2006 UT 14
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Dr. Brian D. Burns,
No. 20050039
Petitioner,
v.
The Honorable Ann Boyden, a
judge in the Third Judicial
F I L E D
District Court, State of Utah,
Respondent.
March 3, 2006
_________________________________
State of Utah,
Real Party in Interest.
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Original Proceeding in this Court
Attorneys: Michael N. Martinez, Sarah Lynn Mathews, Salt Lake
City, for petitioner
Brent M. Johnson, Salt Lake City, for respondent
Mark L. Shurtleff, Att'y Gen., Laura B. Dupaix, Daryl
L. Bell, J. Denis Kroll, Jay Stone, Asst. Att'ys
Gen., Salt Lake City, for real party in interest

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DURRANT, Justice:
¶1
This case presents two distinct issues: (1) whether
Dr. Brian D. Burns may claim the physician-patient privilege as a
shield against a state investigation into his allegedly
fraudulent billing practices, and (2) whether a secrecy order
obtained by the State respecting this investigation is
constitutional. As to the first issue, rule 506 of the Utah
Rules of Evidence provides a physician presumptive authority to
claim the physician-patient privilege "on behalf of the patient."
We hold that the State has rebutted this presumption by
demonstrating that Burns is asserting the privilege not on behalf
of his patients but for his own benefit. As to the second issue,
Utah law allows the State, with approval and oversight from a
district court, to conduct a criminal investigation in secret.
Despite the secrecy order obtained by the State, Burns has

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adequate information about the investigation, and there are
adequate procedural safeguards in place to effectively protect
Burns's constitutional rights.
BACKGROUND
¶2
The Workers' Compensation Fund filed a complaint with
the Salt Lake County Attorney's Office in response to what it
believed were fraudulent billing practices employed by the
chiropractic clinics owned and operated by Burns. The complaint
was subsequently referred to the Attorney General's Office,
Department of Insurance, Fraud Division, which submitted an
application to the district court for an order to open a formal
investigation pursuant to the Subpoena Powers for Aid of Criminal
Investigation and Grants of Immunity Act ("Subpoena Powers Act"),
Utah Code Ann. §§ 77-22-1 to -5 (2003). The application included
a statement of good cause setting forth the facts necessary to
support the investigation and a request for an order of secrecy.
¶3
The Subpoena Powers Act provides that a district court
may allow an order of secrecy upon a "reasonable likelihood that
publicly releasing information . . . would pose a threat of harm
to a person or otherwise impede the investigation." Id. § 77-22-
2(6)(a)(i). The Attorney General argued that secrecy was
justified because "publicly releasing information about the
identity of this witness or the substance of the evidence
regarding patients, providers, medical billing and records . . .
would pose a threat of harm to a person or would otherwise impede
the criminal investigation due to the potential confidential
nature of some of the matters in question." The State
specifically noted the following: (1) Burns was in litigation
with a former employee, and other employee-witnesses feared that
cooperation with the investigation would lead to their own
litigation with Burns; (2) many witnesses were still employed by
Burns, and the State wished to avoid communication between
witnesses; and (3) the State wished to protect Burns's reputation
pending criminal charges as well as the names of his patients.
¶4
The district court authorized both the investigation
and the secrecy order. The secrecy order required that the
occurrence of interrogations, the identity of those subpoenaed,
the testimony records, and other subpoenaed evidence remain
secret. The order further excluded everyone from investigative
hearings except for the State's attorneys and their staff, others
necessary to assist the investigative process, the court
reporter, the witness, and the witness's attorneys. The secrecy
order specifically permitted the disclosure of its own existence
but did not expressly permit the disclosure of the application,
No. 20050039
2

