What determines the valid jurisdiction for a subpoena for written information collected by a 3rd party who has connections to multiple jurisdictions?

Question

Which of the following affect the valid jurisdiction:

• The location of the collecting party?
  • What if the party (resides/does business/practices/is licensed) in more than one state?
• The location where the information was collected?
  • What if it was collected via some form of telecommunication from parties in other locations?
• The location where the information is stored?
  • What if it is stored in an online cloud service, where the physical location(s) of the data may not be easily determined or may change at any time?
• The party holding the information, if it is different from the collector (e.g. an archival service)?

If more than one of these factors is relevant, does one take precedence? Can there be multiple valid jurisdictions?

If the type of information being subpoenaed is pertinent, I'm specifically interested in the case of mental health records, but if there is a general case that is the same or similar, please discuss that too, pointing out any differences.

If the answer is different for state vs. federal law, please point out the differences, where possible.

EDIT: Just to clarify, this is a theoretical question. I am researching the extents to which the protections on protected health information (PHI) in the United States can be overridden in legal actions, and how that varies with location, especially in the context of today's connected society.

From Dale M's answer below, it appears this is not clear cut, so it would be useful if anyone can provide citations relevant to the subpoena of medical and mental health records, especially in situations where:

• The medical professional who generates the records in licensed in more than one state
• The medical professional who generates the records practices in more than one state
• The patient saw the medical professional at his/her practice in state A, but the patient resides in state B
• The records are stored with a third party in one or more states other than that of the medical professional

Answer 1

General Rules

Operationally, the limitations imposed by the court rules of the court where a lawsuit is pending governing subpoenas (Federal Rule of Civil Procedure 45 in federal civil lawsuits and similar rules in most state court sytems) are more restrictive than the limitations imposed on jurisdiction in civil lawsuits generally by the due process clauses of the 5th and 14th Amendments of the United States Constitution which govern jurisdiction in civil lawsuits generally. (Subpoenas in criminal lawsuits and subpoenas issued by administrative agencies are beyond what is reasonably considered in this answer.)

Generally what matters is: where a person resides, is employed or regularly conducts business (any of these suffice); where the subpoena directs the person to comply; and the burden imposed.

So, basically, the only important factor is the residence or business address of "The party holding the information" (with "holding" defined as having "possession, custody or control" of the information where ever it may be physically located) in relation to the place where the information sought is to be produced.

Sometimes exceptions to the general rule may be made on a case by case basis by someone subject to a subpoena based upon hardship in this particular instance. The other three factors that you suggest are basically irrelevant unless the subpoena directs a physical inspection of something or someplace, in which case the location of the thing or place is what usually matters.

Usually, under evolving jurisdictional laws set by the U.S. Supreme Court, entities are deemed to reside at their headquarters and if different also at the office of their registered agent to receive service of legal process in the state under whose laws they are formed. Sometimes, this is defined more broadly.

In the case of an entity, normally, the person subject to a subpoena would be the custodian of the records of the entity that provides them, and if that person is unknown, the subpoena would often be a two step process with step one being an order directing the entity subject to the subpoena to designate a human being as a custodian of the records requested who must actually be able to obtain access to the records, and the second step being a subpoena directed at the custodian. This is because the usual consequence for failing to comply with a third party subpoena is for an arrest warrant to issue for the non-compliant custodian of records.

In the case of mental health records, a subpoena could be directed either at the custodian of those records or in the alternative to someone who has authority to access those records.

Conflict of Laws Issues

But, any request for a mental health record would be subject to defenses of doctor-patient privilege and HIPAA privacy laws (in the U.S.) and the former would be resolved based upon the relevant state law (which is often a quite mushy question that can turn on a great many relevant facts such as the ones you identify) by the Court with jurisdiction under Rule 45 or the equivalent over the person compelled by the subpoena to produce the records.

The question of whose doctor-patient privilege laws to apply is called a "conflict of laws" question as opposed to a jurisdiction or civil procedure question - which courts can be applied to in order to make the decision is usually pretty clear, but which law that court will chose to use in the case is often mushy in cases with complicated facts like the ones mentioned in the question and the outcome of a conflict of law issue is often very difficult to predict.

