210.2Subpoena to Produce Documents

Obtaining Documents or Other Items Located Outside North Carolina

Attorneys may not use an ordinary Rule 45 subpoena duces tecum to compel an out-of-state witness to produce records. See North Carolina State Bar, Formal Ethics Opinion 2 (2010) (also stating that attorney may not use the records if they were improperly obtained from out-of-state by using such a subpoena); but see North Carolina State Bar, Formal Ethics Opinion 7 (2014) (noting that an out-of-state entity can choose to voluntarily comply with a North Carolina subpoena, but the subpoena must be accompanied by "a statement/letter explaining that the subpoena is not enforceable in the foreign jurisdiction, the recipient is not required to comply with the subpoena, and the subpoena is being provided solely for the recipient’s records").

Instead, a prosecutor can secure the production of documents or other tangible items located outside of North Carolina by obtaining a subpoena through the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings. See G.S. 15A-813; State v. Tindall, 294 N.C. 689 (1978); State v. Cyrus, 60 N.C. App. 774 (1983). This statute allows a judge in North Carolina to issue a “certificate” under the seal of the court which states that the person is needed as a witness in a court proceeding and the number of days that the person is needed. See AOC-CR-901M (Certificate for Attendance of Out-of-State Witness). If appropriate, the certificate may also identify the person as a “material witness,” and make a recommendation that he or she be taken into custody and delivered to an officer of this state to ensure the witness’s attendance. This certificate can then be presented to an out-of-state judge in a court of record for the county where the witness is found, and that court will issue the subpoena.

Although this statute only directly addresses issuing a subpoena for the attendance of witnesses, several states have found that “in view of the remedial purpose of the Act and also in view of the broad construction placed on the term ‘subpoena’ in similar statutes, it is clear that the Act authorizes the issuance of a subpoena duces tecum.” Jay M. Zitter, Annotation, “Availability under Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings of Subpoena Duces Tecum,” 7 A.L.R.4th 836, 837 (1981).

Production of Hospital Records 

If a custodian of hospital medical records (as defined in G.S. 8-44.1) has been subpoenaed to appear for the sole purpose of producing records in his or her custody and not also to testify, the custodian may elect to tender the records to the court in which the action is pending instead of making a personal appearance. The custodian may tender the records to the court by registered or certified mail, or by personal delivery on or before the time specified in the subpoena. The custodian must certify by affidavit that the records are true and correct copies, and that the records were made and kept in the regular course of business or, if no such records were kept, an affidavit to that effect. N.C. R. Civ. P. 45(c)(2).

Rule 45(c)(2) states that if records are delivered under this subsection, the records are admissible in the proceeding without further authentication or certification unless they are otherwise objectionable. The rule also states that if the records are hospital medical records, they are not open to inspection “except to the parties to the case or proceedings and their attorneys in depositions, until ordered published by the judge at the time of hearing or trial,” and nothing in Rule 45(c)(2) shall be construed as waiving the physician-patient privilege or requiring any privileged communication to be disclosed. Id.

Since the exception which allows parties and attorneys to inspect and copy these records is arguably limited to doing so “in depositions,” the prosecutor should obtain the court’s permission before inspecting or copying the records in any other context. Hospital records custodians will typically seal mailed-in records and mark them as confidential, and clerks of court who receive these records may not be willing to break the seal and make them available for review by the parties unless and until the court specifically orders it. Furthermore, attorneys have been subjected to sanctions for removing and viewing confidential medical records that were mailed to the court before the court ordered their disclosure. See, e.g., Bass v. Sides, 120 N.C. App. 485 (1995) (without obtaining judge’s permission, attorneys removed and reviewed confidential medical records that records custodian had sealed and provided to clerk of court in response to subpoena – judge ordered offending attorneys to pay legal fees totaling approximately $7,000 and prohibited attorneys from using the records at trial). 

Production of Other Sensitive or Confidential Records

Special procedures may be necessary to obtain other types of documents relating to sensitive or confidential matters such as substance abuse treatment, mental health treatment, health department files, EMS reports, and school records. For example, if the state is seeking medical records regarding the victim’s treatment at the hospital for injuries caused by the defendant, the state should either obtain the victim’s consent and include a signed authorization form along with the subpoena for records, or else obtain a court order authorizing disclosure of the records; otherwise, the hospital may respond that it cannot comply with the subpoena due to HIPAA/privacy restrictions.

For more information, see the related discussion on this topic in the Pretrial entry on State's Discovery Rights (Section B, "Other Records From Third Parties").

The following online resources are written from the perspective of the agency or entity being called upon to respond to the subpoena for records, but they are nevertheless helpful for understanding the level of authorization or consent that a prosecutor may need to acquire before sending out a subpoena:

1. Jill Moore, Responding to Requests for Minors’ Protected Health Information, UNC School of Government (May 2013)

2. John Rubin and Aimee Wall, Responding to Subpoenas for Health Department Records, Health Law Bulletin 82 (September 2005)

3. John Rubin, Subpoenas and School Records: A School Employee’s Guide, School Law Bulletin(Spring 1999)

4. John Rubin and Mark Botts, Responding to Subpoenas: A Guide for Mental Health Facilities, 64 Popular Government 4 (Summer 1999)

A complete description of all the issues that could arise in obtaining every possible type of document or tangible thing is beyond the scope of what can be covered in this entry. For a more detailed discussion regarding obtaining various types of documents and records that frequently arise in criminal cases, please see Robert Farb, Arrest, Search, and Investigation in North Carolina (5th ed. 2016), as noted below:

1. Access to stored electronic communications: page 218
2. Access to stored messages in voice mailbox: page 219
3. Access to phone records: page 221
4. Access to bank records: page 222
5. Records in federally assisted alcohol or substance abuse programs: page 223
6. Documents in possession of news media, writers, and publishers: page 223.

See also Jeffrey B. Welty, Digital Evidence (2015), available to order in paper format here.