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Copy services have language they use on subpoenas based on
the kind of records you
order. Often that will get you the records you need. But the more specific your
needs, the
more you need to specify what you want. The records you want may be
kept separate, or
access may be restricted, or they may be in different file locations. You may
need special
releases [see How to Obtain Psychiatric Records]
.
Wording is Everything
At the beginning of my career, I was sent by a senior litigation partner to the
Public Utilities
Commission in Los Angeles, to attend a deposition. I found lawyers for many oil
companies
present, sitting around a huge conference table, while the PUC attorney
questioned corporate
executives, one after the other, trying to find out what the different oil
companies called
certain types of records, and in what parts of the company they were located,
and who
were the people in the company who might have further information on where to
find certain
types of records. All of this was in preparation for issuing subpoenas in a
huge case
investigating the oil companies. I learned from that experience how important
the wording is.
In most workers’ compensation cases, requests for medical records may seem
pretty
straightforward. But what if you want the correspondence the adjuster sent to
the medical
facility, which may or may not be in the patient's chart? Or general
correspondence between
the insurance company and the medical provider network? You will need to write
the
requests yourself, being very specific about what you are seeking.
Employment Records – look beyond the personnel file
Many years ago, when I was a defense attorney, a branch manager on the day of
trial
pulled out a bunch of papers, and thrust them towards me with great excitement.
“It’s all in
here, all of the notes I collected over the years that show what an incompetent
employee he
was! I made sure they were safe by keeping them in my desk.”
The problem was, at the time we had responded to a subpoena with the personnel
file,
signing under penalty of perjury that we were providing all records on that
employee, I was
totally unaware that there were separate notes kept in the manager's desk. I
could not put
the witness on the stand, and we had to settle for a large amount.
As employment issues become more important in the workers’ compensation
litigation
process, there will be a greater need to subpoena personnel records. Make sure
your
request gets into the nooks and crannies of the company. The bigger the
company, the more
likely it is that there are records related to the applicant that are not in
the personnel file.
Take time to do it right – it may be your only chance
Find out as much as you can, either by way of deposition or private interviews,
where the
records are. When preparing your subpoena request, take the care that you would
in a civil
suit when preparing requests for production or interrogatories.
See the Samples Section for some sample language to
put on subpoena duces tecum
requests. Send us any sample language you have found effective, so we can add
it to our
collection :MHarrisLaw@earthlink.net.
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