E-Discovery in Health Care Litigation By Tracy Vigness Kolb

1. E-Discovery in Health Care Litigation • By • Tracy Vigness Kolb

2. What is E-Discovery? • E-Discovery refers to the rules governing the discovery and disclosure of electronic data, or electronically-stored information (ESI), contained within any possible medium

3. Why need to know about E-Discovery? • Health care providers are parties to litigation • Medical negligence lawsuits • Electronic discovery applies to parties • Health care providers are non-parties to litigation but are • asked to produce information • Requests for medical records • Electronic discovery requests can be made on a non-party

4. The Basics to Prepare/Plan for E-Discovery • Data analysis/source mapping • Document retention plan • Litigation hold procedure • Consequences

5. The E-Discovery Rules • Party to Litigation • Rule 26, North Dakota Rules of Civil Procedure (General • Provisions Governing Discovery) • Forms of discovery include depositions, written • interrogatories, document requests

6. Scope of discovery (As proposed amended to be effective • October 1, 2012) • “Parties may obtain discovery regarding any nonprivileged matter • that is relevant to any party’s claim or defense, including the • existence, description, nature, custody, condition, and location of • any documents, electronically stored information, or other tangible • things and the identity and location of persons who know of any • discoverable matter.” • “Electronically stored information includes reasonably accessible • metadata that will enable the discovering party to have the • ability to access such information as to the date sent, date • received, author, and recipients.” • Does not include other metadata unless the parties • agree otherwise or the court orders otherwise

7. Rule 26 Discovery Meeting, Conference, Plan (As • proposed amended to be effective October 1, 2012) • Initial discovery meeting may include the subject of • discovery of ESI • Contents of discovery plan must include a proposed plan • and schedule of discovery, including the discovery of ESI • if appropriate

8. Elements of plan with respect to ESI • A reference to the preservation of ESI • The media form, format or procedures by which ESI will be produced • The allocation of the costs of preservation, production, and, • if necessary, restoration of ESI • The method for asserting or preserving claims of privilege or • of protection of ESI as trial preparation materials • The method for asserting or preserving confidentiality and • proprietary status of ESI

9. Costs of E-Discovery • Significant to Outrageous • Presumption is the responding party must bear the expense of complying • with discovery requests • Cost shifting may be considered when E-discovery imposes “undue • burden or expense” on responding party • Protecting Privilege • Clawback agreement • Parties’ agreement on procedure to assert privilege claims after • inadvertent production • Doesn’t ensure haven’t waived privilege • Depends on jurisdiction

10. Non-Party to Litigation • Rule 45, North Dakota Rules of Civil Procedure (Subpoena) • Command production of “designated documents, electronically stored information, or tangible things in that person’s possession, custody or control . . .” • N.D.C.C. § 23-12-14(2) (Copies of medical records and medical bills) • Upon request for medical records and/or medical bills with the signed • authorization of the patient, the health care provider shall provide the • requested records and bills • Paper or electronic • HIPAA/HITECH compliance issues

11. E-Discovery Obligations • Parties have a duty to preserve evidence when litigation is reasonably anticipated • Document retention/destruction plan • Must adopt written records management policy • Must follow that policy • Must address all the different types of data • The plan must contemplate the existing obligations under state • and federal law • Someone must be accountable to enact the plan

12. To develop plan, conduct data analysis/source mapping • Where is all the ESI? • Where is it stored, how it is stored, when it is deleted, and to what • extent it is accessible • Potential electronic storage sites (*Servers and computers with • different programs and access for medical records, radiology • records, human resource information, billing information, emails, • cell phones, and PDAs) • Once litigation is reasonably anticipated, a party must suspend its • routine document retention and destruction practices and put in place • a “litigation hold” to ensure the preservation of relevant ESI and • documents

13. Litigation Hold • An order to preserve relevant information • Any automatic process that might destroy this data must be halted • (auto-deletion, auto-archiving, back up recycling) • The data must be “frozen” so that it can no longer be changed • All users must be notified that they cannot manually delete or modify this information

15. The litigation hold applies to information that is “reasonably accessible” • What is reasonably accessible? • Information is “accessible” if stored in a readily usable format • It does not need to be restored or otherwise manipulated to be usable • Information is “inaccessible” if it is not readily usable • General rule: does not apply to inaccessible backup tapes (e.g., those • typically maintained solely for purpose of disaster recovery and which • may continue to be recycled on the schedule set forth in the party’s • policies) • But if backup tapes are accessible (i.e. actively used for information retrieval), they likely would be subject to the litigation hold

16. Metadata • Data within data • The “electronic footprint” • Discoverable if “reasonably accessible”

17. To implement a litigation hold, engage counsel because E-Discovery obligations • apply to both client and counsel • Together, make certain all sources of potentially relevant information • are identified and placed “on hold” • All “key players” are identified and instructed to comply with litigation hold • “Key players” are persons likely to have relevant information • Ensure the information is preserved and, if necessary, produced in discovery • Monitor continuing obligation to preserve, collect and produce

18. Consequences of failure to properly preserve relevant EST • Spoliation claim, adverse inference and/or sanctions for discovery violations • Spoliation is the destruction of or failure to preserve probative evidence • Paper spoliation • Usually intentional destruction of relevant evidence • Leads to an “adverse inference” or other sanctions Keen v. Brigham and • Women’s Hospital, Inc., 786 N.E.2d 824 (Mass. 2003) • Defendant hospital defaulted for losing the hospital chart of newborn

19. Adverse inference • Applies when a party lost/destroyed potentially relevant • evidence with no reasonable explanation. Jury is • instructed it may infer the evidence was unfavorable to • that party • In practice, often ends the litigation

20. Electronic spoliation • Much easier to do • Mass spoliation at the click of a mouse • Old data is destroyed every day by the routine operation of most systems • Email system is set to automatically delete messages if you • reach a certain storage limit • Federal case law often does not require intent • Accidental destruction can result in adverse inference instruction • No North Dakota cases involving E-Discovery • Fines v. Ressler Enterprises, 2012 ND 175

21. Safe Harbor • Rule 37(f), North Dakota Rules of Civil Procedure • “Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.” • Essential to have records management policy

22. Questions? Thanks! Tracy Vigness Kolb Zuger Kirmis & Smith PO Box 1695 316 N. 5th Street Bismarck ND  58502 (701)223-2711 tkolb@zkslaw.com