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good cause affidavit, or authorization order. The secrecy order
also permitted the Attorney General's Office to disclose
information obtained during the investigation "for the purpose of
furthering any official governmental investigation" or "when
necessary for the State to comply with Utah Rule of Criminal
Procedure 16 or any other obligation to disclose evidence to any
such defendant before trial."
¶5
Subsequently, the State served Burns with a subpoena
duces tecum, which sought the production of "[a]ll medical and
billing records related to the treatment" of over 300 patients
and ordered Burns to appear and give sworn testimony. Burns
moved to quash the subpoena, arguing that (1) the subpoena duces
tecum violated the physician-patient privilege, and (2) the
secrecy order violated his due process rights. After a hearing,
Judge Boyden denied the motion to quash, ruling that the
physician-patient privilege did "not apply at this stage" and
that the secrecy order did not violate Burns's due process
rights. Burns subsequently produced the requested records and
then filed the present motion for extraordinary relief to compel
Judge Boyden to vacate her denial of the motion to quash. This
court has jurisdiction under Utah Code section 78-2-2(2) (2002).
STANDARD OF REVIEW
¶6
This case is before us on a petition requesting
extraordinary relief. Such petitions are governed by rule 65B of
the Utah Rules of Civil Procedure, which provides that
extraordinary relief may be available "[w]here no other plain,
speedy, and adequate remedy is available." Utah R. Civ. P.
65B(a). Burns claims that he is eligible for rule 65B relief
because he is not statutorily entitled to an appeal from the
denial of his motion to quash, and "an inferior court . . . has
exceeded its jurisdiction or abused its discretion." Id.
65(d)(2). Both the existence of a privilege and the application
of constitutional protections are questions of law, so we afford
no deference to the district court's conclusions. Riddle v.
Perry, 2002 UT 10, ¶ 6, 40 P.3d 1128 ("[T]he existence of a
privilege is a question of law . . . ." (internal quotation marks
omitted)); Chen v. Stewart, 2004 UT 82, ¶ 25, 100 P.3d 1177
("Constitutional issues . . . are questions of law [reviewed] for
correctness."). Ultimately, to determine whether rule 65B relief
is appropriate, we must determine whether the district court made
a mistake of law on either of these two questions that led it to
abuse its discretion. See State v. Barrett, 2005 UT 88,
¶¶ 15­17, __ P.3d ___.
3
No. 20050039

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ANALYSIS
¶7
Burns raises two main issues in his petition for
extraordinary relief: (1) whether he may claim the physician-
patient privilege to prevent disclosure of patient records to the
State in the investigation into his allegedly fraudulent billing
practices, and (2) whether a secrecy order obtained by the State
respecting this investigation is constitutional. We will discuss
each of these issues in turn.
I. BURNS MAY NOT CLAIM THE PHYSICIAN-PATIENT PRIVILEGE FOR HIS
OWN BENEFIT
¶8
Burns argues that his patient records are protected
from discovery under the physician-patient privilege. The
district court held that the physician-patient privilege does not
apply during a criminal investigation under the Subpoena Powers
Act. The State now concedes that the privilege applies during
such a criminal investigation but argues that there is an
exception to the privilege where there are allegations of
insurance fraud. We will address each of these arguments below,
and then, because we hold that the physician-patient privilege
applies to a criminal investigation under the Subpoena Powers Act
and that there is no insurance fraud exception to the privilege,
we will discuss whether the State has rebutted Burns's
presumptive authority to claim the privilege.
¶9
Rule 506(b) of the Utah Rules of Evidence provides that
a patient has a privilege to prevent disclosure of "diagnoses
made, treatment provided, or advice given," as well as
information obtained or disseminated as a result of an
examination. Rule 506(c) specifies that the patient may claim
the privilege and that the treating physician "is presumed to
have authority . . . to claim the privilege on behalf of the
patient." Utah R. Evid. 506(c).1 Rule 506(d) delineates three
explicit exceptions to the privilege. Id. 506(d). We will first
discuss the district court's conclusion that the privilege does
not apply during a criminal investigation under the Subpoena
Powers Act. We will next discuss the State's claim that there is
an exception to the physician-patient privilege in cases of
suspected insurance fraud. We will then discuss whether the
State successfully rebutted rule 506(c)'s presumption that a
treating physician has authority to claim the privilege.


1 For purposes of this case, the State has stipulated that
the physician-patient privilege applies to chiropractors.
No. 20050039
4

