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© Copyright 2008 American Health Information Management Association. All rights reserved.
The Fundamentals of E-Discovery
Webinar June 10, 2008
Practical Tools for Seminar Learning
Disclaimer
AHIMA 2008 HIM Webinar Series i
The American Health Information Management Association makes no representation or guarantee with respect to the contents herein and specifically disclaims any implied guarantee of suitability for any specific purpose. AHIMA has no liability or responsibility to any person or entity with respect to any loss or damage caused by the use of this audio seminar, including but not limited to any loss of revenue, interruption of service, loss of business, or indirect damages resulting from the use of this program. AHIMA makes no guarantee that the use of this program will prevent differences of opinion or disputes with Medicare or other third party payers as to the amount that will be paid to providers of service. As a provider of continuing education the American Health Information Management Association (AHIMA) must assure balance, independence, objectivity and scientific rigor in all of its endeavors. AHIMA is solely responsible for control of program objectives and content and the selection of presenters. All speakers and planning committee members are expected to disclose to the audience: (1) any significant financial interest or other relationships with the manufacturer(s) or provider(s) of any commercial product(s) or services(s) discussed in an educational presentation; (2) any significant financial interest or other relationship with any companies providing commercial support for the activity; and (3) if the presentation will include discussion of investigational or unlabeled uses of a product. The intent of this requirement is not to prevent a speaker with commercial affiliations from presenting, but rather to provide the participants with information from which they may make their own judgments. This seminar's faculty have made no such disclosures.
Faculty
AHIMA 2008 HIM Webinar Series ii
Kim Baldwin-Stried Reich, MBA, MJ, RHIA, CHC, CPHQ
Kim Baldwin-Stried Reich is an independent healthcare consultant in Highland Park, IL, specializing in business assurance and regulatory compliance.
Sandra Nunn, MA, RHIA, CHP
Sandra Nunn is the Enterprise Content & Information Manager with Presbyterian Healthcare Services in Albuquerque, NM.
Table of Contents
AHIMA 2008 HIM Webinar Series
Disclaimer ..................................................................................................................... i Faculty .........................................................................................................................ii Agenda ........................................................................................................................ 1 Objectives ..................................................................................................................... 1 Defining e-Discovery ...................................................................................................... 2 eHIM – An Emerging Definition/Concept........................................................................... 2 The Federal Rules of Civil Procedure ................................................................................ 3 FRCP Are Changing Processes Within the HIM, IT and Legal Professions ............................. 3 The FRCP ...................................................................................................................... 4 Relevant FRCP Amendment Rules ................................................................................. 4-5 Highlights – Amendments to Federal Rules of Civil Procedure.......................................... 5-7 Legal Holds.................................................................................................................... 7 General E-Discovery Process Flow.................................................................................... 8 Migrating from a Paper to e-HIM Environment .................................................................. 8 E-Discovery Operational Process Flow .............................................................................. 9 Admissibility of the EHR..............................................................................................9-10 Authentication of e-HIM.................................................................................................10 The E-Discovery Process Synopsis of Differences Between Paper and e-HIM ......................11 The Event.....................................................................................................................11 The Allegation...............................................................................................................12 The Request for Production.......................................................................................12-13 Implications of the Duty to Preserve and Produce ............................................................14 What is a successful Electronic Discovery Response Plan ..................................................15 Electronic Discovery Response Plan ...........................................................................15-17 Challenge: Record Production with New Legal Requirements.............................................18 The Federal Rules of Civil Procedure: Security Implications ..........................................18-20 The Management of Unconventional Records...................................................................20 Electronic records retention............................................................................................21 Records .......................................................................................................................21 USA PATRIOT Act .........................................................................................................22 Policy, procedures and practices.....................................................................................22 One Organization’s Response .........................................................................................23 