Litigation Response Planning and Policies for E-Discovery. AHIMA Model E-Discovery Policies: Preparing for Pretrial Conference

AHIMA Model e-Discovery Policies


Preparing for Pretrial Conference



Revision History


Effective Date:


Legal Services

Original Issue Date:


Health Information Management

Last Reviewed:


Information Technology

Last Revision:

PURPOSE: The purpose of this policy is to outline the steps that must be taken prior to legal counsel attending a pretrial conference for a potential legal action. 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, understands what it is agreeing to in the discovery plan/Form 35 and the impact on pretrial activities.

SCOPE: This policy addresses the operational steps that must be taken after receiving notice of a legal action, which require participation in a pretrial conference as outlined in the federal rules of civil procedures. It does not address the steps that an organization must go through in order to plan for implementation of the e-discovery rule. This model policy addresses the Federal Rules of Civil Procedures that apply to proceedings in the federal court system. Organizations must research and tailor the policy to address state and local rules on e-discovery and legal process.

POLICY: It is the policy of this organization to comply with the Federal Rules of Civil Procedures and the e-discovery amendment. The organization will take steps to prepare for the pretrial conference to ensure that all information relevant to a case is identified, retained, and communicated appropriately. It is the policy to enter into an accurate discovery plan/Form 35 outlining the discovery plan and information.


Notification of Pretrial Conference:




Upon notification that a legal proceeding has been filed with the court, the legal department will notify the litigation response team of the scheduling of a pretrial conference and schedule a meeting of the team.

Litigation Response Team

The team will meet to discuss the case and legal proceeding. If discussed as potential litigation or when subpoena received provide an update of the legal proceeding filed with the court. The team should discuss the following to outline information for the discovery plan/Form 35, which will be negotiated when the parties to the legal action meet and confer:

  • The type of information that is relevant to the case (including location, format, etc.) and the pertinent retention period
  • Implement steps to apply legal hold procedures if not in place
  • Identify privileged information
  • Review and update if applicable the organization’s quick peek and cull back language
  • Review expected costs and other information that will be negotiated during the pretrial conference

Identifying Potential Sources of Relevant Information:



Litigation Response Team/Data Owners/HIM

The litigation response team/data owners/HIM will identify the potential sources of information that may hold potentially relevant information. 

  • Legal health record/EHR Ssystem (including source information systems (nursing, ED, lab, radiology, etc.)
  • 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
  • Text/instant message archives
  • Removable storage media (e.g., disks, CDs, DVDs, memory sticks, and thumb drives)
  • Department/office files such as financial records
  • Personal desk files
  • Files of administrative personnel in department/office
  • Files located in department/office staff home
  • Website archives

HIM and Data Owners

HIM and data owners will establish search parameters (patient identifiers, search terms, key words, etc.) and conduct the search process for information relevant to the case.

They will also maintain a record of the systems searched, search parameters (terms), and search results.


IT will provide assistance to HIM in the search and retrieval process for various systems and data sources.


HIM will screen or filter the search results eliminating information that is not appropriate (wrong patient, not relevant, etc.).


Legal will review the content of the data/data sets found to determine relevancy to the proceeding and identify information that is considered privileged. 

Legal and HIM

Legal and HIM will determine the final list of relevant data/data sets, location, and search parameters used to locate.

HIM and IT

HIM and IT will determine the format the information will be disclosed such as:

  • Print
  • PDF
  • TIF
  • Screen shot
  • Mirror copy of data file
  • Review of material online

HIM, IT, and Legal

HIM, IT, and legal will calculate the costs for search, retrieval, and disclosure methods using the organization’s established formula.

Identification of Privileged Information and Inadvertent Production:



Litigation Response Team

The team will identify the types of information that is considered privileged.


When reviewing the information identified through searches, legal will flag and pull information that is considered privileged and would not be disclosed.

HIM, IT, or Legal

If it is discovered that information considered privileged was inadvertently provided to the opposing party, the organization will notify the opposing party. The discovery plan/Form 35 should address the process and handling of electronic information inadvertent produced to the opposing party through the quick peek and cull-back agreement/language.

Providing Information for Discovery Plan/Form 35:




During the pretrial conference the parties to the litigation meet with the judge and agree to a discovery plan (documented on form 35). It is important that the organization’s attorney have accurate information in preparation for that meeting. Legal counsel should have accurate information on the data that is relevant to the case, the format, the forms of production, and the costs. 

Legal and Litigation Response Team

Legal will update the litigation response team with the terms of the discovery response plan/Form 35 agreement that the organization must follow.


Legal Department Approval:


HIM Department Approval:


IT Department Approval:


Specify Other Department


Article citation:
AHIMA e-Discovery Task Force. "Litigation Response Planning and Policies for E-Discovery. AHIMA Model E-Discovery Policies: Preparing for Pretrial Conference." Journal of AHIMA 79, no.2 (February 2008): BoK Extras