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A. The Physician-Patient Privilege Applies to a Criminal
Investigation under the Subpoena Powers Act
¶10
In concluding that the physician-patient privilege does
not apply at the investigation stage of this proceeding, the
district court effectively concluded that the privilege does not
apply during a criminal investigation under the Subpoena Powers
Act. We disagree. The physician-patient privilege was not
recognized at common law but has been adopted in Utah, first by
statute and subsequently by rule. See State v. Anderson, 972
P.2d 86, 88 (Utah Ct. App. 1998). The purpose of the privilege
is to promote full disclosure within a physician-patient
relationship and thereby facilitate more effective treatment.
See Anderson, 972 P.2d at 89; Brillantes v. Superior Court, 58
Cal. Rptr. 2d 770, 778 (Ct. App. 1996). The privilege serves to
alleviate patients' fear that their medical records could be
disclosed to the public and cause them embarrassment. Anderson,
972 P.2d at 89; Brillantes, 58 Cal. Rptr. 2d at 778. We do not
treat the policy underlying this privilege lightly and
accordingly hold that rule 506 applies regardless of the stage of
the proceedings.
¶11
Utah has had a statute providing for a physician-
patient privilege in civil cases since before Utah became a
state. See, e.g., Compiled Laws of Utah tit. 11, ch. 1, § 382
(1876); Utah Rev. Stat. tit. 73, ch. 53, § 3414(4) (1898). The
current version of the physician-patient privilege statute is
codified as Utah Code section 78-24-8(4) (2002). As early as
1943, however, the Legislature delegated authority to the courts
to make procedural and evidentiary rules. See State v. Banner,
717 P.2d 1325, 1333 (Utah 1986). Ultimately, a 1984 amendment to
the Utah Constitution gave our court primary constitutional
authority to promulgate procedural and evidentiary rules subject
to the possibility of amendment by two-thirds absolute majority
vote of the Legislature. Utah Const. art. VIII, § 4; Judicial
Article Revision, § 4, 1984 (2d S.S.) Utah Laws 268, 269.
¶12
Consistent with that authority, in 1992, we adopted the
physician-patient privilege contained in rule 506. See Edward L.
Kimball & Ronald N. Boyce, Utah Evidence Law, at 5-144 (2d ed.
2004). The advisory committee notes make clear that rule 506 "is
intended to supersede Utah Code Ann. §[] 78-24-8(4)." Utah R.
Evid. 506 advisory committee note; Utah R. Evid. 501 advisory
committee note (stating that "§ 78-24-8(4) . . . [is] made
ineffectual by the adoption of [rule 506]"); see also Debry v.
Goates, 2000 UT App 58, ¶ 24 n.2, 999 P.2d 582 ("Thus, the
statutory privilege has no further effect. Physician-patient and
therapist-patient privileges are now exclusively controlled by
5
No. 20050039

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Rule 506."). Thus, rule 506 controls our inquiry into the scope
of the physician-patient privilege, and we need not consider Utah
Code section 78-24-8(4).2
¶13
Having determined that rule 506 controls, we must now
determine whether it applies during a criminal investigation
under the Subpoena Powers Act. Contrary to the district court's
findings, a privilege applies regardless of the "stage" of the
proceedings. Although rule 1101 of the Utah Rules of Evidence
sets forth a number of contexts where most of the rules of
evidence do not apply, it expressly disavows any application to
privileges. Utah R. Evid. 1101(b) ("The rules (other than with
respect to privileges) do not apply in the [enumerated
situations]."). Rule 104(a) also makes clear that, in deciding
preliminary questions, a court must still respect valid
privileges. Id. 104(a) ("In making its determination [the court]
is not bound by the rules of evidence except those with respect
to privileges."). Accordingly, subject to recognized exceptions
and the rebuttable presumption discussed below, see infra Part
I.C., the physician-patient privilege applies in a criminal
investigation under the Subpoena Powers Act. Therefore, the
district court erred in basing its refusal to apply the
physician-patient privilege on the "stage" of the proceedings.
B. Rule 506 Does Not Recognize an Insurance Fraud Exception
¶14
Having determined that the physician-patient privilege
applies in a criminal investigation under the Subpoena Powers
Act, we now turn to the issue of whether rule 506 recognizes an
exception for insurance fraud. The State argues that the
Insurance Fraud Act, Utah Code Ann. §§ 31A-31-101 to -111 (2003 &
Supp. 2005), created a statutory exception to the privilege in
cases where there is suspected insurance fraud. We disagree.
¶15
It is true that the physician-patient privilege is not
absolute. Rule 506 contains explicit exceptions where the
patient's condition is an element of a claim or defense, where
the proceeding regards whether hospitalization for mental illness
is necessary, and where an examination is ordered by a court.
Utah R. Evid. 506(d). Furthermore, at least one statute purports
to act as an exception to the privilege, and other statutes

2 To invoke Utah Code section 78-24-8(4) (2002), Burns
argues that a criminal investigation under the Subpoena Powers
Act is a civil proceeding. Because rule 506 supersedes section
78-25-8(4), and because rule 506 applies to both civil and
criminal proceedings, we need not determine whether investigative
proceedings are criminal or civil in nature.
No. 20050039
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require physicians to disclose otherwise-privileged information
to law enforcement authorities.3 Specifically, Utah Code section
58-37-6(9) (Supp. 2005) states that "[a]ny information
communicated to any licensed practitioner in an attempt to
unlawfully procure, or to procure the administration of, a
controlled substance is not considered to be a privileged
communication." See also Anderson, 972 P.2d at 89 (holding by
the court of appeals that section 58-37-6 creates an exception to
the physician-patient privilege). Furthermore, other statutes
require physicians to disclose otherwise-privileged information
to law enforcement officials in instances where there is
suspected child abuse, Utah Code Ann. § 62A-4a-403 (2000), or a
weapon-related injury, id. §§ 26-23a-1 to -2 (1998).4

