Subpoena duces tecum
Encyclopedia
A subpoena duces tecum is a court summons
ordering a named party to appear before the court and produce documents or other tangible evidence
for use at a hearing
or trial
.
The summons is known by various names in different jurisdictions. The term "subpoena duces tecum" is used in the United States
, as well as some other common law
jurisdictions such as South Africa
. It is a Latin
phrase meaning "bring with you under penalty of punishment". The summons is called a "subpoena for production of evidence" in some U.S. states that have sought to reduce the use of non-English words and phrases in court terminology.
The subpoena duces tecum is similar to the subpoena ad testificandum
, which is a writ summoning a witness to testify orally. However, unlike the latter summons, the subpoena duces tecum instructs the witness to bring in hand books, papers, or evidence for the court. In most jurisdictions, a subpoena usually has to be served
personally.
) may be accompanied by a request for production of documents and other tangible things during the taking of a deposition. The notice to produce (literally: "bring these documents with you to the deposition") is served prior to the deposition. This follows the Federal Rules of Civil Procedure
. The method of using a subpoena duces tecum is generally valid only to compel a witness to produce documents and other things at the time of the deposition. If a deponent is a non-party to the action (not involved directly in the litigation, but wanted for testimony), production of documents can be compelled only through a proper subpoena duces tecum. Depending on the nature of the documents, and their volume, some may be obtained directly, and before deposition under FRCP 34. In cases where a large number of documents are potentially relevant to the hearing, the court may order them to be produced prior to the deposition. This forms a part of legal discovery and allows parties involved time to review them prior to the deposition or other hearing.
Federal Cases and some states follow Federal Rule 27 (a) (3) of the Federal Rules of Civil Procedure concerning the production of documents in pre-trial discovery, including those pertaining to depositions. These can include the subpoena duces tecum to produce documents, or in some cases to undergo a physical
or mental examination. In the Ninth Circuit, interpreting Rule 27 literally, it has been held that a party can simply produce the documents only, and in certain cases, avoid an oral deposition when presented with subpoena duces tecum.
(a rescheduling of a court hearing at a later date) of a civil action may be granted due to the absence of documents or papers. The party failing to produce the documents requested by a subpoena duces tecum must show good reason why there was a failure to do so. Acceptable explanations have included loss or destruction of papers, or an agreement to use copies. The party seeking the continuance must show that the absence of the documents is not because of the negligence of their own, or of the attorney of record.
Similarly, a continuance may be granted in a criminal case if there is good reason documents pertinent to the case could not be produced at the time of trial. For example, a continuance should be granted for failure to produce a transcript of testimony given at a previous trial. In general, it is reversible error to proceed with a criminal trial in the absence of a previous trial transcript, when such contains pertinent information that should have been considered in the new trial. In these cases, a continuance is the usual remedy. The trial judge or magistrate is the one who issues the continuance.
the United States Supreme Court ruled that a defendant must have access to government witnesses who testify against him in a criminal trial, and must also have access to any documents pertaining to that testimony. This includes papers, documents, written statements and the like. This led to passage of the Jencks Act
, 18 USC, Part II, Chapter 223, § 3500, which allows for subpoena duces tecum of relevant government documents, but only after a government agent or employee has testified at trial. There can be no pre-trial discovery. The subpoena is allowed by the trial judge. The government has the right to deny access to the documents. This may be due to the sensitive nature of the documents, or because they are classified.
In such an instance the accused is permitted to pray unto the Court for remedy or sanction against his accuser or plaintiff, for his inability to be able to confront the papers and/or effects (i.e., material items, physical exhibits, technical analyses, lab reports, etc.) that assert or support the accusation(s) against him. The Court, in law and equity is required to answer such a prayer. If the accused's prayer is not answered in a manner that favorably restores the balance between the accused and the Government in criminal cases, or between the defendant and the plaintiff in civil cases, it is grounds for an appeal if a mistrial is not granted. The United States Supreme Court dealt with this issue in federal civil cases in United States v. Reynolds
.
If the remedy is granted there is a mistrial and dismissal of criminal charges.
An accused criminal has no right to subpoena the work product of the prosecution in a criminal case.
. Mandamus can vacate an order to produce books and papers. However, mandamus is not the proper remedy to quash a motion to compel a district attorney to relinquish books and records to his successor office holder.
In a 1893 case, the United States Attorney in Alabama refused to vacate his office, refusing to surrender books, papers and other materials in the position of that office to the newly appointed U.S. Attorney. The federal court in Alabama issued a writ directing the previous attorney to relinquish the documents. He, in turn, sought relief from the Supreme Court, which denied his application, saying it would not interfere with the properly conducted internal matters of a court. In the case In re: Parson, the United States Supreme Court wrote: "If the orders be regarded merely as directions in the administration of judicial affairs in respect of the immediate possession of property or custody of prisoners, we cannot be properly called to, by reason of anything appearing on these records, in the exercise of appellate jurisdiction in this manner, to direct them to be set aside. And if the proceedings should be treated as involving a final determination as on issues joined to the right to such possession and custody, there was no complaint of want of notice or of hearing, and the summary made adopted did not in itself affect the jurisdiction of the Circuit Court upon the ground that it had exceeded its powers."
Mandamus is the remedy where a lower court has clearly failed to issue compulsion to produce documents, or to allow the petitioner access to such documents as may be in the possession of the court or the parties to the action. Mandamus can be used to compel a court to enforce an order to answer interrogatories
(questions submitted by the court or one of the parties to be answered under oath and pain of perjury
).
Mandamus is the proper remedy to compel the quashal of a subpoena duces tecum for the production before a grand jury of attorney-client privilege. Presumably, this would apply to attorney work product, although there is no case law on the matter.
At common law, and under various statutes pertaining to a given jurisdiction, a right to action for damages, or for a statutory penalty or forfeiture, exists against a witness who, without sufficient excuse, fails or refuses to give oral testimony or to produce documents or other specified items in obedience to the command of a properly issued and served subpoena.
There are certain conditions precedent, or defenses, to a recovery of damages for a person's failure to testify, or to provide documents pertinent to a hearing or trial. There must be a breach of testimonial duty, after having been properly served with a legitimately executed subpoena. There must be a demonstration of actual damages incurred from the absence of testimony. Most courts have rejected the arguments for seeking damages in this kind of case. Giving false testimony in a judicial proceeding even though the allegation is made that the person giving the testimony knew it to be false, does not give rise, either at common law or by statute, to a civil action for damages, resulting from such testimony. The situation is probably different if intentionally false documents are submitted under a subpoena duces tecum.
is generally recognized by the courts. Communications between lawyer and client are generally immune from subpoena. In other words, a lawyer cannot be compelled to testify in a trial unless the lawyer becomes, or appears to become, a party to the litigation. A similar situation exists with "work product", meaning written documents or computer records generated in preparation for a trial or hearing. This includes information such as potential questions that may be asked of witnesses, lists of possible witnesses, memoranda, notes, trial strategies, written briefs, or documents that may, or may not end up being used in the course of litigation. Usually, none of this can be the subject of a subpoena duces tecum. If a communication between lawyer and client is made in the presence of the third party, the privilege is not recognized to exist.
The federal courts will apply the common law rule of attorney-client privilege unless there is an intervening state law applying to the central issues of the matter. In those cases, the federal court uses the effective state law.
