The Case for Properly Managing Potentially Discoverable Electronically Stored Information (ESI) for Health Care Risk Managers

by: Michael Tashman, V.P. Business Development, OnlineSecurity

Date: 5/22/2014

 

There are enough rules and regulations covering information generated by the Health Care industry to at least make all the legal parties aware they need to be careful. Whether it’s HIPPA or California SB 1386, or something else – something says “protect the information”

 

What about Medical ESI that might be demanded in the course of discovery in a legal matter?   While privilege applies here, as it would in any legal matter, perhaps, in light of HIPPA, it might be applied even more rigorously.  Nonetheless, medical information remains discoverable.  That includes information routed through email as well as information contained within various medical information repositories.

 

What does the defending attorney involved in a medical legal matter have to do as it pertains to medical ESI?  With the 2006 amendments to the FRCP covering Federal Cases, and the recently enacted California Electronic Discovery Act impacting California State Cases, the rules on the management of ESI are better defined.  Eliminated is the ambiguity about how ESI is to be handled.  The defending party has the same duty to preserve, and produce, as used to be the case with paper.  Indeed, the volume of information in question can be dramatically larger by the very nature of the typical source of ESI – computers.  Consequently the need to avoid spoliation, and the potential sanctions arising from such action, is multiplied many fold.

 

They key here is understanding that electronic data does change when handled in the normal course of business.  Upon notification of the filing of a complaint, it is incumbent upon the defending party to implement a litigation hold on the data that might be demanded in discovery.  In addition to NOT deleting any live information on the potential sources of electronic evidence, the backup tapes relevant to that matter must be set aside and taken out of the usual tape recycling loop.  Ultimately, it will become clearer what evidentiary information is to be produced to the opposing side.

 

The form of production specified will impact the process of collection employed to secure the information for review.  If the opposing side is simply requesting reports, paper or electronic, that may be the sum total of the production effort required from the defense.  However, more and more attorneys are recognizing the value of properly preserving and analyzing electronic data for responsive, non-privileged material.  

 

Computer Forensics has become a well accepted practice, typically used well in advance of traditional electronic discovery, to manage electronic evidence. The harvesting and analytical tools used by this practice can tremendously help the defending side in a medical legal matter.    Properly employed, Computer Forensics helps the defense meet the mandate of proper preservation.  The same applications used to preserve are also capable of segregating the privileged information from the non privileged.   Prior to production to the opposing side, the defense will typically want to review the remaining material.  Once again, those same tools that harvested the information can be used to analyze the remaining subset for both responsive material AND possibly adverse material that might represent a cause for exposure.  In the latter instance, even if that material must be turned over, the pre-production analysis can put defending counsel in a position to craft a better defense.  None of this speaks to the advisory expert role a computer forensics practitioner may play in a medical legal matter which, unto itself, can have tremendous value for the defense.

 

The key elements for the defense in a medically related lawsuit to consider are:  1. How do we preserve/avoid spoliation while responding to discovery?  2.  How do we segregate for privilege and adhere to HIPPA? 3. How do we review the material prior to production to the opposing side?

 

Help is out there.  Typically the aforementioned processes can save a considerable amount of time and money. It’s just a function of knowing the rules.