¶16
Given these apparent legislative inroads into the
privilege, it is not surprising that the State argues for a
statutory insurance fraud exception. The State bases its
argument on Utah Code section 31A-31-104(1)(b) (2003), which
requires "an insurer . . . [to] release to [an] authorized agency
. . . information or evidence that is relevant to any suspected
insurance fraud." But this provision applies only to
"insurer[s]." Id. The State argues that, because insurance
companies have complete access to patient records, this provision
impliedly trumps the physician-patient privilege in cases of

3 We have not previously addressed the issue of whether
these or other procedural or evidentiary statutes are valid in
light of article VIII, section 4 of the Utah Constitution.
Article VIII, section 4 vests in the Utah Supreme Court both the
authority and the duty to "adopt rules of procedure and evidence
to be used in the courts of the state" and reserves to the
Legislature only the authority to "amend the Rules of Procedure
and Evidence adopted by the Supreme Court upon a vote of
two-thirds of all members of both houses of the Legislature."
Utah Const. art. VIII, § 4. As the constitutionality of these
statutory encroachments on rule 506 is not before us, we do not
decide it here.

4 We note without deciding that these reporting statutes, if
effective, may not constitute complete exceptions to the
privilege rules because a patient may still be able to claim the
privilege to prevent the physician from testifying in formal
proceedings. See Kimball & Boyce, supra ¶ 12, at 5-159 n.89 ("If
a doctor . . . learns . . . of child abuse, he or she is under
statutory obligation to report that . . . . However, when it
comes time for trial, the[] [doctor] can be prevented from
testifying by claim of privilege . . . .").
7
No. 20050039

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suspected insurance fraud.5 The text of the statute, however,
does not impose any direct duty on physicians to release
privileged information, and we decline to insert such a
substantive requirement by judicial fiat. See Arredondo v. Avis
Rent A Car Sys., Inc., 2001 UT 29, ¶ 12, 24 P.3d 928 (refusing to
infer "substantive terms" into the text of a statute if they are
"not already there"). Thus, the Insurance Fraud Act did not
create a statutory exception to the physician-patient privilege.
¶17
The State nevertheless argues that we should construe
the physician-patient privilege narrowly to create an exception
for investigations into suspected insurance fraud. We have
previously noted that "[t]he effect of . . . [a] privilege . . .
[is to] close another window to the light of truth." State v.
Gotfrey, 598 P.2d 1325, 1327 (Utah 1979). Accordingly, the State
argues that the privilege "should be strictly construed and
applied." We agree that rule 506 should be strictly construed,
but disagree that such strict construction can yield the State's
desired insurance fraud exception.
¶18
As discussed above, rule 506 contains only three
explicit exceptions, none of which apply to this situation, and
the Legislature has not affirmatively created any applicable
statutory exception to the privilege. Furthermore, the advisory
committee notes to rule 506 convince us that creating an
exception for suspected insurance fraud would be inconsistent
with the intended effect of the rule.6 First, "[t]he Committee

5 If insurance companies have complete access to medical
records, nothing precludes the State from subpoenaing records
from the insurers, who would be required to release "information
or evidence" under Utah Code section 31A-31-104 (2003).

6 There has been significant debate regarding what weight
should be afforded advisory committee notes to judicial rules.
Compare Eileen A. Scallen, The Federal Rules of Evidence in
Retrospect: Observations from the 1995 AALS Evidence Section:
Interpreting the Federal Rules of Evidence: The Use and Abuse of
the Advisory Committee Notes, 28 Loy. L.A. L. Rev. 1283, 1287­93,
1302 (1995) (describing the advisory committee's and Congress's
involvement in the adoption of the Federal Rules of Evidence, and
arguing that committee notes should be given "great weight"), and
Tome v. United States, 513 U.S. 150, 160 (1995) (Kennedy, J.,
concurring) (arguing that the advisory committee notes are
"particularly relevant" in determining the meaning of a rule and
the intent of the drafters (internal quotation marks omitted)),
with id. at 167-68 (Scalia, J., concurring) (conceding that the
(continued...)
No. 20050039
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felt that exceptions to the privilege should be specifically
enumerated." Utah R. Evid. 506 advisory committee note. Second,
"[t]he Committee . . . endorsed the concept that in the area of
exceptions, the rule should simply state that no privilege
existed, rather than expressing the exception in terms of a
`waiver' of the privilege." Id. In light of these notes, a
decision by us that "no privilege exist[s]" in cases of suspected
insurance fraud could only be termed an "exception" to the
privilege, and our creating such an exception would run directly
counter to the intent that exceptions be "specifically
enumerated." We therefore decline to create a blanket insurance
fraud exception to the physician-patient privilege. This
holding, however, does not end our inquiry; we must now determine
whether Burns has authority to claim the privilege in this case.
C. The State Rebutted Burns's Presumed Authority to Claim the
Physician-Patient Privilege
¶19
Although there is no blanket exception to the
physician-patient privilege for suspected insurance fraud,
evidence of such fraud has bearing on a physician's presumed
authority to claim the privilege "on behalf of the patient." The
plain language of rule 506 gives a treating physician presumptive
authority to claim the privilege, not absolute authority. We
interpret court rules, like statutes and administrative rules,
according to their plain language. See State v. Robertson, 932
P.2d 1219, 1228 (Utah 1997), overruled on other grounds by State
v. Weeks, 2002 UT 98, 61 P.3d 1000, and State v. Reyes, 2005 UT
33, 116 P.3d 305; Archer v. Bd. of State Lands & Forestry, 907
P.2d 1142, 1145 (Utah 1995). In our inquiry, we seek to give

