E. COURT APPEARANCES

 

Regulation

A subpoena is a court order to compel a person to appear at a deposition or court proceeding to testify as a witness.

 

A subpoena duces tecum is a court order normally used to compel a person to produce all documents or records named in the subpoena.

 

The testimony of HHSA staff or its contract provider involving case records for matters not directly related to the administration of public social service programs is an inappropriate use of case records and a violation of confidentiality.

 

 To avoid violating confidentiality and/or court orders, the following procedures will apply.  These procedures apply only to subpoenas involving HHSA records and applicants/recipients.

 

  

District Attorney Subpoena

Staff is routinely served with subpoenas issued by the District Attorney’s office.  It is HHSA policy to fully cooperate with the DA in the investigation or prosecution of all matters directly related to the administration of public social services.  Procedures for staff served with a subpoena issued by the District Attorney are outlined below:

 

·       A demand for witness fees and mileage should not be made.

 

·       The employee will notify his/her supervisor or the appropriate site manager.

 

·       The employee named on the subpoena is expected to appear as directed.  When the employee is no longer assigned to HHSA, the supervisor or site manager will immediately contact the Deputy DA identified on the subpoena to provide the identity of the employee who will respond as a substitute.  If there has been a change in the HSS assigned to the case, the Deputy DA must be informed so that he/she may make the decision on who will be required to appear.

 

·       The employee must contact the Deputy DA to discuss the case and restrictions to availability for court (planned vacation or medical leave).

 

·       If unsure whether the subpoena relates to a matter directly connected to HHSA programs, the employee’s supervisor or site manager must contact the Subpoena liaison at Strategic Planning and Operational Support (SPOS).

 

·       If the subpoena relates to a matter not directly related to the administration of public social service programs, the employee will follow the procedures outlined below for Private Attorney Subpoenas.

 

  

Private Attorney Subpoena

Staff is occasionally served with subpoenas or subpoenas duces tecum initiated by the following:

 

·       Private attorneys,

·       Legal Aid Society or

·       The Public Defender. 

 

These subpoenas normally request the presence of staff and/or case records and may deal with civil or criminal matters not directly related to the official administration of public assistance programs, such as

 

·       Divorce,

·       Child support,

·       Child custody, or

·       Property settlement matters. 

 

By State Law (W & I 10850) the testimony of staff and/or use of case records for matters not related to the administration of public assistance programs are considered inappropriate use of public welfare records and is a violation of confidentiality.

 

Frequently these subpoenas will be for the case record, rather than a specific person, and are addressed to the “Custodian of Record”.   Staff must not accept service of subpoenas addressed to the Custodian of Record.   The server of the subpoena duces tecum must be informed that the Custodian of Record for HHSA is the SPOS Deputy Director, and that service of the subpoena may be arranged by the server, by contacting the Public Assistance Information Unit supervisor.

 

 

 Private Attorney Subpoena Procedures

 

 

All HHSA staff or contracted providers served with a subpoena or subpoena duces tecum from a private attorney, addressed to the staff person rather than to the “Custodian of Record” must accept the subpoena and adhere to the following procedures:

 

 

Step

Action

1

The employee must demand witness fees and mileage at the time the subpoena is served.  HHSA employees must also demand that HHSA receive the fees and mileage prior to the court appearance date.  Witness fees and mileage reimbursement amounts are established by State Law.  The person delivering the subpoena may write a check and present it at the time the subpoena is served (payee on check should be Health and Human Services Agency).  In such cases, the HHSA employee must send the check with the subpoena to the Subpoena Liaison SPOS, Mail Stop W414.  For duces tecum subpoenas, send to the PAI unit supervisor at Mail Stop W409.       

 

2

Immediately following the serving of the subpoena, the employee’s immediate supervisor will call the Subpoena Liaison, who will determine if the pending legal proceedings are related to the administration of a public services program.

 

3

Upon notification, the Subpoena Liaison will request that the subpoena and check for witness fees, if applicable, be delivered to him/her as soon as administratively possible, preferably on the same day.

 

4

Upon receipt of the subpoena, the Subpoena Liaison will contact the serving attorney and explain the legal provisions of confidentiality (W & I code 10850) and request the subpoena be withdrawn.

 

 

Attorney Agrees/
Refuses to Withdraw Subpoena

 

 

·       If the attorney agrees to withdraw the subpoena, the Subpoena Liaison will notify the employee’s supervisor that the employee is excused from compliance with the subpoena.

 

·       If the attorney refuses to withdraw the subpoena, the Subpoena Liaison will return the subpoena to the employee and provide him/her with a copy of a “Points and Authorities in Opposition to Subpoena Duces Tecum”.  The “Points and Authorities” is a statement prepared by the County Counsel’s Office, and serves as a formal request to the court to excuse the witness and/or records on the grounds that the records are confidential.  The employee must appear in court at the designated time.

 

·        The employee must not testify or allow anyone to see the record until the “Points of Authorities” has been presented to the judge and the judge has made a determination.  The “Points and Authorities” should be given to the judge at the time the employee is called to the stand to testify.  If the judge rules against the “Points of Authorities”, the employee must comply with the decision, submit the case record and give the requested testimony.  If parts of the record are introduced as evidence, the employee shall seek court approval, on the record, of substitution of photocopies so that the case record and its documents can remain intact when the employee is excused.

 

 

 

AIDS Test Result

Any person who willfully or negligently discloses AIDS test results to a third party without written permission from the client is guilty of a misdemeanor punishable by imprisonment in the county jail for up to one year or a fine of up to $10,000.