tecum (Updated 4/13/11)

While the ethical and civil liability issues are not confined to the use of the subpoena duces tecum for discovery purposes, I will discuss them in the context of third party discovery. I begin with an example showing why an attorney would want to use the subpoena duces tecum for discovery. I then explain some of the problems with using the subpoena for discovery, and how those problems can get an attorney in deep trouble.

Suppose you are representing a person charged with a misdemeanor violation of possessing a hypodermic needle. After a lawful traffic stop, the police find a hypodermic needle on the floor of the car by the driver's feet. Your client is the driver.

Your client tells you that the hypodermic needle is not his. He claims that he only bought the car three days before the traffic stop, and that he has not had a chance to clean out the car. He says that the hypodermic needle must have been possessed by the previous owner of the car. Your client tells you that if you subpoena the registration records from the DMV, they will confirm that he has only recently bought the car.

Suppose you subpoena the registration records from the DMV. The records arrive in a sealed envelope, and are lodged with the court. At trial your client takes the stand, and testifies that he purchased the car three days before it was found with the hypodermic needle. You then have the sealed envelope opened in court in the presence of the judge and District Attorney. To your horror, you discover that the records report that your client purchased the car six months before the hypodermic needle was found in it.

Note- Those of you brave enough to set out a very specific declaration in support of your subpoenas duces tecum may find that, in some cases, situations like this are avoided when the custodian of records warns you that the records will incriminate your client.

What this hypothetical shows is that a lawyer will want to know what the records say before he or she has them admitted into evidence, or otherwise presented to the prosecution. So the idea of using the subpoena duces tecum for discovery is to be able to first look at the records, and only then make a decision as to whether you want them admitted into evidence. The problem is how to examine records without the prosecution also getting to examine them.

For many years some California criminal defense attorneys solved the discovery problem by issuing subpoenas duces tecum returnable to their offices. After the records arrived in their office, the attorneys would examine them and then decide whether they wanted them subpoenaed to court. Serving subpoenas duces tecum returnable to a law office has been described as consistent with an informal procedure by investigators working at one public defender's office. (See James v. San Jose Mercury News (1993) 17 Cal.App.4th 1, 4-5 [20 Cal.Rptr.2d 890].) This procedure is illegal.

In my opinion the majority of lawyers using this procedure were not aware that it was illegal. Some judges and agencies, however, were aware of the illegality. For example the Sacramento County Coroner's Office might comply with such a subpoena if they had no objection to it. On the other hand, it would refuse to comply if it thought compliance was against the office's interests. It might be that the practice of issuing subpoenas duces tecum returnable to a lawyer's office arose from the use of such subpoenas in civil depositions. But in criminal cases the State Bar has disciplined lawyers who have issued subpoenas duces tecum returnable to their offices. (See The State Bar Court Case No. 95-O-17054-CEV.) In James v. San Jose Mercury News, supra, the court upheld a summary judgment in favor of a newspaper and one of its columnists in a libel suit brought by a criminal defense attorney where the a columnist stated that the attorney had violated the law where the attorney's investigator had subpoenaed school records returnable to the law office, and where a statute said that the records could not be released except by court order. The court upheld the summary judgment on this issue on the ground that truth is a defense to libel. (17 Cal.App.4th at p. 17.) And if not for Civil Code section 47's litigation privilege, having a subpoena duces tecum returnable to a criminal defense attorney's office would give rise to civil liability for abuse of process. (See the discussion in Susan S. v. Israels (1997) 55 Cal.App.4th 1290, 1303 [67 Cal.Rptr.2d 42].)

If a criminal defense attorney reads confidential records sent to him or her in response to a subpoena duces tecum where the attorney has either made the subpoena returnable to the attorney's office, or simply reads the records where they are inadvertently sent to the office instead of to court, such conduct is unethical and subjects the attorney to civil liability. Ethics Opinion 1987-3 of the San Diego County Bar Association says that where a criminal defense attorney issues a subpoena duces tecum for the confidential medical records of an alleged crime victim, and the records are inadvertently sent to his or her office instead of the court, the attorney has an ethical obligation not to read or copy them. (See also Ethics Opinion 86 of the Ethics Committee of the Colorado Bar Association for a similar conclusion in regard to the civil subpoena duces tecum.) An attorney who reads the confidential records, inadvertently sent to him instead of to the court, in response to the subpoena duces tecum is civilly liable for invading the privacy of the person whom the records concern. (Susan S. v. Israels, supra.)