Fortunately, often the conflict of law issue won't matter. This is because the substantive law is frequently very similar in all of the relevant jurisdictions in subpoena cases because almost all state laws on the question are derived from a shared common law legal tradition that predates American independence and from a shared federal case law on the scope of legal privileges not to respond to subpoenas that state courts emulate even when they are not required by the constitution to do so.

Interstate and International Subpoenas Originating In State Courts

The structure is a bit different in international and interstate cases than in Federal Rule of Civil Procedure 45 quoted below.

If a person subject to a subpoena is in another state in a state court lawsuit, or is in another country, the court where the case is pending exchanges "letters rogatory" with a civil court whose territorial jurisdiction includes the part of the state or country where the person subject to the subpoena is located and the actual subpoena is issued by the receiving court in a summary proceeding (compliance in mandatory in another state due to the full faith and credit clause of the constitution and is voluntary and based on international comity or international treaties in international cases). This process is slow and expensive and often cannot be completed in time for a trial in a state court case unless commenced as soon as possible.

Appendix

Federal Rule of Civil Procedure 45 states in the pertinent parts that:

Rule 45. Subpoena

(a) In General.

(1) Form and Contents.

(A) Requirements -In General. Every subpoena must:

(i) state the court from which it issued;

(ii) state the title of the action, and its civil-action number;

(iii) command each person to whom it is directed to do the following at a specified time and place: attend and testify; produce designated documents, electronically stored information, or tangible things in that person's possession, custody, or control; or permit the inspection of premises; and

(iv) set out the text of Rule 45(d) and (e) .

(B) Command to Attend a Deposition -Notice of the Recording Method. A subpoena commanding attendance at a deposition must state the method for recording the testimony.

(C) Combining or Separating a Command to Produce or to Permit Inspection; Specifying the Form for Electronically Stored Information. A command to produce documents, electronically stored information, or tangible things or to permit the inspection of premises may be included in a subpoena commanding attendance at a deposition, hearing, or trial, or may be set out in a separate subpoena. A subpoena may specify the form or forms in which electronically stored information is to be produced.

(D) Command to Produce; Included Obligations. A command in a subpoena to produce documents, electronically stored information, or tangible things requires the responding person to permit inspection, copying, testing, or sampling of the materials.

(2) Issuing Court. A subpoena must issue from the court where the action is pending.

(3) Issued by Whom. The clerk must issue a subpoena, signed but otherwise in blank, to a party who requests it. That party must complete it before service. An attorney also may issue and sign a subpoena if the attorney is authorized to practice in the issuing Court.

(4) Notice to Other Parties before Service. If the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, then before it is served on the person to whom it is directed, a notice and a copy of the subpoena must be served on each party.

(b) Service.

(1) By Whom and How; Tendering Fees. Any person who is at least 18 years old and not a party may serve a subpoena. Serving a subpoena requires delivering a copy to the named person and, if the subpoena requires that person's attendance, tendering the fees for 1 day's attendance and the mileage allowed by law. Fees and mileage need not be tendered when the subpoena issues on behalf of the United States or any of its officers or agencies.

(2) Service in the United States. A subpoena may be served at any place within the United States.

(3) Service in a Foreign Country. 28 U.S.C. §1783 governs issuing and serving a subpoena directed to a United States national or resident who is in a foreign country.

(4) Proof of Service. Proving service, when necessary, requires filing with the issuing court a statement showing the date and manner of service and the names of the persons served. The statement must be certified by the server.

(c) Place of Compliance.

(1) For a Trial, Hearing, or Deposition. A subpoena may command a person to attend a trial, hearing, or deposition only as follows:

(A) within 100 miles of where the person resides, is employed, or regularly transacts business in person; or

(B) within the state where the person resides, is employed, or regularly transacts business in person, if the person:

(i) is a party, or a party's officer; or

(ii) is commanded to attend a trial and would not incur subsantial expense.

(2) For Other Discovery.

