New post old subject re:alleged abuse redux

[iliveoutloud4me]

Dear Socrateaser:

I knew I would be writing again!
Withought you having to read the facts of this case again, I'll summarize. Years ago, my husband spanked his 12 year old son. Now, 5 years later, that spanking which was exaggerated all out of proportion, is being used to buttress (partially) a claim by his ex and his oldest son that my husband slammed this (now 17) year old kid into a wall.

My husband took and passed a polygraph, which we know the admissibility of is dicey. In any event, back when this spanking occurred, my husband attended an anger mangement class. The lady that ran the class told him he didn't need anger mgt but help in coping with an angry person (and she obviously didn't mean my husband). She is testifying as to lack of anger problem on DH behalf in upcoming hearing.

She intends to testify as to the tests used, etc., that led to her not diagnosing my husband as having an anger mgt problem. Here's the kicker. We recently found out, that well over a year ago, his ex had those records (the anger mgt counselor's records) subpoenaed. We're not worried about what's in the records, just about how they got into the ex's lawyers hands.

The ex was not litigating abuse at the time, just visitation denial in other matters (obviously, this has escalated). In other words, when the records were subpoenaed, there was no hearing or motion in support or anything. Bam, she just has the records, I guess because she thought they might come in handy?

 The attorney who did this subpoena,  did it 24 hours before a hearing unrelated to anger or abuse issues. We only knew about it because she (opposing counsel) had told our attorney "off the record." They ended up trying to litigate "anger" again, but judge wouldn't let them. It's been brought up 5 times now, ruled out each time

1.) Can she subpoena these records on her own?

2.) Don't judges have to sign subpoenas for medical and/or treatment records?

3.) If it is legal, how much time do they have to give the treating professional to hand over the records?

4.) Shouldn't someone have had to notify my husband or at least the treating counselor?

Thanks a million!

 

[socrateaser]

>1.) Can she subpoena these records on her own?

Opposing counsel must provide you with notice of any subpoena issued, so that you may object to the discovery of evidence that may be protected by various personal privacy rights.

You can file a motion in "Limine" to ask that this info be suppressed, but, the judge may want to know what you're afraid of.

>
>2.) Don't judges have to sign subpoenas for medical and/or
>treatment records?

Generally all that is required is notice to the adverse party so that they (may) file a motion objecting to the discovery.

>
>3.) If it is legal, how much time do they have to give the
>treating professional to hand over the records?

This question is irrelevant. The important question is how much notice they have to give YOU, so that you have an opportunity to object to the discovery (5-15 days is typical, depending upon jurisdiction).

[iliveoutloud4me]

>>1.) Can she subpoena these records on her own?
>
>Opposing counsel must provide you with notice of any subpoena
>issued, so that you may object to the discovery of evidence
>that may be protected by various personal privacy rights.
>
>You can file a motion in "Limine" to ask that this info be
>suppressed, but, the judge may want to know what you're afraid
>of.
>
>>
>>2.) Don't judges have to sign subpoenas for medical and/or
>>treatment records?
>
>Generally all that is required is notice to the adverse party
>so that they (may) file a motion objecting to the discovery.
>
>>
>>3.) If it is legal, how much time do they have to give the
>>treating professional to hand over the records?
>
>This question is irrelevant. The important question is how
>much notice they have to give YOU, so that you have an
>opportunity to object to the discovery (5-15 days is typical,
>depending upon jurisdiction).
Dear Socrateaser:


Ok. Yu're right about the motion in limine because we plan to introduce what's in those anger management records ourselves, sincle they sway things in our favor vis-a-vis this "anger" issue. Still, they shouldn't have been able to subpoena those records back in November 2003. There were no issues about abuse in Nov 2003.

Unfortunately, there were another set of records obtained. These were records of marital counseling my husband and his ex went through. They look damning as she refers to my husband's angry posture, etc.
However, that said, it's clear the records were doctored. And, again, these records were obtained (we have seen no subpoena for these or the anger mgt records) in November, 2003--11 months before any alleged abuse.

These are clearly not the original records. Counselor's notes don't say things like "in my opinion, x suffers from...it is also my professional opinion..." Couselors don't state opinions in their notes Soc. They write letters or state these things in court or during depositions--not in their treatment notes.