The same court that decided Susan S. v. Israels distinguished that case in Mansell v. Otto (2003) 108 Cal.App.4th 265 [133 Cal.Rptr.2d 276], another case where a team of criminal defense attorneys was sued as a result of their issuing a subpoena duces tecum. In Mansell v. Otto the defense subpoenaed from a hospital the medical records of the alleged victim of an assault. The subpoena directed that the hospital deliver the records to the court. The hospital would only produce the records by court order. The criminal defense attorneys made an ex parte order for release of the records, and the court released them to the prosecution which made copies, and gave them to the defense. From what I have presented here, you can see that the procedure followed in Mansell v. Otto was incorrect. (And there were other complicating facts that I have not reported here.) What is important is that the Court of Appeal distinguished Susan S. v. Israels on the ground that in Mansell v. Otto the defense received the records after a court ordered their release. (108 Cal.App.4th at pp. 272-277.) These cases show that a court order releasing subpoenaed records to the defense will insulate the criminal defense attorney from civil liability even where an improper subpoena duces tecum procedure has been used.

The California Criminal Subpoena Duces Tecum and HIPAA (Updated 11/25/10)

Here I argue that it is a violation of federal law to release medical records in response to a California criminal subpoena duces tecum. I argue that, while HIPAA does not preempt the California civil subpoena duces tecum, it does preempt the California criminal subpoena duces tecum.

Before I begin with the preemption argument I want to get to the bottom line. Just because it is a violation of federal law to release medical records in response to a California subpoena duces tecum does not mean that medical records cannot be obtained in a criminal case. It means that medical records should be brought to court directly by way of court order. After the judge orders medical records to court, the defense should give third-party notice that there will be a hearing according to the procedures I discuss above in Section 2.

"HIPAA" refers to the Health Insurance Portability and Accountability Act of 1996. (See Pub. Law 104-191, 110 Stat. 1936.) Here is how one court has described HIPAA: "HIPAA is a massive federal statute that consists of extensive regulations." (State v. Downs (La.App. 2005) 923 So.2d 726, 728.) HIPAA's purpose is to encourage the storage of medical records in electronic form. But it also protects the privacy of medical records.
Title 42 United States Code section 1320d-7 provides that the federal regulations concerning health records will supersede contrary state law except where the state law provision, subject to HIPAA section 264(c)(2), relates to the privacy of individually identifiable health information. HIPAA section 264(c)(2) in turn provides that a HIPAA regulation shall not supersede a provision of state law if the state provision imposes more stringent requirements than the HIPAA regulation. These concepts of preemption and stringency are developed in more detail by federal regulations.

45 Code of Federal Regulations part 160.203 (2007) provides that a HIPAA standard or requirement that is contrary to a provision of state law preempts that provision of state law. But part 160.203 has some exceptions. The one we are concerned with is found in subdivision (b). That subdivision provides an exception where the state law relating to the privacy of individually identifiable health information is more stringent than the HIPAA requirements found in part 164 subpart E. The section of subpart E that we are interested in is 512. That is, we are interested in 45 Code of Federal Regulations part 164.512 (2007). I will refer to this section as "section 512."

The first question I will address is whether the relevant part of section 512 is contrary to the procedure used for the California criminal subpoena duces tecum. Then I consider whether the California criminal subpoena duces tecum procedure is more stringent than the relevant procedure in section 512.

Part 160.202 (2007) contains a disjunctive definition of "contrary":

Contrary, when used to compare a provision of State law to a standard, requirement, or implementation specification adopted under this subchapter, means:

A covered entity would find it impossible to comply with both the State and federal requirements; or
The provision of State law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of part C of title XI of the Act or section 264 of Pub. L. 104-191, as applicable.