Physician-patient privilege
is usually statutorily defined, and can vary from state to state. The usual rule is that medical records are immune from subpoena if the plaintiff has not alleged physical or mental injuries or damages. Once the plaintiff alleges physical or mental injuries proximately flowing from a potentially tortious act by the defendant, or in some other disability hearing, medical records can be subject to subpoena duces tecum. While witnesses may try to resist legal discovery by asking the judge to protect them from questioning or inspection of documents, the policy of the courts is in favor of full disclosure. It is the intent of the rules of procedure that pre-trial discovery take place without any intervention of a judge. So-called "fishing expeditions" (a massive and aimless call for all documents related to the litigation) are permissible under Federal Rule of Civil Procedure 26 (b) (1). This rule is repeated in many state's rules of procedure: "Parties may obtain discovery regarding any matter, not privileged, which is relevant...if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." The looseness of the definition of relevant evidence is generally construed to mean "liberal" production. The physician who is the party to an action does not own the records of patients he has treated. They are not privileged if the patient has waived confidentiality. Physicians must produce medical records under subpoena duces tecum.
Peer review records, and other hospital documents of quality control committee meetings are generally not subject to subpoena duces tecum, since these have statutory immunity. The theory is that the frankness of peer review would be chilled if these records could be routinely compelled.
Several United States Federal Circuit Courts have recognized a limited reporter's privilege. The United States Justice Department has a self-imposed limitation upon subpoena of reporters and their notes. This privilege is not universal, and is incomplete.
Internal memos from scientific and medical journals generated in peer reviewing articles for publication are generally immune from subpoena.
In some states (such as California), rape crisis counselors and domestic violence advocates hold a statutory privilege analogous to therapist-client privilege. (See, for example, 1035 Cal. Evidence Code for rape crisis advocates, and 1037.6 Cal. Evidence Code for domestic violence advocates). However, these privileges are not absolute, and may be overruled by a judge upon a showing that "the probative value of the information outweighs the effect of disclosure of the information on the victim, the counseling relationship, and the counseling services", or under a number of other limited circumstances. To respect and preserve the privacy of sensitive material contained in such reports, the judge may require the disclosure of confidential information to take place in camera
.
So called "priest-penitent" privilege, which precludes forced testimony of confessions made to a priest, minister, or religious adviser are statutorily defined in the United States. They vary between states. In some cases, the privilege is confusing and ill-defined. In others, there is recognized stare decisis
. (See: priest-penitent privilege
, confessional privilege (United States)
, spousal privilege
, executive privilege
, reporters' privilege
.)
Rule 69(a).
Judgment creditors (those who have received a favorable court ruling for monetary damages) are permitted to ask questions about a debtor's residence; recent employment history; business relationships, including partners, co-shareholders, co-officers, co-directors; the contents of a will; transfers of property; and the identity of persons who either owed a debt to the judgment debtor, or received things of value from the debtor. Information in bank accounts can also be the subject of a subpoena duces tecum.
In federal court proceedings concerning judgment debtors, the inquiry is usually limited to the discovery of assets. In international cases, being tried in United States Federal Courts
, the application of the Hague Service Convention
is utilized where appropriate.
has powers to compel production of documents from a non-debtor corporation or person concerning transactions involving the debtor corporation or person. Production of documents can be challenged as being burdensome. Assets diverted to outside corporations or bank accounts/stock portfolios and such other assets as land holdings lie within the power to compel production under subpoena duces tecum. Federal law recognizes no accountant-client privilege. A subpoena duce tecum served pursuant to Bankruptcy Rule 2004 is not a violation of accountant-client privilege. 11 United States Code
section 107 (a) provides that papers filed in cases under the Bankruptcy Code
and dockets of the Bankruptcy Courts are public records and are to be open to examination at reasonable times without charge.
. A foreign agent may not claim Fifth Amendment provisions against self-incrimination. Nor can records be withheld from subpoena duces tecum on the grounds that production of such documents would incriminate officers or other members of the foreign corporation. However, there is case authority in which foreign corporations have been protected from illegal searches and seizures, including documents and books. The matter of a foreign corporation operating as a "person" within the United States being afforded protection under the Fourteenth Amendment is discussed.
Certain state laws limit the availability of information that can be obtained from the subpoena of such documents. These are always subject to a court challenge, on a case by case basis. Welfare recipients are generally allowed access to their files, by subpoena duces tecum. Death of a welfare recipient is considered in some states to be sufficient reason to remove the reason for confidentiality. Some states have passed so-called "Right to Know" statutes, which would make welfare recipients and the information available to the public. These, along with common law, and state and federal constitutions guaranteeing freedom of the press do not give newspapers (or other news media) the right to access the names of persons on welfare, or the amounts they receive.
(FTC) has reason to believe that any person has violated 15 USC section 13, 14, 18 or 19, it must issue and serve on that person and on the Attorney General of the United States, a complaint stating its charges in that regard. The notice shall also give a date for a hearing in the matter. Delivery of the subpoena duces tecum for production of documents may be done in person, or by certified letter. Receipt of the letter is considered proof of service.
Power to issue subpoenas is extended to Robinson–Patman Act cases of price-fixing and Clayton Act cases of unlawful acquisition.
A Federal District Court lacks jurisdiction to enjoin the Federal Trade Commission
from proceeding in an investigation. It cannot stay (stop) a subpoena duces tecum to produce documents in the investigative stage. An injunction by a federal court does not have the power to restrain the FTC from enforcing an order requiring corporations to furnish reports and documents un 15 USC § 49. The only relief available to stop a demand for documents is to seek an action of compliance in mandamus by the Attorney General of the United States, or under 15 USC § 50 to enforce fines and forfeitures.
If the FTC institutes an adjudicative proceeding (a hearing), the person who originated the matter by complaining to the FTC is not a party to the action and does not have any control over it. The FTC may allow the complaining person to participate in the proceeding by virtue of 15 USC, section 45. This allows participation for good cause, either by counsel (lawyer) or in person. You cannot intervene in an FTC hearing, except by demonstrating that substantial issues of law or fact would not be properly raised and argued—and that these issues are important and immediate enough to warrant additional expenditure of FTC resources. This involvement can be enhanced by subpoena duces tecum.
Pre-hearing conferences are the norm. These are useful in:
In general, pre-hearing conferences are not public. The FTC is not restricted by a rigid rule of evidence.
The seminal case in Social Security law is Richardson v. Perales
, a Supreme Court decision from 1971. The court directed that medical reports put forth by a treating physician in Social Security hearings should be accepted as evidence, despite the hearsay nature of the medical records. These should be accepted, even if cross-examination is not available. The claimant has the right to subpoena the treating physician. In cases of conflicting medical evidence, it is not unconstitutional for the hearing officer to obtain independent medical advice to help resolve the physical questions involved. Under the Administrative Procedure Act
, hearsay
in the form of medical records are admissible up to the point of relevancy.
Several federal agencies have adopted Jencks Act
rules. Although the Jencks Act applies only to government agents or employees who testify in criminal cases, making these witnesses and relevant documents available for cross-examination after testimony, it has been applied in administrative law cases in the interests of justice and fair play. The party of record must make an official request to the hearing officer to have Jencks rules followed. Some agency rules, such as National Labor Relations Board
automatically follow Jencks Act
requirements.
's case. Claims that these statements are "work product" will generally fail.
