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E - Discovery

E - Discovery. Federal Rules 2006 Alabama Rules February 2010 Scope of duty to preserve electronic evidence during course of litigation Sanctions for the spoliation (or destruction) of electronic evidence. E - Discovery. Not under control of single user

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E - Discovery

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  1. E - Discovery • Federal Rules 2006 • Alabama Rules February 2010 • Scope of duty to preserve electronic evidence during course of litigation • Sanctions for the spoliation (or destruction) of electronic evidence

  2. E - Discovery • Not under control of single user • Rarely can be destroyed without tell-tale signs • Resides everywhere • Laptops, office pcs, network servers, enterprise content and records management systems, thumb drives, PDAs, CD, DVDs, MP3 players, all phones, etc….

  3. Questions at Deposition • When and how did you learn about this lawsuit? • Did anyone tell you to preserve electronic data related to this lawsuit? • Have you deleted any files from your computer that might have been related to this lawsuit? • Have you deleted any files from your computer at all? How did you check to see whether they were relevant? • How do you use email, voicemail, internet posting, list serves? • Email with outside parties?

  4. Email “ I missed the diagnosis at the time thinking the problem was his pre-existing …… aggravated by a more recent …… injury. My clinic note is sketchy and I can’t figure out what I was thinking or what I did.” Email….”yet another patient incident last night involving ______ unit; the staff have no idea what they are doing, they are going to kill someone if something is not done!” Email…”we violated EMTALA last night…..”

  5. Think Twice About What You Write • Email transmissions monitored • Someone can print, copy, circulate or send to all email users • Keep it factual • Include only information acceptable in a public arena • Email is NOT privileged

  6. No Flaming • Flaming: verbal nastiness, venting emotion and in general being deriding or demeaning to or about others. • Count to ten rule • Don’t rashly—without thinking—spill your feelings into an email. • Once you hit send button…no getting it back • Be sure what is write is something you would say in person

  7. Is Email the Best Medium? • Depending on its • Length • Sensitivity • Possibility of misinterpretation • Potential for discoverability (quality assurance) • Phone, face to face may be better choice • Personal email…use a personal email account • All emails on CHS system are property of CHS

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