E-Discovery: The Path, The Perils, and a Plan for Success
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Presented for the OKHIMSS Medical Technology Forum at InnoTech Oklahoma on November 3rd. All rights reserved.
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E-Discovery: The Path, The Perils, and a Plan for Success
- 1. E-Discover The Path, The Perils, and A Plan For Success Kevin D. Gordon Jonathan G. Rector
- 2. E-Discovery Topics The Path — Electronic Migration/Proliferation The Perils — Prepared for E-Discovery? — E-Discovery Impact A Plan For Success
- 3. Electronic Migration/Proliferation Electronic World 97% of Business Information Created Electronically
- 4. Electronic Migration/Proliferation Electronic Medical Records (EMR)/ Health Information Exchange (HIE) Benefits Funding Oklahoma Efforts Security Risks
- 5. Electronic Migration/Proliferation EMR/HIE - Benefits — Improved Quality of Care/Patient Outcomes — Cost Reductions
- 6. Electronic Migration/Proliferation EMR/HIE - Funding — CMS Demonstration Project — American Reinvestment and Recovery Act • $19B – $17B = CMS incentives – $2B = ONCHIT grants
- 7. Electronic Migration/Proliferation EMR/HIE – Oklahoma Efforts — HISPC • Oklahoma Health Information Exchange Act • Executive Order 2008-4 • Executive Order 2011-10
- 8. Electronic Migration/Proliferation OHIET — $10 million in federal funding to support exchange in Oklahoma — 63 O.S. 1-132 — Help support and facilitate information exchange
- 9. Electronic Migration/Proliferation OHIET Updates — Lab — Pharmacy — Voucher Program
- 10. Electronic Migration/Proliferation EMR/HIE – Security Risks — HIPAA — HITECH ACT — OIG Report
- 11. Electronic Migration/Proliferation The “Legal EMR” Subset of Electronically Stored Information (“ESI”) Relied Upon to Make Clinical Care Decisions Voicemail Email Pagers Legal ESI EMR PDAs Records Digital Images
- 12. The Perils: Prepared for E-Discovery? Health care industry “grossly unprepared” for E-Discovery 32% - no definition of “Legal EMR” 25% - no policies for managing ESI from the “Legal EMR”
- 13. The Perils: Prepared for E-Discovery? “Top Ten E-mail Don’ts” E-Discovery Rules Electronic Migration/Proliferation Perils: Sanction, Exposure, Expense
- 14. “Top Ten E-mail Don’ts” 10. “I could get into trouble for telling you this, but…” 9. “Delete this e-mail immediately” 8. “I really shouldn’t put this in writing.” 7. “Don’t tell So-and-So.” Or, “Don’t send this to So-and-So.” 6. “She/He/They will never find out.” 5. “We’re going to do this differently than normal.” 4. “I don’t think I am supposed to know this, but…” 3. “I don’t want to discuss this in an e-mail. Please give me a call.” 2. “Don’t ask. You don’t want to know.” 1. “Is this actually legal?”
- 15. E-Discovery Rules 2006, 2007 — Federal Rules of Civil Procedure amended.
- 16. E-Discovery Rules These expansive e-discovery rules are no longer limited to federal court. The Oklahoma Legislature made changes to the discovery code to bring it more in line with the federal rules. Those changes took effect in 2010.
- 17. E-Discovery Rules ESI is “expansive and includes any type of information that is stored electronically.” “Intended to be broad enough to cover all types of computer- based information, and flexible enough to encompass future changes and developments.”
- 18. E-Discovery Rules “May obtain discovery … [of] any non-privileged matter … relevant to … claim or defense.” “Reasonably calculated to lead to the discovery of admissible evidence.” “Limit … discovery … if … burden or expense … outweighs its likely benefit.” “Need not provide discovery of ESI from sources … not reasonably accessible because of undue burden or cost.”
- 19. The Perils: Prepared for E-Discovery? In 2010, less than half of all businesses – 46 percent – had a formal information retention plan in place.
- 20. Electronic Migration/Proliferation Traditional ESI Sources Proliferating ESI Sources Office desktops Facebook, MySpace, Office laptops Twitter Business e-mail Instant Messaging Business voicemail Text Messages PDA’s, Cell phones Yahoo Mail!, Gmail Blogs Metadata
- 22. Most Requested E-Discovery? It’s not just email you need to be concerned with…
- 23. E-Discovery Rules Compressed Time Deadlines Litigation Planner Meet & Confer/ Initial Scheduling Suit Filed Order Litigation Hold, Discovery Plan Disclosures Identification, Collection, Production, Preservation, Review, Analysis, Mapping, Inventory ~ 45 days Discovery
- 24. Sanction, Exposure, Expense Adverse Inference Default Judgment Monetary Fines Re-produce Documents
- 25. Sanction, Exposure, Expense According to a 2010 study in the Duke Law Journal, out of 97 total cases in 2009, 63 resulted in sanctions.
- 26. Adverse Inference Adverse instruction for failing to produce “corrupted” or “lost” documents. 9/14/2011- E.I. du Pont de Nemours v. Kolon Industries — Adverse jury instruction for spoliation leads to $919 million dollar verdict
- 27. Default Judgment 2/16/2011 – Philips Elecs. N. Am. Corp. v. BC Tech — Default judgment, attorney fees and referral to U.S. Attorney’s Office for criminal prosecution even though the e- discovery abuse was cured.
- 28. Monetary Fines 7/18/2011 – Genger v. TR Investors, LLC — Court upholds $3.2 Million in sanctions for intentional deletion of unallocated free space 7/7/2011 – PIC Grp., Inc. v. LandCoast Insulation, Inc. — Court orders Defendant to pay sanctions without possibility of indemnification
- 29. Re-produce Documents Vendor failure resulted in party having to re-produce all emails and attachments at own expense. — PSEG v. Alberici, (N.D.N.Y. 2007).
- 30. A Plan for Success E-Discovery Readiness: ID, Inventory, Map Retention, Destruction, Hold Collect, Analyze and Review Produce Audit
- 31. A Plan for Success Litigation Planner (with E-Discovery Plan) Identification Analysis & Collection & Production Preservation Review Meet & Confer/ Initial Scheduling Suit Filed Discovery Plan Disclosures Order ~ 45 days Discovery
- 32. PRESENTED BY Kevin D. Gordon kevin.gordon@crowedunlevy.com 405-239-6619 Jonathan G. Rector jonathan.rector@crowedunlevy.com 405-235-7702 The material presented in this forum is for informational purposes only and is not intended to be legal advice. If you have a specific question regarding legal matters, please contact the attorney with whom you regularly work. Copyright © 2011 Crowe & Dunlevy, P.C.