Motion to Quash a Subpoena Duces Tecum

Therapists who receive a subpoena requesting patient information should immediately inform the patient. If the patient has no attorney or is a non-party in the court case, the therapist must wait ten days before producing any documents. This gives the patient (or other parties in the case) time to file a Motion to Quash (i.e., to request that the judge disallow the “discovery” of these documents as potential evidence in the case).  Also see, on this website, the essay, “Ethical Responsibilities of Virginia Mental Health Professionals in Response to a Subpoena.”

Meanwhile, if the patient does not give consent for the documents to be produced, the therapist can advise the patient to have his/her attorney file a Motion to Quash the subpoena. With the patient’s written consent, the therapist can talk to the patient’s attorney, describe the content of the record that has been subpoenaed, and share the possible arguments listed below for protecting the record.

Therapists are also legally free to file a Motion to Quash themselves, requesting that the judge protect the records or provide guidance about how to proceed. The Sample Forms below can be used for that purpose. Sample #1 requests that the Court quash the subpoena. Sample #2 requests that the Court either quash the subpoena or give you guidance about how to proceed. These are followed by a section of “POSSIBLE ARGUMENTS TO CITE . . .” which you can provide to an attorney who is filing the motion, or which you can use when filing the motion yourself.

These samples must be revised and personalized to fit your own circumstances, as well as the details of each case. You should have your attorney review your personalized version of the form you choose.

To file a Motion to Quash, send it directly to the judge who is hearing the case.  (If you are not sure who that is, contact the clerk of the court where the case is being heard and request information about the name of the judge and the proper address to whom it should be mailed or emailed.)  A copy must also be sent to the attorney who issued the subpoena, and this must be so noted in the Motion; and a copy should also be sent to your patient’s attorney if this is a different person.  For other details about possible procedures, read carefully Virginia Code § 32.1-127.1:03 Section H. The Sample Forms below contains fictitious names and places and uses sample arguments. See further possible considerations and legal arguments below.

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SAMPLE FORM #1:*
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VIRGINIA: IN THE CIRCUIT COURT FOR THE CITY OF JEFFERSON

Jane Doe, Complainant, v. John Doe, Respondent

Case No. CL 09-54321

MOTION TO QUASH

Comes now James B. Quick, Ph.D. [by counsel?] and files this, his motion to quash a subpoena duces tecum which was served on him at the request of the [respondent? complainant?] to be returned on _________ [response date/time as stated on the subpoena]. A copy of this motion is being provided to the attorney [party?] who issued this subpoena.

In support of his motion, Dr. Quick states as follows [insert relevant identification and circumstances]:

1. He is a psychologist licensed by the Board of Psychology in the Commonwealth of Virginia.

2. He has a duty to maintain the confidentiality of the material sought to be compelled by the subpoena duces tecum.

3. The information sought to be compelled by the subpoena duces tecum is protected as a privileged communication. [Cite therapist-patient privilege statute for your profession; see relevant statute numbers below.]

4. On information and belief, the information sought to be compelled by the subpoena duces tecum is totally irrelevant to the proceeding.

5. No circumstances exist demonstrating relevancy or necessity for the production of such materials.

6. [Include all further relevant arguments (e.g., see below).]

WHEREFORE, James B. Quick, Ph.D. respectfully prays that the Court enter an order quashing said subpoena duces tecum and that the Court set for hearing, prior to the issuance of any subsequent subpoena duces tecum, the issue of whether or not the material sought to be compelled is privileged or otherwise protected by law.

JAMES B. QUICK, Ph.D. [by counsel?]

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SAMPLE FORM #2: **
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VIRGINIA: IN THE CIRCUIT COURT FOR THE CITY OF JEFFERSON

Jane Doe, Complainant, v. John Doe, Respondent

Case No. CL 09-54321

MOTION TO QUASH
OR IN THE ALTERNATIVE GUIDANCE FROM THE COURT

Comes now James B. Quick, Ph.D. [by counsel?] and files this, his motion to quash a subpoena duces tecum which was served on him at the request of the [respondent? complainant?] to be returned on _________ [response date/time as stated on the subpoena]. In the alternative, guidance is sought from the Court on whether to turn over the records in question. A copy of this motion is being provided to the attorney [party?] who issued this subpoena.

In support of his motion, Dr. Quick states as follows [insert relevant identification and circumstances]:

1. He is a psychologist licensed by the Board of Psychology in the Commonwealth of Virginia.

2. He has a duty to maintain the confidentiality of the material sought to be compelled by the subpoena duces tecum.

3. The information sought to be compelled by the subpoena duces tecum is protected as a privileged communication. [Cite therapist-patient privilege statute for your profession; see relevant statute numbers below.]

4. He does not know whether there is a valid legal basis for turning over the records sought and asks the Court to make such a legal determination.

