Don’t Be Caught Unprepared: How to Respond to a Search Warrant
Advance preparation, including an action plan should government agents serve your practice or facility with a search warrant, is the most important thing you can do to respond to government investigations. When possible, designate a single individual within the organization to coordinate your response, in such circumstances. Specific steps you should take, if served with a search warrant, are:
- Immediately contact your attorney.
- Avoid any action that might be misconstrued as obstructing a search. Be aware, however, that there is a limit to the cooperation you must provide.
- Ask for a copy of the search warrant and give it to your lawyer and verify the scope of the subpoena or search warrant. The scope of an agent’s search or seizure is limited to the scope declared in the subpoena or warrant.
- You cannot refuse to cooperate with a subpoena or warrant, but do not volunteer any document or information that is not specified in the subpoena or search warrant.
- Make it known throughout your internal policies and procedures that an employee is not authorized to provide confidential documents of the facility to anyone, including a law enforcement officer, without a valid subpoena, search warrant, or court order.
- A search warrant is for documents (hard copies and electronic copies), not for testimonial evidence. Although a search warrant can be used to seize documents or other items, it cannot be used to force employees to participate in an interrogation.
- Alert the agent’s if searched items or areas are not listed specifically in warrant. An agent is not allowed to access any document or property other than those described in the subpoena or warrant.
- Identify Potentially Privileged Materials. A search warrant does not authorize the seizure of privileged materials, including attorney-client privileged materials.
- As the search is taking place, maintain an inventory of all that is being seized.
- Request copies of the medical records (or other documents) being seized, to provide for continued patient care.
The above list is not all-inclusive, but provides a starting point for preparation. Be sure to consult your healthcare attorney for further guidance.