In an age when most information is stored digitally, one of the biggest mistakes a health care organization can make is not to begin thinking about how to preserve and produce that data until after it receives a subpoena. During a recent teleconference titled “An Overview of the New e-Discovery Rules and Planning for Healthcare Organizations,” sponsored by the Health Care Compliance Association, presenters said it is critical for organizations to develop litigation response plans before litigation begins.
Michelle Dougherty, director of practice leadership for the American Health Information Management Association, and Ronald J. Hedges, an attorney with Nixon Peabody LLP who has written extensively about e-discovery, emphasized just how voluminous electronically stored information (ESI) can be. In addition to information stored within easily accessible servers and databases, an organization could be asked to produce backup tapes, deleted e-mails, and data stored on employees’ laptops or personal digital assistants.
Formulating a plan. The first step for any health care organization developing a litigation response plan, Dougherty and Hedges advised, should be to become familiar with applicable federal, state and local e-discovery rules. Nearly one-half of states and the District of Columbia have adopted, or are in the process of adopting, e-discovery rules. As the planning process begins, Dougherty suggested creating a core litigation response team that includes representatives from the health care organization’s legal, information technology and health information management departments.
Consistent standards. Together, she said, the team should create a comprehensive map of the locations where ESI is stored within the organization and the individuals who are in charge of maintaining it. The team should develop protocol for how they will coordinate internally when litigation appears to be likely or when a court preservation order is issued. The organization should implement - and more importantly, enforce - standards for how electronic records are to be retained, when they should be destroyed, and in what formats they should be kept, Dougherty recommended.
CCH Chicago Bureau, Aug. 21, 2008
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