5. The requested documents are attached in a sealed envelope; further direction from the Court awaited as to whether the records shall be turned over or returned.

6. [Include all further relevant arguments (e.g., see below).]

WHEREFORE, James B. Quick, Ph.D. respectfully prays that the Court enter an order quashing said subpoena duces tecum or in the alternative to give guidance, and that the Court set for hearing, prior to the issuance of any subsequent subpoena duces tecum, the issue of whether or not the material sought to be compelled is privileged or otherwise protected by law.

JAMES B. QUICK, Ph.D. [by counsel?]

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POSSIBLE ARGUMENTS TO CITE WHEN FILING A MOTION
REQUESTING THAT A JUDGE QUASH A SUBPOENA DUCES TECUM
FOR PATIENT TREATMENT RECORDS*
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A. The information being sought by the subpoena is presumed to be privileged.
(Cite the therapist-patient privilege statute that applies to your own profession: (§ 8.01-399 for clinical psychologists & physicians; § 8.01-400.2 for other therapists).

B. Virginia Code § 32.1-127.1:03 Section H (paragraph 6), requires judges to consider the following when deciding whether to require medical or mental health records to be used as evidence:

	“In determining whether good cause has been shown, the court or administrative agency shall consider
		(i) the particular purpose for which the information was collected;
		(ii) the degree to which the disclosure of the records would embarrass, injure, or invade the privacy of the individual;
		(iii) the effect of the disclosure on the individual’s future health care;
		(iv) the importance of the information to the lawsuit or proceeding; and
		(v) any other relevant factor.”

Possible Arguments for Initiating a
Motion to Quash a Subpoena Duces Tecum
in a Child Custody Case

The following arguments have been used to successfully protect confidentiality when Virginia therapists’ records were subpoenaed at the “discovery” stage of custody cases. Many of these would also apply in other types of cases, or with witness subpoenas, as well as subpoenas for documents..

1. The information is initially presumed to be privileged. [§ 8.01-399, § 8.01-400.2]

2. The mental condition of a parent may not need to be at issue in the case unless the parent is alleged to be unfit, or at the judge’s discretion.

3. No subpoena of confidential mental health information is appropriate until mental condition has been shown to be truly at issue. An allegation in the initial pleading should not be sufficient to determine this.

4. A subpoena duces tecum is not appropriate as an “opening ploy” in a divorce or custody case. Such can be an abuse by a parent not sincerely trying to seek custody, attempting to intimidate the other parent and/or to pull the child into the conflict, or trying to delay the custody determination.

5. If custody is seriously in dispute, a guardian ad litem can be appointed to decide whether “discovery” of the child’s records as evidence, or testimony by a therapist, is appropriate and in the child’s best interest. If the child’s records (or therapist testimony about a child client) is subpoenaed, it is especially important to consider the impact on trust, the effect on current and future therapy relationships, and possible detriment to the child’s interests.
[§ 32.1-127.1:03; paragraph H, 6]

6. Records over one year old are arguably not relevant to the current proceeding. The same might apply to the testimony of previous therapists.

7. Treatment records often contain personal matters completely irrelevant to the issues in the custody case. The information they contain was not collected for that purpose, and may be misleading. For example, records of parents may contain personal matters completely irrelevant to their ability or fitness to parent the child.

8. It is an ethical guideline of some mental health professions that raw psychological data (e.g., test protocols, therapy notes) should not be disclosed to non-professionals who are unqualified to interpret them. If produced at all, clinical records should be sealed to the judge (or to the guardian ad litem in a child case).

9. A “prospective custody evaluation,” with access to all parties, can provide direct evidence of the child’s parenting needs; the child’s relationship to both parents; and the parents’ relative abilities to meet those needs. The information in therapy records was not gathered for these purposes, and is arguably not relevant towards these purposes.

10. Under the Health Records Privacy Statute [§ 32.1-127.1:03 paragraph H, 6] there is a long list of factors that judges must consider when making decisions about protecting mental health records: The court shall consider the specific purpose for which the information was collected; the degree to which disclosure would embarrass, injure, or invade the privacy of the individual; the effect of the disclosure on the individual’s future health care; the importance of the information to the lawsuit or proceeding; and any other relevant factor.

*NOTE 1. The first sample “Motion to Quash,” and the above list of possible arguments that can be used with it, were updated from materials initially provided by Francis McQ Lawrence, Esq., a Charlottesville attorney, for publication in Ethical Issues in Clinical Practice Under Virginia Law (Fisher, 1991, p. 102). That manual is no longer in print.

**NOTE 2. The second sample form, “Motion to Quash or in the Alternative Guidance from the Court,” was provided in April 2009 by Steven D. Rosenfeld, Esq., a Charlottesville attorney.