Fight ‘Em ‘Til We Can’t

In response to the last post about the proper procedure for obtaining subpoenas duces tecum, a reader raised two great points.

First, if there is HIPAA-protected information involved, the procedure for getting a subpoena duces tecum is entirely different. Although Montana’s Rules of Criminal Procedure don’t mention it, you almost certainly have to meet the requirements of Title 50, Chapter 16, MCA. This is, in fact, what Montana’s Rules of Civil Procedure clearly state. See 25-20-45(a), MCA.

Second, the last post suggested the prosecutors must always go through a judge to get a subpoena duces tecum, as specified in 46-4-301, MCA. Apparently, this law only applies to “investigative subpoenas,” which are those that law enforcement seek prior to the filing of charges. Once charges are filed, prosecutors are apparently in the same land of ambiguity as defense attorneys in trying to determine the proper procedure under 46-15-101 and 46-15-106.

That raises an additional important question: Do prosecutors in your jurisdiction follow the same procedure as you do in order to obtain a subpoena duces tecum?