Importantly, although the subject amendments apply to federal court cases, it is reasonable to assume that these amendments will set the standard for e-discovery in state court cases in the relatively near term.

What is E-Discovery?

Records retention policies have traditionally focused on managing hardcopy materials, such as paper and microfilm. The electronic information age has brought with it many changes regarding the gathering and use of electronic evidence in legal proceedings. The new Rules related to e-discovery will dramatically affect how health care organizations manage their electronic data. The new Rules include changes that addresses characteristics distinguishing e-discovery from traditional paper discovery. Electronic discovery or "e-discovery" concerns the access, use, disclosure, preservation and handling in litigation of data, including e-mail and other computer-generated documents, that is transmitted, stored, and backed up electronically. E-discovery involves new information in new forms from new places and new sources and using it in a new manner. To summarize, the varying approaches and disciplines involved in e-discovery include the following.

· Computer forensics (scientific methods are employed to analyze sources of electronic data such as hard drives or servers to determine if evidence was accessed, altered, destroyed, or fabricated and/or to locate computer-generated evidence of which a layperson may be unaware).

· Searching, gathering, reviewing, analyzing, producing and using large amounts of relevant information in routine litigation (i.e., the equivalent to searching document storage facilities or warehouses, waste baskets, file cabinets, home offices and personal files).

· The focused search for electronically stored information relevant to the specific issues in a case such as cell phone or blackberry records and e-mail or instant messaging records.

As you might expect, the new Rules present an opportunity for Health Information Management professionals to consult and collaborate with legal counsel, information technology and senior management in the development of policies, procedures, practices and systems that conform and comply to the rules, laws and regulations governing electronic media and records management and retention.

Aspects of the New Rules Applicable to Health Information Management

Several of the new Rules are directly relevant to Health Information Management professionals. Rules 16, 26, 33, 34 and 37 all have component parts relevant to Health Information Management. While an in-depth analysis of each of the Rules is beyond the scope of this article, set forth below are several key concepts, along with a synopsis of the impact of these new Rules on the disclosure processes, retention and destruction, spoliation, and disaster recovery planning.

Discovery and Disclosure. Under the new Rules an organization must establish processes to address scheduling and pretrial conferences and the agreements reached between the parties for the preservation, disclosure and format of electronic information. As such, Health Information Management and IT professionals must coordinate with legal counsel prior to a scheduling or pretrial conference to discuss information and records availability. Also, Health Information Management professionals should work with legal counsel and IT to ensure added privilege protections for HIV, mental health, substance abuse and employee records. In addition, Health Information Management professionals should be prepared to answer or research questions regarding the organization’s systems such as the location, retention and accessibility of electronic health information within the various source systems and databases. Importantly, under the new Rules parties in a lawsuit must prepare for and schedule a conference to address their plans for e-discovery and document production within 120 days of the filing of the lawsuit.

Retention and Destruction. Retention and Destruction are critical concepts in the e-discovery process. Organizations must know where information is located (i.e., back-up tapes, instant messages, voice mail, e-mail, word processing drafts, shadow records) and establish a routine policy and practice for both retention and destruction which specifically identifies when the information’s useful life is over, resulting in destruction. The new Rules provide a safe harbor in circumstances where information cannot be produced because it was destroyed as a result of routine policy and practice. Of course, sanctions can be imposed for improper destruction. In the event of an organization’s replacement or upgrade of an electronic information system, the electronic information’s accessibility, retention, and destruction must be considered.

Litigation Hold or Preservation Order. A litigation hold or preservation order in the context of e-discovery is the same concept as that applied to a paper-based medical record. It suspends the normal practice or disposition, including destruction, of paper and electronic records. Organizations must establish a policy and procedure that addresses the suspension of the usual record retention and destruction policy in the event a litigation hold or preservation order is issued. The policy should identify who has the authority to suspend the usual policy, who is responsible for communicating the litigation hold or preservation order within the organization, who is responsible for implementing the hold, and who has authority to lift the hold.

Spoliation. Spoliation is the legal term for intentional destruction, alteration, or concealment of evidence. An organization’s legal health records must be reasonably protected from spoliation. Efforts to prevent spoliation should be closely tied to an organization’s policies and procedures for record retention and destruction, as well as to the policy and procedure for a litigation hold or preservation order.

Disaster Recovery. Disaster recovery planning should be part of any record retention policy or plan. This facet of the plan has two goals: (i) preservation of patient records in the event of a disaster; and (ii) return of the organization to usual operations as quickly as practicable with as little disruption as possible. Back-up processes are important to an organization’s resumption of operations after a disaster; however, old back-up tapes can also be a legal liability. Consideration of destruction of back-up tapes once their useful life is over should be addressed in the retention and destruction plan.

Implementing A Policy To Address the New E-Discovery Rules

Establishing policies and procedures prior to a lawsuit allows an organization to respond to e-discovery issues in an appropriate and cost-effective manner. Before embarking on the development or updating of existing policies and procedures, Health Information Management professionals should consult with legal counsel familiar with the laws and applicable regulations regarding e-discovery and retention of information in electronic formats. Thereafter, senior management should be informed of and involved with the development or revision of policies and procedures to address e-discovery issues. Once developed, the policies and procedures should be communicated to all appropriate personnel within the organization, as well as outside vendors who have any involvement with or access to the organization’s business records. Ongoing monitoring of compliance with the policies and procedures is crucial to ensure a systemized approach to electronic record management that conforms to state and federal legal requirements.