So we are supposed to compare a provision of state law to a HIPAA requirement to see if they are contrary. What is "a provision of state law"? Is it a statute? Or is it a legal procedure established by statute, or case law, or both? A statute unrelated to HIPAA gives this definition: "the term 'provision of law' means any provision of a Federal statute or rule, regulation, or order issued thereunder;...". (15 U.S.C. sec. 719b(4).) The last sentence of Part 160.202, however, states: "State law means a constitution, statute, regulation, rule, common law, or other State action having the force and effect of law." I will assume, then, that under HIPAA "a provision of state law" includes the California procedure developed by the case law that I have set out in Section 2. I will refer to the procedure I have set out in Section 2 as "the Barrett procedure." Before I consider whether the Barrett procedure is contrary to the HIPAA regulations I will set out the relevant procedure described in section 512. I will refer to the procedure set out in section 512 as "the HIPAA procedure."

Section 512 sets out two ways to obtain medical records in judicial proceedings. One can obtain the records by court order or by subpoena. (45 C.F.R. sec. 164.512(e)(1)(i)&(ii)(2007).) To use a subpoena, the party requesting the records has to assure the person possessing the records that notice has been given to the person who is the subject of the medical records, or in the alternative, satisfactory assurance that the requesting party has made reasonable efforts to secure a protective order. (45 C.F.R. sec. 164.512(e)(1)(ii)(A)&(B)(2007).) Thus, the way I look at it, there are three ways to obtain medical records in a criminal case; (1) by court order, (2) by subpoena duces tecum, and (3) with a protective order. I will ignore the third option.

HIPAA permits disclosures of medical records under a subpoena if the person holding the records receives satisfactory assurance from the party issuing the subpoena duces tecum that reasonable efforts have been made that the person who is the subject of the records has been given notice that the person's records are being sought. (45 C.F.R. sec. 164.512(e)(ii)(A)(2007).) Satisfactory assurance is a written statement and accompanying documentation showing that the subpoenaing party has made a good faith attempt to give the required notice. (45 C.F.R. sec. 164.512(e)(iii)(A)(2007).) The notice must include enough information about the litigation to allow the individual whose records are sought to raise an objection to the court. (45 C.F.R. sec. 164.512(e)(iii)(B)(2007).) The assurance must show that the time for the individual to raise objections to the court has passed and either no objections were filed, or all objections filed have been resolved by the court, and "the disclosures being sought are consistent with such resolution." (45 C.F.R. sec. 164.512(e)(iii)(C)(2007).)

Now that both the Barrett procedure and the HIPAA procedure are been set out I will consider whether they are contrary. If they are, then HIPAA preempts the Barrett procedure unless the Barrett procedure is more stringent in protecting privacy than the HIPAA procedure.

The Barrett procedure and the HIPAA procedure are contrary. They are contrary under the first disjunct of Part 160.202 (2007). It is impossible for the person or entity possessing medical records to comply with both the state and federal requirements. The reason such compliance is impossible has to do with what some might consider the counterintuitive notion of "disclosure" of records under HIPAA. Under 45 Code of Federal Regulations part 160.103 (2007) "disclosure" is defined as follows: "Disclosure means the release, transfer, provision of, access to, or divulging in any other manner of information outside the entity holding the information." (Emphasis added.) When I think of the disclosure of records under a subpoena duces tecum I think of the records being disclosed to the party who has issued the subpoena for those records. But under HIPAA the records are disclosed when they leave the possession of the entity or person in possession of the records.

Suppose for example that a criminal defense attorney subpoenas medical records from Good Health Hospital. Suppose that under Barrett an in camera hearing is held, and the judge decides that none of the records will be released to the defense. While the defense ends up empty handed, there has still been a disclosure of records under HIPAA because the records will have been sent from the hospital to the court for the in camera hearing under Barrett. (See State v. La Cava (Conn. Super.) 2007 WL 1599888.) And note that, from HIPAA's perspective, the records will have been disclosed without an opportunity for the person whom is the subject of the records to make an objection to their disclosure. So it is impossible for the hospital to comply with the third party notice requirements of the HIPAA procedure, and at the same time comply with the Barrett procedure. To comply with the state procedure means that the party holding the records will have to forgo the HIPAA privacy requirements.