ACA ethics say they aren't supposed to release records unless someone is in imminent danger. They have had these (the marital counseling) records since Nov 2003 and never used them--until now. They, the opposing party, are probably going to use the "imminent danger" thing, which is a slippery slope right now, and not at all true 17 months later.

1. Could they obtain the marital counseling records since his ex was a party to the counseling? ACA says no, if I'm reading it right.

2. If the answer to #1 is wrong, would you still advise against the motion in limine?

3. If so, is there a way we can let the Judge know they obtained these records 17 months ago?

4. Shouldn't there be a subpoena trail somewhere?

5. If there was no subpoena, does either the therapist or ex's attorney look bad from an ethical (as in lawsuit) point of view?

Many thanks, over and over.

[socrateaser]

>1. Could they obtain the marital counseling records since his
>ex was a party to the counseling? ACA says no, if I'm reading
>it right.

ACA rules are not the law of the jurisdiction. Without a witness to testify, the records are inadmissible, however, the direct answer is that these marital counseling records were similarly objectionable, and you received no notice of the subpoena. Of course, the attorney could possibly have sent you notice by mail and the mail lost.

If you think that the records are not the originals, then you should subpoena a copy for yourself and try to match them up. If they don't match, and the other party tries to introduce the records as evidence, then you have a case for perjury and fraud, and your opponent is toast.

>
>2. If the answer to #1 is wrong, would you still advise
>against the motion in limine?

Depends on how damaging the records are.

>
>3. If so, is there a way we can let the Judge know they
>obtained these records 17 months ago?

Once again, the records are hearsay without the testimony of the counselor(s), and should be objected to as such, regardless of whether or not you file a motion in limine.

>4. Shouldn't there be a subpoena trail somewhere?

Only if the subpoena was used to summon someone to appear at trial -- then the proof of service would be available in the court file.

>5. If there was no subpoena, does either the therapist or ex's
>attorney look bad from an ethical (as in lawsuit) point of
>view?

No reputable professional or business releases private records to an adverse or third party without a subpoena. The question speaks for itself.

[iliveoutloud4me]

>>>1. Could they obtain the marital counseling records since
>>his
>>>ex was a party to the counseling? ACA says no, if I'm
>>reading
>>>it right.
>>
>>ACA rules are not the law of the jurisdiction. Without a
>>witness to testify, the records are inadmissible, however,
>the
>>direct answer is that these marital counseling records were
>>similarly objectionable, and you received no notice of the
>>subpoena. Of course, the attorney could possibly have sent
>you
>>notice by mail and the mail lost.
>>
>>If you think that the records are not the originals, then
>you
>>should subpoena a copy for yourself and try to match them
>up.
>>If they don't match, and the other party tries to introduce
>>the records as evidence, then you have a case for perjury
>and
>>fraud, and your opponent is toast.
>>
>>>
>>>2. If the answer to #1 is wrong, would you still advise
>>>against the motion in limine?
>>
>>Depends on how damaging the records are.
>>
>>>
>>>3. If so, is there a way we can let the Judge know they
>>>obtained these records 17 months ago?
>>
>>Once again, the records are hearsay without the testimony of
>>the counselor(s), and should be objected to as such,
>>regardless of whether or not you file a motion in limine.
>>
>>>4. Shouldn't there be a subpoena trail somewhere?
>>
>>Only if the subpoena was used to summon someone to appear at
>>trial -- then the proof of service would be available in the
>>court file.
>>
>>>5. If there was no subpoena, does either the therapist or
>>ex's
>>>attorney look bad from an ethical (as in lawsuit) point of
>>>view?
>>
>>No reputable professional or business releases private
>records
>>to an adverse or third party without a subpoena. The
>question
>>speaks for itself.
>>
>>
>
Dear Socrateaser:

Ok, I'm following you so far. I will check SD statutes instead of ACA ethical standards. Meanwhile, back at the ranch, WHEN these records were obtained (and we never knew how) it was Nov 2003. On that date in court, the judge said "no backdooring of this stuff" and he chewed ex's attorney butt in chambers, telling her to do it right and bring a motion.  They never did, until now, 17 months later, when this "alleged" abuse happened in December 2004 and they have had the records since Nov 2003.

