UTSA Procedures for Processing Subpoenas and Depositions by Written Questions
Upon receipt of a subpoena, Deposition by Written Questions (DWQ), or request for documents by way of a signed authorization permitting release of documents, the receiving Department must notify the Office of Legal Affairs (Aaron Fuller) 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 documents. 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 Records Subpoenas
Subpoenas requesting student records should be and typically are served on the Registrar's Office, as the Director of Registration and Records (Sally Bench) has been designated signature authority in responding on behalf of The University to subpoenas requesting student 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 documents. The Registrar’s Office should provide Legal Affairs with a copy of the executed DWQ and/or Affidavit for its records. Do not send Legal Affairs copies of the actual records produced.
Student Medical Records Subpoenas
The Director of Registration and Records has also been designated signature authority in responding on behalf of The University to subpoenas requesting medical records (including counseling records). The Registrar’s Office will coordinate with Disability Services, Counseling Services, Student Health Services, and/or or other departments as needed, to gather documents and answers to any DWQs. The office having custody or control of the specific medical records should prepare answers to the 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 and/or Affidavit for its records. 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 designated 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 process server. Human Resources should provide Legal Affairs with a copy of the executed DWQ and/or Affidavit for its records. Do not send Legal Affairs copies of the actual records produced.
Often departments other than Human Resources possess documents responsive to subpoenas for employment records. Legal Affairs will coordinate with other UTSA individuals/departments that have possession, custody, control or access to responsive documents (such as payroll records, employee medical records, departmental employee files, etc.). The office having possession, custody or control of the specific records should prepare answers to the DWQs, sign and notarize them, and HAND-DELIVER them, along with any responsive records, in a sealed envelope marked confidential, directly to Aaron Fuller in Legal Affairs. Legal Affairs will then present all responsive documents and answered DWQs to the VPBA for final processing and for return to the process server.
Other Document Subpoenas
Subpoenas for other types of documents will generally be processed by the VPBA (Kerry Kennedy), who has been designated signature authority in responding on behalf of The University to requests for business records. The VPBA will coordinate with other UTSA individuals/departments that have possession, custody, control or access to responsive records (such as workers compensation files, claims files, etc.). The office having possession, custody or control of the specific records should prepare answers to the DWQs, sign and notarize them, and HAND-DELIVER them, along with any responsive records, in a sealed envelope marked confidential, directly to the VPBA for review and inclusion with The University’s official response to the subpoena. The VPBA should provide Legal Affairs with a copy of the executed DWQ and/or Affidavit for its records. Do not send Legal Affairs copies of the actual records produced.
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 documents by way of a signed authorization permitting release of documents, 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 documents involve student 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 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 documents are produced by the deadline.
Answering the DWQs. Answers to the DWQs must be returned to the requesting party, even if no responsive documents exist (in which case you would respond “no responsive documents exist”). If an Official Custodian is preparing an official University response based on DWQ answers from other individuals/departments, the Official Custodian should state “As represented by the attached answer from [individual, department]” at the beginning of each question he answers. The response and documents 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).
Delegated Signature Authority/ Official Custodians of Record (as of January 21, 2005) (Download delegation guidelines)
| student & |
VPSA (Gage Paine) |
|---|---|
| personnel recs: |
AVP, Human Resources (Barbara Baran-Centeno) |
| business recs: |
VPBA (Kerry Kennedy) |
Governing Statutes:
| State: |
Tex. R. Civ. P. 176 – Subpoenas |
|---|---|
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Tex. R. Civ. P. 200 – Depositions Upon Written Questions |
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Tex. R. Civ. P. 205 – Discovery From Nonparties |
|
Tex. Civ. Prac. & Rem. Code § 22.002 – Distance for Subpoenas |
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Tex. Civ. Prac. & Rem. Code § 22.004 – Fee for Production of Documents |
| Federal: |
Fed. R. Civ. P. 45 – Subpoenas |
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Fed. R. Civ. P. 31 – Depositions Upon Written Questions |
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28 U.S.C.A. § 1821 – (witness fees) |
| FERPA: |
34 C.F.R. § 99.31 (a)(9) – release subject to subpoena or judicial order |
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34 C.F.R. § 99.32 – recordkeeping requirements (Registrar) |