Medical records form the core of any medical malpractice case. Actions for malpractice are controlled by the general rules of evidence in civil procedure. A malpractice action necessarily involves the question of requisite care and skill applied in a medical case. With the exception of res ipsa loquitur
cases, medical opinion about the care is essential. This involves the necessity to obtain a subpoena duces tecum for medical records.
Admission of "learned treatises" (published books and medical articles) at trial varies from jurisdiction to jurisdiction. Some require that the expert admit it is an authoritative reference. Others will allow admission of learned treatises by judicial notice.
actions for recovery of damages, it is necessary for the introduction of medical records to establish a basis for the claimed loss. An injured plaintiff is entitled to recover the expenses necessary to cure or treat injuries. Courts frequently call upon expert testimony to interpret and advise, after examining medical records concerning the nature of injuries, future medical, disability and other issues before the court.
, the California Supreme Court remanded a case to the trial court for action in tort against a treating physician for failure to report suspected child abuse. The theory at trial was that the plaintiff, a child of about 12 months of age, had been returned to a home where further physical abuse occurred, causing more damages. This was because the physician had failed to report the abuse in violation of California law. After this case, all states instituted mandatory reporting by physicians and other medical personnel of any suspected child abuse or neglect cases. In general, reporting in good faith shields the physician or health care worker from tort liability. Reporting to police or social services necessitates obtaining medical records by subpoena duces tecum. This case, and legislation that followed it were in response to several articles that appeared in the medical literature that defined battered child syndrome and child abuse syndrome.
The 1962 Social Security
Amendments require each state to make child welfare services available throughout the state to all children and provide coordination between child welfare services (Title IV-B) and social services provided under the Aid to Families with Dependent Children
Act (ADC, later known as AFDC; now called Title XX) Determinations in these cases frequently require production of medical records.
In 1972, Congressional hearings began on child abuse and neglect. In response, Congress passed the Child Abuse Prevention and Treatment Act
, which defined abuse as "...physical or mental injury, negligent treatment, or maltreatment of a child under the age of 18 by a person who is responsible for the child's welfare under circumstances which would indicate that the child's health or welfare is harmed or threatened thereby." The legislation created the National Center for Child Abuse and Neglect as an information clearinghouse.
The Child Abuse Prevention and Treatment Act
of 1974 ( - ) defined "child abuse and neglect" as "physical or mental injury, sexual abuse, negligent treatment, or maltreatment of a child under the age of eighteen by a person responsible for the child's welfare under circumstances which indicate that the child's health or welfare is harmed or threatened thereby."
The Child Abuse Prevention and Treatment Act
of 1988 when enacted, expanded the definition of abuse. Sexual crimes were specifically identified in Sex Crimes Against Children Act of 1995 These laws have made child abuse a federal crime, and routinely mandate production of medical records.
(HCQIA) of 1986 granted doctors sitting on peer review committees immunity from subpoena duces tecum, or liability for the revocation of hospital privileges of other doctors. The matters of peer review cannot, in the normal course of events, be the subject of a subpoena duces tecum. This has led to claims that powerful doctors can abuse the process to punish other doctors for reasons unrelated to medical issues (termed "sham peer review
").
The American Medical Association conducted a probe of the sham peer review issue and found that no pervasive problem exists. Allegations of sham peer review are easy to make (for example, by doctors whose medical mistakes have made them targets of peer review), but actual infractions are rare. Advocates of sham peer review as a widespread problem counter that the sparcity of successful challenges is indicative of how difficult these actions are to win.
Summons
Legally, a summons is a legal document issued by a court or by an administrative agency of government for various purposes.-Judicial summons:...
ordering a named party to appear before the court and produce documents or other tangible evidence
Evidence
Evidence in its broadest sense includes everything that is used to determine or demonstrate the truth of an assertion. Giving or procuring evidence is the process of using those things that are either presumed to be true, or were themselves proven via evidence, to demonstrate an assertion's truth...
for use at a hearing
Hearing (law)
In law, a hearing is a proceeding before a court or other decision-making body or officer, such as a government agency.A hearing is generally distinguished from a trial in that it is usually shorter and often less formal...
or trial
Trial
A trial is, in the most general sense, a test, usually a test to see whether something does or does not meet a given standard.It may refer to:*Trial , the presentation of information in a formal setting, usually a court...
.
The summons is known by various names in different jurisdictions. The term "subpoena duces tecum" is used in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, as well as some other common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
jurisdictions such as South Africa
South Africa
The Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...
. It is a Latin
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
phrase meaning "bring with you under penalty of punishment". The summons is called a "subpoena for production of evidence" in some U.S. states that have sought to reduce the use of non-English words and phrases in court terminology.
The subpoena duces tecum is similar to the subpoena ad testificandum
Subpoena ad testificandum
A subpoena ad testificandum is a court summons to appear and give oral testimony for use at a hearing or trial. The use of a writ for purposes of compelling testimony originated in the Ecclesiastical Courts of the High Middle Ages, especially in England...
, which is a writ summoning a witness to testify orally. However, unlike the latter summons, the subpoena duces tecum instructs the witness to bring in hand books, papers, or evidence for the court. In most jurisdictions, a subpoena usually has to be served
Service of process
Service of process is the procedure employed to give legal notice to a person of a court or administrative body's exercise of its jurisdiction over that person so as to enable that person to respond to the proceeding before the court, body or other tribunal...
personally.
Order pursuant to a deposition
In the United States, a notice to a party deponent (a person called to testify in a depositionDeposition (law)
In the law of the United States, a deposition is the out-of-court oral testimony of a witness that is reduced to writing for later use in court or for discovery purposes. It is commonly used in litigation in the United States and Canada and is almost always conducted outside of court by the...
) may be accompanied by a request for production of documents and other tangible things during the taking of a deposition. The notice to produce (literally: "bring these documents with you to the deposition") is served prior to the deposition. This follows the Federal Rules of Civil Procedure
Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then the United States Congress has 7 months to veto the rules promulgated or they become part of the...
. The method of using a subpoena duces tecum is generally valid only to compel a witness to produce documents and other things at the time of the deposition. If a deponent is a non-party to the action (not involved directly in the litigation, but wanted for testimony), production of documents can be compelled only through a proper subpoena duces tecum. Depending on the nature of the documents, and their volume, some may be obtained directly, and before deposition under FRCP 34. In cases where a large number of documents are potentially relevant to the hearing, the court may order them to be produced prior to the deposition. This forms a part of legal discovery and allows parties involved time to review them prior to the deposition or other hearing.
Federal Cases and some states follow Federal Rule 27 (a) (3) of the Federal Rules of Civil Procedure concerning the production of documents in pre-trial discovery, including those pertaining to depositions. These can include the subpoena duces tecum to produce documents, or in some cases to undergo a physical
Physical examination
Physical examination or clinical examination is the process by which a doctor investigates the body of a patient for signs of disease. It generally follows the taking of the medical history — an account of the symptoms as experienced by the patient...
or mental examination. In the Ninth Circuit, interpreting Rule 27 literally, it has been held that a party can simply produce the documents only, and in certain cases, avoid an oral deposition when presented with subpoena duces tecum.
Failure to produce documents
A continuanceContinuance
In American procedural law, a continuance is the postponement of a hearing, trial, or other scheduled court proceeding at the request of either or both parties in the dispute, or by the judge sua sponte. In response to delays in bringing cases to trial, some states have adopted "fast-track" rules...
