EMRs prompt electronic discovery in litigation

Electronic discovery is here to stay. Since the Federal Rules of Civil Procedure were amended in December 2006 to address the discovery of electronically stored information (ESI), over 40 federal district courts have adopted local guidelines addressing e-discoveryⁱ and at least 26 states likewise have adopted rules specific to the discovery of ESI.ⁱⁱ Although very few reported decisions address e-discovery in healthcare litigation, it is only a matter of time before courts are squarely charged with resolving a litigant's obligations to preserve and produce ESI that is unique to the healthcare industry.

Electronic health records (EHR) also are here to stay. Because those EHR systems will contain information relevant to litigation and be subject to discovery, counsel needs to be knowledgeable about the content, features and functionality of those systems.

The e-discovery amendments to the Federal Rules caused a paradigm shift: Counsel now need to know much more about their clients' technology systems at a much earlier time in the litigation. Lawyers are not expected to be technology experts, but they must be able to understand where relevant ESI exists and what steps must be taken to satisfy preservation and discovery obligations. The expectation is that lawyers will have enough familiarity with a client's systems to ask probing questions and should consult technology experts when necessary to satisfy discovery obligations.

Depending on the size and complexity of the EHR system, it may draw from various sources and have multiple storage locations. If an EHR system includes large amounts of decentralized records from multiple providers, the challenge is amplified and may involve identifying data not in a litigant's physical possession. An issue will arise of what data is within a litigant's possession, custody, or control, and thus subject to that litigant's discovery obligations.

Typically, courts look to a litigant's practical ability to access the data to ascertain "control," and often focus on the litigant's contractual rights to obtain the ESI.ⁱⁱⁱ Whether a provider's discovery obligations for EHR are limited to content generated only by that provider or include all content of an interoperable EHR system should be considered carefully, as the determination may significantly impact the scope of a provider's preservation and, later, its production obligations.

The inquiry does not stop with identification of the systems containing relevant data. The next step is working with IT personnel to understand the features of the EHR system and what active or archived data exists. EHR systems have many integrated features, such as clinical and administrative tools, some of which are visible to the end user. Counsel needs to identify and understand the content and other features of these systems to determine what available data may be relevant to the litigation.

Multiple versions of EHR systems likely are maintained for disaster recovery purposes and counsel needs to understand whether historical versions of the EHR system, if relevant to the litigation, are available. Another important inquiry relates to the accessibility of the data-the Federal Rules provide litigants some protections if circumstances demonstrate that the burden and cost associated with accessing the ESI outweighs the likely benefit of that data to the litigation.

Preservation. The obligation to preserve evidence relevant to litigation is fundamental to the adversary process and exists in common law, independent of the discovery rules. The duty to preserve data attaches when a party recognizes a reasonable potential for litigation, or is otherwise put on notice that data is relevant to potential or pending litigation or a governmental investigation.^iv In the purely paper world, preservation could be achieved by locating and sequestering the paper documents. In the ESI world, preservation presents a greater challenge.

The first hurdle is identifying all sources of potentially-relevant ESI. Once all of the sources of potentially relevant ESI are identified, the next step in implementing a legal hold is ascertaining how preservation can be accomplished technically. Different data within an EHR system may require different preservation efforts. The type and form of the data, as well as its potential relevance or use in the litigation, must be analyzed to determine the appropriate preservation action.