A state AG’s subpoena was issued for a prisoner’s medical records, but not in a criminal investigation. Enough cases, especially in this circuit, hold there is a reasonable expectation of privacy in medical records to overcome qualified immunity. In addition, the AG apparently issued the subpoena without lawful authority in the state because there was no investigation going on. The issue is serious enough to require additional briefing. In addition, the parole law’s consent search provision doesn’t apply. Kurtenbach v. Jackley, 2018 U.S. Dist. LEXIS 53208 (D. S.D. Mar. 29, 2018):
Production of information pursuant to a subpoena “is proper if: (1) the subpoena was issued pursuant to lawful authority, (2) the subpoena was issued for a lawful purpose, (3) the subpoena requests information which is relevant to the lawful purpose, and (4) the disclosure sought is not unreasonable.” United States v. McDonnell Douglas Corp., 751 F.2d 220, 226 (8th Cir. 1984). “A subpoena [d]uces tecum issued to obtain records is subject to no more stringent Fourth Amendment requirements than is the ordinary subpoena. A search warrant, in contrast, is issuable only pursuant to prior judicial approval and authorizes Government officers to seize evidence without requiring enforcement through the courts.” United States v. Miller, 425 U.S. 435, 446 n.8 (1976). “The Fourth Amendment provides protection against a grand jury subpoena duces tecum too sweeping in its terms to be regarded as reasonable.” United States v. Dionisio, 410 U.S. 1, 11 (1973) (internal citation and quotation marks omitted).
Under the rules governing federal criminal proceedings, “[a] subpoena must state the court’s name and the title of the proceedings, include the seal of the court, and command the witness to attend and testify at the time and place the subpoena specifies.” Fed. R. Crim. P. 17(a). A subpoena duces tecum “may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates.” Fed. R. Crim. P. 17(c)(1).
A prosecutor has the power to subpoena witnesses and to require the production of documents before a state grand jury. South Dakota law provides “[a] prosecuting attorney may issue subpoenas, subscribed by him, for witnesses within the state, in support of a prosecution, or for such witnesses as a grand jury may direct.” SDCL § 23A-14-2. State law permits the issuance of a subpoena duces tecum. “A subpoena may also command the person to whom it is directed to produce books, papers, documents, or other objects designated therein. A court on motion made promptly may quash or modify a subpoena if compliance would be unreasonable or oppressive.” SDCL § 23A-14-5.
While there may be no specific pre-existing law which expressly declares the conduct of AAG Qausney was unlawful, with the extensive precedent of constitutional and statutory authority recited above, the court must decide whether “in light of pre-existing law the unlawfulness must be apparent.” Ehlers, 846 F.3d at 1008. First, there was no grand jury convened and in session at the time of the issuance of the three subpoenas. Second, the three subpoenas did not direct the healthcare providers to deliver the documentation sought to a grand jury or an active agent of a grand jury. Third, and most important, the three subpoenas were not issued in the name of a court or grand jury. Therefore, the issuance of the three subpoenas was not proper because they were not “issued pursuant to lawful authority.” McDonnell Douglas Corp., 751 F.2d at 226.