I. What is E-Discovery?
E-discovery is defined as the pretrial legal process used to describe the method by which parties will obtain and review electronically stored information. The 2006 Federal Rules of Civil Procedure (FRCP) served to place electronically stored information (ESI) on equal footing with paper documents in the eyes of the court.
ESI of any kind can serve as evidence. This may cover any type of ESI data or devices including, but not limited to, text, images, voice, databases, spreadsheets, legacy systems, tape, Smart phones, tablets, instant messages, e-mail, calendar files, and Websites.
With the enactment of changes to the FRCP in 2006, the legal process of discovery for healthcare has undergone a radical transformation. The rules governing the discovery of electronic information and the and the legal processes to be followed will vary by court jurisdiction (federal, state, or local) as well as the nature, size, and type of case under litigation (civil, criminal, or class action).
II. Scope and Purpose of Practice Brief
This practice brief outlines five key steps in developing a litigation response plan and process utilized by some organizations. It uses the FRCP as the foundation for its recommendations.
To date, “thirty-one states have adopted e-discovery amendments as part of their civil rules inspired in whole or in part by the provisions of the 2006 amendments1” “In so doing, these states seek to ‘retain the basic uniformity between state and federal practice that is a continuing goal of [many states].2’ ”
As the vast majority of the states have adopted some form of e-discovery rules, healthcare organizations must then establish information and data governance processes within their institutions which includes e-discovery and litigation and regulatory response planning as critical components of their information governance and data governance processes.
III. E-Discovery – The True Genesis of Today’s Information and Data Governance Movement
Unbeknownst to many, the true genesis of today’s information and data governance movement lies within an ordinary gender discrimination suit filed by securities trader Laura Zubulake in the Southern District of New York (SDNY). When securities trader, Laura Zubulake3 sued her employer, UBS Warburg, in 2002, it is unlikely he understood one day she would be recognized as the pioneer of today’s information and data governance movement—or that her case would impact and forever change the way legal counsel, and the organizations they represent, manage their information and data—or that consequences for the improper handling of electronically stored information by for either legal counsel or the organization they represent in the context in the context of litigation could be dire.
To this day, to the Zubulake I-V decisions4serve as one of the most important (if not the most important) caselaw decisions about information and data governance of our time. Four of five these decisions impacted the 2006 FRCP amendments, as well as many of the proposed 2013 amendments to the FRCP.5 To successfully manage e-discovery, healthcare organizations must develop a well-defined structure and process to understand, manage, and prepare for litigation. Legal counsel and HIM and IT professionals must work together to successfully manage the electronic discovery (e-discovery) process, implement a litigation response plan, and develop or update information and data governance policies concerning litigation response planning and e-discovery.
IV. What is Information and Data Governance?
In March, 2013 the American Health Information Management Association (AHIMA) established and introduced its own definitions of health information and data governance, of which e-discovery and litigation response planning are components. Outlined below are these definitions.
“Enterprise Information Management (EIM) involves the infrastructure, policies, and procedures to ensure information is trustworthy across the organization.”
“Information Governance (IG) is the accountability framework and decision rights to achieve enterprise information management (EIM). EIM is defined as the infrastructure and processes to ensure the information is trustworthy and actionable.”
“Data Governance (DG) is the overall management of the availability, usability, integrity, and security of the data employed in an organization or enterprise.”
“IT Governance primarily deals with connections between business focus and IT management.”
A copy of AHIMA’s 2013 presentation to the Component State Associations (CSAs) entitled “A Primer of Health Information Governance”
V. Five Steps In Developing a Litigation and Regulatory Investigation Response Plan
HIM and IT professionals should seek the opinion of their organization’s legal counsel in the final development, review, and approval of the e-discovery plan, policies, and procedures.
How to Develop a Litigation Regulatory Investigation Response Plan
1. Conduct an Evaluation of Applicable Rules
Legal counsel plays a crucial role in e-discovery and/or any regulatory investigation. As a first step, organizational legal counsel conducts a thorough evaluation of all e-discovery rules applicable at the federal, state, and local levels.