Given the consumer notice provisions of Code of Civil Procedure section 1985.3, California's civil subpoena duces tecum procedure is not contrary to the HIPAA procedure. The two procedures are parallel. They are so similar that it almost seems as though the HIPAA procedure may have been modeled on Code of Civil Procedure section 1985.3. Because the state civil procedure and federal procedure are not contrary, HIPAA does not preempt the California civil subpoena duces tecum procedure.

A Louisiana case illustrates why HIPAA does not preempt the California civil subpoena duces tecum. State v. Downs, supra, held that HIPAA did not preempt the Louisiana subpoena duces tecum. The court considered the Louisiana statute for the disclosure of medical records. (923 So.2d at pp. 729-731.) And that statute requires that a party subpoenaing medical records give notice of the request to the party whose records are sought at lease seven days before the subpoena is issued. And the subpoena has to be served on the health care provider at least seven days before the date on which the records are to be disclosed. The health care provider cannot disclose the records if the party subject to the records makes a motion to prevent disclosure. The court held that the state statute was not contrary to HIPAA because it was not impossible for the health care provider to comply with both the state and federal requirements. (Id. at pp. 730-731.) The court noted that the Louisiana statute's notice requirements were similar to those of the HIPAA procedure. (Ibid.) And both the Louisiana statute and the HIPAA procedure allow objections to be made by the party who is the subject of the records. (Id. at p. 731.)

You can see that the Louisiana statute on the disclosure of medical records is similar to California's Code of Civil Procedure section 1985.3. It is true that the Barrett procedure allows objections to the release of records by the person who is the subject of the records. But the critical difference is that the California criminal subpoena duces tecum does not have any specific statutory requirement instructing the attorneys that they are required to give third party notice.

We have seen that the Barrett procedure is contrary to the HIPAA procedure. That means that HIPAA preempts the California criminal subpoena duces tecum unless the Barrett procedure is more stringent than the HIPAA procedure. I now turn to the issue of stringency.

"More stringent" is defined in part 160.202 (2007). That part provides that a state law is more stringent than the HIPAA procedure if the state law meets one or more of six criteria. The three criteria that may be relevant to a comparison of the Barrett procedure and the HIPAA procedure are 1, 4 and 6. (But see State v. La Cava, supra, where a Connecticut judge found a procedure similar to that set out in Evidence Code section 1560, discussed in Section 2 above, was less stringent than the HIPAA procedure under all six criteria.) Under Criterion 1 a state law is more stringent if (with two exceptions I will ignore) it "prohibits or restricts a use or disclosure in circumstances under which such use or disclosure would otherwise be permitted under this subchapter...." Because I do not see the Barrett procedure prohibiting or restricting a use or disclosure that would be permitted under the HIPAA procedure, I conclude that state law is not more stringent under Criterion 1.

Criterion 6 is: "With respect to any other matter, provides greater privacy protection for the individual who is the subject of the individually identifiable health information." One might argue that the Barrett procedure's in camera hearing process provides greater privacy protection for the third party. But Criterion 4 also considers privacy, and I will argue below that the Barrett procedure is clearly less stringent under Criterion 4. I think that the Barrett procedure will appear so far less stringent than the HIPAA procedure, under Criterion 4, that one will not have a meritorious argument that the California criminal subpoena duces tecum procedure is not preempted by HIPAA under Criterion 6. Nevertheless, I now explain why one might think the Barrett procedure is more stringent under Criterion 6.

The Barrett procedure's use of the in camera hearing for the person who is the subject of the records sought (the third party) protects the person's privacy in a concrete manner compared to the HIPAA procedure. The resolution of the third party's rights under HIPAA seems more abstract. For example under section 512(e)(ii)(C)(2) a disclosure is permitted after the third party has made objections to the subpoena and the objections have been resolved by the court. Since a disclosure refers to the transfer of the records from the custodian of records, this means that the judge will have had to resolve the third party's objections without looking at the records themselves. This is what I mean by "more abstract."

