How to Respond to a Subpoena
It’s a difficult moment when a domestic violence or sexual assault program is served with a subpoena requesting information about a current or former survivor. The Violence Against Women Act (VAWA), the Family Violence Prevention and Services Act (FVPSA), and the Victims of Crime Act (VOCA) all contain strong confidentiality provisions that limit the sharing of victims' personally identifying information. Programs cannot release any information about survivors without a fully informed, time limited, written release of information signed by the individual. But VAWA, FVPSA, and VOCA also permit limited sharing when required by a valid court order. So is a subpoena a ‘court order’? Under many circumstances, the answer is no.
What is a subpoena?
A subpoena is a written document which demands that an individual testify in a specific case, turn over information, or do both. Most subpoenas are issued by an attorney or prosecutor in various types of court cases including criminal, juvenile court, and grand juries. In most states, it is not considered a court order unless signed by a judge. Regardless of who sent the subpoena, programs should never ignore it, and they should NEVER simply turn over the information requested without making objections and taking protective measures. The appropriate response will vary and depend on several factors.
Is a subpoena a ‘court order’? Under most circumstances, the answer is no. Programs should NEVER simply turn over information in response to a subpoena.
Act before action is necessary
Programs should first do several things before ever receiving a subpoena:
1. Establish good policies and procedures for record keeping, retention, and purging of files. Remember less is often best. The more client data you collect, the greater the confidentiality risks to victims. The best practice to follow for data collection is to collect and retain the minimum amount of information needed by your agency to provide victim-centered services. General information on data retention can be located at: www.techsafety.org/retention.
2. Develop a written policy addressing how to respond to subpoenas and train all staff in those procedures. The policy should include:
General guidelines on how the program will respond,
Instructions for providing immediate notification to the executive director / management that a subpoena has been received,
Designation of one staff member (often the executive director) who is considered the ‘keeper of the records.’ This is the person who is responsible for the maintenance of all program and client records and for formally responding to a subpoena for records.
The process for communicating with the person whose information is being requested and determining what they would like the program to do with their information. This should include:
Identifying if the person is currently or has been a client of the program.
Determining if there is a known safe method for making contact.
Identifying who from the program will reach out.
Informing the person of the request, what information has been requested, all possible options for responding, and possible consequences.
The process for ensuring true informed consent for a survivor who wants the program to share the information. Clients should be fully advised of the possible consequences of disclosure, and the method for obtaining a written release of information should be decided upon.
The process for connecting the person with legal advice, if needed.
3. Establish a relationship with a local attorney who understands the confidentiality restrictions imposed by federal, state, and statutory privileges and laws, and is willing to assist the program for free or at a reduced cost. Programs can also contact ambar.org/subpoena defense for materials and training to support attorneys in your area.
4. Establish collaborative relationships with other community organizations and agencies, such as law enforcement, child welfare agencies, housing authorities, etc. It is important to understand that collaborative relationships do not mean the automatic sharing of survivor information. It is, in fact, quite the contrary. All community partners should be educated on the requirements for confidentiality and that programs will not divulge information unless the survivor wishes them to do so and completes a written release.
Responding to a subpoena
Programs who have received a subpoena should NEVER simply hand over information and should always contact their attorney for legal advice. The response will not be the same each time, but instead will depend on several factors, including:
1. Is the subpoena signed by a judge or other judicial officer?
a. If not, it is likely not a court order under local law and therefore would not be an exception to the confidentiality obligations set forth by VAWA, FVPSA, and VOCA and no information should be released based on that subpoena.
i. The subpoena should not be ignored!
ii. The program can respond by calling/writing the attorney who issued it and requesting that the subpoena be withdrawn, explaining confidentiality requirements. No information should be given to the attorney, including whether the survivor was ever or is a client of the program. If the subpoena is not withdrawn, the program should be prepared to challenge its validity in court.
b. In rare circumstances, a subpoena may be signed by a judge or judicial officer. In these cases, the program can still call the issuing attorney to learn more about the circumstances surrounding the subpoena, but should also be prepared to communicate with the court through a motion or other court filings.
2. Is the program currently working with the survivor whose information is being sought or does it have a way to contact the survivor?
a. The program should always attempt to contact the survivor to provide notice about receiving the subpoena, if it can do so safely. Remember, the information belongs to the survivor, who has the right to decide who gets it and how the program should respond.
i. Although rare, it is possible for a subpoena to be a court order that includes a mandate forbidding the program from giving notice to the person whose information is being requested. If the program receives a subpoena like that, the program should consult with its attorney before communicating with the survivor.
b. If the survivor cannot be reached, the program still has an obligation to challenge the subpoena. If informal conversations with the issuing attorney are not successful, the program should be prepared to file a Motion to Quash.
c. If able to speak with the survivor, carefully explain the survivor’s right to have the program challenge the subpoena and describe any limitations to confidentiality the program may have.
i. If the survivor does not want the information disclosed, it is the program’s obligation to challenge the subpoena by filing a Motion to Quash. The program should explain the process to the survivor and make sure they understand that if the Motion is unsuccessful, then the program may continue to challenge it as much as possible, but could possibly be mandated by a court to release some information. If the Motion is unsuccessful, and the court orders the program to disclose the information, the program should consider filing an appeal to a higher court.
ii. If the survivor wants the information released, the program should explore with the survivor how the information can be released:
If the survivor’s own attorney is seeking the information, it is generally better to withdraw the subpoena (because that tells the opposing party that information is out there) and discuss with the survivor the best way to actually get information to the survivor’s attorney.
If it is an adversary seeking the information, and the survivor wants the program to supply it, the survivor should complete a written, informed, time limited release of information, and the program should release only the specific information detailed in that release and prepare to challenge the subpoena’s demand for any other information (if necessary).
3. What if the program no longer has the information requested?
a. The program can neither confirm nor deny whether they have the information requested because that confirms having worked with the client.
b. A program can call or write the issuing attorney to say, “You have requested information from 2 years ago. Confidentiality prohibits me from confirming whether we know who this person is, but I can tell you that it is our policy to destroy all files after a year. Therefore, we are unlikely to have anything related to anyone from 2 years ago. Do you want to withdraw your subpoena?”
4. What if the program never provided services to the survivor?
a. The program can neither confirm nor deny whether they have worked with a client. If the program denies having worked with a person in some cases, then a refusal to confirm or deny in other cases becomes a confirmation in of itself.
b. Often, the subpoena and the court case will give information about how to contact the person. The program can call the person’s attorney, say it has received a subpoena related to the person, and ask to speak directly with the person about the subpoena.
i. The person may give consent to disclose that the program never provided services.
c. The program should still challenge subpoenas for information, even when the program never provided services. This challenge educates the legal system about program confidentiality. A reputation for vigorously protecting information will make lawyers think twice before subpoenaing the program again.
For programs to provide the best services to survivors of domestic violence, sexual assault, dating violence, and stalking, it is critical to maintain their information in strict confidence. Remember the information belongs to the survivor, not the program. The survivor retains the right to choose when, how and what personal information will be shared, or not shared, and with whom. Agencies and advocates are responsible for respecting and honoring the victim’s wishes and safeguarding any of the survivor’s information that they collect or hold.