Criminal Defense Lawyers

Got a Grand Jury Subpoena for Patient Records

A grand jury subpoena for patient records means a federal criminal investigation is underway. Not a civil matter. Not a regulatory review. A criminal investigation with prosecutors who are building a case against someone. The question you need to answer immediately is whether that someone is you.

You may think this is about a patient. You may think you’re just being asked to provide records as a routine matter. You may think HIPAA protects you from having to comply. None of that is true. A grand jury subpoena is a command from a federal grand jury to produce documents or testimony, and it carries the full weight of the federal criminal justice system behind it. Ignoring it is not an option. Mishandling it can destroy you.

What most healthcare providers don’t understand is that grand jury proceedings are secret. That secrecy is designed to protect the investigation. But it also means you have no idea what evidence prosecutors already have, who else has testified, or what theory of the case they’re building. You’re walking into a process where everyone else in the room knows more than you do. That information asymmetry is not an accident. It’s the design.

What This Subpoena Actually Means

Heres the first thing you need to understand. A grand jury subpoena is not a polite request. Its a legal command backed by the threat of contempt of court. If you ignore it, you can be arrested. If you partially comply, you can face sanctions. The government has enormous power here, and there using it.

Grand juries sit for 18 months. There composed of 16 to 23 citizens who meet regularly to hear evidence presented by federal prosecutors. There job is to decide whether theres enough evidence to indict someone for a federal crime. At least 12 members must vote to indict. And heres the uncomfortable truth that matters most – federal grand juries almost always return an indictment when prosecutors ask for one. The phrase “ham sandwich” exists for a reason.

If a prosecutor is presenting evidence to a grand jury and has subpoenaed your records, they beleive those records contain evidence relevant to a criminal case. That doesnt mean your the target. But it also dosent mean your not.

The Three Categories – And Why You Don’t Know Which One You Are

Federal prosecutors categorize everyone involved in an investigation into three groups. Target. Subject. Witness. Your status determines everything about how you should respond. And heres the paradox – prosecutors are not required to tell you which category your in.

A target is someone the prosecutor beleives has committed a crime and intends to indict. If your a target, indictment is near certain. The investigation is essentialy complete. There gathering final evidence or testing your willingness to cooperate.

A subject is someone whose conduct is within the scope of the investigation but who hasnt been definitively identified as a criminal actor. Subjects are in limbo. They could become targets. They could become witnesses. It depends on what the investigation reveals.

A witness is someone who has information relevant to the investigation but is not suspected of wrongdoing. This sounds safe. It isnt. Witnesses who over-explain, who volunteer information, who make innocent mistakes under oath – they become subjects. Subjects become targets. Your status can shift at any moment based on what you say or produce.

Department of Justice policy requires prosecutors to advise targets of there rights before grand jury testimony. But witnesses? No such requirement. You could walk into that grand jury room thinking your helping with an investigation, not knowing that your actualy the one being investigated.

The Document Production Trap

If the subpoena asks for documents, you might think the safest approach is to hand over everything. Complete cooperation. Nothing to hide. Heres why thats a catastrophic mistake.

When you do a “document dump” – producing every file remotely related to the subpoena – your not being cooperative. Your actualy being non-compliant. The subpoena asks for specific documents. Producing mountains of additional material is considered unresponsive. And every extra document you provide is now in the governments hands permanantly.

Heres the consequence cascade that destroys healthcare providers. You recieve a subpoena for records related to a specific patient. You think, “Ill be thorough and provide everything just to be safe.” You produce five years of billing records, correspondence, treatment notes for that patient and similar patients. The prosecutors now have material they never asked for. They find something concerning in those extra documents. That becomes the basis for additional charges in this investigation or a completely different investigation years from now.

Once a document is produced to a grand jury, its in government hands for good. It can be used to charge you, your partners, your employees, anyone connected to the practice. Even if a document seems harmless in the current context, it could resurface in a future matter. The billing records you volunteered to show cooperation might become healthcare fraud evidence two years later.

Produce exactly what the subpoena requests. Nothing more. Nothing less.

Why HIPAA Won’t Save You

Many healthcare providers assume HIPAA protects patient records from disclosure. After all, patient privacy is the entire point of the law. But heres the irony – HIPAA actualy permits disclosure in response to a grand jury subpoena.

The HIPAA Privacy Rule assumes that a judge or magistrate issuing a grand jury subpoena has already considered patient privacy rights. Because grand jury proceedings are confidential, HIPAA treats the disclosure as adequitly protected. You cannot refuse to produce records on HIPAA grounds. Attempting to do so wont work, and it may make you look like your obstructing the investigation.

There is one nuance. Certain specially protected records – mental health treatment, substance abuse treatment, HIV/STD treatment – may have additional protections under state law. If the subpoena asks for these types of records, you should raise the issue with legal counsel. But for standard medical records, HIPAA is not your shield. Its actually the governments door.

The Perjury Trap They’re Setting

If the subpoena requires you to testify before the grand jury – not just produce documents – your facing a different kind of danger. The perjury trap.

