Title 23
Health and Safety

Chapter 101
Healthcare Provider Shield

§ 23-101-5. Testimony, documents, and subpoenas.

(a) Notwithstanding any other provision in this chapter or court rule to the contrary, except as required by federal law, a court may not order a person who is domiciled or found within this state to give testimony or a statement or produce documents or other things with any proceeding in a tribunal outside this state concerning hostile litigation.

(b) Any person in this state upon whom a subpoena seeking information concerning legally protected healthcare activity is served by any state or federal court in connection with hostile litigation, may move to modify or quash such subpoena on any grounds provided by court rule, statute, or on the grounds that the subpoena is inconsistent with the public policy as set out in this act.

(c) Except as required by federal law, a judicial officer may not issue a summons in a case where prosecution is pending concerning legally protected healthcare activity, or aiding and assisting legally protected healthcare activity, or where a grand jury investigation concerning legally protected healthcare activity or aiding and assisting legally protected healthcare activity has commenced or is about to commence for a criminal violation of a law of such other state unless the acts forming the basis of the prosecution or investigation would also constitute an offense if occurring entirely in this state.

(d) A judge, clerk, or official may not issue a subpoena if the subpoena is sought to be issued in connection with hostile litigation.

(e) A business entity that is incorporated, or has its principal place of business, in this state may not:

(1) Knowingly provide records, information, facilities, or assistance in response to an out-of-state subpoena, warrant, court order, or other civil or criminal legal process that the business entity has reason to believe relates to an investigation into, or the enforcement of, another state’s law that asserts criminal or civil liability for legally protected healthcare activity or aiding and assisting legally protected healthcare; or

(2) Comply with an out-of-state subpoena, warrant, court order, or other civil or criminal legal process for records, information, facilities, or assistance that the business entity has reason to believe relates to legally protected healthcare activity or aiding and assisting legally protected healthcare.

(3) Any business entity described in subsection (e)(1) or (e)(2) of this section that is served with an out-of-state subpoena, warrant, court order, or other civil or criminal legal process described in subsection (e)(1) or (e)(2) of this section is entitled to request an attestation, made under penalty of perjury, stating that the subpoena, warrant, court order, or other civil or criminal legal process does not seek documents, information, or testimony relating to an investigation into, or the enforcement of, another state’s law that asserts criminal or civil liability for legally protected healthcare activity or aiding and assisting legally protected healthcare activity, before providing records, information, facilities, or assistance.

(f) Any false attestation submitted under this section is subject to a statutory penalty of ten thousand dollars ($10,000) per violation. Submission of such attestation subjects the attester to the jurisdiction of the courts of this state for any suit, penalty, or damages arising out of a false attestation under this section. The business entity is entitled to rely on the representations made in an attestation described in subsection (e)(3) of this section in determining whether the out-of-state subpoena, warrant, court order, or other civil or criminal legal process relates to an investigation into, or the enforcement of, another state’s law that asserts criminal or civil liability for legally protected healthcare activity or aiding and assisting legally protected healthcare activity.