Category: Privacy Rights

Show and Tell: Do You Really Have to Disclose Everything to Your Attorney?

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We understand. Nobody wants to sit down with a total stranger and admit all the things that are quite personal to you, especially when you are facing a family crisis.  But remember your conversation with your attorney is privileged. That means you can’t be forced to testify about what you said or the advice your attorney gave you. For better or worse, North Carolina still uses marital fault in certain cases. This may include adultery, substance abuse, domestic violence or other things that might happen when you “hit rock bottom.” There are also secrets that could jeopardize your case, not to mention your credibility as a witness if you end up in court.

We need to know everything for several reasons. One is that we can try to mitigate the damage (i.e., reduce he bad consequences) by advising you how to begin correcting the problem or at least building a better track record. Another reason is that the other parent or your ex will already know way more about the unflattering information than you may think.  This means your ex will tell his or her attorney. If that happens, everyone knows about the compromising position you may find yourself in except the only person who is able to help you maneuver it, your attorney. When the other attorney walks up to you in court and asks you to explain that certain photo, text or other evidence, be ready.

Is Your Life an Open Book? Protective Orders in Civil Discovery

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In family law cases, such as alimony, the division of marital property or child custody and support, your life will often become an open book. Courts discourage trial by ambush. Instead, the courts require people to share significant personal information with each other, the attorneys and the judge. The other party typically has access to your credit card statements, bank records, deeds, mortgage and debt records, pay statements and documentation of rents or any other income you have, retirement and investment records, and tax returns in most cases. This applies both to marital property and separate property.

However, there are times when the court can limit access based on court rules concerning what each person is entitled to get. Civil discovery is a process that allows each of the parties in a lawsuit to ask written questions called Interrogatories to the other party, who must then answer the questions in writing under oath. Civil discovery also includes something called a “Request for Production of Documents and Things.” The law requires the parties to exchange documents requested by the attorneys. A request for “things” might be a request to access a mobile device with videos stored on it. The responses to such a request are also made under oath, including any explanation as to why the item or document is not available or clarification that a request is not applicable.

What Does a Discovery Protective Order Do?

When the judge rules on a motion for a protective order, he or she reviews the discovery requests to decide whether they are necessary or reasonable. If a motion for a protective order is granted by the judge, it “protects” you from having to produce documents/things or answer certain questions. Otherwise, refusal to respond to discovery requests as required without a court order excusing you means that you risk paying the other party’s attorney’s fees, among other penalties. The judge can decide to narrow the scope of what the other person is seeking. Instead of providing five years of bank statements, the judge might decide only three years of records must be produced.

When Discovery Protective Orders Are Used?

A judge might enter a protective order when discovery requests include confidential records like medical records or computer passwords. If parties are arguing about the income and profitability of a business for determining support, or the value of the business as a marital asset for purposes of a marital property case, a protective order might be appropriate to protect other co-owners of a business or the business itself. It can prevent confidential information and trade secrets of the business from being shared with anyone except the other party in the lawsuit, the attorneys and any other appropriate individuals. Sometimes the information requested in discovery is difficult or costly to gather. A protective order can address who pays the cost and even the manner in which the information will be obtained, especially when seeking electronically stored information.

Laws change. This article is current as of 2023.

Child Abuse and Neglect in North Carolina

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By North Carolina statute, anyone who has reason to believe a child is being abused must make a report to CPS (Child Protective Services).  This also applies to suspected neglect or dependency upon the state when a child is abandoned.  The identity of a person who reports suspected child abuse is sealed by the State so that the parent or caretaker of the child will not know who made the report to CPS.  As long as you have a good faith basis to report child abuse, you do not have any legal liability if CPS decides no abuse has occurred. The name of the person reporting is strictly confidential.

The policy of the law is to trigger an investigation into a child’s circumstances so CPS can prevent potential harm to the child, or remove the child from an abusive environment. People sometimes hesitate to report suspected abuse because they feel the parent will be punished.  Reporting doesn’t always result in a finding that abuse or neglect has occurred.  Upon receiving a report of suspected abuse, there is an investigation by social workers and/or other trained and licensed professionals. If the CPS investigation finds evidence there is abuse or neglect, a lawsuit may be filed and the parent will usually be entitled to an appointed attorney to represent him or her in the case. Parents are then given access to resources that give them tools for dealing with their inclination to abuse their child. Punishment is not the goal in these civil (non-criminal) courts. The constitutional rights of parents must be respected, just as they are in criminal cases.

