Knowing e-discovery rules saves doctors time and money
■ A column analyzing the impact of recent court decisions on physicians
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To address rising demands for electronic data during medical liability cases, state courts are imposing rules regulating e-discovery requests.
The Florida Supreme Court in September became the latest to enact rules aimed at electronic evidence.
Physicians and other health professionals should pay close attention to e-discovery regulations in their state, legal experts say. Although the regulations provide more structure to litigation requests, being unfamiliar with them can lead to court sanctions, wasted time and unnecessary expenses.
“Being versed in the rules will allow litigants to understand their obligations at the outset of a [claim] and will allow them to effectively craft a discovery plan that is compliant with these rules,” said attorney Scott A. Milner, a Philadelphia-based partner in Morgan, Lewis & Bockius’ eData Practice Group. “Depending on the state and the specific rules, there are likely opportunities for a litigant to reduce their burden with respect to specific aspects of discovery, including scope of preservation and collection.”
In the last few years, electronic data have become an enormous part of court disputes, said Ralph Artigliere, a retired Florida judge and former medical liability attorney. He was part of the advisory committee that crafted Florida’s e-discovery rules.
“There is a much better opportunity to find a smoking gun and get to the truth of something” through electronic records, he said. “The other side of the coin is it has become monumentally expensive to deal with these cases. There’s so much information in so many places.”
The federal court system in 2006 developed the first set of rules governing electronic requests. However, the regulations applied only to federal court cases, which seldom have to do with medical liability.
State courts have handled e-discovery issues on a case-by-case basis, imposing varying opinions about what was acceptable. More than 30 states have court rules targeting e-discovery. In addition to Florida, four states — Louisiana, North Carolina, Pennsylvania and Vermont — enacted or added court rules addressing e-requests in the last year.
The directions provide a road map for legal parties to access and produce electronic documents more efficiently, Artigliere said. For example, Florida says the requesting party may designate the form in which he or she wants the electronic record. If a certain type is not requested, the responding party may decide how to produce the data as long as it’s in a “reasonably usable format.”
Most state rules let doctors challenge e-discovery requests if they can prove the demand is “not reasonably accessible because of undue burden or expense.” States generally allow judges to decide who pays for the e-discovery.
“With the volume of data and costs to handle e-discovery exploding over the last decade, states have recognized the need to provide some guidance to litigants on ways to curtail these issues,” Milner said. “The courts are also tired of the increased number of discovery disputes, so by providing some guidance at the state or judge level, the intent is to attempt to mitigate costs while also attempting to reduce the number of disputes.”
Regulations need revision
Some health law attorneys say state e-discovery rules have holes that pose challenges for medical professionals.
For instance, Louisiana’s rules do not protect physicians from exposure if they inadvertently release protected information while fulfilling a discovery request, said Jason Cashio, a Louisiana-based medical liability defense attorney and partner at Kean Miller LLP. Federal rules on e-discovery include a provision that protects client-attorney privileged information from disclosure if mistakenly released, he said. But not all states incorporate that protection, leaving such information at risk for public exposure.
Doctors also face uncertainty about when to preserve documents. Neither federal nor state court rules address documents preserved for e-discovery. The question is left up to individual courts and state case law. Physicians know they must keep medical records, Cashio said, but standards for such communications as emails, texts and internal documents are not clearly defined.
“There is no specific bright line rule that tells you when you have to save potentially relevant” electronically stored information, he said. “Rather, you have to rely on the case law, which is limited to fact-specific events that vary from case to case. The standard most often cited from case law is that a party has a duty to preserve evidence when ‘a party reasonably anticipates litigation.’ Such a standard is fairly vague and doesn’t really offer much in the way of guidance.”
In addition, state and federal rules do not address database consistency and cleaner production of electronic information, said Clifford Rieders, a Pennsylvania-based medical liability trial attorney and past president of the Pennsylvania Trial Lawyers Assn.
“All [the rules] deal with is a requirement to talk about and to develop a system for maintaining the integrity of electronic records and searching them,” he said. “They do not deal with uniformity. They do not deal with interchangeability. They do not deal with ease of use.”
Confronting e-discovery head-on
Physicians should consider how to respond to e-discovery before a lawsuit, said Pittsburgh attorney Thomas J. Smith, a partner and co-chair of the K&L Gates e-Discovery Analysis and Technology (e-DAT) Group. The international law firm provides e-discovery consultation and records management.
“Health professionals really need to think about e-discovery issues proactively,” he said. “They need to think about, ‘How do I reduce my litigation e-discovery costs even before I have litigation?’ The way they do that is by having a sound record retention policy in place.”
Physician practices should develop policies about record preservation and communicate them to employees and stakeholders, he said. Often, medical staffs save too much information, and when a discovery request arises, they have a mountain of unnecessary documents to sift through, he said.
Doctors should familiarize themselves with the e-discovery rules in their state, Artigliere said.
“It would behoove the doctor to know the obligations they are going to have,” he said. “They don’t have to know all the wording of the rules, but they should know the basics, and they should know something about the technology they’re using so they can carry out the directions.”
Understanding the case law surrounding electronic requests is another essential step, Smith said. In many states, published court opinions provide further clarification to procedural court rules. For example, a New York judge in the 2003 case of Zubulake v. UBS Warburg said parties do not have to release electronic discovery unless the evidence is clearly relevant.
“Knowing the legal rules and the case law that is developed around those rules helps you know what you’re obligated to search for and produce and the scope of your burden,” Smith said. “That’s a step many parties skip. & If you understand clearly what your obligations are, you can act a lot more cost-effectively.”