6 (...continued)
committee notes are "ordinarily the most persuasive" scholarly
commentary, but arguing that the notes are not "authoritative[]"
because there is no "procedure by which [the Court] formally
endorse[s] or disclaim[s] them"). We note that, although not
authoritative, the advisory committee notes to the Utah Rules of
Evidence merit great weight in any interpretation of those rules.
Indeed, the primary argument against giving great weight to the
notes---that the court does not "formally endorse them," id.---is
of less concern under Utah law. Whereas, upon receiving proposed
rules or amendments from the United States Supreme Court,
Congress has the authority to modify or reject the rules,
Scallen, supra, at 1288­90, we have primary constitutional
authority to adopt these rules. Utah Const. art. VIII, § 4.
Thus, the absence of the intervening legislative step makes the
advisory committee notes a more reliable indicator of our intent
in adopting the rules.
9
No. 20050039

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effect to the intent of the body that promulgated the rule. See
Wilcox v. CSX Corp., 2003 UT 21, ¶ 8, 70 P.3d 85. Rule 506(c)
states that
[t]he privilege may be claimed by the
patient, or the guardian or conservator of
the patient. The person who was the
physician or mental health therapist at the
time of the communication is presumed to have
authority during the life of the patient to
claim the privilege on behalf of the patient.
Utah R. Evid. 506(c) (emphasis added). Under this rule, the
patient, the guardian, and the conservator have unequivocal
rights to claim the privilege. See id. The physician, however,
is only "presumed" to have the authority to claim the privilege
"on behalf of the patient." Id. The rule's use of the word
"presumed" denotes that there are instances outside the
recognized exceptions where a physician lacks authority to claim
the privilege. Or, in other words, the presumption is
rebuttable. Otherwise, there would have been no reason for the
drafters of the rule to include the word presumed. See C.T. v.
Johnson, 1999 UT 35, ¶ 9, 977 P.2d 479 ("We presume that the
legislature used each word advisedly and give effect to each term
according to its ordinary and accepted meaning." (internal
quotation marks omitted)).
¶20
Under the Utah Rules of Evidence, a presumption is an
evidentiary mechanism where proof of certain "basic facts" will
serve as proof of some "presumed fact" unless the presumption is
rebutted. Kimball & Boyce, supra ¶ 12, at 3-51. To rebut a
presumption, "the party against whom it is directed [bears] the
burden of proving that the nonexistence of the presumed fact is
more probable than its existence." Utah R. Evid. 301(a).7 Thus,
to determine whether the State effectively rebutted the rule
506(c) presumption, we must first determine what basic and
presumed facts are contemplated by that rule, and then determine
whether the State met its burden in rebutting the presumed fact.