(a rescheduling of a court hearing at a later date) of a civil action may be granted due to the absence of documents or papers. The party failing to produce the documents requested by a subpoena duces tecum must show good reason why there was a failure to do so. Acceptable explanations have included loss or destruction of papers, or an agreement to use copies. The party seeking the continuance must show that the absence of the documents is not because of the negligence of their own, or of the attorney of record.
Similarly, a continuance may be granted in a criminal case if there is good reason documents pertinent to the case could not be produced at the time of trial. For example, a continuance should be granted for failure to produce a transcript of testimony given at a previous trial. In general, it is reversible error to proceed with a criminal trial in the absence of a previous trial transcript, when such contains pertinent information that should have been considered in the new trial. In these cases, a continuance is the usual remedy. The trial judge or magistrate is the one who issues the continuance.
Jencks Act cases
In the 1957 case Jencks v. United StatesJencks v. United States
Jencks v. United States, 353 U.S. 657 , is a U.S. Supreme Court case.The petitioner, Clinton Jencks appealed, by certiorari, his conviction in a Federal District Court of violating 18 U.S.C...
the United States Supreme Court ruled that a defendant must have access to government witnesses who testify against him in a criminal trial, and must also have access to any documents pertaining to that testimony. This includes papers, documents, written statements and the like. This led to passage of the Jencks Act
Jencks Act
The Jencks Act, , provides that the government be required to produce a verbatim statement or report made by a government witness or prospective government witness , but not until after the witness has testified. Jencks material is evidence that is used in the course of a federal criminal...
, 18 USC, Part II, Chapter 223, § 3500, which allows for subpoena duces tecum of relevant government documents, but only after a government agent or employee has testified at trial. There can be no pre-trial discovery. The subpoena is allowed by the trial judge. The government has the right to deny access to the documents. This may be due to the sensitive nature of the documents, or because they are classified.
In such an instance the accused is permitted to pray unto the Court for remedy or sanction against his accuser or plaintiff, for his inability to be able to confront the papers and/or effects (i.e., material items, physical exhibits, technical analyses, lab reports, etc.) that assert or support the accusation(s) against him. The Court, in law and equity is required to answer such a prayer. If the accused's prayer is not answered in a manner that favorably restores the balance between the accused and the Government in criminal cases, or between the defendant and the plaintiff in civil cases, it is grounds for an appeal if a mistrial is not granted. The United States Supreme Court dealt with this issue in federal civil cases in United States v. Reynolds
United States v. Reynolds
United States v. Reynolds, , is a landmark legal case in 1953 that saw the formal recognition of State Secrets Privilege, a judicially recognized extension of presidential power.- Overview :...
.
If the remedy is granted there is a mistrial and dismissal of criminal charges.
An accused criminal has no right to subpoena the work product of the prosecution in a criminal case.
Writ of mandamus
The writ of mandamus is appropriate to compel surrender of documents in the possession of attorneys or other persons that have been illegally obtained under the abuse of a writ of attachmentWrit of attachment
A writ of attachment is a court order to "attach" or seize an asset. It is issued by a court to a law enforcement officer or sheriff. The writ of attachment is issued in order to satisfy a judgment issued by the court. A prejudgment writ of attachment may be used to freeze assets of a defendant...
. Mandamus can vacate an order to produce books and papers. However, mandamus is not the proper remedy to quash a motion to compel a district attorney to relinquish books and records to his successor office holder.
In a 1893 case, the United States Attorney in Alabama refused to vacate his office, refusing to surrender books, papers and other materials in the position of that office to the newly appointed U.S. Attorney. The federal court in Alabama issued a writ directing the previous attorney to relinquish the documents. He, in turn, sought relief from the Supreme Court, which denied his application, saying it would not interfere with the properly conducted internal matters of a court. In the case In re: Parson, the United States Supreme Court wrote: "If the orders be regarded merely as directions in the administration of judicial affairs in respect of the immediate possession of property or custody of prisoners, we cannot be properly called to, by reason of anything appearing on these records, in the exercise of appellate jurisdiction in this manner, to direct them to be set aside. And if the proceedings should be treated as involving a final determination as on issues joined to the right to such possession and custody, there was no complaint of want of notice or of hearing, and the summary made adopted did not in itself affect the jurisdiction of the Circuit Court upon the ground that it had exceeded its powers."
Mandamus is the remedy where a lower court has clearly failed to issue compulsion to produce documents, or to allow the petitioner access to such documents as may be in the possession of the court or the parties to the action. Mandamus can be used to compel a court to enforce an order to answer interrogatories
Interrogatories
In law, interrogatories are a formal set of written questions propounded by one litigant and required to be answered by an adversary, in order to clarify matters of fact and help to determine in advance what facts will be presented at any trial in the case.In civil cases, the issues to be decided...
(questions submitted by the court or one of the parties to be answered under oath and pain of perjury
Perjury
Perjury, also known as forswearing, is the willful act of swearing a false oath or affirmation to tell the truth, whether spoken or in writing, concerning matters material to a judicial proceeding. That is, the witness falsely promises to tell the truth about matters which affect the outcome of the...
).
Mandamus is the proper remedy to compel the quashal of a subpoena duces tecum for the production before a grand jury of attorney-client privilege. Presumably, this would apply to attorney work product, although there is no case law on the matter.
Commitment of witness; contempt of court
A witness who has refused to obey a lawful order to produce books, documents and papers may be properly incarcerated for contempt of court. A writ of habeas corpus will not apply, unless it can be shown the witness could not have legally had possession of such documents. In such a situation the writ of habeas corpus will properly apply, and is the remedy for such improper action.At common law, and under various statutes pertaining to a given jurisdiction, a right to action for damages, or for a statutory penalty or forfeiture, exists against a witness who, without sufficient excuse, fails or refuses to give oral testimony or to produce documents or other specified items in obedience to the command of a properly issued and served subpoena.
There are certain conditions precedent, or defenses, to a recovery of damages for a person's failure to testify, or to provide documents pertinent to a hearing or trial. There must be a breach of testimonial duty, after having been properly served with a legitimately executed subpoena. There must be a demonstration of actual damages incurred from the absence of testimony. Most courts have rejected the arguments for seeking damages in this kind of case. Giving false testimony in a judicial proceeding even though the allegation is made that the person giving the testimony knew it to be false, does not give rise, either at common law or by statute, to a civil action for damages, resulting from such testimony. The situation is probably different if intentionally false documents are submitted under a subpoena duces tecum.
Privileges
Attorney-client privilegeAttorney-client privilege
Attorney–client privilege is a legal concept that protects certain communications between a client and his or her attorney and keeps those communications confidential....
is generally recognized by the courts. Communications between lawyer and client are generally immune from subpoena. In other words, a lawyer cannot be compelled to testify in a trial unless the lawyer becomes, or appears to become, a party to the litigation. A similar situation exists with "work product", meaning written documents or computer records generated in preparation for a trial or hearing. This includes information such as potential questions that may be asked of witnesses, lists of possible witnesses, memoranda, notes, trial strategies, written briefs, or documents that may, or may not end up being used in the course of litigation. Usually, none of this can be the subject of a subpoena duces tecum. If a communication between lawyer and client is made in the presence of the third party, the privilege is not recognized to exist.