What Counts as Child Abuse?

In a perfect world, there would be a simple definition for child abuse.  But we live in an imperfect world where it is necessary to include lots of examples of abuse as we try to define it. Taken together, this patchwork of situations creates the legal definition of child abuse in our state.  It gives you a flavor of the sort of thing you must report. Fortunately, you don’t have to figure all of that out because it is the task of the NC Department of Social Services through CPS to decide exactly what fits into the definition of child abuse or neglect. All you have to do is err on the side of caution and call CPS when you see abusive behavior or evidence that indicates a child is in danger. An abused child is one whose parent, guardian, custodian, or caretaker:

  • Inflicts serious physical injury by other than accidental means.  This includes an adult allowing someone else to inflict injury on the child;
  • Creates a substantial risk of serious physical injury to the child by other than accidental means (or allows someone else to create that risk);
  • Uses or allows . . .  cruel or grossly inappropriate procedures or cruel or grossly inappropriate devices to modify behavior;
  • Commits, permits, or encourages the commission of various sexual and obscenity offenses;
  • Creates (or allows to be created) serious emotional damage to the juvenile shown by the child’s severe anxiety, depression, withdrawal, or aggressive behavior toward himself or others; or
  • Encourages, directs, or approves of delinquent acts involving moral turpitude committed by the child.

What are the Signs of Child Abuse?

For the signs of suspected abuse, see the list on the NC Department of Social Services web site. If you suspect a child is being abused in Pitt County, call 252-902-1110 during the day, and 252-830-4141 after hours. There is also information about the basics of reporting suspected abuse in NC, offered by the TEDI Bear Children’s Advocacy Center.

Can My Ex Look at My Credit Report?

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The Problem: Hide the Ball

The short answer: No! He or she can’t legally access your credit report without your permission. When I begin representing a client, I suggest he or she pull a recent credit report because that is the only way to identify whose name is on what account. I generally don’t need to see it, but I do need my client to be certain what debts are reflected there so we can address them in court or by settlement. That may be the only way to see if your ex has opened a credit card in your name, or jointly in both names. People are sometimes surprised to discover accounts they were unaware of, opened when the ex signed his or her name on the account application. It is not uncommon for the other spouse to open a post office box so mail does not come to the residence. You probably won’t know about this credit problem unless you look.

Now What?

If you find out your ex has been snooping around looking at your credit report, what can you do? You have various rights pursuant to the Fair Credit Reporting Act, including the right to sue him or her. You may want to consult with a consumer law attorney about the remedies available to you pursuant to that statute, including any claim for attorney’s fees. You can also file a police report. Federal law 15 U.S. Code §1681q “Obtaining information under false pretenses” says: Any person who knowingly and willfully obtains information on a consumer from a consumer reporting agency under false pretenses shall be fined under title 18, imprisoned for not more than 2 years, or both. The Federal Trade Commission has a link for consumers to file complaints. Consider asking the credit reporting agency to place a fraud alert on your account, or have your credit frozen, which protects you from any future activity unless you specifically agree.

While there are many web sites that advertise credit reporting services, you should consider checking your credit on the federally recognized web site where you can access free credit report each year: www.AnnualCreditReport.com  This site permits you to access free credit reports from the three credit reporting, TransUnion, Equifax, and Experian once each year for free. Ideally, you should access one credit report every four months. That way, you can cross reference the data available to you and find any variations on a regular basis all year long.

 

Medical Records in Family Law Cases

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In family law cases, a party may seek medical records for several reasons, perhaps to show whether someone is able to work in child support and alimony cases. Another common reason for requesting them is during child custody case to show whether a parent is physically able to care for a child, or whether a parent is mentally stable.

What Are Medical Records?

Medical records (MRs) are described differently in federal and state laws. The critical starting point is determining what MRs are actually being requested, and for what time period. Examples of MRs include pharmacy records, hospital records, therapy records, and patient files at the doctor’s office. MRs can include other sensitive information about STDs, substance abuse, pregnancy and abortion, and mental health history showing a person was suicidal or involuntarily committed to a mental hospital.