7 Rule 301 applies to "all civil actions and proceedings not
otherwise provided for by statute or by these rules." Utah R.
Evid. 301. Although it is unclear whether a criminal
investigation under the Subpoena Powers Act is a "civil
action[]," the Subpoena Powers Act does not address how
presumptions should be treated, and we can find no other rule or
statute that would prevent application of rule 301.
No. 20050039
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¶21
The basic facts necessary to trigger the rule 506(c)
presumption are the same facts as those necessary for a patient
to personally claim the privilege. Specifically, to trigger the
presumption, a treating physician must prove that the information
at issue was (1) "communicated in confidence," (2) to or from a
physician or mental health therapist, and (3) "for the purpose of
diagnosing or treating the patient." Id. 506(b). The presumed
fact, however, is less clear. The rule states that the treating
physician is presumed "to have authority . . . to claim the
privilege." Id. Yet presuming authority would appear to presume
a legal effect rather than a fact. In actuality, since a
physician must prove all the basic facts to trigger the
presumption that a patient would need to prove to claim the
privilege, the only remaining fact for a physician to prove is
that he is, in fact, claiming the privilege "on behalf of the
patient" and not for his own benefit. See id. In sum, the
"presumed fact" under rule 506(c) is that the physician is
claiming the privilege on behalf of the patient.8 Thus, to
defeat a physician's ability to claim a privilege once the
physician has proven all the basic facts, a party needs to prove
"that the nonexistence of [a physician's intent to claim the
privilege for the patient's benefit] is more probable than its
existence." Id. 301(a). In other words, to rebut the
physician's authority, the challenging party must show that it is
more likely than not that a physician is claiming the privilege
in his own self-interest. The State has met that burden in this
case.
¶22
We assume for purposes of our analysis that Burns
adequately proved the basic facts as described above and focus
our inquiry on Burns's intent in claiming the privilege. The
State has consistently argued that Burns is claiming the
privilege not to protect his patients, but rather, to shield
himself from the criminal investigation. The record supports
this conclusion. The only person who stood to benefit from
quashing the subpoena was Burns because the secrecy order was in
place to protect the patients. In fact, the most compelling
evidence against Burns's presumed selfless intent is that he has
consistently attacked the secrecy order---the main barrier
preventing public disclosure of the patient information already
in the record. The facts in this case are similar to those in
Brillantes, where the California Court of Appeals noted that "an
attempt by a physician accused of [insurance] fraud to invoke
this privilege on behalf of his patients, would serve to benefit

8 This interpretation is further supported by the rule's
provision that a treating physician may claim the privilege only
"during the life of the patient." Utah R. Evid. 506(c).
11
No. 20050039