Heres how it works. Prosecutors already have evidence about certain facts from other sources – documents, other witnesses, surveillance, financial records. They already know the answers to the questions there going to ask you. There not seeking information. There testing wheather you’ll tell the truth.

If you misremember a detail. If you estimate a date incorrectly. If you summarize a conversation in a way that differs from what another witness said. Any of these “innocent” mistakes can become perjury charges. And heres the truly terrifying part under 18 USC §1623(c) – the government can prosecute you for giving two irreconcilably contradictory statements under oath, and they dont even have to prove which statement was false.

Think about that. If you testify before the grand jury and say one thing, then get called back months later and say something slightly different, thats potentially a federal crime. The prosecutors dont have to prove either statement was a lie. They just have to show the statements cant both be true.

Thats why repeated testimony sessions are so dangerous. Some prosecutors intentionaly call witnesses back multiple times, hoping to create inconsistencies. Every time you testify is another opportunity to contradict yourself.

The Pre-Grand Jury Interview Trick

Heres a system revelation that most people recieving grand jury subpoenas dont know. The letter accompanying your subpoena may ask you to appear one or two hours early to interview with federal agents before your grand jury testimony. This sounds routine. It isnt.

Pre-grand jury interviews are not legally required. The government has no authority to compel them. But there not going to tell you that. There counting on you showing up early, thinking its part of the process, and talking to agents without the protections that apply inside the grand jury room.

Inside the grand jury room, you can invoke the Fifth Amendment. You have certain procedural protections. In a pre-grand jury interview with FBI or IRS agents? None of that. Your making statements that can be used against you, and any inconsistency between what you say to the agents and what you later say to the grand jury becomes potential perjury evidence.

Heres the consequence cascade. You show up early as requested. You chat with the agents. You try to be helpful. You describe events in a casual, conversational way. Then you go into the grand jury room. Under the pressure of formal testimony, you describe the same events slightly differently. You didnt lie either time. But now there are two different versions of your statement. One from the interview. One from testimony. And that gap is what they were looking for.

What Happens If You Destroy Documents

The moment you recieve a grand jury subpoena, a legal obligation attaches to every document that might be relevant. Document preservation becomes mandatory. Destruction becomes a federal crime.

Under 18 USC §1519, knowingly destroying documents to obstruct a federal investigation carries up to 20 years in prison. Under 18 USC §1503, obstruction of justice carries similar penalties. These are not theoretical risks. These are commonly charged federal crimes that can apply even if your innocent of whatever the underlying investigation is about.

Heres what catches healthcare providers. Routine data purges. Automatic email deletions. Standard records retention policies that were running before the subpoena arrived. Once the subpoena is served, all of that must stop immediatly. If your practice has an automated system that deletes emails after 90 days, you need to suspend it. If old records get shredded on a schedule, you need to halt that process.

Even accidental destruction can create legal exposure. Even destruction of documents that turn out to be irrelevant can trigger charges. The government dosent have to prove the destroyed documents would have helped there case. They just have to prove you destroyed them after you knew about the investigation.

The Fifth Amendment Dilemma

The Fifth Amendment protects you from being compelled to testify against yourself. But this protection is narrower then most people think, and it creates a dilemma with no good answer.

First, the Fifth Amendment applies to testimony – your words. It does NOT protect you from producing documents. If the subpoena demands records, you generaly must produce them even if they incriminate you. There are exceptions for certain personal papers and documents you created for yourself, but business records, patient files, billing records – all of that must be produced.

Second, invoking the Fifth Amendment has consequences outside the criminal context. In civil proceedings, courts can draw an adverse inference from your silence. If your state medical board investigates you simultaneously – which is common when theres a federal case – your refusal to answer questions can be held against you. The First Circuit in Arthur v. Stern held that a medical board was entitled to draw adverse inference from a providers silence while criminal charges were pending.

So your facing an impossible choice. Testify and risk perjury charges from innocent misstatements. Invoke the Fifth and have that silence used against you in your medical board case. Either path has serious consequences. There is no option that protects you completely.

What You Should Do Right Now

The moment you recieve a grand jury subpoena, stop everything else. This is now your priority. Time matters. Mistakes made in the first 48 hours can be impossible to undo.

First, do not contact anyone who might be involved in the investigation. Do not call the patient whose records are subpoenaed. Do not call collegues who might be witnesses. Any communication could be characterized as witness tampering or obstruction.

Second, preserve everything immediatly. Suspend all automatic deletion systems. Halt records destruction schedules. Make copies of relevant files and store them securely. Document the chain of custody for every record.

Third, contact a federal criminal defense attorney immediatly. Not your medical malpractice lawyer. Not your general counsel. A criminal defense attorney with specific experience in federal grand jury matters. You need someone who understands how federal investigations work, who knows the prosecutors in your district, and who can help you navigate the traps that are being set.

Do not try to handle this yourself. Do not assume your just a witness. Do not assume cooperating fully will protect you. Every assumption you make could be wrong, and the consequences of being wrong are measured in years of prison time.

The attorney can help you understand the scope of the subpoena. They can negotiate with prosecutors if the demands are overbroad. They can advise you on wheather to invoke the Fifth Amendment. They can prepare you for testimony if testimony is required. They can protect you from the pre-grand jury interview trap.