Following this evaluation, legal counsel should educate the governing board, senior and middle management, and other departments with whom it works closely (e.g., risk management, compliance, HIM, and IT) about these rules and regulations and how they expect they will be applied to the organization.
Within the organization, the actual process by which the discovery of electronic information will occur will depend on the jurisdiction of the court and the type and complexity of the case to be litigated. The process may also depend on the scope and complexity of the organization’s business and state of operations.
2. Identify a Litigation and Regulatory Investigation Response Team
Fundamental to the management and administration of e-discovery is a group of interdisciplinary professionals who serve as the organization’s litigation and regulatory investigations response team. This team is responsible for implementation and ongoing review of the e-discovery process.
The litigation and regulatory investigation response team should conduct an assessment of the organization’s current practices against the e-discovery rules that are applicable to the organization and jurisdiction.
It should then establish, implement and monitor any and all new policy and procedures necessary to successfully manage the e-discovery process. This step includes discussion and analysis of e-discovery issues and development of organizational resources such as enterprise information management (EIM) retention and destruction schedules and IT system diagrams
The litigation and regulatory response team should also oversee the identification, preservation, search, retrieval, and production of responsive electronic and other potentially relevant information related to pending and current litigation or regulatory investigation.
It should provide input to legal counsel (and possibly the compliance or risk management department depending upon the organizational structure) about the forms, formats, methods, status, costs, location, and burden of production of potentially responsive information. The team should also oversee the ongoing review, monitoring, and evaluation of e-discovery processes within the organization.
Litigation Response Team Roles
The litigation response team should be comprised, at a minimum, of individuals from the legal counsel, compliance or risk management, HIM, and IT departments. Depending on its type, structure, and complexity, the organization may choose to appoint other members to the team, which may include, but are not limited to:
- Chief medical information officer
- Compliance officer
- Risk Manager
- Executive management (chief operating officer, chief information officer)
- Executive nursing management (vice president of nursing)
- Financial officer, other designated department, or business process area managers (business office, radiology, laboratory/pathology, emergency services, or other designated management)
Their roles are outlined in the following descriptions.
The governing board should maintain ultimate responsibility for the oversight of e-discovery within the organization. It should also approve the organization’s operational plan for e-discovery if appropriate.
The CEO or his or her designee should work closely with legal counsel, the compliance or risk management in the ongoing review of e-discovery litigation. The status of e-discovery litigation should be reported to the governing board on a regular basis. The litigation response team and planning process should be supported by an executive sponsor.
The CFO and key healthcare principals should be involved and aware of the organization’s record retention and destruction policies and procedures, especially with regard to retention of all financial and audit records.
1) Publically Traded For Profit Healthcare Organizations - Sarbanes-Oxley Act of 2002
Publically traded, for-profit organizations are required to maintain a greater responsibility for the establishment of internal controls. These internal controls may be the subject of future litigation and/or regulatory investigations. The Sarbanes-Oxley Act of 2002 places additional responsibilities on CFOs and other Healthcare Executives as follows:
A. Governance – Title III Section 302 – ‘Corporate Responsibility for Financial Reports’
Principal Officers and Financial Officers must sign the financial report and attest that it contains no false statements; or face stiff penalties. Healthcare leadership activities must include formal statements that:
- The signing officers have reviewed financial reports;
- Reports do not contain material untrue statements or omissions considered misleading;
- Statements fairly present financial condition and results in all material respects;
- Signing officers are responsible for internal controls and must report findings;
- All deficiencies are in internal controls reports and information on fraud is included; and
- Internal control changes that could negatively impact them are included.
B. Internal Controls – Title III Section 302(a)(4)(A)–(D) Establishes That Officers Are Responsible For:
- Establishing and maintaining internal controls;
- Designing internal controls so material information is known to officers;
- Evaluating effectiveness of internal controls within 90 days; and
- Presenting conclusions about the effectiveness of internal controls.
C. Ethics – Title IV – Section 406 ‘Enhanced Financial Disclosures’ and Code of Ethics for Senior Financial Officers’
Healthcare organization must establish processes for the ethical handling of actual or apparent conflicts of interest, full disclosure in the financial reports, and compliance with government rules and regulations.
