EDiscovery in Health Care Litigation By Tracy Vigness

E-Discovery in Health Care Litigation By Tracy Vigness Kolb

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

Why need to know about E-Discovery? o Health care providers are parties to litigation § Medical negligence lawsuits § Electronic discovery applies to parties o 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

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

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

• Scope of discovery (As proposed amended to be effective October 1, 2012) o “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. ” o “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

§ 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

o 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

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

o 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 o Paper or electronic § HIPAA/HITECH compliance issues

E-Discovery Obligations o Parties have a duty to preserve evidence when litigation is reasonably anticipated o 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

o 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) o 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

o 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

o The litigation hold applies to information that is “reasonably accessible” § What is reasonably accessible? • Information is “accessible” if stored in a readily usable format o 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

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

o 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

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 o Usually intentional destruction of relevant evidence o Leads to an “adverse inference” or other sanctions Keen v. Brigham and Women’s Hospital, Inc. , 786 N. E. 2 d 824 (Mass. 2003) § Defendant hospital defaulted for losing the hospital chart of newborn

• Adverse inference o 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 o In practice, often ends the litigation

§ 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 o Email system is set to automatically delete messages if you reach a certain storage limit • Federal case law often does not require intent o Accidental destruction can result in adverse inference instruction • No North Dakota cases involving E-Discovery o Fines v. Ressler Enterprises, 2012 ND 175

Safe Harbor • Rule 37(f), North Dakota Rules of Civil Procedure o “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

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