Electronic Discovery and Your Practice
Sunday, July 17, 2011
Our world has changed greatly in the past 10 years. E-mail, voicemail, computers, PDAs, BlackBerrys, MP3 players, cellphones, instant messaging — and the list continues — are a part of our everyday world.
Designed to make our professional and personal lives easier, this technology places everything and everyone at our fingertips in an instant. But is there a price for such convenience? When it comes to litigation and discovery, there may be a very real and significant financial cost.
Many of us enjoy these devices as they allow us to offer immediate feedback and praise ourselves on our responsiveness. Oftentimes, we prioritize quick feedback over accuracy. Likewise, as we tend to use these devices in private, we often assume that our comments, suggestions and even playful give-and-take will remain confidential. This is not the case, and our cavalier attitude should be tempered.
In many cases, electronically stored information (ESI) is as discoverable as a patient’s paper chart. It is, therefore, imperative that all potentially relevant electronic information be preserved as soon as litigation is reasonably anticipated. Failure to do so can result in harsh consequences, including monetary sanctions and even an adverse judgment. Your attorney will be able to guide you through this process to ensure that the preservation is effectuated in a forensically sound manner so that even inadvertent alteration of records cannot occur.
It is also critical to appreciate that ESI includes not only patient electronic medical records and radiology images stored on a computer, but also e-mail to/from patients and other medical providers about the patient, electronic calendars showing patient appointments and more. The scope of what can be considered relevant electronic information is, therefore, much broader than “old-fashioned” medical records and includes a lot of documentation that might not ordinarily be considered part of a patient’s chart. In fact, in certain cases, social media pages may be discoverable. Practitioners should be cautioned that this electronic information, especially e-mails and posts to social networking sites, may be accessible even years later and is more than likely discoverable. Thus, communication to patients, about patients or even about medical issues should be as thoughtful as the entries in the patient’s paper chart.
Electronic medical records have unique considerations of their own. For example, when producing electronic medical records, a practitioner must be aware that he or she may also be producing data that would indicate whether a patient’s records have been altered or amended. In contrast to paper records, where one might cross out a word and write “error,” a party reviewing the hard copy printout of an electronic medical chart will not necessarily know that there was a change. For instance, the notes in some medical records may indicate “amended” or “revised,” but only the most recent version of the note will be printed in hard copy. Those notations may tip off plaintiffs’ attorneys to ask for that information. Given that metadata can show who did what, when and where, producing the electronic data will allow plaintiffs’ attorneys to determine the number of times the note has been changed, when the notes were changed (e.g., several days or an hour later) and even where the notes were changed.
The electronic information world is one of transparency, and as practitioners increasingly make electronic records and communication part of their practices, they should be aware that this convenience may have real consequences. Nevertheless, with thoughtful communication, proper preservation and understanding as to potential discoverability of electronic information, these costs can be alleviated.
Nancy J. Block is a senior partner with Martin Clearwater & Bell LLP. She works extensively in complex, multiparty federal and state litigation involving hepatitis exposure, discrimination, RICO, fraud and false advertising claims. She is well-versed in the preservation requirements of electronic discovery and advises clients on these issues. Block also leads a team in the production of e-discovery in large-scale litigation for firm clients.
Gregory J. Radomisli is a partner with Martin Clearwater & Bell LLP. He has cultivated an expertise in electronic discovery. He has written on the topic and has given presentations — including at the Masters Conference in Washington, DC — on the particular issues electronic discovery presents in light of the burgeoning transition health care providers are making to electronic medical records.
MD News July 2011, Long Island