Seeking the Records

MRs are confidential. As such, a patient must generally give consent before MRs are provided to anyone. Attorneys typically request MRs in the civil discovery process, usually by requests for documentation to be produced. An attorney may also issue a subpoena to be served on the other party or to a third party, such as the doctor or the pharmacy.

The Law

MRs are privileged, meaning they are generally protected from being disclosed unless the patient consents or there is a court order requiring disclosure. The patient, doctor or other medical provider may file a motion objecting to the release of the MRs. The party seeking access to MRs then has the burden of proof to show they are “necessary to a proper administration of justice.” NC Gen. Stat. §8-53 et seq. There are federal laws such as HIPAA that hold the medical provider to certain standards, as well as state laws. There are special laws that protect mental health and substance abuse records.

What Can the Judge Do?

In Pitt County, the MRs are usually sealed and held by the clerk of court (or the judge) until the trial. Only if the judge finds the MRs are relevant to the issues in the trial, he or she then moves to the next step of deciding what to do with the MRs.  A judge might review the records in camera, which means privately in his or her office. The attorneys do not have access to the records unless the judges makes a ruling on whether some or all of the MRs are admitted as evidence.

After reading the MRs, the judge can deny or grant the motion to admit them as evidence. Or, the judge might limit the scope of the MRs. For example, the only records given to the attorneys might be for the last six months instead of the three years of records the attorney subpoenaed. For any MRs given to the attorneys, the judge has the authority to require the attorneys shred the records after the case is finished. Judges sometimes order the MRs to remain exclusively with the attorneys, not to be reviewed or copied by the clients. Even if the judge doesn’t require the attorneys to do anything specific with the records, attorneys are still bound by State Bar ethics rules to maintain confidentiality of records.

Is Your Life an Open Book? Quashing Subpoenas

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Subpoenas require witness to appear at the courthouse to testify and/or produce evidence such as “records, books, papers, documents, electronically stored information, or other tangible things.” (NC Subpoena form). Although people sometimes call it squashing, the motion to quash a subpoena has nothing to do with the yellow vegetable with the same name. Instead, it is a motion that can be filed if the person or entity being subpoenaed objects to the request for information and/or the presence of a witness in court or at a deposition. If the subpoena is quashed, that means the judge can render it void, or possibly limit it to make it more reasonable. Family law cases usually involve the spouse, former spouse and other family members as witnesses. But there are also third party witnesses such as teachers, doctors, social workers, neighbors, or co-workers. A witness might also be an alleged sexual partners of a spouse.

What’s Fair Game?

Most of the time in family law cases, the parties in the lawsuit must disclose information about assets, debts, and in some cases, marital fault. Subpoenas in property cases usually mean there are subpoenas issued for bank accounts, vehicle titles, retirement documents and anything that shows there are assets or debts. A co-owner of assets might be subpoenaed for information related to the value of a business.

Marital Fault

If you’re not happy about being subpoenaed by your girlfriend’s ex-husband, is that a ground for filing the motion to quash? Probably not, if her husband is alleging she engaged in an adulterous relationship with you, because that is an allegation of marital fault. Perhaps your credit card statements are also subpoenaed because you met her on a social networking dating web site that will appear on the statement. It might well be fair game too. On the other hand, a judge might grant the motion to quash the subpoena if the case involves the division of marital property, which involves only financial fault, not marital fault involving an intimate sexual relationship.

Medical Records

If your ex has served you with a subpoena to produce your medical records, those records may or may not be required by the judge. Medical records are privileged, meaning the general rule protects you from disclosing them. After all, they document everything from your weight, medications and illnesses, to STDs and possible substance abuse. As with any rules, there are some exceptions. The judge in a child custody case might deny your motion to quash the subpoena because he or she makes a ruling that the best interest of your child overrides privileged medical records. If you have an alcohol addiction, for example, the judge might very well deny the motion to quash the subpoena because your child’s safety is at issue. If you have a pending child support case and you are alleging you are unable to work, the judge probably will require you to provide your medical records, but might limit how far back the records must be provided.