D. Disclosure – Title IV – Section 409 – ‘Real Time Issuer Disclosures’
Disclosures must be made to the public “on a rapid and current basis”
Accordingly, healthcare organizations should do the following:
- Adopt a strict conflict of interest disclosure statement and policy;
- Develop an unambiguous definition of ”conflict of interest”;
- Develop and use solid criteria for selecting new board members, and
- Treat prospective physician board members like all board members.
E. Penalties for Non-Compliance with Sarbanes-Oxley
The Sarbanes-Oxley Act imposes penalties of fines and/or up to 20 years imprisonment for altering, destroying, mutilating, concealing, falsifying records, documents or tangible objects with the intent to obstruct, impede or influence a legal investigation.
Depending on the size and structure of the organization, legal counsel and risk management may operate as a single department or separately. Legal counsel may be involved in one or a number of FRCP Rule 26 Conferences (also known as a Meet and Confer Conference) with opposing counsel and the court early in the litigation process. Because of this, legal counsel must play an integral role in oversight of the e-discovery process while working collaboratively with and HIM and IT to ensure relevant information is identified, preserved, and produced in the face of pending litigation.
Legal counsel should work closely with the HIM department to understand and articulate the organization’s records management requirements. Early in e-discovery, HIM personnel take on an expanded role in working alongside legal counsel to identify, preserve, and collect all potentially relevant ESI. The Risk Manager and Compliance Officer should work with the HIM department in processing of subpoenas and in monitoring of legal hold and location and preservation of all potentially relevant ESI.
The HIM department should provide authoritative and technical knowledge about the management of both paper and electronic health information within the organization. The HIM department traditionally has been recognized as the official legal custodian of the patient’s health records. Because of this, in most organizations, the HIM department accepts and processes subpoenas for patient health records. HIM should continue to work closely with legal counsel in the identification, preservation, and production of all information (electronic and paper) relevant to litigation.
The HIM director must be knowledgeable about the flow, forms, formats, and location of information and records maintained by the organization, including maintenance and management of the retention and destruction schedules. The HIM department should work closely with IT and be involved in the development of the organization’s information management plan and its ongoing maintenance and update.
Depending on the structure of the organization, management from ancillary departments may support the IT and HIM departments in ensuring relevant information is identified, preserved, and retained in the face of pending litigation. The organization should establish the role of ancillary department management in an e-discovery team and organizational response to e-discovery requests for information. Each ancillary department should develop its own specific policies to describe the methods by which entries are made into the health record and organizational process for ensuring the quality and integrity of the data.
The IT department will provide the technical support for the organization’s hardware and software systems. The IT department will be a valuable resource for legal counsel. The IT department can assist in describing to a court how the organization’s technical systems, such as the organizations hardware and software systems are structured, maintained, and operate. IT should also be able to detail how data are accessed, stored, retrieved, and destroyed, in addition to system security and disaster recovery plans. The organization must also define the role of the medical staff in an e-discovery team and organizational response to an e-discovery request for information. Many healthcare organizations designate a member of its medical staff or an individual with extensive clinical background to function as the chief medical information officer. This person can be a valuable resource to legal counsel in understanding the applications and functionality of the organization’s information systems and the impact they have in the delivery of a patient’s care. Medical staff rules, regulations, and bylaws should specify the practices for documentation in the health record.
Depending on the structure and complexity of the organization, the compliance officer may or may not be designated as an active member of the organization’s e-discovery team. Regardless of structure, the potential involvement of compliance in e-discovery cannot be overlooked. The compliance office should work closely with the litigation response team to ensure adherence with e-discovery organization policies and procedures.
Depending on the structure of the organization, the nursing office may support the HIM and IT departments in ensuring relevant information is identified, preserved, and retained in the face of pending litigation. The role of the nursing office on the e-discovery team and organizational response to an e-discovery request for information should be established by the organization. The Nursing Department should also develop its own specific policies that describe the methods by which nursing personnel make entries into the health record and organizational process for ensuring the quality and integrity of the data.
3. Analyze Issues, Risks, and Challenges
Prior to developing organizational policies and procedures, the litigation response team must analyze the new issues, risks, and challenges resulting from e-discovery. This analysis will shape policy and procedure. It will also identify gaps in organizational resources.
