How to Deal with a Subpoena: Pointers for Psychologists

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The information here is not intended to provide legal

advice or to substitute for the advice of an attorney,

but rather to offer information about possibilities for

dealing with a subpoena. Where further guidance is

needed, psychologists may ﬁnd it useful to consult with

their malpractice insurer, the APA Practice Directorate’s

legal and regulatory affairs department or a state

psychological association representative.

I just received a subpoena.

What do I do?

You must ﬁrst understand what the document is requesting

of you. Subpoenas often seem to be asking you to testify in

person, when they in fact are just seeking documents. Know

who you are supposed to deliver documents to, or where

How to Deal with a Subpoena: Pointers for Psychologists

Receiving a subpoena, a legal command to testify about a client or turn over client records,

is often a perplexing and anxiety-provoking experience for psychologists.

This article addresses many common questions about subpoenas that psychologists raise with the

APA Practice Organization. The content pertains to subpoenas involving psychotherapy notes, process

notes, client information forms, billing records and other such information. This article does not

address psychological test material, which may be subject to additional ethical considerations.

and when are you supposed to appear to testify. Also be

sure you’re clear about the applicable due date.

I intend to comply with the subpoena.

Should I just turn over the documents or

show up to testify, or do I ﬁrst need my

client’s written consent?

Turn over the information only if your subpoena qualiﬁes

as a court order. In most states, you can turn over the

documents or show up to testify without obtaining your

client’s consent only if the subpoena you received qualiﬁes

as a court order from a judge, which is rare. Typically a

court order will be identiﬁed as such on the ﬁrst page. In

addition, the document will be signed by a judge, not a

judge’s clerk or an attorney. If you are not sure whether the

document is a court order, you may contact the court that

issued the document and ask to speak to the judge’s clerk.

If you don’t have a court order, obtain your client’s

written consent or authorization.

If the document is not

a court order (the ﬁrst subpoena you receive in a matter

rarely is a court order), you will need to obtain your client’s

consent or authorization before turning over conﬁdential

information. This step is required because most state and

federal jurisdictions recognize a psychotherapist-patient

privilege that allows the client to prevent conﬁdential

material from being disclosed to others. (Some state laws

provide exceptions to this rule that allow you to turn over

conﬁdential information without the client’s consent or

authorization in certain situations.) When obtaining this

consent, you should tell your client exactly what you have

been asked to turn over and that there is no guarantee that

the information will be kept conﬁdential.

If you are not covered by the Health Insurance Portability

and Accountability Act (HIPAA) Privacy Rule, your state

may require client consent to be in writing. Staff attorneys

for the APA Practice Organization suggest that psychologists

obtain their client’s consent in writing, even if not required

to do so in their state. This will help ensure that your client

is making an informed consent and will provide you with

documentation in case you need it in the future. The

written consent that you obtain from your client should

contain, at a minimum:

• Exactly what information will be disclosed

• To whom the information will be disclosed (for example,

to the requesting attorney)

• The purpose of the disclosure (to respond to a subpoena)

• The client’s signature and date

If you are covered by the HIPAA Privacy Rule, you must

have a “written authorization” that includes several speciﬁc

items. The APA Practice Organization suggests that you

obtain legal guidance in this area. A model form tailored

to your state’s requirements is included in “HIPAA for

Psychologists,” the HIPAA Privacy Rule compliance product

prepared by the APA Practice Organization and the APA

Insurance Trust. (Visit APApractice.org for additional

information about this product.)

Talk to your client’s attorney. It is also important that

you discuss the subpoena with the client’s attorney (if he

or she has one) after you have received appropriate consent

from the client to do so. You should ﬁnd out whether the

attorney intends to oppose or seek to limit the scope of

the subpoena, as discussed in the answers to Questions

4 and 5.

Who gives the written consent

if the client is a child?

