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UTSA Procedures for Processing Subpoenas and Depositions by Written Questions

Upon receipt of a subpoena, Deposition by Written Questions (DWQ), or request for records by way of a signed authorization permitting release of records, the receiving Department must notify the Office of Legal Affairs Legal Coordinator (Aaron Faris) immediately by email or by phone at Ext. 4105.  The original copy of the subpoena and all attached documents must be hand-delivered, on the day of receipt, to Legal Affairs for review to ensure that the subpoena is proper and meets legal requirements.

Subpoenas are legal documents compelling us to produce University records.  We must process them in a timely manner.  Generally speaking, we do not have the option of not responding to or ignoring a subpoena.

Student Education Records Subpoenas

Subpoenas requesting student education records should be and typically are served on the Registrar's Office, as the Director of Registration and Records (Ginnifer Gee) has been delegated signature authority in responding on behalf of The University to subpoenas requesting student education records.  The Registrar’s Office processes the response (i.e., notify student per FERPA regulations, gather responsive records, execute/notarize any attached DWQs and/or Affidavits, and serve response), and will coordinate with other UTSA individuals/departments that have possession, custody, control or access to responsive records.  The Registrar’s Office should provide Legal Affairs with a copy of the executed DWQ and/or Affidavit for its files.  Do not send Legal Affairs copies of the actual records produced.

Student Medical Records Subpoenas

The Director of Registration and Records has also been delegated signature authority in responding on behalf of The University to subpoenas requesting student medical records (including counseling records).  The Registrar’s Office will coordinate with Student Disability Services, Counseling Services, Student Health Services, and/or or other departments as needed, to gather records and answers to any DWQs.  The office having custody or control of the specific medical records should prepare answers to any DWQs, sign and notarize the answers, and HAND-DELIVER them along with the responsive medical records, in a sealed envelope marked confidential, directly to the Director of Registration and Records for review and inclusion with The University’s official response to the subpoena.  The Registrar’s Office should provide Legal Affairs with a copy of the executed DWQ(s) and/or Affidavit for its files.  Do not send Legal Affairs copies of the actual records produced.

Employment Records Subpoenas

Subpoenas requesting employment records should be and typically are served on Human Resources.  The AVP of Human Resources (Barbara Baran-Centeno) has been delegated signature authority in responding on behalf of The University to subpoenas requesting personnel records.  Human Resources processes its response by gathering responsive records, executing/notarizing any attached DWQs and/or Affidavits, and serving the response to the requestor.  Human Resources should provide Legal Affairs with a copy of the executed DWQ and/or Affidavit for its files.  Do not send Legal Affairs copies of the actual records produced.

Often departments other than Human Resources possess documents responsive to subpoenas for personnel records.  Legal Affairs will coordinate with multiple UTSA individuals/departments that have possession, custody, control or access to responsive records (such as payroll records, employee medical records, departmental personnel files, etc.).  The office having possession, custody or control of the specific records should prepare answers to the DWQs and HAND-DELIVER them along with any responsive records, in a sealed envelope marked confidential, directly to the Legal Coordinator in Legal Affairs.  Legal Affairs will then complete the DWQs and/or Affidavit and return them and any responsive records to the requestor.

Other Record Subpoenas

Subpoenas for other types of records will generally be processed through the Office of Legal Affairs.  Legal Affairs will coordinate with multiple UTSA individuals/departments that have possession, custody, control or access to responsive records.  The office having possession, custody or control of the specific records should prepare answers to the DWQs and HAND-DELIVER them along with any responsive records, in a sealed envelope marked confidential, directly to the Legal Coordinator in Legal Affairs. Legal Affairs will then complete the DWQs and/or Affidavit and return them and any responsive records to the requestor.

Processing Subpoenas/Records Requests Generally

As stated above, when an individual/department of The University is served with a subpoena, Deposition by Written Questions (DWQ), or request for records by way of a signed authorization permitting release of records, the original of the subpoena and all attached documents must be hand-delivered to the Office of Legal Affairs on the day of receipt.  Legal Affairs reviews the subpoena to ensure that it is proper and meets legal requirements.  Copies are then provided to the custodians of records that will be responsible for processing the request.

Notice to the Student.  If the subpoenaed records involve student education records, written notice, including the date records will likely be produced in response to the subpoena, must be sent to the student who is the subject of the subpoena (see FERPA, 34 C.F.R. 99.31(a)(9)(i)-(ii)) before any records are produced.  An exception to this rule is made when the records are subpoenaed through a criminal grand jury proceeding (no notice should be sent in this instance) (see FERPA, 34 C.F.R. 99.31(a)(9)(ii)(A)-(B)).  This notice should be sent, via regular mail and via certified mail, return receipt requested, within one day of service/receipt of the subpoena.

Requests for non-student/education records are not affected by FERPA rules, and no notice is required to be given to the person whose records are being requested.

Calculating Response Deadline.  Both state and federal laws prescribe a “reasonable time to respond,” but do not give an exact number of days which are considered “reasonable.”  However, every effort must be made to respond to subpoenas either by the date listed on the subpoena, or within 10 business days from service/receipt of the subpoena.  The custodian(s) should calendar the deadline to ensure that responsive records are produced by the deadline.

Answering the DWQs.  Answers to the DWQs must be returned to the requesting party, even if no responsive records exist (in which case you would respond “no responsive records exist”).  The response and records should be sent back to the requestor via certified mail, return receipt requested, unless the requestor specifies otherwise.

Records Retention.  Each department that produces records in response to a subpoena should keep its own copies of its answers and the records produced.  (However, copies of medical records should never be kept in the academic file maintained by the Registrar.)  These production files must be maintained according to University retention policies.  FERPA specifically states that student record subpoena responses must remain with the student record for as long as the student records are normally maintained (see FERPA, 34 C.F.R. 99.32).

Governing Statutes:

State: Tex. R. Civ. P. 176 – Subpoenas
  Tex. R. Civ. P. 200 – Depositions Upon Written Questions
  Tex. R. Civ. P. 205 – Discovery From Nonparties
  Tex. Civ. Prac. & Rem. Code § 22.002 – Distance for Subpoenas
  Tex. Civ. Prac. & Rem. Code § 22.004 – Fee for Production of Documents
Federal: Fed. R. Civ. P. 45 – Subpoenas
  Fed. R. Civ. P. 31 – Depositions Upon Written Questions
  28 U.S.C.A. § 1821 – (witness fees)
FERPA: 34 C.F.R. § 99.31 (a)(9) – release subject to subpoena or judicial order
  34 C.F.R. § 99.32 – record keeping requirements (Registrar)

 

last revised 8/17/10