On the other hand, it could be argued that this shows exactly why the Barrett procedure is less stringent. That is because under the Barrett procedure the third party's privacy is invaded by the judge reviewing the records in camera. Yet I am impressed with the concern with privacy exemplified by the civil case I mentioned in Section 1, Save Open Space Santa Monica Mountains v. Superior Court (2000) 84 Cal.App.4th 235 [100 Cal.Rptr.2d 725]. There the petitioner requested attorney's fees under the private attorney general statute. Real Parties in Interest sought discovery of contributions made to Petitioner's attorneys. The Court of Appeal held that Petitioner was entitled to incremental in camera hearings. Thus Petitioner could have an initial in camera hearing where Petitioner would have to show the court the total amount of money contained within its litigation fund for attorney's fees, and the amounts donated by each contributor. (84 Cal.App.4th at p. 255.) But Petitioner would not be required to give the court the names and addresses of the donors to the fund. The Court of Appeal said that if the trial court found that none of the contributions is significantly large, then nothing more would have to be disclosed. (Ibid.) But if the trial court saw that some of the contributions are significant, then Petitioner would have another in camera hearing where it would have to provide more information about the contributors. (Ibid.) Depending on what that information turned out to be, the matter would either end, or else Petitioner would be required to turn the names and addresses of some of its donors over to Real Parties In Interest. (Ibid.) What Save Open Space Santa Monica Mountains v. Superior Court shows is the great degree to which the in camera hearing procedure can protect a party's right to privacy.

In the same way, however, it can be argued that the Barrett procedure violates privacy in ways that the HIPAA procedure does not. That is because it also allows the criminal defendant an in camera hearing to further articulate his or her need for the medical records. But Criterion 4 is the kicker. I now turn to it.

Criterion 4 addresses the need for express legal permission from the third party who is the subject of the medical records sought. Part 160.202 (2007) Criterion 4 is as follows:

With respect to the form, substance, or the need for express legal permission from an individual, who is the subject of the individually identifiable health information, for use or disclosure of individually identifiable health information, provides requirements that narrow the scope or duration, increase the privacy protections afforded (such as by expanding the criteria for), or reduce the coercive effect of the circumstances surrounding the express legal permission, as applicable.

(Emphasis added.) The HIPAA procedure requires third party notice for the subpoena duces tecum. California Code of Civil Procedure section 1985.3 requires third party notice for the civil subpoena duces tecum. And I have argued in Section 2 that the right of privacy protected by the California Constitution requires third party notice for the criminal subpoena duces tecum. Third party notice gives the person subject to the records an option to object to the disclosure or use of the records.

The problem with the Barrett procedure, however, is that there is no statute specifying that such third party notice must be given, or that specifies how it is to be given. The omission of an express third party notice procedure leads to the conclusion that HIPAA preempts the California criminal subpoena duces tecum. This can be seen from the infelicities I discussed in Section 7 resulting from criminal defense attorneys issuing subpoenas returnable to their offices. Such a practice is a result of not giving third party notice. And the infelicities I mention in Section 7 are: (1) a criminal defense attorney being disciplined by the state bar, (2) a summary judgment entered against a criminal defense attorney in a libel action on the ground that truth is a defense to an allegation of unethical conduct, and (3) criminal defense attorneys being named as defendants in two civil suits reported in the published law reports. As I indicated earlier, I do not believe that these attorneys knowingly engaged in an unethical subpoena practice. I believe that these practices were a result of not knowing the law. And part of the reason the law has not been well understood has to do with the fact that there is no express third party notice procedure set out in the law governing the California criminal subpoena duces tecum.

For the Barrett procedure to work; that is, for the third party to make objections and get an in camera hearing, that party has to have notice that his or her medical records are being subpoenaed. The infelicities I note make it hard to claim the the California criminal subpoena duces tecum procedure is more stringent than the HIPAA procedure. HIPAA preempts the California criminal subpoena duces tecum procedure.

In Section 7, I discussed Mansell v. Otto; one of the cases where criminal defense attorneys were sued because they obtained third party medical records without third party notice, and without complying with the Barrett procedure. There is a fact in Mansell v. Otto that I think is significant. The defense issued a subpoena duces tecum for the medical records of the victim of an alleged assault and an alleged battery. The subpoena directed the custodian of records to deliver the records to court. But the Veterans Administration Hospital told the defense attorneys that the records would only be produced by court order. (See 108 Cal.App. 4th at p. 268.) We are not told in the opinion why the hospital refused to comply with the subpoena. But the hospital's action in refusing to comply with the subpoena, and in insisting on a court order was in accord with HIPAA.

