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Ely, Counselor at Law
Category: Employment Law
Satisfied Customers: 102342
Experience:  Years of experience in running a medium sized law firm.
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We have been been issued a Subpeona Duces Tecum former

Customer Question

We have been been issued a Subpeona Duces Tecum for a former employee who is suing his present employer with WCAB. We are being compelled to produce copies of, "all documents and records pertaining to the employment of the plaintiff, including but not limited to, the application for employment, work absence records, incident reports and pre-employment and employee performance records from the first date of employment, up to and including the present." This employee was injured while in our employ, and had a Worker's Compensation disability claim. My question is whether that information is considered part of the records being required, and need to be furnished? Thank you!
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ely replied 1 year ago.

Hello and welcome to JustAnswer. Please note:This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

This depends on the verbiage of the subpoena. Because the subpoena is stating "all documents and records," then the verbiage states indeed all documents which would include any employer-kept files on the disability claim.

The party subpoenaed always has the option of filing a motion with the court asking the court to minimize the scope of the subpoena if it is unreasonably broad or burdensome. In addition, the other party (in this case, the ex-employee) normally receives a copy of the subpoena as well in most jurisdictions, and has a chance to file the same type of motion before the deadline set by the subpoena.

HIPAA provides an exception for information that would normally be protected under 45 C.F.R. § 164.512(e). See HERE. The company may also wish to send a letter to the ex-employer stating that such a subpoena has been received, and that under it, one will provide the disability claim files as well, so as to allow the ex-employer time to challenge the subpoena before the answer must be sent.

OR, the employer may file a motion asking the court to rule on the verbiage being overly-broad and have the Judge clarify whether or not this includes the disability claim.

I hope this helps and clarifies. Please use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how experts get credit for our time. Rating my answer the bottom two faces/stars (or failing to submit the rating) does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith with a positive rating.

Expert:  Ely replied 1 year ago.

Hello again. This is a courtesy check in to see if you needed anything else in regards ***** ***** question. I am simply touching base. Let me know. Thanks!