The Subpoena on a Friday Afternoon
Dr. Whitfield, a licensed psychologist in Fayetteville, receives by certified mail a subpoena duces tecum commanding production of the complete psychotherapy record of a former client, Ms. Reyes, in a custody dispute between Ms. Reyes and her ex-husband. The subpoena was issued by the ex-husband's attorney, not by a judge, and it is returnable in nine days. Ms. Reyes terminated therapy eight months ago after 22 sessions addressing depression following the divorce. Dr. Whitfield has not spoken with Ms. Reyes since termination. The record contains Ms. Reyes's statements about her ex-husband's drinking and a note that she once 'lost her temper' with her child. Dr. Whitfield believes the record could harm Ms. Reyes in the custody case and also believes withholding it could be seen as obstruction.
1. Distinguish a subpoena from a court order and describe the steps Dr. Whitfield must take before producing anything.
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A subpoena is a demand issued by a party or attorney; it is not a judicial determination that the records are relevant or that privilege is waived. A court order signed by a judge carries greater authority, though even then Dr. Whitfield should confirm it is valid and applies to these records.
Steps before production:
- Verify the subpoena is properly issued, names the correct records, and states a realistic return date.
- Notify the client - attempt contact at the last known address and phone; explain the demand.
- Assert privilege on the client's behalf unless the client authorizes release or a court orders disclosure. Arkansas recognizes the psychologist-client privilege, and Dr. Whitfield holds it for the client.
- Seek the client's authorization or, if she objects or cannot be reached, seek a protective order or judicial guidance before the return date.
- Document every contact attempt and decision.
Dr. Whitfield should not produce records unilaterally because withholding 'might look like obstruction' - that is the client's privilege, not the psychologist's to waive.
2. Ms. Reyes cannot be reached after three documented attempts. What are Dr. Whitfield's options, and what should not be done?
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With a non-judicial subpoena and an unreachable client, Dr. Whitfield should:
- Continue documented outreach (mail, phone, emergency contact if authorized).
- Contact the issuing attorney to explain the privilege issue and request an extension or a stipulation.
- File or request a protective order or ask the court to quash or limit the subpoena before the return date.
- Consider consulting a colleague or an attorney experienced in Arkansas health-privacy law.
Dr. Whitfield should not release the full record on the theory that the subpoena compels it, and should not release a 'summary' as a workaround - that is still disclosure of privileged material. If a valid court order ultimately issues, Dr. Whitfield complies but may seek to limit production to what is ordered.
3. If disclosure is eventually ordered, how should Dr. Whitfield handle the record's sensitive content?
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Dr. Whitfield should disclose only what the order requires. Options include:
- Requesting that the court review the record in camera and order production of limited portions.
- Producing records under seal where the court permits.
- Redacting material unrelated to the ordered issue (for example, unrelated treatment history) if the order allows.
Dr. Whitfield should also notify Ms. Reyes of the disclosure if possible and document the scope of what was produced and why. The 'lost her temper' note should not be excerpted or highlighted out of context; the record goes as ordered, not as advocacy.