In situations where the client is a child or is otherwise

legally incapable of consenting, you will have to obtain the

consent or authorization from the client’s parents or legal

guardian, although some state laws provide independent

privilege rights for minors. Sometimes it is complicated to

determine who has authority to consent, especially in child

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continued on page 4

custody cases. If it is unclear who has that authority in your

situation, you may need to obtain additional guidance,

such as from your malpractice insurer or an attorney in

your state.

What if I don’t have a court order and the

client refuses to give me the consent or

authorization or I can’t reach the client?

As discussed below, when you cannot get the client’s

consent or authorization, it usually makes sense to contact

the party requesting the information to try to resolve the

issue. If that does not work, then you could seek guidance

from the judge who has jurisdiction over the subpoena.

Each state has its own rules, however, and the APA Practice

Organization is unable to

provide guidance that works for

every state and every situation.

If the options below do not ﬁt

your circumstances, you should

seek additional guidance from

your own attorney or other

appropriate source.

Option 1. Tell the requesting

attorney that you

cannot release

conﬁdential

information without

consent or

authorization.

In most situations, an approp-

riate ﬁrst step is to contact the party requesting the

information to say that you cannot release conﬁdential

information without the client’s consent or authorization.

It is important that, when making this contact, you do

not reveal that you have ever treated the client, as many

states take the position that the fact of treating a client

is protected information. In your letter or e-mail to the

attorney, you might indicate that you cannot say whether

you have provided treatment to the person named in the

subpoena, but if you had, then you could not ethically

release such information without an order from a judge or

an authorization from the client, neither of which you have.

In many cases, the attorney will try to address the problem

by seeking a court order or trying to obtain the client’s

authorization. In some situations, the attorney may decide

not to pursue the request for conﬁdential information.

When contacting the requesting attorney, it is important

not to reveal that you have ever treated the client, as many

states take the position that the fact of treating a client

is protected information.

Option 2. Seek guidance from

the judge with

jurisdiction over the

subpoena.

The attorney may disagree with

your assertion that you cannot

disclose the information, or

otherwise insist that you do so.

At this point, you may want to

seek guidance from the court.

You or your attorney could call

the court, stating that you wish

to comply with the law but that

you are ethically obligated not

to produce conﬁdential records

or to testify about them, including whether someone is a

client of yours, unless compelled to do so by the court or

with the consent of the client. You could then ask the court

for guidance. Be sure to conﬁrm any guidance received in

writing, with copies to attorneys for both sides. If you

cannot reach the court by phone, you can contact the

court in writing.

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How to Deal with a Subpoena: Pointers for Psychologists continued from page 3

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Option 3. File a motion to quash the subpoena.

If you seek guidance from the court and get no response,

you may need to work with an attorney to ﬁle a motion to

quash the subpoena. A motion to quash is a formal request

to the court that the subpoena be declared invalid or

otherwise without legal force. If the client has refused to

authorize you to disclose the information, the client’s

attorney might ﬁle this motion, which would relieve you

of paying the costs related to such a ﬁling. While working

with the client’s attorney (after receiving the necessary

authorizations from your client) is usually advisable, keep in

mind that your client’s attorney does not represent you and

that your interests and the client’s interests may not be the

While working with the client’s attorney (after receiving

the necessary authorizations from your client) is usually

advisable, keep in mind that your client’s attorney does

not represent you and that your interests and the client’s

interests may not be the same, especially as the

proceedings evolve.

same, especially as the proceedings evolve. Moreover, if you

have an obligation to the court, and the client’s attorney

fails to contact the court or ﬁle a motion to quash in a

timely manner, you may be subject to the consequences

of failing to respond. Thus, while working with the client’s

attorney, it is important that you stay apprised of your

own legal obligations and deadlines.

What if I think disclosure will harm my

client or a third party?

There are several options to limit disclosure in such cases.

In most cases, these options will be pursued by the client’s

attorney. APA staff attorneys suggest that you discuss these

options with your client’s attorney before pursuing them

on your own. Be sure to conﬁrm any agreement with the

requestor in writing, with copies to all parties. If the

requestor refuses to agree to any of these options, you

may need to seek a ruling from the court.