The federal courts will apply the common law rule of attorney-client privilege unless there is an intervening state law applying to the central issues of the matter. In those cases, the federal court uses the effective state law.
Physician-patient privilege
Physician-patient privilege
Physician–patient privilege is a legal concept, related to medical confidentiality, that protects communications between a patient and his or her doctor from being used against the patient in court. It is a part of the rules of evidence in many common law jurisdictions...
is usually statutorily defined, and can vary from state to state. The usual rule is that medical records are immune from subpoena if the plaintiff has not alleged physical or mental injuries or damages. Once the plaintiff alleges physical or mental injuries proximately flowing from a potentially tortious act by the defendant, or in some other disability hearing, medical records can be subject to subpoena duces tecum. While witnesses may try to resist legal discovery by asking the judge to protect them from questioning or inspection of documents, the policy of the courts is in favor of full disclosure. It is the intent of the rules of procedure that pre-trial discovery take place without any intervention of a judge. So-called "fishing expeditions" (a massive and aimless call for all documents related to the litigation) are permissible under Federal Rule of Civil Procedure 26 (b) (1). This rule is repeated in many state's rules of procedure: "Parties may obtain discovery regarding any matter, not privileged, which is relevant...if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." The looseness of the definition of relevant evidence is generally construed to mean "liberal" production. The physician who is the party to an action does not own the records of patients he has treated. They are not privileged if the patient has waived confidentiality. Physicians must produce medical records under subpoena duces tecum.
Peer review records, and other hospital documents of quality control committee meetings are generally not subject to subpoena duces tecum, since these have statutory immunity. The theory is that the frankness of peer review would be chilled if these records could be routinely compelled.
Several United States Federal Circuit Courts have recognized a limited reporter's privilege. The United States Justice Department has a self-imposed limitation upon subpoena of reporters and their notes. This privilege is not universal, and is incomplete.
Internal memos from scientific and medical journals generated in peer reviewing articles for publication are generally immune from subpoena.
In some states (such as California), rape crisis counselors and domestic violence advocates hold a statutory privilege analogous to therapist-client privilege. (See, for example, 1035 Cal. Evidence Code for rape crisis advocates, and 1037.6 Cal. Evidence Code for domestic violence advocates). However, these privileges are not absolute, and may be overruled by a judge upon a showing that "the probative value of the information outweighs the effect of disclosure of the information on the victim, the counseling relationship, and the counseling services", or under a number of other limited circumstances. To respect and preserve the privacy of sensitive material contained in such reports, the judge may require the disclosure of confidential information to take place in camera
In camera
In camera is a legal term meaning "in private". It is also sometimes termed in chambers or in curia.In camera describes court cases that the public and press are not admitted to...
.
So called "priest-penitent" privilege, which precludes forced testimony of confessions made to a priest, minister, or religious adviser are statutorily defined in the United States. They vary between states. In some cases, the privilege is confusing and ill-defined. In others, there is recognized stare decisis
Stare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...
. (See: priest-penitent privilege
Priest-penitent privilege
The priest–penitent privilege, also known as the clergy privilege, clergy–penitent privilege, confessional privilege, and ecclesiastical privilege, is an application of the principle of privileged communication that protects the contents of communications between a member of the clergy and a...
, confessional privilege (United States)
Confessional Privilege (United States)
In United States law, confessional privilege is a rule of evidence that forbids the inquiry into the content or even existence of certain communications between clergy and communicants....
, spousal privilege
Spousal privilege
In the law of the United States, the spousal privilege comprises two separate privileges, the marital confidences privilege and the spousal testimonial privilege....
, executive privilege
Executive privilege
In the United States government, executive privilege is the power claimed by the President of the United States and other members of the executive branch to resist certain subpoenas and other interventions by the legislative and judicial branches of government...
, reporters' privilege
Reporters' Privilege
Reporters' privilege in the United States, is a "reporter's protection under constitutional or statutory law, from being compelled to testify about confidential information or sources"...
.)
Pre- and post-judgment execution proceedings
Discovery can be authorized for the production of documents for both pre-trial and post-trial actions. Most states either follow, or have modeled their procedures after, the Federal Rules of Civil ProcedureFederal Rules of Civil Procedure
The Federal Rules of Civil Procedure govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then the United States Congress has 7 months to veto the rules promulgated or they become part of the...
Rule 69(a).
Judgment creditors (those who have received a favorable court ruling for monetary damages) are permitted to ask questions about a debtor's residence; recent employment history; business relationships, including partners, co-shareholders, co-officers, co-directors; the contents of a will; transfers of property; and the identity of persons who either owed a debt to the judgment debtor, or received things of value from the debtor. Information in bank accounts can also be the subject of a subpoena duces tecum.
In federal court proceedings concerning judgment debtors, the inquiry is usually limited to the discovery of assets. In international cases, being tried in United States Federal Courts
United States federal courts
The United States federal courts make up the judiciary branch of federal government of the United States organized under the United States Constitution and laws of the federal government.-Categories:...
, the application of the Hague Service Convention
Hague Service Convention
The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, more commonly called the Hague Service Convention, is a multilateral treaty which was signed in The Hague on 15 November 1965 by members of the Hague Conference on Private International Law...
is utilized where appropriate.
Public access to documents filed with the court
The right of the public to access judicial records is fundamental to a democratic state and is analogous to the First Amendment right of freedom of speech and of the press and the Sixth Amendment right to public trials. While the right to access trial records is not absolute, it is framed in presumption of public access to the proceedings and records. United States Code 11, Section 107 (a), of the federal bankruptcy law, is a codification of the common-law general right to inspect judicial records and documents. However, the right is not absolute and may be denied when the entity seeking to view the records has an improper purpose. The general intent of the statute is to favor public access to court documents.Production of documents in bankruptcy
An entity (person or a corporation) may be compelled to produce documentary evidence in accordance with the subpoena powers of Federal Rule of Civil Procedure 45 as applied by Bankruptcy Rule 9016. The United States Bankruptcy CourtUnited States bankruptcy court
United States bankruptcy courts are courts created under Article I of the United States Constitution. They function as units of the district courts and have subject-matter jurisdiction over bankruptcy cases. The federal district courts have original and exclusive jurisdiction over all cases arising...
has powers to compel production of documents from a non-debtor corporation or person concerning transactions involving the debtor corporation or person. Production of documents can be challenged as being burdensome. Assets diverted to outside corporations or bank accounts/stock portfolios and such other assets as land holdings lie within the power to compel production under subpoena duces tecum. Federal law recognizes no accountant-client privilege. A subpoena duce tecum served pursuant to Bankruptcy Rule 2004 is not a violation of accountant-client privilege. 11 United States Code
United States Code
The Code of Laws of the United States of America is a compilation and codification of the general and permanent federal laws of the United States...
section 107 (a) provides that papers filed in cases under the Bankruptcy Code
Bankruptcy Code
Bankruptcy Code may refer to:*Bankruptcy in Canada*Bankruptcy in the United States or Title 11 of the United States Code *Bankruptcy in China*Bankruptcy in the United Kingdom...
and dockets of the Bankruptcy Courts are public records and are to be open to examination at reasonable times without charge.