The Rules in North Carolina

Anyone objecting to a subpoena has a legal duty to appear at the time indicated on the subpoena with the requested items unless the judge enters an order saying otherwise. In NC, the subpoena form itself states the protections and lists objections a judge will consider if you make a motion to quash a subpoena. Grounds to file a motion to quash the subpoena include avoiding undue burden or expense complying with it, allowing reasonable time for compliance, disclosing privileged or other protected information and disclosing trade secrets. Subject to a judge’s interpretation, a subpoena cannot be unreasonable or oppressive, and cannot be outside of certain legal procedures. A witness may be “reasonably compensated for the cost of producing the records, books, papers, documents, electronically stored information, or tangible things specified in the subpoena.” (Subpoena form).

Can We Close the Courtroom When I Testify?

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Nobody enjoys court, especially when it involves testifying about personal things such as infidelity in an alimony case or allegations of substance abuse in a child custody trial. Do you have the right to ask the judge to clear the courtroom, closing the trial to everyone except the parties to the lawsuit or their witnesses? Probably not. It is quite rare for a judge in NC to have a proceeding in “closed court.”

The General Rule

In North Carolina family law cases, the general rule is that trials are conducted in “open court.” This means all members of the public have the right to be present in the courtroom during trials, subject to safety concerns such as exceeding the fire marshal’s maximum occupancy in the courtroom. Article 1, Sec. 18 of the Constitution of North Carolina clearly states “All courts shall be open. . .” While people might think of the press being allowed to be present in the courtroom during trials, the right also applies to family law trials. In NC courts, you generally don’t have a right to privacy.

Exceptions to the Rule?

In France v. France, 209 NC App. 406 (2011), the NC Court of Appeals rejected the argument that there was a constitutional right to privacy in custody cases because children are involved. The Court ruled that the constitutional rights of the public to open court proceedings outweighed any privacy rights of the parties. The Court made some exceptions to the general rule, mainly for children in  adoption proceedings or “where a child is testifying about alleged abuse that child has suffered. . .” which would certainly involve testimony of rape, molestation or incest. France at page 417. When you file a family law case such as child custody or alimony, the lawsuit is generated by a document called a complaint, which is filed at the court-house. The on-going documents that are filed in the case, such as counterclaims or motions, are also public record.

Anatomy of a Subpoena

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What is a Subpoena?

Subpoenas are documents that require a witness to appear in court or at a deposition to testify.  A subpoena or subpoena duces tecum (rarely called by that name) may require a witness to provide documents or other evidence, in addition to requiring a witness to appear in court to testify.

What if You Don’t Respond?

A witness must be prepared to testify and/or produce the documents unless and until the judge rules otherwise. A court may hold the witness in contempt of court for failure to comply with a subpoena. A judge has the authority to incarcerate a person who refuses to testify or produce records as required by a subpoena.

The Rules

An attorney (or any interested party) may file a motion to quash (or cancel) a subpoena.  The decision about whether materials must be provided, or if a witness must testify, rests with the judge.  Sometimes judges will rule there are valid reasons to override the objections to a subpoena. This may be because the information subpoenaed is subject to a privilege, such as attorney-client privilege. Other types of special rules might apply to information requested, such as medical records.

Or, a judge can limit what must be released pursuant to the subpoena.  Sometimes judges will ask the person who has the information to “redact” it.  Redacting is taking a marker and blotting out certain information, such as the name of the person who reported suspected abuse of a child to Child Protective Services or social security numbers and dates of birth.  Judges may review the information “in camera” before making a ruling, which means he or she reviews the documentation in his or her office before allowing any of it to be released to the attorneys.

If You Are Served

A subpoena is usually served on someone by sheriff.  Not only can a sheriff hand the paperwork to you, he or she also has the legal authority to serve someone by telephone call. A North Carolina subpoena includes information for witnesses, explaining the duties and rights of a witness.  Call an attorney immediately if you are served, and time is of the essence. A court order is the only way to avoid obligations to testify or produce records.

Examples of reasons a court might enter an order if someone makes a proper motion:

The subpoena fails to allow reasonable time for compliance.

The subpoena requires disclosure of privileged or other protected matter and no exception or waiver applies to the privilege or protection.

The subpoena subjects a person to an undue burden or expense.

The subpoena is otherwise unreasonable or oppressive.

The subpoena is procedurally defective.

If you are served with a subpoena and want to know your rights or you need to file a motion to quash a subpoena, contact an attorney.  Time is of the essence, especially if you were served shortly before the trial date is scheduled.