In any event, when they originally got the records (both the marital counselor and the anger mgt counselor) neither person was there to testify and we were never served any notice, not from the ex's attorney, either counselor or the court. The anger management counselor, when we spoke with her recently about testifying in this upcoming hearing on behalf of my husband, never knew about any release of her records.

We are upset about two things. One is a breach of confidentiality of husband's records with anger mgt counselor (who is in our corner) that the anger mgt counselor knew nothing about. Two, the records "released" by the marital counselor are extremely inflammatory about husband's "anger," but make no mention of the counselor fearing imminent danger by husband toward his children.

We know the marital counslor's records have been falsified or added to because the counselor states--in her notes--"in my professional opinion." What, she was testifying to herself? Plus her notes say nothing about the ex, absolutely nothing, so there's bias, if not fraud. Plus, she provided the entire record--not only that which she thought pertained to "anger." Oh, and one other thing. Ex had another atty right before this, whom she fired.

Also, all of this stuff happened the day before we were in court on visitation clarification issues. The records from the marital counselor had been faxed the DAY before. Motions and affidavits, etc. had been filed vis-a-vis the issues which were supposed to be litigated three weeks prior. No deposition, no testimony (even tho the judge ruled against ex's atty bringing this stuff up there were no witnesses in or out of the courtroom) no affidavit, no subpoena.

My husband was there for the marital counseling. It didn't happen the way he remembered it. The counselor says she terminated their marital counseling, told my husband to resume anger mgt and told his ex to get individual counseling (I guess with this counselor). My husband remembers none of this and signed nothing. Trying to subpoena the original records might not work since we are in court a week from tomorrow.

1.) If she had served us with an subpoena and it supposedly got lost, would she have had to serve our attorney with a copy? Or the court? Or either of the counselors? Would there be any paper trail, anywhere?

2.)Since it is essentially he said/she said as to what is in marital counselor's records, how can we prove bias or fraud?

3.) You said we risk looking like we are hiding something if we try to suppress this marital counselor's testimony, but shouldn't we at least have her original records (not a faxed copy, which is what they had)?

4.) If they subpoenaed the anger mgt counselor's records, wouldn't she have been served with a subpoena? She was not and she's sure of it.

5.)Who violated what, if any, ethics?

Many, many, many thanks. If I were going to have anymore children, I swear I would name them Socrateaser.
Thank you again

[socrateaser]

>1.) If she had served us with an subpoena and it supposedly
>got lost, would she have had to serve our attorney with a
>copy? Or the court? Or either of the counselors? Would there
>be any paper trail, anywhere?

She would have served your attorney.

>
>2.)Since it is essentially he said/she said as to what is in
>marital counselor's records, how can we prove bias or fraud?

If you have copies of her claimed marital counseling reports and you believe them to be in variance to the actual reports, then you should subpoena the real reports and the therapist to testify to the authenticity, or lack thereof, of the the reports being offered by your opponent. If this occurs, you will have proven a fraud on the court, and the other parent will go straight to jail.

>
>3.) You said we risk looking like we are hiding something if
>we try to suppress this marital counselor's testimony, but
>shouldn't we at least have her original records (not a faxed
>copy, which is what they had)?

The records, as I have already stated several times, are not admissible as evidence without the presense and testimony of the author/therapist at trial, to authenticate the records.

>
>4.) If they subpoenaed the anger mgt counselor's records,
>wouldn't she have been served with a subpoena? She was not and
>she's sure of it.

You or your attorney would have been provided with a copy of the subpoena(s) and a notice that in the absence of your timely objection, that the subpoenas would be served on the witness.

>
>5.)Who violated what, if any, ethics?

This is not an ethics violation. It is a violation of the rules of civil procedure. Your remedy is to have the evidence excluded at trial. There also may be some monetary damages available via statutes that protect your privacy. If the records are medical and were obtained after the enactment of the federal privacy laws re healthcare, then there are specific damages that you may obtain.

But, you need to prove that the attorney/party obtained the evidence without providing you notice of the subpoena.

>Many, many, many thanks. If I were going to have anymore
>children, I swear I would name them Socrateaser.
>Thank you again

Ick. I wouldn't name my kid socrateaser. How about Ted or Ellen.