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only the physician, to the patient's detriment." 58 Cal. Rptr.
2d at 778. While it is true that insurance companies are the
primary victim of fraudulent billing practices, allowing a
physician to shield those practices by claiming the physician-
patient privilege injures the patients and the population at
large by potentially causing an increase in insurance premiums.
Cf. Eaquinta v. Allstate Ins. Co., 2005 UT 78, ¶ 13, 125 P.3d 901
(recognizing that increasing an insurance company's expenditures
can cause premiums to increase). Moreover, allowing physicians
to shield their fraud through the privilege relegates the
patients to tools in perpetuating the fraud. Ultimately, the
benefit of allowing Burns to claim the privilege---protecting
patient records from public disclosure---can be achieved through
other methods. The detriment to the patients remains, however,
so long as Burns can use the privilege to hinder the
investigation. Therefore, where it is clear from the record that
Burns is claiming the privilege to shield himself from
investigation rather than to protect his patients' interests, the
State has met its rebuttal burden, and Burns lacks authority to
claim the physician-patient privilege under rule 506.
¶23
In holding that Burns lacks authority to claim the
physician-patient privilege, we do not leave the patients'
privacy interests unprotected. Initially, it is doubtful that
patients have any expectation that the privilege would shield
their records from law enforcement officials in a case like this.
See Reynaud v. Superior Court, 187 Cal. Rptr. 660, 666­67 (Ct.
App. 1982). Patients generally expect that an insurance company
has access to patient records to protect its interests.
Furthermore, if there is suspected fraud, patients would expect
that their insurance company could assist law enforcement to
respond to that activity, and, in fact, Utah Code section 31A-31-
104(1)(b) (2005) requires an insurer to do so.
¶24
While patients likely do not expect their records to
remain confidential from authorities in investigations of fraud,
they do expect their records to remain confidential from the
general public. The physician-patient privilege is perhaps the
first line of defense in keeping patient records out of the
public eye, but it is by no means the only defense. A secrecy
order, such as the one in this case, represents one possible
protection against public disclosure.
¶25
Burns focuses, however, only on the first line of
defense and argues that we must uphold the privilege in his case
because he is ethically bound to withhold his patient records
from the State. Burns thus argues that Judge Boyden's order puts
him in a catch-22 situation, in that he violates the law whether
No. 20050039
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or not he complies with the subpoena. Burns misapprehends his
professional duty under Utah Code section 58-73-501(12) (2002).
That section provides that "willfully betraying or disclosing a
professional confidence or violation of a privileged
communication" can be punished as "[u]nprofessional conduct."
Id. § 58-73-501. But there is an exception to this rule when
disclosure is "required by law." Id. § 58-73-501(12)(a). In
this case, the court-approved subpoena served on Burns has the
force of law, so compliance with the subpoena would be excepted
from the definition of unprofessional conduct under section 58-
73-501.
¶26
Nevertheless, our opinion in this case should not
dissuade physicians from zealously guarding their patients'
confidences. Rather, we merely recognize that, in instances
where a physician seeks to claim the physician-patient privilege
to serve his or her own interest rather than the patient's, a
court may find that the physician lacks authority to do so. In
those cases, the burden of protecting private medical records
from public disclosure falls on the district court and law
enforcement officials. The district court, in particular, should
not order a physician to disclose confidential medical records
without first taking measures to protect the records from public
disclosure. In this case, the district court entered a secrecy
order to protect against public disclosure.
¶27
In sum, we deny Burns's petition for extraordinary
relief because Judge Boyden properly denied Burns's motion to
quash the subpoena. The State rebutted Burns's presumed
authority to claim the physician-patient privilege by showing
that it was more likely than not that Burns claimed the privilege
for his own benefit rather than on behalf of his patients.
Moreover, there remains adequate protection from public
disclosure of Burns's patient records. Having determined that
Burns lacks authority to claim the privilege in this case, we now
discuss the constitutionality of the secrecy order.
II. THE SECRECY ORDER DOES NOT VIOLATE BURNS'S CONSTITUTIONAL
RIGHTS
¶28
Burns's second claim is that the secrecy order covering
the criminal investigation deprives him of his ability to
effectively claim the physician-patient privilege or to
effectively assert his constitutional due process rights. As
discussed above, Burns lacks authority to claim the privilege in
this case, so we need not consider the secrecy order's effect on
that authority. Further, Burns has not been denied any of his
due process rights because he has abundant knowledge about the
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subject matter of the investigation and because the procedures
set forth in the Subpoena Powers Act are sufficient to protect
those rights.
¶29
Burns argues that his due process rights have been
violated because the secrecy order prevents him from effectively
asserting his Fourth and Fifth Amendment rights. Specifically,
Burns argues that the subpoena constitutes an unreasonable search
under the Fourth Amendment because the secrecy order prevents him
from intelligently asserting his rights to challenge the
subpoena. He argues that the secrecy order violates the Fifth
Amendment by preventing him from intelligently asserting his
privilege against self-incrimination because he lacks enough
background information to know what evidence will be
incriminating. Burns also argues that he did not receive due
process because the district court impermissibly shifted to him
the burden of persuasion to show that the secrecy order was not
necessary.
¶30
As to the first two arguments, although Burns claims to
not know what the allegations are or what is relevant or
incriminating, in fact, he has detailed information about both
the potential charges against him and the scope of the
investigation. Specifically, he has access to the Insurance
Fraud Division's initial investigation for the Attorney General's
Office. Burns admits that the report is a public document and
that it includes names of witnesses, and further, the State
claims to have provided him with a copy of the report. Burns
also received a copy of the State's response to his motion to
quash the subpoena. The response included a detailed background
of the allegations made by Workers' Compensation, the
investigation by the Insurance Fraud Division, the State's reason
for requesting the secrecy order, and the State's contention
based on a preliminary investigation that "Brian Burns has
submitted or instructed his employees to submit insurance claims
to several health care insurance providers under the names of
various medical doctors who have not actually treated the
patients." It further accuses Burns of ordering MRIs and EMGs,
which a chiropractor cannot be reimbursed for, under the names of
physicians who never treated the patients. These sources
adequately inform Burns of both the allegations against him and
the information sought by the State in pursuing those claims.
Thus, Burns has sufficient information to effectively assert his
Fourth and Fifth Amendment rights.
¶31
In addition to Burns actually having sufficient
knowledge to assert his rights, we believe that the procedural
protections found in the Subpoena Powers Act are adequate to
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protect Burns's rights. First, the Fourth Amendment is satisfied
because Burns received judicial review of the subpoena before he
was required to comply with it. The Fourth Amendment provides
that "[t]he right of the people to be secure . . . against
unreasonable searches and seizures, shall not be violated." U.S.
Const. amend. IV. We noted in In re Criminal Investigation that
"[t]he fourth amendment is satisfied if the subpoenaed party is
allowed `to question the reasonableness of the subpoena, before
suffering any penalties for refusing to comply with it, by
raising objections in an action in district court.'" 754 P.2d
633, 642 (Utah 1988) (quoting Donovan v. Lone Steer, Inc., 464
U.S. 408, 415 (1984)). We also found in that case that such
review is generally available in the court that issued the
subpoena. See id. at 642­43. There is no question that Burns
obtained precompliance review before the district court through
his motion to quash. Thus, Burns's claim that the secrecy order
deprived him of his Fourth Amendment rights lacks merit.
¶32
Second, the pre-interrogation disclosures required by
the Subpoena Powers Act alleviate any Fifth Amendment concern.
The Fifth Amendment provides that "[n]o person . . . shall be
compelled . . . to be a witness against himself." U.S. Const.
amend. V. In In re Criminal Investigation, we set forth the
minimum procedural safeguards necessary to conduct a criminal
investigation under the Subpoena Powers Act without running afoul
of the Fifth Amendment. 754 P.2d at 648­49. The Legislature
subsequently amended the Subpoena Powers Act to expressly require
those procedural safeguards. Utah Code Ann. § 77-22-2(5) (2003).
The current version of the Subpoena Powers Act requires the
prosecutor to inform the witness
(i) of the general subject matter of the
investigation;
(ii) of the privilege to, at any time during
the proceeding, refuse to answer any question
or produce any evidence of a communicative
nature that may result in self-incrimination;
(iii) that any information provided may be
used against the witness in a subsequent
criminal proceeding; and
(iv) of the right to have counsel present.
Id. § 77-22-2(5)(a). And if the witness is a target of the
investigation, the prosecutor must also inform the witness of his
"target status" and "the nature of the charges under
consideration against [him]." Id. § 77-22-2(5)(b). Burns does
not claim that the State has failed to comply with the statute.
Rather, he argues that In re Criminal Investigation found the
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secrecy provision of the Subpoena Powers Act constitutional only
because "the application, good cause affidavit, and authorization
order may not be kept secret." 754 P.2d at 656. While In re
Criminal Investigation held that the public nature of those
records defeated the constitutional claims at issue in that case,
it did not hold the converse--that keeping those records secret
is per se unconstitutional.9 Id. We hold that, even if a
secrecy order covers these documents, the procedural safeguards
found in the Subpoena Powers Act are sufficient to protect a
witness's Fifth Amendment rights because, before a witness is
required to testify or produce any communicative evidence, the
prosecutor must inform him of his right to claim the privilege,
the subject matter of the investigation, his target status, and
the nature of the potential charges against him.
¶33
As to Burns's final argument, that the district court
impermissibly shifted to him the burden of persuasion for
imposing the secrecy order, we hold that there was no denial of
due process because there is scant evidence that any shifting
occurred. Burns's argument is based solely on the district
court's finding that "[t]he basis for issuance of the Secrecy
Order was based on a valid concern and this Court is not
persuaded no threats occurred." The State readily accepted both
in this proceeding and in the district court that it had the
burden of persuading the court that a secrecy order was
necessary. See Kearns-Tribune Corp. v. Wilkinson, 946 P.2d 372,
376­77 (Utah 1997). Where the State accepted its burden in the
district court, the disputed finding merely recognizes that the

