Ad Litem Consulting, Inc.

A special thanks to Stefany Robinson, VP Research and Education, OutIndex, Inc. and Adjunct Faculty Member, for this article. (Original Article)

May 15, 2007

New changes to the Federal Rules of Civil Procedure related to eDiscovery will greatly affect how healthcare organizations manage their electronically stored information (ESI). According to the American Health Information Management Association (AHIMA), electronic health record (EHR) technology advances have forced litigators to gain a much deeper understanding of eDiscovery. Attempting to identify all potential sources of ESI can leave the most seasoned attorney somewhat dazed and confused.

You may be asking yourself several questions such as, “What is eDiscovery and how does it pertain to Health Care Industry litigation?” Why do litigators need to be concerned with intricate details of their clients’ computer network infrastructures? Why should corporate legal departments be knowledgeable of the protocols that are drafted and implemented by their Information Technology group? Is it really necessary for network managers to understand the various steps involved in the litigation process? Glad you asked, please read on.

eDiscovery is defined as the request, collection, review, production and management of electronic information, whereas, computer forensics pertains to the identification, preservation, extraction, documentation and analysis of computer evidence. In essence, computer forensics is actually a specialized function within the overall eDiscovery process. Summarizing our previous questions, “Do Litigators and I.T. staff, as well as the corporations that they support, need to be concerned with ESI and the eDiscovery process? Undoubtedly, without question, the answer is an overwhelming” YES!” Why? Simply put, the new FRCP amendments mandate that effective management of ESI in litigation matters is mandatory.

The evolution of eDiscovery is clearly imminent. Long gone are the days of asking each other, “To produce or not to produce?” and sealing the deal with a cordial yet firm handshake. Ignorance of the eDiscovery process (i.e. “Don’t ask, don’t tell”) is not an acceptable strategy and in addition, failure to abide by these new rulings can result in sanctions. Case and point, UBS Warburg received $10,000 in sanctions for failing to preserve and search their email after a court issued a preservation order. An adverse jury instruction returned a $29 million dollar verdict. In similar cases, Bank of America and Phillip Morris USA were both fined over a million dollars each, while Morgan Stanley suffered a catastrophic blow when they were handed down a $1.4 billion dollar settlement verdict. Mismanagement of eDiscovery was the culprit in all of these lawsuits.

What can be done to minimize the risks of costly sanctions and penalties as well as reduce the overall costs of litigation?

Understanding the FRCP and the basics of ESI and the eDiscovery process is the best place to start. The Health Care Industry has certain compliance issues that directly affect how eDiscovery must be managed. Confidentiality of Health Information, regulated by HIPAA, is a prime example. Medical records contain highly sensitive information that, turned over to the wrong parties, could cause severe adverse affects to both patients and providers. Secondly, start formulating the following questions about your ESI. “Who, Where, What, When and Why”? Who are the potential ESI custodians (i.e. individuals or business units within the organization), where is this data located (i.e. storage devices including servers, hard drives, laptops and archives), what type of data is involved and to be delivered (i.e. email messages, databases, application and systems files, processed as native files, Tiffs or PDF), when should the data be collected (i.e. discovery deadlines, processing requirements) and why are you collecting this data (i.e. document reviews and productions)?

If you are finding yourself slightly or even moderately confused, remember, you do have several options and you are not expected to learn all the intricate details of the FRCP or eDiscovery overnight. Your immediate task is to schedule an assessment of your current ESI model, as soon as possible. Do not wait until you are faced with a litigation matter to begin sorting out the details. Partnering with a reputable consultancy firm, which specializes in eDiscovery, is your best defense in protecting your firm and your clients. Secondly, and equally important, start by educating yourself by reading such reference materials as Electronic Discovery and Evidence by Michael Arkfeld, (www.lawpartnerpublishing.com/publications/) and Litigation Support Department by Mark Lieb (Ad Litem Consulting, www.adlitem.com/store/). Each publication provides an in-depth explanation of the many phases of the eDiscovery process. Remember, having an assessment generated of your current ESI model will provide you with a foundation to begin building your strategy.

Educating yourself on the FRCP, ESI and eDiscovery fundamentals will provide you with the tools that you will use to maximize the efficiency of your overall process. Taking a proactive approach to managing all of your data will ultimately save thousands and possibly millions or more in sanctions and adverse jury instructions. Remember, delaying an assessment can be catastrophic to your firm. Contact OutIndex to schedule your ESI assessment today.

By Stefany Robinson
VP Research and Education, OutIndex, Inc.
Adjunct Faculty Member - Wilmington College / Delaware Technical and Community College