The topics below highlight the emerging challenges. Direct questions are provided for the litigation response team to use as discussion starters.
Characteristics of Electronically Stored Information (ESI). ESI is information created, manipulated, communicated, stored, and best used in digital form. It requires the use of computer hardware and software. Organizations should distinguish ESI from conventional media such as paper documents, photographs, microfilm, and analog recordings in their e-discovery processes. The volume of ESI is significantly greater than that of paper documents.
Questions to answer:
- Where is ESI located within the organization?
- What will be the standard procedures and method(s) by which the organization will identify and disclose relevant ESI?
- Does the organization have any polices for the use of bring your own devices (BYOD) devices within the organization?
- Is it appropriate to utilize an outside vendor for the collection of ESI within the organization?
Preparing for a meet and confer pretrial conference. A judge, magistrate, or special master will oversee the e-discovery litigation between parties. Prior to trial, the parties’ legal counsel will meet and confer with the judge, magistrate, or special master to discuss and agree upon matters and the approach to be taken with regard to the discovery of electronic information.
The meet and confer sessions could be conducted in one session or several. The actual number of sessions will depend on a multitude of factors affecting the case, including size, scope, and complexity of the case as well as the knowledge, education, and experience of the judge, magistrate, special master, and attorneys involved in the e-discovery litigation.
Given the expansive amounts of electronic information that exists within information systems today, e-discovery can be an intricate, time-consuming, and costly undertaking. Therefore, before an e-discovery meet and confer conference takes place, it is important that legal counsel is educated and knowledgeable about the organization’s information systems and records management policies.
Questions to answer:
- In response to a request for ESI, how will the organization locate, index, cull, search, classify, and produce all potentially responsive information?
- What benefit (if any) would there be to an Enterprise Information Management (EIM) system?
- Does the organization have a current data map which describes the technical infrastructure and how systems are interconnected and operate within the organization?
- How will the organization determine its true costs to index, classify, store, cull, search, retrieve, and produce ESI?
- If asked, how would the organization describe the “good faith operation” of its information management systems?
- Is there a resource that identifies all information operating systems that are in existence within the organization, including the type, nature, and location of all information systems, as well as the voice, back-up, legacy, and orphan systems?
- Have all record custodians been identified? Are there record custodians you would like me to talk to?
- What are the organizational policies and procedure related to records storage, management, and destruction?
- Does counsel have a current copy of the organization’s information technology operating procedures?
- What would the benefit be to using technology assisted review (TAR)7 or Predictive Coding8 to do this review?
Definition of official custodian of the record. In the traditional, paper-based realm of healthcare discovery, designation of the legal official custodian of the health record was clear. In most healthcare organizations the HIM department served in this capacity. The mechanics of the traditional paper-based discovery process have been tied closely with the identification of the official custodian of the health record.
In today’s ESI realm, the role of official custodian is not as clear. The loss of a clear designation will generate issues with the retention, preservation, and production of electronically stored information. Therefore, organizations must establish and monitor written legal hold policies and procedures which articulate how records will be preserved and maintained in the face of threatened or impending litigation or a regulatory investigation, ESI presents four basic levels of custodianship as outlined below.
Four Levels of Custodianship
Electronically stored information presents organizations with four levels of record custodianship. These depend on a person or entity’s relationship to the data and data system and proximity to the case in litigation. As in traditional paper-based records, HIM should remain the official custodian of the health record.
Level 1: Primary or Direct Custodians. Those persons who work with the data directly or have direct involvement or knowledge of the events of the case. For example, a staff nurse who has made an entry into the health record and is knowledgeable about the events of a case in litigation. Primary custodians may be deposed or required to testify because of their direct involvement or knowledge of the case.
Level 2: Data Owners or Stewards. Individuals with responsibility to oversee business process areas may be designated as the data owners or stewards. They have knowledge of the procedures used to create, manage, and preserve specific types of records. Examples of business process areas include finance, radiology, lab, risk management, compliance, and nursing.
