Pining for Privacy

In the age of ubiquitous social media and the twenty-four hour news cycle, expectations of privacy aren’t what they used to be.  But when families find themselves caught in difficult child custody disputes, privacy is often one of the first questions that comes to mind.

Cases involving children often lay bare aspects of our lives we’d prefer remain closed from public view, in no small part because of the expansive range of “best interest factors” a court must consider in making child custody decisions.

Facebook profiles, online activity, even psychological evaluations.

So when asked if a parent’s therapy records will be part of any custody case, the answer, more often than not, is at least “probably.”

But whether therapy records will be disclosed doesn’t answer the question of how that disclosure will occur.

And unfortunately for those who had hoped for a slightly more accessible post about when records can be obtained, I’m going to focus instead on the question of “how.” Which means civil procedure aplenty.

I apologize ahead of time for the legal-geekery that’s about to ensue.

So You Say You Want Some Therapy Records…

The Minnesota Rules of Civil Procedure, specifically 35.04, provide that non-privileged medical information may be obtained by way of a demand for medical disclosures served on a party. 10 days after service of the demand, the receiving party is required to provide signed authorizations permitting access to medical records.

But what if a parent refuses (or perhaps isn’t available) to sign? What if the person whose therapy records are of most concern isn’t a party to the action (and thus isn’t subject to most of our discovery tools)? Can an attorney compel a therapist to disclose records through use of a subpoena?

If you answered “yes,” read on, because a case this week from the Court of Appeals suggests that subpoenas are not an appropriate tool for obtaining medical records.

Huber v. Vohnoutka et al. and the Minnesota Health Records Act.

The case, Huber v. Vohnoutka, et al., No. A14-1403 (Minn. Ct. App. Apr. 6, 2015), involves a claim under the Minnesota Health Records Act by a family court litigant against his former therapist (who disclosed his records) and his ex’s attorney (who “subpoenaed” the records).

I put subpoenaed in scare quotes because the subpoena in question was both served by mail and without notice to all parties contrary to the Rules of Civil Procedure. But that’s a matter for another post.

The holding of the case itself–that father had a factual claim under the Health Records Act where his records were disclosed in response to an improper authorization and an invalidly served subpoena–may interest us for other reasons.  But I’m particularly taken with a footnote discussing whether health records may ever be obtained by way of a subpoena.

The footnote, reproduced in its entirely (with links to the relevant citations) reads as follows:

Because the subpoena duces tecum in this case is invalid and unenforceable because it was not properly served on [Therapist], we need not consider or decide whether a valid subpoena duces tecum would constitute “specific authorization in law” for the release of health records. See Minn. Stat. § 144.293, subd. 2(2). Health records typically contain information that is protected by a medical privilege. See Minn. Stat. § 595.02, subd. 1(d), (g) (2014). The privilege “belongs to the patient” and, thus, “may be waived only by the patient.” Wenninger v. Muesing, 307 Minn. 405, 407, 240 N.W.2d 333, 335 (1976), superseded by statute on other grounds, Minn. Stat. § 595.02, subd. 5 (2014). A person waives the medical privilege if he or she “voluntarily places in controversy” his or her physical or mental health in the course of a pending civil action. Minn. R. Civ. P. 35.03. If a person has waived the medical privilege pursuant to rule 35.03, the disclosure of the patient’s health records is governed by rule 35.04, which provides a means for the disclosure of medical records “as to which privilege has been waived.” Minn. R. Civ. P. 35.04(b). In that event, it appears that rule 35.04 is “the exclusive means” of conducting discovery into the medical issues for which the privilege has been waived. See Wenninger, 307 Minn. at 412, 240 N.W.2d at 337. In that context, an attorney’s disclosure of health records to a rule 35 examiner is specifically authorized by law and, thus, permitted by the Minnesota Health Records Act. Newman v. Brendel & Zinn, Ltd., 691 N.W.2d 480, 483 (Minn. App. 2005), review denied (Minn. Mar. 29, 2005). Rule 35 applies in a child-custody proceeding to govern the disclosure of mental-health records, at least with respect to the petitioning party’s mental-health records. See Morey v. Peppin, 353 N.W.2d 179, 183 (Minn. App. 1984), rev’d on other grounds, 375 N.W.2d 19 (Minn. 1985). If rule 35.03 applies, an attorney should obtain medical records pursuant to rule 35.04, which allows the district court to supervise the discovery process and to “use its protective authority to prevent disclosures that are irrelevant to the custody question or otherwise annoying, embarrassing, oppressive, or unduly burdensome.” Morey, 353 N.W.2d at 183 (citing Minn. R. Civ. P. 26.03). Thus, if rule 35 applies, it appears that an attorney should not seek to obtain medical records pursuant to rule 45. See Wenninger, 307 Minn. at 412, 240 N.W.2d at 337. Similarly, in a criminal case, an attorney should seek to obtain medical records of a victim only pursuant to a court order. See Minn. R. Crim. P. 22.01, subd. 2.


So taking the footnote on its face, medical records–including therapy records–are only accessible by way of a demand for medical disclosures served on a party, and not through third-party subpoenas.

But to be fair this is just a footnote.

A footnote in an unpublished opinion.

A footnote in an unpublished opinion expressly disclaiming any decision on this issue one way or another.

But I can’t help but think that the Court has some fairly definite opinions on the matter to have devoted a 440 word footnote to an entirely ancillary issue.

So, be careful what you subpoena.

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