Compelling a foreign corporation to produce documents
A domestic corporation may be considered to be a "person" within the meaning of the Fourteenth Amendment of the United States Constitution. It is not necessary to treat a corporation as a person in all circumstances. United States case law is confusing concerning this matter when dealing with foreign corporations, and their operation within the United States. Especially troubling have been rulings concerning the Fourth Amendment of the United States Constitution and Fifth Amendment to the United States ConstitutionFifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
. A foreign agent may not claim Fifth Amendment provisions against self-incrimination. Nor can records be withheld from subpoena duces tecum on the grounds that production of such documents would incriminate officers or other members of the foreign corporation. However, there is case authority in which foreign corporations have been protected from illegal searches and seizures, including documents and books. The matter of a foreign corporation operating as a "person" within the United States being afforded protection under the Fourteenth Amendment is discussed.
Subpoena of welfare documents
Statutes governing the disclosure of information contained in welfare records exist in many jurisdictions. The rationale for the existence of these regulations is to encourage full and frank disclosure by the welfare recipient of his situation and the protection of the recipient from the embarrassment likely to result from the disclosure of information contained in such records. In some states, records can be disclosed at the discretion of the state director of welfare. In general, welfare records are not public records, and should not be considered to be such. Disclosure of information is usually limited to purposes directly connected with the administration of welfare benefits. The investigation of costs of welfare programs have been held to be sufficiently related to the matters in question to justify disclosure. Statutes designed to limit welfare record availability are generally held by the courts to be not immune from the power of subpoena duces tecum.Certain state laws limit the availability of information that can be obtained from the subpoena of such documents. These are always subject to a court challenge, on a case by case basis. Welfare recipients are generally allowed access to their files, by subpoena duces tecum. Death of a welfare recipient is considered in some states to be sufficient reason to remove the reason for confidentiality. Some states have passed so-called "Right to Know" statutes, which would make welfare recipients and the information available to the public. These, along with common law, and state and federal constitutions guaranteeing freedom of the press do not give newspapers (or other news media) the right to access the names of persons on welfare, or the amounts they receive.
Federal Trade Commission hearings in monopoly actions
Whenever the Federal Trade CommissionFederal Trade Commission
The Federal Trade Commission is an independent agency of the United States government, established in 1914 by the Federal Trade Commission Act...
(FTC) has reason to believe that any person has violated 15 USC section 13, 14, 18 or 19, it must issue and serve on that person and on the Attorney General of the United States, a complaint stating its charges in that regard. The notice shall also give a date for a hearing in the matter. Delivery of the subpoena duces tecum for production of documents may be done in person, or by certified letter. Receipt of the letter is considered proof of service.
Power to issue subpoenas is extended to Robinson–Patman Act cases of price-fixing and Clayton Act cases of unlawful acquisition.
A Federal District Court lacks jurisdiction to enjoin the Federal Trade Commission
Federal Trade Commission
The Federal Trade Commission is an independent agency of the United States government, established in 1914 by the Federal Trade Commission Act...
from proceeding in an investigation. It cannot stay (stop) a subpoena duces tecum to produce documents in the investigative stage. An injunction by a federal court does not have the power to restrain the FTC from enforcing an order requiring corporations to furnish reports and documents un 15 USC § 49. The only relief available to stop a demand for documents is to seek an action of compliance in mandamus by the Attorney General of the United States, or under 15 USC § 50 to enforce fines and forfeitures.
If the FTC institutes an adjudicative proceeding (a hearing), the person who originated the matter by complaining to the FTC is not a party to the action and does not have any control over it. The FTC may allow the complaining person to participate in the proceeding by virtue of 15 USC, section 45. This allows participation for good cause, either by counsel (lawyer) or in person. You cannot intervene in an FTC hearing, except by demonstrating that substantial issues of law or fact would not be properly raised and argued—and that these issues are important and immediate enough to warrant additional expenditure of FTC resources. This involvement can be enhanced by subpoena duces tecum.
Pre-hearing conferences are the norm. These are useful in:
- Clarifying or simplifying isses
- Amending pleadings
- Entering stipulations, admissions of fact, and contents and authenticity of documents
- Expediting discovery and presentation of evidence, including restriction of witnesses
- Matters subject to official notice that may be resolved by further production of documents related to the case
In general, pre-hearing conferences are not public. The FTC is not restricted by a rigid rule of evidence.
Administrative law
Disabled persons under the age of 65 years can be eligible for disability benefits under Social Security Titles II and XVI.The seminal case in Social Security law is Richardson v. Perales
Richardson v. Perales
Richardson v. Perales, 402 U.S. 389 , was a case heard by the United States Supreme Court to determine and delineate several questions concerning administrative procedure in Social Security disability cases...
, a Supreme Court decision from 1971. The court directed that medical reports put forth by a treating physician in Social Security hearings should be accepted as evidence, despite the hearsay nature of the medical records. These should be accepted, even if cross-examination is not available. The claimant has the right to subpoena the treating physician. In cases of conflicting medical evidence, it is not unconstitutional for the hearing officer to obtain independent medical advice to help resolve the physical questions involved. Under the Administrative Procedure Act
Administrative Procedure Act
The Administrative Procedure Act , , is the United States federal law that governs the way in which administrative agencies of the federal government of the United States may propose and establish regulations. The APA also sets up a process for the United States federal courts to directly review...
, hearsay
Hearsay
Hearsay is information gathered by one person from another person concerning some event, condition, or thing of which the first person had no direct experience. When submitted as evidence, such statements are called hearsay evidence. As a legal term, "hearsay" can also have the narrower meaning of...
in the form of medical records are admissible up to the point of relevancy.
Several federal agencies have adopted Jencks Act
Jencks Act
The Jencks Act, , provides that the government be required to produce a verbatim statement or report made by a government witness or prospective government witness , but not until after the witness has testified. Jencks material is evidence that is used in the course of a federal criminal...
rules. Although the Jencks Act applies only to government agents or employees who testify in criminal cases, making these witnesses and relevant documents available for cross-examination after testimony, it has been applied in administrative law cases in the interests of justice and fair play. The party of record must make an official request to the hearing officer to have Jencks rules followed. Some agency rules, such as National Labor Relations Board
National Labor Relations Board
The National Labor Relations Board is an independent agency of the United States government charged with conducting elections for labor union representation and with investigating and remedying unfair labor practices. Unfair labor practices may involve union-related situations or instances of...
automatically follow Jencks Act
Jencks Act
The Jencks Act, , provides that the government be required to produce a verbatim statement or report made by a government witness or prospective government witness , but not until after the witness has testified. Jencks material is evidence that is used in the course of a federal criminal...
requirements.
Medical malpractice actions
In a case of alleged negligence by a physician, written summaries of the case by physicians provided to the insurance carrier or other parties can be the subject of a subpoena duces tecum, if, in the opinion of the court, they are relevant to the plaintiffPlaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
's case. Claims that these statements are "work product" will generally fail.
Medical records form the core of any medical malpractice case. Actions for malpractice are controlled by the general rules of evidence in civil procedure. A malpractice action necessarily involves the question of requisite care and skill applied in a medical case. With the exception of res ipsa loquitur
Res ipsa loquitur
In the common law of negligence, the doctrine of res ipsa loquitur states that the elements of duty of care and breach can be sometimes inferred from the very nature of an accident or other outcome, even without direct evidence of how any defendant behaved...
cases, medical opinion about the care is essential. This involves the necessity to obtain a subpoena duces tecum for medical records.