Level 3: Business Associates and Third Parties. Contractors and others who serve a variety of functions associated with a party’s information but who are not parties to the litigation. Examples include Internet service providers, application service providers such as a claims clearinghouse, and other providers who provide services ranging from off-site data storage to complete outsourcing of the IT department.
Level 4: Official Record and System Custodians. Each organization should outline and establish as part of its litigation and regulatory response plan what the role of HIM and IT will play in designation of official medical record and system custodians. As HIM has historically served in this capacity, it is recommended that the HIM function play a key role in the organization’s information and data governance processes, including but not limited to serving and/or leading the litigation response team, the processing of subpoenas and management of the legal hold function.
In today’s realm of electronic discovery, the HIM department should be designated to maintain the administrative and technical knowledge about how ESI is managed and used within the organization. It should remain the official custodian of the record. The HIM department should be responsible for content and compliance responsibilities associated with the management of electronic information. It should be knowledgeable about the forms, format, and location of potentially responsive ESI.
Staff within the IT department may serve as the official custodian of the information system. Examples of this include the computers, servers, back-up and legacy systems, communications and voice systems, and near-line media. The IT staff who serves in this capacity will play an essential role in the discovery of ESI.
These personnel run the technical infrastructure of the organization’s information management systems on a day-to-day basis. They understand the overall relationships between the different files, structure, and storage mechanisms of the organizations’ information management systems. Generally, IT staff are not experts on the specific content or the related managed policies; instead they understand how the organization’s systems operate on a technical level.
Questions for discussion:
- How will the organization define and delineate “official custodianship” of its health and business records?
- Have data owners and stewards and the records they manage been identified?
- How will the organization communicate to its data owners and stewards and business associates a potential need to identify, preserve, and produce potentially responsive information for e-discovery litigation?
- How will department held copies of the records (aka shadow records) be included during e-discovery?
Preservation and legal holds. The organization has a legal duty to preserve all potentially responsive information in the face of threatened or impending litigation. The scope of that duty encompasses all potential evidence related to those identifiable facts and may shift as litigation develops.
Questions for discussion:
- Has the organization completed a comprehensive retention and destruction schedule that identifies all enterprise records (both paper and electronic) as well as the data owners?
- What potential triggers will initiate a potential litigation investigation and possible legal hold?
- Who within the organization will be responsible for establishing a litigation hold?
- How will all potential evidence be assimilated, indexed, and produced?
- Who will monitor the legal hold and reissue or lift it as pertinent facts change over time?
- At what point in the process should legal counsel negotiate a stipulated plan for the preservation of data to make sure the opposing side understands its obligations and to limit its own potential liability?
- Will the organization need special technology to index, classify, store, cull, search, retrieve, and produce ESI?
Form(s) of production. In traditional paper-based discovery, the physical form of production occurs generally only through paper. Documents were entered into evidence by one of the following ways:
- Admission under the Business Records Rule (Federal Rule of Evidence 803(6) ([Health Records])
- Authenticated and admitted under the Best Evidence Rules (Federal Rules of Evidence 1001 and 1001)
- Authenticated, Bates stamped (sequentially numbered or date and time marked), indexed, and labeled to correspond to the categories of a document request
The FRCP provides that legal counsel meet and confer early in litigation and agree upon the form(s) and manner of production of ESI.
Questions for discussion:
- At what point in litigation involving production of ESI will legal counsel meet with HIM and IT to discuss the forms, format, and location of all potentially responsive information?
- How will legal counsel, HIM, and IT work together to identify the most cost-efficient and effective means to produce potentially responsive information?
Reasonably accessible information versus not reasonably accessible information. The FRCP contains provisions for two-tiered discovery. The management of ESI provides for some unique challenges not presented by paper-based and other traditional media. All ESI must be rendered usable through technology—computer, operating system, or application software.
ESI that is readily available through appropriate technology and able to be used and read is considered “accessible.” Much of the electronic information subject to discovery is not easily rendered usable without appropriate technologies. This usually involves significant cost and burden. This type of ESI is considered “not reasonably accessible.”
Questions for discussion:
- How will the organization produce ESI from the EHR system that is accessible to a plaintiff party if required?
- How will the organization account for and determine its true costs to search, cull, and produce data that are “reasonably accessible” versus data that are “not reasonably accessible.”