See if the requestor will accept limited information.

The requestor may agree that information about third

parties (such as spouses) does not need to be disclosed.

Requestors may also decide that they need only infor-

mation to confirm that sessions took place, and not

information that would disclose the purpose of the sessions

or their content. The type of information that could fall

into this category may include dates of sessions, amount of

payment, the fact of payment or insurance company billed.

See if the requestor will agree to restrict who sees the

information or how it is used. The person requesting the

information may agree not to release the information to

the public and/or to use the information only for purposes

of the litigation and return it after the litigation is over.

Ask the court to determine whether the records need to

be disclosed.

You could also ask the court through in

camera inspection — a review by the judge in chambers —

to determine whether the client records are really relevant

to the issues before the court and need to be disclosed at all.

What if I don’t want to comply with the

request because I think it is too

burdensome?

Sometimes psychologists may not want to comply with a

subpoena because doing so will take an inordinate amount

of time away from their practice. In such cases, you may

consider ﬁling a motion with the court to deny or limit the

demand because it is unduly burdensome. (Federal Rule

of Civil Procedure 45[c][1-3] requires that the party

responsible for issuing the subpoena take reasonable

steps to avoid imposing an undue burden or expense

on the person subject to the subpoena.)

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Jurisdictions vary in terms of the time that a person

must be given to reply to a subpoena for testimony or

documents.

You may also want to check whether the subpoena you

received is invalid, which would allow you not to comply.

There are several technical reasons why a subpoena may be

invalid. For example, the court does not have jurisdiction

over you, the subpoena was not furnished to you in a

manner that complies with the court’s rules, or the

subpoena does not give you enough time to ﬁle a motion

to oppose it. You will likely need to seek legal guidance

to determine whether any of these situations applies.

You cannot ignore a subpoena, even if it has not been

signed by a judge. Most subpoenas are not signed by

judges, but rather by the attorney who is seeking the

documents or testimony.

I am unwilling to comply with the subpoena

in the timeframe requested.

What can I do?

Assuming you have your client’s authorization to release the

information requested, you can discuss the timeframe with

the person requesting the information and see if the date

may be changed. If the person will not negotiate on that

point, you should determine whether the timeframe given in

the subpoena complies with the requirements for your area.

Jurisdictions vary in terms of the time that a person must be

given to reply to a subpoena for testimony or documents.

Some permit only ﬁve days, while others may provide 30

days. In making this determination, consider checking the

Web site of the court listed in the subpoena, contacting

the court directly or contacting your own attorney.

Can I just ignore a subpoena, especially

if it’s not signed by a judge?

No. You cannot ignore a subpoena, even if it has not been

signed by a judge. Most subpoenas are not signed by

judges, but rather by the attorney who is seeking the

documents or testimony. Nevertheless, you must respond

in writing, as discussed above. Failure to do so could

result in your being held in contempt of court and having

to pay signiﬁcant ﬁnes.

Further guidance on this topic can be found in “Strategies

for Private Practitioners Coping with Subpoenas or

Compelled Testimony for Client Records or Test Data,”

prepared by the APA’s Committee on Legal Issues (COLI).

This article incorporates many of the strategies discussed

in that document, found in Professional Psychology: Research

and Practice (2006, Vol. 37, No. 2, 215-222).

APA Practice Organization members may contact the

Practice Directorate’s legal and regulatory affairs

department at 202-336-5886 or [email protected]

with questions about this article.

How to Deal with a Subpoena: Pointers for Psychologists continued from page 5

NOTE: This article is not intended to provide guidelines or standards. Legal issues are complex and highly fact-speciﬁc and require legal expertise that

cannot be provided by any single article. The information in this article should not be used as a substitute for obtaining personal legal advice and

consultation prior to making decisions regarding individual circumstances.