9 Although we found that the secrecy order in In re Criminal
Investigation was "applied too broadly," we based this holding on
legislative intent, not constitutional restraint. 754 P.2d 633,
659 (Utah 1988). We did note in dicta, however, that, "to the
extent that the concealment of the good cause statement impeded
the challenge of subpoenas or interrogations, it operated to deny
rights against unreasonable search and seizure." Id. In
essence, where no disclosure was made, and where all informative
documents were kept secret, a witness had no way to challenge a
subpoena. Thus, removing either the lack of disclosure or the
secrecy of pertinent documents would ameliorate the Fourth
Amendment concern. The Legislature has since determined that
pre-interrogation disclosure is the preferred method of
protecting those rights. See Utah Code Ann. § 77-22-2(5) (2003).
As discussed in the text, we reaffirm that the disclosures
required by both In re Criminal Investigation and the current
statute effectively ensure the availability of precompliance
review of a subpoena, and thus ameliorates the Fourth Amendment
concern we expressed in that case.
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State satisfied its burden and that Burns's attempt to undermine
the State's evidence was unsuccessful. We therefore deny each of
Burns's constitutional challenges to the secrecy order.
CONCLUSION
¶34
Although the district court erred in concluding that
the physician-patient privilege does not apply in an
investigation under the Subpoena Powers Act, we decline to grant
extraordinary relief because our review of rule 506 of the Utah
Rules of Evidence and the record in this case convince us that
the State effectively rebutted Burns's presumed authority to
claim the privilege in this case. It is apparent from the record
that Burns actually sought to claim the privilege for his own
benefit and in derogation of his patients' interests.
¶35
Furthermore, the secrecy order regarding the criminal
investigation at issue does not deprive Burns of any
constitutional right because Burns has abundant knowledge
regarding the potential charges against him, and because the
Subpoena Powers Act requires pre-interrogation disclosure of all
information necessary to protect a witness's constitutional
rights. We accordingly deny Burns's rule 65B motion for
extraordinary relief.
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¶36
Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Justice Durrant's
opinion.

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