Cost shifting. In traditional paper-based document discovery an organization’s costs were generally associated with locating responsive documents, assembling them into proper order, Bates “sequentially numbering documents”, stamping them, and presenting them to the requesting party for inspection and copying. With e-discovery the costs to cull, search, retrieve, and produce ESI can be very expensive and will depend greatly on the location, form, accessibility, and format of the information.
The FRCP contains provisions to balance ESI discovery costs between the parties. If a party shows good cause, the court can order the search, retrieval, or testing and sampling of inaccessible information. An organization without appropriate technologies or methods to index, classify, store, cull, search, retrieve, and produce potentially responsive information could face escalating costs, burdens, and potentially sanctions.
Questions for discussion:
- How will the organization determine its true costs to index, classify, store, cull, search, retrieve, and produce ESI?
- How will the organization respond to third-party subpoenas for ESI?
- What measures will the organization take to determine the burden and cost of production of third-party ESI?
Email has become the de facto standard for business communications across the organization. Therefore, in the face of threatened or impending litigation or a regulatory investigation, the email of any/all relevant custodians will become the subject of discovery. Therefore every healthcare organization should establish and put into place some sort of policy and/ or policy regarding the use of email management system, along with a description of how the organization will notify custodians of their responsibility to preserve and retain and relevant file attachments email in the face of litigation and/or a regulatory investigation.
Questions for discussion:
- What systems and processes are in place for the classification, management, storage, and retention of company e-mail?
- What is the organization’s policy with regard to the use and transmission of protected health information in company e-mail?
- What are the organization’s current policies and practices with regard to the screening and monitoring of company e-mail?
- How is e-mail be searched, indexed, reviewed, retained, and produced if relevant to litigation?
The litigation response team must also analyze issues, risks, and challenges surrounding nonapparent and ancillary ESI.
The role, use, and retention of metadata and ephemeral data. Operating system and application software require that electronic files be labeled so that the information can be stored, retrieved, viewed, and communicated. This process creates bits of information about the data known as metadata.
Metadata can be a useful way to authenticate the integrity of data. The potential for the discovery of ephemeral data could pose a significant burden upon the organization.
Questions for discussion:
- How will the organization identify, store, retain, and manage its metadata when required for e-discovery?
- Under what possible circumstances (if any) could the organization be ordered to preserve and produce ephemeral data for a legal proceeding?
- What are the locations, sources, and types of ephemeral data that exist within the organization?
Legacy data systems. In certain cases, the retrieval or restoration of ESI that is contained on legacy systems may be warranted. Access could solely depend on the availability of a retired operating system and application software. ESI that is not migrated and inaccessible places significant burden on the organization when that ESI is needed for business or legal purposes.
Questions for discussion:
- What provisions will the organization establish to provide for the efficient and effective migration of legacy data?
- How long will legacy data not needed for business and legal purposes be retained?
- What will be the mechanism for destruction of legacy data?
Back-up media. One of the biggest problems facing organizations today is the common practice of replicating ESI wholesale, in mirror image, as a precaution against data loss in the event of a disaster. While mirror image back-up tapes or magnetic storage may be good procedure for the short-term, the long-term implications of retaining them may be detrimental in litigation. It is important to remember that routine maintenance of back-up tapes and offline storage makes information in the backup potentially discoverable. The organization could be ordered to search and restore its back-up tapes or magnetic storage for a legal proceeding.
Questions for discussion:
- What is and should be organizational practice with regard to the disposition and processing of its back-up tapes and other media?
- Have retention and destruction schedules been established for back-up media and are they routinely followed?
- Is a hot-site or other offsite disaster recovery vendor involved in addition to backups?
Screening ESI for privilege. One of the greatest costs associated with the discovery of ESI is the potential waiver of privilege that could result from the inadvertent production of privileged material. The tremendous costs to screen ESI for privilege must be borne by the organization. In a healthcare organization, counsel will need to take added measure to ensure that no unauthorized protected health information is inadvertently produced to a requesting party.
Question for discussion:
- What will be the organization’s policy and procedure with regard to screening for privilege?
