ORDERS:
ORDER ON SUBPOENA DUCES TECUM
I. Introduction
On February 21, 2003, the State Board of Dentistry (Board) issued a subpoena duces tecum directing
Anonymous Dentist to provide six categories of documents pertaining to five named individuals.
Anonymous Dentist opposed the subpoena and filed a Motion to Quash on February 27, 2003. A
hearing on the motion was held March 4, 2003 with attendance by all parties. After considering the
arguments and the law, the motion is denied but with restrictions placed on the use of the
information by the Board.
II. Analysis
At the hearing, Anonymous Dentist explained that he had none of the documents requested in
categories one through five of the subpoena. Thus, having nothing to disclose in those categories,
Anonymous Dentist does not “oppose” the subpoena as to those categories. However, Anonymous
Dentist opposes the request identified in category 6 which seeks “[a]ny contract for services with
Health Promotions Specialists, LLC.”
Anonymous Dentist makes three arguments seeking to prohibit disclosure of category 6 documents.
First, he argues that the subpoena fails to comply with the reasonable time for compliance provided
by SCRCP Rule 45(b)(1). Second, the subpoena is invalid since it purports to be issued under § 1-23-320(d) when that section requires a “contested case” and no contested case exists in this matter.
Third, the information sought is made confidential by a contract and is thus prohibited from
disclosure.
A. Time To Comply Within SCRCP 45(b)(1)
The argument is that the subpoena fails to comply with the reasonable time for compliance period
provided by SCRCP Rule 45(b)(1). However, such time periods do not govern the Board since the
matter before the Board is not within the rules of civil procedure. Rather, the rules of civil
procedure govern “trial courts of civil jurisdiction.” SCRCP Rule 81. Further, the Board has not
promulgated any provision adopting the rules of civil procedure. Accordingly, the time periods of
SCRCP 45(b)(1) are inapplicable and are not a valid grounds to quash the subpoena.
B. Lack of Existence of Contested Case
Anonymous Dentist argues that the subpoena is invalid since it purports to be issued under § 1-23-320(d) when that section requires a “contested case” and no contested case exists in this matter.
While the position is true that § 1-23-320(d) requires a contested case and that no contested case
exists here, the subpoena is not issued solely under the alleged authority of § 1-23-320(d). Here,
authority for the subpoena is found in § 40-15-185:
For the purpose of any investigation or proceeding under the provisions of this
chapter, the board or any person designated by it may administer oaths and
affirmations, subpoena witnesses, take evidence, and require the production of any
documents or records which the board deems relevant to the inquiry. (Emphasis
added).
Accordingly, specific authority exists to issue the subpoena here in dispute.
C. Confidentiality
The argument is that the information sought is made confidential by a contract so that the requested
document is prohibited from disclosure. However, merely declaring a document “confidential” does
not prevent disclosure of the document.
For example, confidential information is information “meant to be kept secret.” Blacks Law
Dictionary, 7th Edition, 1999. But, without a “privilege,” the possessor of the information can be
legally compelled to disclose even confidential information. See South Carolina State Bd. of
Medical Examiners v. Hedgepath, 325 S.C. 166, 480 S.E.2d 724 (1997) (“The terms ‘privilege’ and
‘confidences’ are not synonymous, and a professional's duty to maintain his client's confidences is
independent of the issue whether he can be legally compelled to reveal some or all of those
confidences, that is, whether those communications are privileged.”). Thus, while confidential
information must not be voluntarily disclosed, such disclosure can be “compelled by law (i.e.,
subpoena or statute).” Brown v. Bi-Lo, Inc., 341 S.C. 611, 535 S.E.2d 445 (Ct.App. 2000),
certiorari granted (May 23, 2001).
Therefore, since the Board has subpoena power under § 40-15-185, the disclosure is “compelled
by law” and is thus required.
However, disclosure to the Board does not make the disclosed document a part of the public domain.
Rather, “[a]ll information, investigations, and proceedings concerning the circumstances underlying
an action by the holder of the license or certificate is privileged and confidential.” S.C. Code Ann.
§40-15-215. Similarly, such documents are made privileged by §40-1-190(A):
A communication, whether oral or written, made by or on behalf of a person, to the
director or board or a person designated by the director or board to investigate or
hear matters relating to discipline of a licensee, whether by way of complaint or
testimony, is privileged . . .
Accordingly, once disclosed to the Board, the document is not to be re-disclosed except as needed
to carry out the Board’s investigation in this one matter.
III. Order
The subpoena duces tecum served by the Board on Anonymous Dentist shall not be quashed.
Rather, the documents are not protected from disclosure since such documents have been sought by
a subpoena issued under the Board’s subpoena authority. However, the Board shall re-disclose the
documents only as needed to carry out the Board’s investigation. Further, once the investigation or
any resulting unappealed decision has been concluded, the Board shall promptly return the document
to Anonymous Dentist.
AND IT IS SO ORDERED.
______________________
RAY N. STEVENS
Administrative Law Judge
Dated: March 4, 2003
Columbia, South Carolina |