The Subpoena That Was Not a Court Order
Dr. Whitfield has treated Mr. Ochoa for two years for PTSD from a workplace injury, including a PCL-5, the MMPI-3, the WAIS-IV, and roughly 200 pages of notes. Mr. Ochoa is now in a contentious divorce, and his wife's attorney serves Dr. Whitfield with a subpoena duces tecum commanding production of 'the complete chart, all test questions, raw scores, and all notes' at a deposition in ten days. No authorization from Mr. Ochoa accompanies it and no judge has signed anything. Mr. Ochoa says, 'Do not give her anything; she will use my PTSD against me in the custody case.' The wife's attorney calls and says, 'A subpoena is a court order. If you do not produce, I will move to hold you in contempt.' Dr. Whitfield has malpractice insurance, a full Tuesday, and a receptionist asking what to do with the envelope.
1. Is the subpoena enforceable as written, and what should Dr. Whitfield do in the next ten days?
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A subpoena is not a court order, and it does not by itself pierce privilege.
- Oregon recognizes a psychologist-client privilege (ORS 40.230). The holder is the client, not the psychologist. Dr. Whitfield asserts it on Mr. Ochoa's behalf; she does not waive it for him.
- Do not ignore the envelope. Calendar the return date, then: (1) notify the client in writing and copy his divorce attorney; (2) respond in writing to the wife's attorney stating that records will not be produced absent a signed authorization or a court order, and citing the privilege; (3) note that HIPAA requires satisfactory assurances that the client received notice and had time to object before a subpoena response; (4) support the client's attorney in filing a motion to quash or for a protective order; (5) document every contact, including the threatening phone call.
- The contempt threat is bluff and pressure: contempt follows disobedience of a court order, not a bare subpoena.
- Flag one thing for the client and his lawyer, not to decide herself: litigation that puts a person's mental condition in issue - a custody fight over fitness, a claimed emotional injury - can waive privilege in whole or part. That waiver decision belongs to Mr. Ochoa with counsel.
2. The wife's attorney also demands 'all test questions and raw scores.' How does Dr. Whitfield respond to that part?
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Separate the test data question from the records question.
- The ethics code treats release of test data differently from release of a client's record: raw data should go to a qualified professional who can interpret it, not to a lawyer who may quote items out of context or place them in a public filing. Copyright and test security also argue against dumping full item sets.
- A workable offer: provide the scores, the interpretation, and a narrative summary of the testing to the opposing side; offer to release the raw data to a psychologist the wife retains, under a protective order limiting use to the litigation. Withhold actual test items where disclosure would compromise the instrument, but say plainly that a court can still order their production.
- This is a controlled channel, not a refusal. The test results are part of the treatment record and are likely discoverable in some form; behaving as though nothing will ever be produced invites a motion to compel and a sanctions fight her insurance carrier will not enjoy.
- Document what was offered, what was withheld, and why, so the reasoning is visible if a judge reviews it.
3. The judge signs an order to produce the full chart. What limits remain, and what must Dr. Whitfield not do?
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Comply - narrowly and on the record.
- An order from the court supersedes the privilege objection; produce what the order reaches. Simultaneously request a protective order limiting use to this litigation, restricting dissemination, and requiring return or destruction of copies afterward.
- Ask for in camera review of the most sensitive material - process notes, references to third parties, information about the client's treatment of other family members - so the judge, not the opposing attorney, decides relevance. Redact third-party identifiers that the order does not specifically require.
- Produce only what is ordered and keep an itemized index of what was produced, withheld, and redacted, with the legal basis.
- What she must not do: destroy, alter, or 'clean up' anything once litigation is reasonably anticipated. Spoliation converts a defensible privilege dispute into a disciplinary and evidentiary catastrophe. No backdated addenda, no reorganized file, no deleted emails.
- Bill copying at a permissible rate, tell the client what was produced and when, and keep the correspondence.