Admission of "learned treatises" (published books and medical articles) at trial varies from jurisdiction to jurisdiction. Some require that the expert admit it is an authoritative reference. Others will allow admission of learned treatises by judicial notice.
Experts and Opinion evidence
In tortTort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
actions for recovery of damages, it is necessary for the introduction of medical records to establish a basis for the claimed loss. An injured plaintiff is entitled to recover the expenses necessary to cure or treat injuries. Courts frequently call upon expert testimony to interpret and advise, after examining medical records concerning the nature of injuries, future medical, disability and other issues before the court.
Worker's Compensation actions
Medical records introduced as evidence are crucial in determining both causation and impairment in worker's compensation cases. In cases where the evidence is contested, medical evidence in the form of records, opinions, affidavits and testimony concerning both fact and opinion is necessary. When oral testimony is taken from physicians, the usual standard is to state an opinion "within a reasonable degree of medical certainty". Worker's compensation laws are dictated by state statute or Federal Employees Liability Act. In many states, the employer has the right to demand an independent examination and can also direct treatment be carried out by certain physicians.Mandatory reporting of child abuse
In the landmark 1976 California case of Landeros v. FloodLanderos v. Flood
Gita Landeros, a minor, was seen in the emergency room by Dr. Flood for injuries inflicted by her mother and the mother's common law husband. Dr. Flood failed to diagnose "child abuse syndrome" and also did not report the injuries to proper civil authorities in violation of California law...
, the California Supreme Court remanded a case to the trial court for action in tort against a treating physician for failure to report suspected child abuse. The theory at trial was that the plaintiff, a child of about 12 months of age, had been returned to a home where further physical abuse occurred, causing more damages. This was because the physician had failed to report the abuse in violation of California law. After this case, all states instituted mandatory reporting by physicians and other medical personnel of any suspected child abuse or neglect cases. In general, reporting in good faith shields the physician or health care worker from tort liability. Reporting to police or social services necessitates obtaining medical records by subpoena duces tecum. This case, and legislation that followed it were in response to several articles that appeared in the medical literature that defined battered child syndrome and child abuse syndrome.
The 1962 Social Security
Social Security (United States)
In the United States, Social Security refers to the federal Old-Age, Survivors, and Disability Insurance program.The original Social Security Act and the current version of the Act, as amended encompass several social welfare and social insurance programs...
Amendments require each state to make child welfare services available throughout the state to all children and provide coordination between child welfare services (Title IV-B) and social services provided under the Aid to Families with Dependent Children
Aid to Families with Dependent Children
Aid to Families with Dependent Children was a federal assistance program in effect from 1935 to 1996, which was administered by the United States Department of Health and Human Services...
Act (ADC, later known as AFDC; now called Title XX) Determinations in these cases frequently require production of medical records.
In 1972, Congressional hearings began on child abuse and neglect. In response, Congress passed the Child Abuse Prevention and Treatment Act
Child Abuse Prevention and Treatment Act
The Child Abuse Prevention and Treatment Act provides federal funding to States in support of prevention, assessment, investigation, prosecution, and treatment activities and also provides grants to public agencies and nonprofit organizations for demonstration programs and projects...
, which defined abuse as "...physical or mental injury, negligent treatment, or maltreatment of a child under the age of 18 by a person who is responsible for the child's welfare under circumstances which would indicate that the child's health or welfare is harmed or threatened thereby." The legislation created the National Center for Child Abuse and Neglect as an information clearinghouse.
The Child Abuse Prevention and Treatment Act
Child Abuse Prevention and Treatment Act
The Child Abuse Prevention and Treatment Act provides federal funding to States in support of prevention, assessment, investigation, prosecution, and treatment activities and also provides grants to public agencies and nonprofit organizations for demonstration programs and projects...
of 1974 ( - ) defined "child abuse and neglect" as "physical or mental injury, sexual abuse, negligent treatment, or maltreatment of a child under the age of eighteen by a person responsible for the child's welfare under circumstances which indicate that the child's health or welfare is harmed or threatened thereby."
The Child Abuse Prevention and Treatment Act
Child Abuse Prevention and Treatment Act
The Child Abuse Prevention and Treatment Act provides federal funding to States in support of prevention, assessment, investigation, prosecution, and treatment activities and also provides grants to public agencies and nonprofit organizations for demonstration programs and projects...
of 1988 when enacted, expanded the definition of abuse. Sexual crimes were specifically identified in Sex Crimes Against Children Act of 1995 These laws have made child abuse a federal crime, and routinely mandate production of medical records.
Mandatory reporting of wounds and injuries
Physician-patient privilege is defined and limited by statute. Many jurisdictions have mandatory reporting laws requiring treating physicians or other medical personnel to report any suspicious injury to police or other appropriate authorities. These requirements may be imposed by statute, ordinance or regulation. Some of these may be limited to wounds typically inflicted by gun or knife. There may be similar reporting requirements in cases of domestic violence. These statutes have been generally upheld to constitutional challenges. Reporting of such cases usually voids any challenge to subpoena duces tecum of the medical records by police or state authorities.Peer review records in medical licensing and hospital credential actions
The issue of removal of a doctor from a hospital staff, or revoking or limiting a license to practice medicine usually involve various state and federal immunities. The Healthcare Quality Improvement ActHealthcare Quality Improvement Act
The Healthcare Quality Improvement Act of 1986 was introduced by Congressman Ron Wyden from Oregon....
(HCQIA) of 1986 granted doctors sitting on peer review committees immunity from subpoena duces tecum, or liability for the revocation of hospital privileges of other doctors. The matters of peer review cannot, in the normal course of events, be the subject of a subpoena duces tecum. This has led to claims that powerful doctors can abuse the process to punish other doctors for reasons unrelated to medical issues (termed "sham peer review
Sham peer review
Sham peer review or malicious peer review is a name given to the abuse of a medical peer review process to attack a doctor for personal or other non-medical reasons...
").
The American Medical Association conducted a probe of the sham peer review issue and found that no pervasive problem exists. Allegations of sham peer review are easy to make (for example, by doctors whose medical mistakes have made them targets of peer review), but actual infractions are rare. Advocates of sham peer review as a widespread problem counter that the sparcity of successful challenges is indicative of how difficult these actions are to win.
See also
- Documentary evidenceDocumentary evidenceDocumentary evidence is any evidence introduced at a trial in the form of documents. Although this term is most widely understood to mean writings on paper , the term actually include any media by which information can be preserved...
- Administrative Procedure ActAdministrative Procedure ActThe Administrative Procedure Act , , is the United States federal law that governs the way in which administrative agencies of the federal government of the United States may propose and establish regulations. The APA also sets up a process for the United States federal courts to directly review...
- attorney client privilege
- Bankruptcy in the United StatesBankruptcy in the United StatesBankruptcy in the United States is governed under the United States Constitution which authorizes Congress to enact "uniform Laws on the subject of Bankruptcies throughout the United States." Congress has exercised this authority several times since 1801, most recently by adopting the Bankruptcy...
- deposition (law)Deposition (law)In the law of the United States, a deposition is the out-of-court oral testimony of a witness that is reduced to writing for later use in court or for discovery purposes. It is commonly used in litigation in the United States and Canada and is almost always conducted outside of court by the...
- Federal Rules of Civil ProcedureFederal Rules of Civil ProcedureThe Federal Rules of Civil Procedure govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then the United States Congress has 7 months to veto the rules promulgated or they become part of the...
