AHIMA Model E-Discovery Policies

Preservation and Legal Hold for Health Information and Records

AHIMA Model e-Discovery Policies

Subject/Title

Preservation and Legal Hold for Health Information and Records

 

Page _ of _

 

Revision History:

 

Effective Date:

Departments

Health Information Management

Original Issue Date:

Affected:

Information Technology

Last Reviewed:

 

Legal Services and Compliance Services

Last Revision:

PURPOSE: The purpose of this policy is to outline the process for preserving paper and electronic health records and related information when there is a reasonable anticipation of litigation to prevent spoliation of evidence.

SCOPE: This policy addresses the operational steps and communication process when litigation is anticipated and identifies the process to preserve and apply a legal hold on health information and records, whether paper-based or electronic. It applies to any health information/record regardless of whether it is maintained in the Health Information Management or by the clinical, ancillary, or financial department that created it.

POLICY: It is the policy of the organization to preserve health information and records (paper and electronic) and related information that are or will potentially be utilized in litigation. It is the policy of the organization to place relevant records under a legal hold and suspend normal destruction practices to prevent against spoliation.

PROCEDURE:

Trigger Events and Application of a Legal Hold

Responsible

Action

Litigation Response Team

The team will identify the trigger events that may indicate the potential threat of litigation (such as receipt of a subpoena, unexpected negative care outcome, verbal communication of pending litigation, etc). Develop the communication process when a trigger event occurs between departments/individuals and the litigation response team. The following are examples of trigger events:

  • Any notice of a lawsuit
  • Charge of discrimination
  • Notice of claim
  • Demand letter from a lawyer
  • Meeting at which someone brings a lawyer
  • Challenge to a corrective action (if the employee alleges a violation of state/federal law such as discrimination, harassment, whistleblower, etc.)
  • Any person verbally telling the department that they intend to sue

Litigation Response Team

The team will receive communication about trigger event and evaluate situation. It there is a reasonable anticipation that litigation will follow, the team will review the potential issue and make a determination on whether to apply a legal hold to relevant information.

The team will develop and define the process and decision-making for deciding when to apply a legal hold. 

The Sedona Conference Commentary on Legal Holds provides the following list of factors to consider in making a decision:

  • The nature and specificity of the complaint or threat
  • The party making the claim
  • The position of the party making the claim
  • The business relationship between the accused and accusing parties
  • Whether the threat is direct, implied, or inferred
  • Whether the party making the claim is aware of the claim
  • The strength, scope or value of a potential claim
  • The likelihood that data relating to a claim will be lost or destroyed
  • The significance of the data to the known or reasonably anticipated issues
  • Whether the company has learned of similar claims
  • The experience of the industry
  • Whether the relevant records are being retained for some other reason
  • Press and/or industry coverage of the issue either directly pertaining to the client, or of complaints brought against someone similarly situated in the industry

Litigation Response Team

The team will document the facts used at the time to decide whether there is a duty to preserve information. 

Litigation Response Team

If determined that a legal hold is warranted the team will begin the preservation and legal hold processes.  

Obligation to Identify, Locate, and Maintain Relevant Information

Responsible

Action

Litigation Response Team

Once litigation or potential litigation is identified, the response team must engage appropriate individuals to assist in identifying, locating, and maintaining relevant information (IT, Records Manager/HIM, and data owners/stewards of potentially relevant information). A legal hold team (a subset of the litigation response team) could be formed to follow through with appropriate departments and data owners/stewards.

Note: To assist with this process consider developing a list of applications and the data owner/steward. This will streamline the process of identifying where potential information may be found, who to contact to search relevant databases, and who to contact to interview.

Legal Hold Team

Meet or communicate with applicable departments/data owners to determine the information available and identify the relevant information to be preserved (in all sources and formats) including information held by business associates. The following examples of potential sources to search are provided by The Sedona Conference Commentary on Legal Holds:

  • Local area server for the office
  • Personal share or personal folders on server
  • Dedicated server for organization
  • Laptop and/or department computer
  • Home computer, blackberry and/or PDA
  • E-mail including archived e-mail and sent e-mail
  • E-mail trash bin, desktop recycle bin
  • Removable storage media (e.g. disks, CDs, DVDs, memory sticks, and thumb drives)
  • Department/office files
  • Personal desk files
  • Files of administrative personnel in department/office
  • Files located in department/office staff home

Legal Hold Team and Data Owners/Stewards

The team will implement a process to suspend normal destruction and maintain relevant information in conformance with the legal hold notice.

IT/Security Manager/HIM (data center, server, and server manager, EDMS manager)

IT/Security Manager/HIM will preserve relevant information. The optimal method of preservation will be determined by the type of data and/or agreements made during a pretrial conference. Examples of preservation methods include:

  • Making a mirror of image of a hard drive
  • Sequestering or archiving information/records
  • Retain back-up media to prevent destruction
  • Take a “snapshot” of information at a point of time and retain on separate media onto something else
  • For e-mail and voicemail files sequester an account and transfer files for a specific span of time
  • For paper records make photocopy. If originals requested, sequester files to protect from loss, destruction or alteration.

Preservation/ Legal Hold Notice

Responsible

Action

Legal Hold Team

Once relevant information is identified provide a written notice of a legal hold to the department/data owner and identify the relevant information.

Legal Hold Team

Review the legal hold notices in effect. Periodically reissue or amend as needed.

Legal Hold Team Representative

Designate an individual to oversee legal hold notices and answer questions (e.g., someone from legal department who is part of the legal hold team).

Monitoring Legal Holds

Responsible

Action

Litigation Response Team

The team will implement a process to monitor legal holds to track compliance.

Legal Hold Team

The team will periodically query data owners to ensure they are complying with notice requirements.

Data Owners

Data owners will respond to query with confirmation that relevant information outlined in the legal hold notice continues to be maintained.

Compliance Officer

The compliance officer will periodically audit for compliance with legal hold notice and maintenance of relevant information.

Release of a Legal Hold

Responsible

Action

Litigation Response Team

Once it is determined that the legal hold is no longer necessary, the litigation response team will release the legal hold.

Legal Hold Team

The legal hold team will review other legal holds to ensure there isn’t an overlap before notifying the data owners/departments of the release.

Legal Hold Team

The team will provide written notice that the legal hold has been lifted and resume normal retention and destruction processes. Include in the notice to the departments/data owners a list of applicable records that were under legal hold. Require a sign-off by the department/data owner.

HIM, IS. and Data Owners

If information was scheduled for destruction during the litigation hold period proceed with destruction process.

Compliance

Audit to ensure that information is not unnecessarily retained after the legal hold is lifted.

APPROVALS:

Legal Department Approval:

Date:

HIM Department Approval:

Date:

IT Department Approval:

Date:

Specify Other Department

Date:


Article citation:
AHIMA e-Discovery Task Force. "Litigation Response Planning and Policies for E-Discovery. AHIMA Model E-Discovery Policies: Preservation and Legal Hold for Health Information and Records." Journal of AHIMA 79, no.2 (February 2008): BoK Extras