If I am correct in my opinion that HIPAA preempts the California criminal subpoena duces tecum procedure, then how are medical records to be obtained in a criminal case? The technically correct way to get medical records is to serve a court order requiring the hospital or other custodian of the medical records to submit the records to the court. Here is a short guide for the California criminal defense practitioner. After the records arrive in the court file, the attorney should calendar a court date for hearings on the attorney's request for access to the records. The attorney should give third party notice to the person whom is the subject of the records. That notice should explain that the party has a right to make objections to the release of the records, and that the party has the right to an in camera hearing to possibly limit release of some or all of the records.

Using the California Criminal Subpoena Duces Tecum for Discovery (Updated 4/13/11)

It is easier for the civil attorney to use a subpoena duces tecum for discovery purposes than it is for the criminal defense attorney. By use of the term "for discovery purposes" I distinguish the use of the subpoena duces tecum from that used to get records introduced into evidence at a trial or hearing. The law on the use of the criminal subpoena duces tecum for discovery purposes is evolving. At present there does not appear to be a way to use the subpoena duces tecum that is guaranteed to keep the prosecution from knowing that the defense is interested in the records in question.

In section 7 above, I gave a hypothetical showing why a criminal defense attorney wants to look at records before subpoenaing them to court to be admitted into evidence. And I explained that the traditional practice of subpoenaing records to an attorney's office is illegal. In an attempt to give criminal defense attorneys a legal way to use the subpoena duces tecum for discovery, and that would keep the prosecution from finding out that the defense attorney was interested in the particular records, I persuaded the Judicial Council to modify the subpoena form in 1991 to incorporate the photocopying procedure set out in Evidence Code section 1560 subdivision (e). That procedure provides that the person issuing a subpoena duces tecum can require the person subpoenaed to make the records available for photocopying at the business address of the person subpoenaed. This allows the attorney to decide whether the records will help, or hurt, the case before the records are admitted into evidence. Unfortunately for criminal defense attorneys, however, the relevant statutes were amended in 2004 so that the photocopying procedure cannot be used in criminal cases. (Stats. 2004, ch. 162, section 2.)

We have seen that records subpoenaed by the criminal subpoena duces tecum are returnable to the court. We have also seen that subpoenaed records are not turned over to a defense attorney until there is a court order. So how can a defense attorney subpoena records without tipping off the prosecution as to the existence of those records? It's not clear that this is possible.

Until People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737 [76 Cal.Rptr.3d 276, 182 P.3d 600] there had been developments that tended to exclude the prosecution from from defense efforts to subpoena third party records. These developments were reflected by Teal v. Superior Court (2004) 117 Cal.App.4th 488 [11 Cal.Rptr.3d 784] and Smith v. Superior Court (2007) 152 Cal.App.4th 205 [60 Cal.Rptr.3d 841].

In Teal the defense subpoenaed third party records that were reviewed by the trial court outside the presence of the prosecution. The trial court allowed the defense to take possession of the records, but told the defense to give copies to the prosecution. The Court of Appeal issued a writ ordering the trial court to vacate that part of its ruling requiring the defense to give copies of the records to the prosecution. (117 Cal.App.4th at p. 492.) The Court of Appeal said that to protect the defendant's Fifth Amendment right against self-incrimination and Sixth Amendment right to counsel, the trial court had allowed the defense "to present relevancy arguments without having to reveal possible defense strategies and work product to the prosecution." (Id. at p. 491.) The Court of Appeal held that the defense should not be forced to choose between either refraining from discovery, or else going forward with discovery and revealing defense strategies and work product to the prosecution. (Id. at p. 492.) Thus the trial court abused its discretion in ordering the defense to turn the records over to the prosecution. (Ibid.) The Court of Appeal, however, pointed out that if the defense decided to use the subpoenaed evidence at trial, it would have to then give it to the prosecution under the discovery scheme set out in the Penal Code. (Ibid.)