- Fourth Amendment of the United States Constitution
- Fifth Amendment to the United States ConstitutionFifth Amendment to the United States ConstitutionThe Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
- Fourteenth Amendment of the United States Constitution
- interrogatoriesInterrogatoriesIn law, interrogatories are a formal set of written questions propounded by one litigant and required to be answered by an adversary, in order to clarify matters of fact and help to determine in advance what facts will be presented at any trial in the case.In civil cases, the issues to be decided...
- legal discovery
- physician-patient privilegePhysician-patient privilegePhysician–patient privilege is a legal concept, related to medical confidentiality, that protects communications between a patient and his or her doctor from being used against the patient in court. It is a part of the rules of evidence in many common law jurisdictions...
- reporter's privilege
- subpoena ad testificandumSubpoena ad testificandumA subpoena ad testificandum is a court summons to appear and give oral testimony for use at a hearing or trial. The use of a writ for purposes of compelling testimony originated in the Ecclesiastical Courts of the High Middle Ages, especially in England...
Sources
- 11 USCS section 107 (a)
- Federal Rule 27 (a) (3)
- FRCP 30 (b) (5)
- FRCP 34
- FRCP 69 (a)
- Caffey, "Multiple Fractures in the Long Bones of Infants Suffering from Chronic Subdural Hematoma", 56 Am. J. Roentgen 163 (1946)
- Caffey, "Some Traumatic Lesions in Growing Bones Other Than Fractures and Dislocation - Clinical and Radiological Features", 30 Brit. J. Radiol. 225, 1957
- Kempe, "The Battered Child Syndrome", Journal of the American Medical Syndrome", 181, July 7, 1962
- Malone, Plant and Little, "Worker's Compensation and Employment Rights", West, 1980
- Pegalis, S. and Wachsman, H., "American Law of Medical Malpractice", Lawyers Cooperative, Bancroft Whitney, 1980
- Sharpe, D., Fiscina, S. and Head, M., "Law and Medicine" West, 1978
- Stein, J., "Damages and Recovery, Personal Injury and Death Actions", Lawyers Cooperative, Bancroft Whitney, 1972
American jurisprudence
- 2 Am Jur 2nd "Administrative Law", section 328 (Jencks Act)
- 9 Am Jur 2nd "Bankruptcy", section 829, 828-829
- 16 A Am Jur 2nd "Constitutional Law", section 738
- 17 Am Jur 2nd "Continuance", sections 20, 81
- 21 A Am Jur 2nd "Criminal Law", section 666 et seq; 876 et seq
- 23 Am Jur 2nd "Depositions and Discovery" , sections 126-127
- 29 A Am Jur 2nd "Evidence", sections 1416-1420
- 30 Am Jur 2nd "Executions, Etc.", sections 720, 714, 722
- 31 A Am Jur 2nd "Expert and Opinion Evidence" sections 127-277
- 36 Am Jur 2nd "Foreign Corporations" sections 4-45
- 39 Am Jur 2nd "Habeas Corpus", section 97
- 52 Am Jur 2nd "Mandamus", section 314, 367
- 54 Am Jur 2nd "Monopolies", sections 394, 398-399, 836, 840, 862
- 61 Am Jur 2nd "Physicians, Surgeons, Etc." sections 200-377
- 70 A Am Jur 2nd "Social Security and Medicare", sections 468 et seq
- 75 AM Jur 2nd "Trial", sections 205-216
- 79 Am Jur 2nd "Welfare", section 50
- 81 Am Jur 2nd "Witnesses", section 79, 172 et seq
- 82 Am Jur 2nd "Worker's Compensation", sections 504 et seq
American law reports
- 48 ALR Fed 259
- 49 ALR Fed 674
- 64 ALR Fed 971 (learned treatises)
- 10 ALR 1152
- 41 ALR 433 (mandamus)
- 49 ALR 732
- 77 ALR 1490
- 112 ALR 438 (mandamus)
- 120 ALR 1103
- 128 ALR 682
- 151 ALR 475
- 76 ALR 2nd 946
- 88 ALR 2nd 650
- 90 ALR 2nd 1323
- 2 ALR 3rd 286
- 9 ALR 3rd 1413
- 14 ALR 3rd 594
- 21 ALR 3rd 912 (workers' comp discovery)
- 44 ALR 3rd 24
- 55 ALR 3rd 1322
- 59 ALR 3rd 441
- 61 ALR 3rd 1297
- 81 ALR 3rd 1297 section 3 (b), 8 (a), 9(a)
- 85 ALR 3rd 1196 (mandatory reporting of suspicious wounds)
- 97 ALR 3rd 324 (Landeros v. Flood)
- 1 ALR 4th 1124
- 22 ALR 4th 774
Proof of facts
- 2 Proof of Facts 2nd 365 et seq (child abuse)
- 3 Proof of Facts 2nd 265 et seq (child abuse)
- 6 Proof of Facts 2nd 345 et seq (child abuse)
Case law citation
- Barron v. Florida Freedom Newspapers Inc., (Fla) 531 So 2nd 113, 13 FLW 497, 15 Media LR 1901
- Barsky v. Board of Regents, Supreme Court of the United States, 1954, 347, US 442, 74 S. Ct. 650, 98 L. Ed. 829
- Butler v. Doyle, Supreme Court of Arizona, 112 Ariz. 522, 544 P. 2nd 204
- Colorado State Board of Medical Examiners v. District Court, 191 Colo. -, 551, P. 2nd 194 (1976)
- Continental Oil Co. v. United States (Ca 9 Ariz) 330 F 2nd 347 reprinted in 9 ALR 3rd 1413
- Ex Parte Clarke, 126 Cal, 235, 58 P 546
- Fairbank v. hardin (CA 9) 429, F2d 264, cert edn 400 US 943, 27 L Ed 2nd 247, 91 S. Ct. 244
- Globe Newspaper Co. v. Superior Court of County of Norfolk, 457 US 596, 73 L ED 2nd 248, 102 S. Ct. 2613, 8 Media LR 1689
- In Re Parsons, 150 US 150, 37, 1, L Ed 1034, 14 US Supreme Court, 50
- International Harvester Co. v. Eaton Circuit Judge, 163 Mich 5, 127 NW 695
- Jencks v. United States, 355, US 657 (1957)
- Klinge v. Lutheran Charites Ass'n, United States Court of Appeals for the Eighth Circuit, 1975, 523 F. 2nd 56
- Landeros v. Flood 17 Cal. 3rd 399, 131, Cal. Reporter, 69, 551 P.2nd 389
- Matchett v. Superior Court, 40 Cal. App. 3rd, 623, 115 Cal. Reporter 317 (1974)
- Oxnard Publishing Co. v. Superior Court of Ventura County (Cal App) 68 Cal Reporter 83
- Perales v. Richardson 91 A SCR 1420, 1971
- Press-Enterprise Co. v. Superior Court of California, 478 US 1, 92 L Ed 2nd 1, 106 S. Ct. 2735, 13 Media LR 1001
- Re Iowa Freedom of Information Council (CA Iowa) 724 F 2nd 658, 10 Media LR 1120;
- Rosenthal v. Dickerman, 98 Mich 208, 57, NW 112
- Smith v. Superior Court of San Joaquin County, 189 Cal.App.2d 6; 1 Cal Reporter reprinted in 88 ALR 2nd 650