Subpoena for Therapy Records in a Custody Dispute
Dr. Elena Alvarez is a Florida-licensed psychologist in Tampa. For 14 months she has treated Ms. Renee Cole, age 34, for PTSD related to a prior assault. Ms. Cole's ex-husband has filed a motion to modify custody of their two children. Opposing counsel serves Dr. Alvarez with a subpoena duces tecum signed by the clerk of court, demanding any and all records, psychotherapy notes, test data, raw test scores, and billing statements and setting a production date 10 days later. No authorization signed by Ms. Cole accompanies the subpoena. Ms. Cole tells Dr. Alvarez, I do not want my therapy used in this custody fight. Ms. Cole's own attorney then emails Dr. Alvarez: Just send the records to opposing counsel to avoid a hearing; I'll handle it. Dr. Alvarez has no attorney. The records contain Ms. Cole's account of the assault and her concerns about the ex-husband's parenting.
1. Must Dr. Alvarez produce the records in response to the subpoena? Explain the legal and ethical steps she should take.
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No. A subpoena duces tecum commands a response, but it is not a court order and does not by itself override the psychotherapist-patient privilege in s. 90.503, Fla. Stat. The privilege belongs to Ms. Cole; Dr. Alvarez asserts it on the client's behalf. Without a signed authorization or a court order, Dr. Alvarez should:
- notify Ms. Cole and her attorney in writing;
- serve a written objection and assertion of privilege on opposing counsel;
- appear at the return date if necessary but bring no records;
- seek a protective order or in camera review; and
- document each step.
The email from Ms. Cole's attorney is not a waiver when Ms. Cole has expressly objected. Only the client or a legally authorized representative can waive. Dr. Alvarez should not send records directly to opposing counsel.
2. What may Dr. Alvarez disclose, if anything, without a court order?
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Without a court order or valid written authorization, Dr. Alvarez may disclose essentially nothing beyond cautiously confirming that she is a treating provider if the subpoena itself demands a response. Even that confirmation can reveal protected information, so she should object first. She may disclose information needed to defend herself if Ms. Cole files a complaint or lawsuit against her, but a third-party subpoena does not trigger that exception. She may also respond to a licensing board investigation as required by law. If Ms. Cole provides a specific, time-limited authorization, Dr. Alvarez should review it for scope and revocability, then release only what is authorized. Billing records can still reveal the fact of treatment, so they are protected too.
3. If the court later orders production of the entire record, what should Dr. Alvarez do?
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A valid court order after a hearing changes the analysis. Dr. Alvarez must comply with the order, but she can ask the court to limit production, order in camera review, or seal the records. She should not release more than the order requires. She should notify Ms. Cole through counsel before production, document what was produced and to whom, and retain a copy. If the order is ambiguous or overbroad, she should seek clarification or a stay rather than guess. A court order is a legal authorization, but it does not eliminate the ethical duty to protect confidentiality to the extent possible.