- Does the state have a Rule similar to FRCP 502 “Attorney-Client Privilege and Work Product; Limitations on Waiver”?
Identify and Prepare 30(b)(6) Your Witnesses Carefully
The role of the 30(b)(6) witness is not to testify on the facts of the case, but on the company’s operations. The role of the 30(b)(6) witness is an evolving role for HIM and IT professionals alike. The role of the 30(b)(6) is to provide expert testimony about accounting practices, IT governance, and or the information and/or data governance processes.
The 30(b)(6) witness serves as a sort of storyteller for the company--detailing organizational policies and procedures—therefore, the need for and relevance of this witness becomes even more important when a party fails to produce meaningful and responsive documents in response to a discovery request or appears to be uncooperative.
Presently, while there is no limit to the number of 30(b)(6) witnesses that may be called to testify, on behalf of the organization, the 30(b)(6) witness not only has a duty to be knowledgeable on the subject matter to which they have been deposed, but also on subjects the entity should reasonably know as well. The testimony of the 30(b)(6) witnesses, can quite literally “make or break the case for the organization,6” because the 30(b)(6) is expected to speak on behalf of the corporation. The, failure of the corporate to produce an unprepared witness is a sanctionable offense under rule 37(d), and many organization have been sanctioned by the court for their failure to produce an unprepared 30(b)(6)witnesses.
Questions for discussion:
- Will the organization identify and prepare ahead of time a list of key people from HIM and IT who will serve as 30(b)(6) witnesses?
- How will attorney take care to explain that there are some topics for which the witness must offer testimony that stretches beyond his/her personal knowledge and extends to the “company’s knowledge,” while there are other topics for which he/she should simply testify based on her own personal knowledge?
- Is there a state or local rule equivalent to the 30(b)(6)? If so, what is it?
Preparing for E-Discovery
E-discovery is a complex process that will require a multidisciplinary approach to successfully implement and manage. Developing a litigation response team, a plan, and policies are critical steps in the process. Healthcare organizations should complete the following 10 activities to prepare for e-discovery.
- Establish a litigation and regulatory investigation response team with a designee from the legal, HIM, and IT departments
- Review, revise, or develop an organizational information management plan and provide legal counsel with any and all previous plans developed by the organization
- Identify the data owners or stewards within the organization
- Review, revise, or develop an enterprise records retention schedule
- Conduct thorough assessment of the locations, forms, and business and legal use for all legacy systems, back-up media, and orphaned data in existence
- Review, revise, or develop organizational policies related to e-discovery
- Review, revise, or develop organizational policy on e-mail management
- Develop established approach and methodology to determine burdens and costs of producing electronically stored information
- Identify designated person(s) responsible for establishing a legal hold within the organization and establish a process for communication and review of existing holds
- Establish an organizational program to educate and train all management and staff on e-discovery compliance
4. Develop Organizational Policy and Procedures
The next step in litigation and regulatory response planning is development or updating of the organizational policies and procedures related to e-discovery. Organizations should have the following policy and procedures in place.
Preparation for a pretrial conference. This policy outlines the steps to complete prior to legal counsel attending a pretrial conference. The goal of this policy is to ensure that the organization adequately prepares for the pretrial conference, has researched key issues that will be addressed with the judge and plaintiff attorney during the conference, and understands what it is agreeing to in the discovery plan and the impact on pretrial activities.
Preservation and legal hold for health records and information. This policy outlines the process for preserving paper and electronic health records and related information when there is a reasonable anticipation of litigation. The policy guards against spoliation of evidence.
Retention, storage, and destruction of paper and electronic health information and records. This policy establishes the conditions and time periods for which paper-based and electronic health records will be stored, retained, and destroyed after they are no longer active for patient care or business purposes and to ensure appropriate availability of inactive records.
An enterprise record retention and destruction schedule should accompany this policy to provide a complete and accurate accounting of all relevant records within the organization.
Production and disclosure of electronic health information and records. This policy outlines the steps in the disclosure process for electronic and information records related to a legal proceeding. Many of these procedures would be managed through the release of information process within an HIM department.