Smith held that while the prosecution has a right to notice of the date and place of the defense third party discovery proceedings, it did not have a right to participate in them. (152 Cal.App.4th at pp. 213-214.) Humberto S. is a case about recusal. But the recusal issue arose from subpoena duces tecum litigation. Humberto S. disapproved anything in People v. Smith prohibiting the prosecution from participation in defense third party discovery proceedings. (43 Cal.4th at p. 750.)

After discussing Evidence Code section 1560 subdivision (d)'s procedure for the opening of the envelope's (see Section 2 above), the Supreme Court in Humberto S. said that section 1560 suggests that "opposing parties have a right to notice and presence, but it leaves unanswered the degree of any further participation, neither guaranteeing nor prohibiting it." (43 Cal.4th at p. 749.)

It would seem from what I have presented in Section 7 above on the official information privilege contained in Evidence Code section 1040 that the prosecution must be allowed to participate in at least some third party subpoena proceedings. Recall that the invocation of the official information privilege by a local pubic entity may have devastating affects on the prosecution of a criminal case. The District Attorney has a due process right to be heard where an order issued by the court may affect its rights in a case. (Department of Corrections v. Superior Court (1988) 199 Cal.App.3d 1087, 1092 [245 Cal.Rptr. 293].) Thus if the court upholds the privilege invoked by an attorney from another agency, the District Attorney should be heard on the issue of the sanctions to be imposed under Evidence Code section 1042.

Humberto S. was followed by Kling v. Superior Court (2010) 50 Cal.4th 1068 [116 Cal.Rptr.3d 217, 239 P.3d 670]. Kling holds that in criminal subpoena duces tecum litigation the prosecution is entitled to notice when the defense moves for a court order releasing the subpoenaed documents to the defense. (50 Cal.4th at p. 1079.) Kling also recognizes the right of the prosecution to quash a defense subpoena duces tecum. (Id. at p. 1078.) The information released to the prosecution will be determined after balancing the prosecution's right to due process with the defendant's constitutional rights and his attorney's work product. (Id. at p. 1079.) The prosecution will be entitled entitled to learn the identity of the subpoenaed party and the nature of the records subpoenaed. (Id. at pp. 1078-1079.) If the judge releases the records to the defense, the prosecution is not entitled to see them. But if the defense later seeks to admit the records at trial, then it must turn the records over to the prosecution under the discovery procedure set out in Penal Code section 1054.3. (Id. at pp. 1076-1077.) Finally, Kling indicates that "The Victims' Bill of Rights Act of 2008" would require that an alleged victim get third-party notice of a subpoena directed at third parties requesting the victim's records. (Id. at p. 1080.)

In Section 2, I said that Evidence Code section 1560 subdivision (d) might create a problem for the criminal defense attorney. Here is why. Section 1560 subdivision (d) states that the copies of the sealed records sent to the court under the subpoena are to remain sealed and opened "only" at the time of the trial or hearing, unless the parties otherwise agree or unless the sealed envelope is returned to the witness who is to appear in court personally. (See Section 2 for a review of the sealed-envelope procedure.) The Teal procedure violates Evidence Code section 1560 subdivision (d) insofar as the prosecution is not present when the court releases the records to the defense. So the opening of the sealed envelope without the District Attorney being present may lead to an objection that the documents are not admissible in evidence.

Evidence Code section 1562 states the requirements for the admissibility of the records into evidence. Section 1562 does not state that Evidence Code section 1560 subdivision (d) has to be satisfied before the records are admitted into evidence. But one can picture an overzealous prosecutor objecting to the admissibility of the records where the Teal procedure was followed. Thus a cautious defense attorney who has had the records subpoenaed to court without the custodian of records (or other relevant witness) may want to subpoena the custodian or witness to appear personally in court at trial if the defense decides to use the records after a Teal hearing. The custodian or other witness can then be used to satisfy the foundational requirements for the business records exception to the hearsay rule in order to get the records into evidence under Evidence Code section 1271.

Ethical, Civil Liability, and Tactical Issues in the Use of the California Criminal Subpoena Duces Tecum