The Reality Nobody Wants to Hear

Heres the uncomfortable truth at the center of this situation. Federal grand juries almost always indict when prosecutors want them to. If a prosecutor has gotten far enough to subpoena your records, there building a case. And if there building a case, someone is going to get charged.

That dosent mean its you. You may truly be just a witness. Your records may be peripheral to an investigation focused on someone else. But you wont know that until the investigation concludes. And by then, every mistake you made along the way – every over-produced document, every inconsistent statement, every attempt to be “helpful” – will be part of the record.

Cooperation feels like the right instinct. It feels like showing you have nothing to hide. But cooperation without legal guidance is how witnesses become targets. Its how innocent misstatements become perjury charges. Its how documents you thought were harmless become evidence in future prosecutions.

Get an attorney. Respond carefully. Produce exactly what is required and nothing more. Protect yourself at every stage. A grand jury subpoena is not the end of your career. But mishandling it could be.

How Grand Jury Investigations Actually Work

Understanding the mechanics of grand jury investigations helps you understand why every decision you make matters. This isnt a trial. There are no defenses being presented. Theres no judge ruling on evidence. Its a one-sided process designed to give prosecutors enormous power to investigate.

Grand juries meet on schedules determined by there district. Some meet every week. Some every two weeks. Federal prosecutors present evidence and testimony. The grand jurors listen and ask questions. At the end of sessions, they vote on wheather to indict. If 12 or more of the 16-23 jurors vote yes, an indictment is issued. A “true bill” means charges are coming.

You have no right to be present during grand jury proceedings. You have no right to know what evidence is being presented against you. You have no right to present your own evidence or cross-examine witnesses. If your called to testify, you can have a lawyer – but your lawyer cant come into the grand jury room with you. They have to wait outside. You can step out to consult them, but then you have to go back in alone.

This process can continue for months. Grand juries sit for 18-month terms. Investigations can span most of that time. The prosecutors are under no obligation to move quickly. There building there case methodicaly, and you have almost no visibility into what there doing.

The Subpoena Duces Tecum vs. Ad Testificandum

Grand jury subpoenas come in two forms, and you need to understand which one you recieved. The distinction matters.

A subpoena duces tecum commands you to produce documents. This is what most healthcare providers recieve first. The subpoena will specify what records are requested – patient files, billing records, correspondence, electronic communications. Your obligation is to produce the specified documents by the deadline.

A subpoena ad testificandum commands you to appear and testify before the grand jury. This is more dangerous. Now your not just providing records – your answering questions under oath. Everything you say becomes sworn testimony. Inconsistencies become perjury. Misstatements become lies. The protections are minimal, and the risks are enormous.

Sometimes you recieve both. Sometimes you recieve one first and then the other later. If the prosecutors start with documents and then call you to testify, thats often a sign that they found something in those documents they want to ask you about. Your answers will be compared against the documentary record. Any discrepancy will be scrutinized.

The Target Letter – When It Arrives, Indictment Is Coming

If you recieve a “target letter” from federal prosecutors, the investigation has reached its final stage. A target letter is official notification that you have been identified as a target of the grand jury investigation. It means prosecutors beleive they have substantial evidence that you committed a federal crime.

Target letters typically advise you of your Fifth Amendment rights and offer the opportunity to appear before the grand jury to tell your side. This sounds like an opportunity. It is generaly a trap. Prosecutors are not offering you a chance to exonerate yourself. There offering you a chance to create additional evidence – your own testimony – that they can use against you.

If you recieve a target letter, indictment is essentialy certain unless something changes dramaticaly. The investigation is complete. The prosecutors have decided to charge you. The grand jury proceeding is now a formality. What you should do at that point is prepare for indictment, not try to talk your way out of it.

Some attorneys advise clients to proffer to prosecutors after recieving a target letter – essentialy to offer information in exchange for consideration. This is a complex strategic decision that depends entirely on your specific circumstances. It should never be done without experienced counsel. And it should never be done under the assumption that talking will make charges go away.

The Timeline That Works Against You

Grand jury investigations can take years. The 18-month grand jury term can be extended. New grand juries can be empaneled to continue investigations that started with previous juries. Statute of limitations rules for federal crimes can extend the deadline for prosecution significantly.

This timeline works against you in multiple ways. First, you may not know your under investigation for a long time. The first subpoena you recieve might come months or years into an investigation that started without your knowledge. Second, the longer an investigation runs, the more opportunity for your memory to fade while documentary evidence remains pristine. You might not remember details from three years ago, but your records will show exactly what happened, and any discrepancy between your recollection and the documents becomes a problem.

Third, the psychological toll is immense. Living under the cloud of a federal investigation, not knowing wheather charges are coming, watching months turn into years while your career hangs in the balance – this is exactly what the government wants. The pressure is designed to encourage cooperation. Its designed to make targets give up and plead guilty rather then endure the uncertainty.

Get legal representation now. Dont wait. Dont assume this will resolve itself. A grand jury subpoena is the beginning of something serious. Treat it that way from day one.