5. Develop a System for Ongoing Monitoring and Evaluation
The response team’s responsibilities extend to evaluating the efficacy of the organization’s policies and procedures after implementation. This includes developing and regularly reviewing staff orientation and annual training materials and creating an ongoing audit and monitoring process.
Audit and monitoring activities can include audits of business process areas to determine compliance with e-discovery policies, as well as random audits of human resource files to verify staff training on e-discovery. The litigation response team should work with the compliance office to establish triggers and monitors to assess adherence to e-discovery policies throughout the organization.
- Allman, Thomans, “E-Discovery in Federal and State Courts: The Impact of the 2006 Amendments” March 31, 2013 Page 1 of 91
- Ibid – Pages 1 and 2
- Zubulake, Laura, 2012 “Zubulake’s E-Discovery: The Untold Story of My Quest for Justice” http://www.laurazubulake.com/ (Last Accessed July 22, 2013)
- Montana, John, C. “The End of the Ostrich Defense” The Information Management Journal January/February 2005/ARMA page 27 http://www.arma.org/bookstore/files/montana3.pdf (Last Accessed July 22, 2013)
- Proposed Amendments to the FRCP, Advisory Committee on Civil Rules, Norman Oklahoma, April 11-12, 2013 http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Agenda%20Books/Civil/CV2013-04.pdf (Last Accessed July 22, 2013)
- Boyer, Nathaniel S. Lovells, Hogan, “Going Rogue in a 30(b)(6) Deposition: Whether It’s Permissible And How Defending Counsel Should Respond” ABA Section of Litigation 2012 April 18-20 Deposition Practice In Complex Case http://www.americanbar.org/content/dam/aba/administrative/litigation/materials/sac_2012/43-1_going_beyond_the_30b6_deposition.authcheckdam.pdf Last Accessed July 24, 2013
- According to Maura R. Grossman and Gordon V. Cormack, The Grossman-Cormack Glossary of Technology-Assisted Review, with Foreword by John M. Facciola, U.S. Magistrate Judge, 2013 Fed. Cts. L. Rev. 7 (January 2013), Technology Assisted Review (also know as “Predictive Coding” or Computer Assisted Review (CAR), TAR , Predictive Coding or CAR is defined as, “A process for Prioritizing or Coding a Collection of Documents using a computerized system that harnesses human judgments of one or more Subject Matter Expert(s) on a smaller set of Documents and then extrapolates those judgments to the remaining Document Collection. Some TAR methods use Machine Learning Algorithms to distinguish Relevant from Non-Relevant Documents, based on Training Examples Coded as Relevant or Non-Relevant by the Subject Matter Experts(s), while other TAR methods derive systematic Rules that emulate the expert(s)’ decision-making process. TAR processes generally incorporate Statistical Models and/or Sampling techniques to guide the process and to measure overall system effectiveness.
- Predictive Coding is also known as Technology Assisted Review (TAR) or Coding Assisted Review (CAR). See Definition of Technology Assisted Review by Maura R. Grossman and Gordon V. Cormack above.
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Kim Baldwin-Stried Reich, MBA, MJ, PBCI, RHIA, CPHQ, FAHIMA
Kathy Downing MA, RHIA, CHP, PMP
Kim Turtle Dudgeon, RHIT, HIT Pro-IS/TS, CMT
Melanie Endicott, MBA/HCM, RHIA, CDIP, CCS, CCS-P, FAHIMA
Dana McWay, JD, RHIA
Lou Ann Wiedemann, MS, RHIA, FAHIMA, CPEHR
Prepared by (original)
AHIMA e-Discovery Task Force:
Kim Baldwin-Stried Reich, MBA, MJ, RHIA, CHC, CPHQ
Deborah Beezley, RHIT
Michelle Dougherty, RHIA, CHP
Sandra Nunn, MA, RHIA, CHP
Lydia Washington, MS, RHIA, CPHIMS
Katherine Ball, MD
Jill Callahan Dennis, JD, RHIA
Neil Puller, MBA, MD
AHIMA. "E- Discovery Litigation and Regulatory Investigation Response Planning: Crucial Components of Your Organization’s Information and Data Governance Processes." Journal of AHIMA 84, no.11 (November–December 2013): expanded web version.