The Subpoena in the Custody Case
Danielle, 38, was in counseling with you for eighteen months following a workplace injury; the chart contains a diagnosis of adjustment disorder with anxiety, session-by-session notes describing marital conflict and one entry in which she called her husband 'verbally brutal,' and a Beck Anxiety Inventory from intake. She is now in a contested custody case. By certified mail you receive a subpoena duces tecum from the husband's attorney demanding 'the complete chart, including psychotherapy notes, session-by-session notes, diagnoses, and all test data and scoring,' with a deposition in ten days. No authorization signed by Danielle is enclosed. Two days later Danielle texts: 'Do NOT give them anything. If my husband sees what I said about him I will lose my kids.'
1. What is the legal status of the records, and what exactly does the subpoena obligate you to do?
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A subpoena is a demand, not a court order, and it does not override the privilege.
- The privilege belongs to Danielle, not to you and not to the husband's attorney. Communications made to a licensed professional counselor in the course of professional duties are privileged under section 337.540, RSMo, and the privilege is waived by the client or overridden by a court order - not by opposing counsel's signature on a subpoena.
- Your obligations are to respond, not to produce. Responding means timely asserting the privilege on Danielle's behalf, notifying her (and her attorney, if she has one) of the subpoena so she can object, and appearing at the deposition to state the objection if the subpoena commands your appearance. Health-privacy rules layered on top require satisfactory assurances that the requesting party has given the client notice and an opportunity to object before any production.
- You may not decide the merits for the court. If a judge orders production after an in camera review, that order supersedes the privilege to the extent it specifies.
- Custody litigation is the classic setting for this motion, because the opposing party wants exactly the material that is most protected: unfiltered statements about the other parent, diagnoses that can be spun, and test scores stripped of context.
2. List what you must not do, and describe what you should do and document before the deposition date.
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What not to do:
- Do not produce or mail any portion of the record, and do not send a 'summary' or an informal letter about treatment - that is a disclosure wearing a disguise.
- Do not discuss Danielle's treatment by phone with the husband's attorney, and do not confirm she is or was a client.
- Do not shred, alter, or 'clean up' notes. If you amend a record, do it as a dated addendum that preserves the original.
- Do not ignore the subpoena and assume it will go away; non-response can produce a contempt finding.
What to do:
- Acknowledge receipt to the issuing attorney in writing, stating that the records are privileged and will not be produced absent authorization or court order. That letter is also your evidence of good faith.
- Notify Danielle in writing, confirm you will assert the privilege, and tell her she needs her own counsel to file a protective motion.
- Contact your malpractice carrier or agency counsel; many policies include subpoena response support, and this is a document-production event, not a clinical one.
- Calendar the deposition date and prepare to appear and state the objection if required.
- Document each step - receipt date, the client notification, counsel consulted, and the decision made.
3. The judge reviews the chart in camera and orders you to produce 'the treatment record, excluding psychotherapy notes.' What do you produce, and how do you keep the production defensible?
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Comply with the order precisely, and produce nothing more than the order compels.
- Read the order's scope literally. If it excludes psychotherapy notes, that exclusion is meaningful: process notes and your private clinical impressions stay out; the diagnosis, dates of service, treatment plan, test instrument and scores, and progress notes that document the course of treatment go in, subject to the order's wording.
- Redact what is not the subject of the order - third-party information, references to other clients, identifiers of collateral sources.
- Ask for a protective order limiting use to the litigation and requiring return or destruction at the end. Courts grant these routinely when asked, and asking costs nothing.
- Produce by the ordered mechanism only (certified copy to the court or the ordering attorney), with a cover letter listing exactly what is enclosed and what is withheld and on what basis.
- Keep an identical copy of the produced packet in the file and log the date, the recipient, and the legal authority for the release.
- Do not offer an opinion about custody. If deposed beyond fact testimony, stay within what you observed clinically and decline the invitation to opine on parenting; that is the evaluator's role, not the treating counselor's.