1

CONFIDENTIAL RECORDS EVIDENCE MANAGEMENT

Beverly T. Beal

North Carolina Conference of Superior Court Judges

June, 2006

2

RECORDS COME IN DIFFERENT TYPES

• D.S.S. Investigation Reports;

• Medical Tests & Clinical Notes

• School Records;

• Business, Insurance

& Finance Records

3

GETTING RECORDS TO COURT

“SUBPOENA

TO PRODUCE DOCUMENTS”

RULE 45, N.C.R.C.P: “Subpoena”

G.S. 15A- 802: “Subpoena for the production of documentary evidence”

4

RULE 45

(a) (1) Every subpoena shall state…b. a command to…attend and give testimony

or produce and permit inspection and copy of …records…documents….

(2) A command to produce evidence may be joined with a command to appear at trial or hearing or at a deposition, or any subpoena may be issued separately.

5

RULE 45: PUBLIC AND MEDICAL RECORDS

(c) (2) For production of public records or hospital medical records: certified copies of records with affidavit of custodian.

6

RULE 45: PUBLIC AND MEDICAL RECORDS

“…certified copy of records… unless otherwise objectionable, shall be admissible…without further certification or authentication. Copies tendered …shall not be open to inspection …except to the parties…until ordered published by the judge at …hearing or trial.”

7

RULE 45 OBJECTIONS

• (c) (3) Written objection to subpoena

• (5) Motion to quash or modify

• (7) Trade secrets; confidential information

8

§ 15A-802. Subpoena for the production of documentary evidence

   The production of records, books, papers, documents, or tangible things in a criminal proceeding may be obtained by subpoena which must be issued and served in the manner provided in Rule 45 of the Rules of Civil Procedure, G.S. 1A-1, except that subdivision (2) of subsection (b) of the rule does not apply to subpoenas issued under this section.

9

PRIVILEGED COMMUNICATIONS

• N.C. GENERAL STATUTE SECTION 8-53

• BUT SEE: N.C. GENERAL STATUTE

SECTION 8-53.1: …CHILD ABUSE (REFERS TO CHAPTER 7B)

• N.C. GENERAL STATUTE

SECTION 8-53.2, et seq.

10

PRIVILEGED COMMUNICATIONSINVOLVING D.S.S.

N.C. GENERAL STATUTE SECTION 108A-80

N.C. GENERAL STATUTE SECTIONS 7B-302, 7B-303

11

THE D.S.S. MANDATE

N.C.G.S. 7 B-302 (a):

[REPORTS OF CHILD ABUSE, NEGLECT OR DEPENDENCY]

“All information received by the department of social services, including the identity of the reporter, shall be held in strictest confidence by the department.”

12

MEDICAL RECORDS & HIPAA

HIPAA, which stands for the American Health Insurance Portability and Accountability Act of 1996, is a set of rules to be followed by doctors, hospitals and other health care providers. HIPAA took effect on April 14, 2003. HIPAA helps ensure that all medical records, medical billing, and patient accounts meet certain consistent standards with regard to documentation, handling and privacy. Source: HIPAA 101.com -- Info Guide to HIPAA Compliance, Implementation and Privacy

13

N.C. General Statute § 115C-402  (2004)

 Student records; maintenance; contents;

confidentiality

14

(e) The official record of each student is not a public record as the term "public record" is defined by G.S. 132-1. The official record shall not be subject to inspection and examination as authorized by G.S. 132-6….

15

INSURANCE INFORMATION• § 58-39-75. Disclosure limitations and

conditions

• An insurance institution, agent, or insurance-support organization shall not disclose any personal or privileged information about an individual collected or received in connection with an insurance transaction unless the disclosure is:

16

INSURANCE INFORMATION

(1) With the written authorization of the individual…. [or]

(8) In response to a facially valid administrative or judicial order, including a search warrant or subpoena;

17

WHEN CONFIDENTIAL RECORDS COME TO COURT

DETERMINE IF THERE IS AN OBJECTION TO PRODUCTION

DETERMINE IF in camera Inspection IS APPROPRIATE

18

A PROCEDURE FOR IN CAMERA REVIEW OF

DOCUMENTS

19

“REDACTION”

n. 1. The careful editing (of a document), esp. to remove confidential references or offensive material. 2. A revised or edited document. – redact, vb. – redactional, adj.

Black’s Law Dictionary, Seventh Edition (West Group, 1999)

20

PROCEDURE

1. Log in receipt of original and copy “A”;

2. Compare original to copy “A” provided: are they identical?

3. Return the original (log it out);

4. Make another copy “B”;

5. Use “B” for actual examination;

21

PROCEDURE6. Determine what is relevant; consider

objections to certain information (e.g., DSS protection of abuse reporter);

7. Redact “B” as appropriate; delete pages, words, phrases (white-out !)

8. Copy “B”: one copy for each party.9. File “A” , unredacted, sealed, for record,

as received from provider;

22

PROCEDURE

10. File “B”, redacted, sealed, to preserve record as to documents redacted and

revealed;

11. Prepare, sign and file appropriate order: “all, a portion or none.”

12. Distribute copies of “B”, as redacted, to parties, and log distribution.

23

DON’T DELAY*Compare the original to the copy*Return the Original*Read and redact a copy*Copy the redacted copy*Prepare, Sign & file an Order*File and Distribute

24

THANKS FOR COMING