A subpoena may command:

(A) production of documents, electronically stored information, or tangible things within 100 miles of where the person resides, is employed, or regularly transacts business in person; and

(B) inspection of premises at the premises to be inspected.

(d) Protecting a Person Subject to a Subpoena; Enforcement.

(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The court for the district where compliance is required must enforce this duty and impose an appropriate sanction - which may include lost earnings and reasonable attorney's fees - on a party or attorney who fails to comply.

(2) Command to Produce Materials or Permit Inspection.

(A) Appearance Not Required. A person commanded to produce documents, electronically stored information, or tangible things, or to permit the inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial.

(B) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting the premises - or to producing electronically stored information in the form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply:

(i) At any time, on notice to the commanded person, the serving party may move the court for the district where compliance is required for an order compelling production or inspection.

(ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance.

(3) Quashing or Modifying a Subpoena .

(A) When Required. On timely motion, the court for the district where compliance is required must quash or modify a subpoena that:

(i) fails to allow a reasonable time to comply;

(ii) requires a person to comply beyond the geographical limits specified in Rule 45(c);

(iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or

(iv) subjects a person to undue burden.

(B) When Permitted. To protect a person subject to or affected by a subpoena, the court for the district where compliance is required may, on motion, quash or modify the subpoena if it requires:

(i) disclosing a trade secret or other confidential research, development, or commercial information; or

(ii) disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party.

(C) Specifying Conditions as an Alternative. In the circumstances described in Rule 45(d)(3)(B), the court may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party:

(i) shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and

(ii) ensures that the subpoenaed person will be reasonably compensated.

(e) Duties in Responding to a Subpoena.

(1) Producing Documents or Electronically Stored Information. These procedures apply to producing documents or electronically stored information:

(A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand.

(B) Form for Producing Electronically Stored Information Not Specified. If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.

(C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the same electronically stored information in more than one form.

(D) Inaccessible Electronically Stored Information. The person responding need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.

(2) Claiming Privilege or Protection.

(A) Information Withheld. A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must:

(i) expressly make the claim; and

(ii) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.

(B) Information Produced. If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information under seal to the court where compliance is required for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved.

(f) Transferring a Subpoena-Related Motion. When the court for the district where compliance is required did not issue the subpoena, it may transfer a motion under this rule to the issuing court if the person subject to the subpoena consents or if the court finds exceptional circumstances. Then, if the attorney for the person subject to the subpoena is authorized to practice in the court where the motion was made, the attorney may file papers and appear on the motion as an officer of the issuing court. To enforce its order, the issuing court may transfer the order to the court where the motion was made.

(g) Contempt. The court for the district where compliance is required

• and also, after a motion is transferred, the issuing court - may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it.

Answer 2

Typically, a person (including a corporate person) is subject to a jurisdiction if they have a connection to it. Doing business within it is certainly a connection, so the jurisdictions of the business and the customer are both applicable. Similarly, where the information is can trigger jurisdiction. The person who has custody may also trigger jurisdiction.

Lack of jurisdiction is grounds for a court refusing to issue or the served person to challenge a subpoena. The court will decide if the person is or is not subject to their jurisdiction. They are usually pretty liberal in this decision: if they can justify a connection then they have jurisdiction.

Of course, having jurisdiction and being able to enforce their writs are two different things, particularly if the connection is slight. This will boil down to the degree of cooperation between jurisdictions and if another jurisdiction will enforce the other's claim to jurisdiction.

If you get a subpoena, you need legal advice.

Answer 3

just came across this question. It seems to me that the problem lies in your presumption that courts have jurisdiction over records. They don't - courts have jurisdiction over people. Thus, if the court has jurisdiction over the doctor, then the doctor can store the records on the moon, and they must still respond to and/or comply with the subpoena.

My understanding of HIPAA is that the only part of HIPAA that applies is that request forms must be HIPAA-compliant. Otherwise, HIPAA is so permissive that only state laws apply.

Regarding 'conflict of laws' and privilege, my understanding is that the court will apply the privilege applicable to it's jurisdiction - which will almost always be where the patient lives.