An unpublished opinion from the Court of Appeals often garners little attention. The fact it is unpublished means it is not "controlling legal authority". The Court's refusal to make it a published opinion suggests the case did not resolve any issues of importance.
However, even if a case is unpublished, trial courts and practicing attorneys will look to its holding for assistance in interpreting the law and attempting to predict how the Court of Appeals might rule in a similar case. For this reason, the case of Powell v. Cartret deserves some attention.
This case is significant for its reminder that Rule 5 of the North Carolina Rules of Civil Procedure applies to all "other papers required or permitted to be served" on a party. This includes, most notably, objections to a subpoena. The case is also significant in its apparent misapplication of Rule 45 of the North Carolina Rules of Civil Procedure, and the potential implications on the physician-patient privilege.
Have our Rules of Civil Procedure become outdated given the increasing use of technology in the modern practice of law? Powell v. Cartret sheds some light on this question.
But First, the Facts
In Powell v. Cartret, the plaintiffs filed a breach of contract action against the defendant. The defendant filed a counterclaim on behalf of himself and his company. The plaintiffs served the company with a subpoena for a corporate deposition to take place in August 2019. In other words, the plaintiffs asked the company to designate some individual to sit for a deposition and answer questions on its behalf. The defendant, as the owner of the company, was presumably the person that would sit for the deposition.
However, the defendant informed the plaintiffs via email that the defendant would be unable to sit for a deposition until January 2020 due to a medical condition. Attached to the email was a letter from the defendant's doctor stating the defendant was to be excused from work until January 2020 due to "uncontrolled health conditions related to job stress."
Presumably unsatisfied with this, the plaintiffs sent a subpoena to the defendant's doctor for the defendant's complete medical file. In response to this, the defendant's attorney sent a letter to the doctor in which the attorney advised the defendant did not consent to the doctor producing a copy of the defendant's medical file. The doctor then sent an email to the plaintiffs in which he advised of the defendant's objection and provided a copy of the defense attorney's letter.
The plaintiffs then filed a motion to compel the doctor to comply with the subpoena. The trial court ruled there was no written objection to the subpoena and ordered the doctor to produce the defendant's medical file.
The Court of Appeals' Opinion
The Court of Appeals held the trial court correctly determined there had been no written objection to the plaintiffs' subpoena, and for this reason, the doctor's compliance was required.
In support of this, the Court noted that Rule 45 of the Rules of Civil Procedure allows someone subject to a subpoena to object to the subpoena in writing within ten days of service.
So, what about the doctor's email? What about the defendant's letter objecting to the release of his medical records? What about the fact that this letter was attached to the doctor's email? Did none of these qualify as a "written objection"?
Unfortunately, they did not.
Know your rules
As the Court correctly noted, Rule 45 allows someone to "serve" a written objection to a subpoena. Rule 5 of the Rules of Civil Procedure provides for a few specified methods of "service." At the time of the trial court's ruling, those methods included hand delivery, mail, or fax, but they did not include email.
More importantly, Rule 5 requires a "certificate of service" to accompany "every paper required to be served".
The doctor nor the defendant sent the plaintiffs a written objection by hand delivery, mail, or fax. A certificate of service did not accompany the "written objection" that was sent, so no objection was "served."
More from the Court and More Questions
The Court really did not need to say anything more. Rule 45 says a written objection must be "served," and no written objection was served. End of story, right?
The Court went on to mention a lot about who has standing to object to a subpoena and how the physician-patient privilege can be waived. These additional musings from the Court could be problematic.
Specifically, the Court held that the doctor did not have the right to object to the subpoena based on the physician-patient privilege because that privilege belongs to the patient and not the physician. Additionally, the Court held the defendant impliedly waived the physician-patient privilege by failing to object to the subpoena.
But the defendant did object, didn't he?
How could the Court determine the defendant impliedly waived the physician-patient privilege when the defendant wrote a letter to his doctor specifically stating he did not consent to the release his medical records?
That's a good question.
Our courts have previously held the physician-patient privilege can be impliedly waived when the patient fails to object to discovery that requests disclosure of the privileged information. However, in this case, the Court took the defendant's failure to comply with a procedural technicality (i.e., the failure to properly serve his objection) as a waiver despite the defendant's clear objection to such a waiver.
Whether the physician-patient privilege has been impliedly waived is determined based on the facts and circumstances of each case. It is difficult to understand how the defendant in this case could be said to have impliedly waived the privilege when he expressly objected to his records being produced (even if he failed to follow the proper procedural formalities in doing so).
And why can't the doctor object?
It is also extremely troubling that the Court held the doctor did not have standing to object based on the physician-patient privilege. Why is that you might ask? Well, because this is directly contradictory to what Rule 45 says.
As noted above, Rule 45 permits someone who has received a subpoena to object within ten days of service. The Rule then sets forth five bases for objection. These include: "The subpoena requires disclosure of privileged or other protected matter and no exception or waiver applies to the privilege or protection.
Now, who is receiving a subpoena? Not a party to the lawsuit. Parties seek production of documents through discovery, not subpoenas. Subpoenas are used to obtain documents from third parties. In other words, a patient is generally not going to object pursuant to Rule 45. Rather, it would be the provider making that objection.
Thus, Rule 45 expressly permits a provider to object to a subpoena on the basis of privilege.
The Court correctly noted that the physician-patient privilege belongs to the patient, and therefore, the patient has the burden of asserting that privilege. But, the converse of this is also true: only the patient can waive the privilege.
Rule 45 seems to have contemplated this last point in expressly allowing parties subject to a subpoena to object to the subpoena based on privilege to which "no exception or waiver applies." In other words, unless and until the patient waives the privilege, a third party should not be compelled to produce records subject to that privilege. If a patient has written to his provider and stated that he does not consent to the release of his medical records, the privilege has not been waived.
Implications of this Case Moving Forward
More than anything else, this case is a good reminder that Rule 5 applies to all "papers required to be served" and is unyielding in its requirement for a certificate of service. Since this case was decided, Rule 5 was amended to allow service by email. Presumably, that would not have changed the outcome in this case given the doctor did not include a certificate of service with his email.
You would not be alone in questioning the necessity of a certificate of service to accompany an email. Do we really need a certificate to confirm that service was accomplished by email when the email shows the date and recipients? In the same regard, is a certificate of service necessary if service is by mail showing the date and recipients on the letter, or if service is by fax?
What exactly is the point of a certificate of service?
Interestingly, the Federal Rules of Civil Procedure (upon which our Rules are modeled) only require a certificate of service if a paper is filed with the court. In other words, the court wants certification from the attorney that the paper was sent to the other party, in addition to being filed with the court. That makes sense.
But an objection to a subpoena is not filed with the Court. So, what is the purpose under our Rules for certifying to a party to whom you sent an email that you sent them the email? Arguably, there is none. This seems even more silly when the certificate of service accompanying your email is sent as an attachment to your email. In essence, you are certifying to the recipient of your email that you emailed them.
"Hey man, you got my email right?"
Clearly, this requires some attention from our legislature. There should not be such a useless formality in the Rules. Especially when the failure to adhere to that formality could result in the waiver of important legal rights.
In the meantime, attorneys facing a subpoena (whether directed to their client or to a third party holding privileged documents or information of their client) would be well served to re-read Rules 5 and 45 and include a certificate of service with their written objections. No matter how silly that may seem.
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