Our Project Plan............................................................................................................23 Enterprise Records and Retention Management Committee Structure ................................24 Enterprise Records Management Committee...............................................................24-26 ERMC Legal Subcommittee – the de facto E-Discovery Team .......................................26-27 Data Loss Definitions................................................................................................27-28 ERMC Policy Subcommittee .......................................................................................28-29 ERMC Electronic Record Subcommittee ...........................................................................29 ERMC Communications Subcommittee ............................................................................30 Enterprise Content Management Initiative .......................................................................30 Master Taxonomy .........................................................................................................31
(CONTINUED)
Table of Contents
AHIMA 2008 HIM Webinar Series
Content Management Taxonomy ...............................................................................31-32 Content Types ..............................................................................................................32 Information Technology Infrastructure Library .................................................................33 HIPAA Security Expansion..............................................................................................34 HIPAA Security Expansion: Incident Response .................................................................34 LEHR Defined: The Model ..............................................................................................35 Controlling the Cost of Electronic Discovery .....................................................................35 The Management of e-HIM ............................................................................................36 A bigger picture ............................................................................................................36 Collaboration will be the key to success...........................................................................37 Contact Information ......................................................................................................37 Audience Questions.......................................................................................................38 Resource/Reference List ...........................................................................................38-39 Audio Seminar Discussion and Audio Seminar Information Online.................................39-40 Upcoming Audio Seminars ............................................................................................40 Thank You/Evaluation Form and CE Certificate (Web Address) ..........................................41 Appendix ..................................................................................................................42 FRCP Amendments CE Certificate Instructions
The Fundamentals of E-Discovery
AHIMA 2008 HIM Webinar Series 1
Notes/Comments/Questions
Agenda
1. Welcome & Introduction
2. Session Objectives
3. Rules and Process Overview
4. Hypothetical Scenario
5. Questions and Answers
6. Appendix of Resources 1
Objectives
At the conclusion of this session participants will:
• Better understand the Federal Rules of Civil Procedure (FRCP) Amendments and the e-discovery process as they relate to the admissibility of the legal health record into a court of law
• Be prepared to work in collaboration with legal counsel and IT in establishing policies and procedures for e-discovery within their organizations
2
The Fundamentals of E-Discovery
AHIMA 2008 HIM Webinar Series 2
Notes/Comments/Questions
Defining e-Discovery
It is more than rephrasing requests for electronic records & data and printing out documents –legal process differs from paper discovery
e-Discovery: Access, use & preservation of information, data & records
created or maintainedin electronic media.
Includes discovery of e-HIM®
Computer Forensics
Searching, gathering,reviewing, analyzing
large amounts of data
Focused search ofElectronically stored
relevant data – e-mailtext messages,
etc.
3
eHIM® - An Emerging Definition/Concept
Health Information
HIPAA Definition
Payers Manufacturers
Consumers Providers
“Any information in any form or medium created or received by a health provider, health plan, public health authority, employer,
life insurer, school or university, or health care clearinghouse”
Involves the health or condition or payment for provisionof an individual’s healthcare
Claims Data
ClinicalData
AdministrativeData
Financial Data
©Kim Baldwin-Stried 4
The Fundamentals of E-Discovery
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Notes/Comments/Questions
Who Issued?
Applies To?What Are They?
Why Important?
The Federal Rules of Civil Procedure (FRCP)
5
FRCP Are Changing Processes Within the HIM, IT and Legal Professions
InformationTechnology
Health Information Management
Effective E-Discovery Involves An Integrated & Collaborative Approach To The Management of E-HIM®
Legal Risk Management
EDiscovery
EDiscovery
©Kim Baldwin-Stried 6
The Fundamentals of E-Discovery
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Notes/Comments/Questions
The FRCP• Rules Governing Legal Procedure for Civil Litigation in District
(Federal) Courts
• The 2006 FRCP Amendments Address Unique Aspects of ESI
• Developed by the Civil Rules Advisory Committee
• Standing Committee of Judicial Conference
• Who Issued the FRCP?
• Supreme Court With Approval of Congress
• Most Healthcare Civil Litigation Occurs in the State & Local courts – Why are the FRCP Amendments Relevant? • Establish a Standard for State and Local Courts • The Uniform Rules for Discovery of Electronically Stored
Information are similar to FRCP amendments• Some State and Local Courts have established or are
developing e-discovery rules based on the FRCP amendments
7
Relevant FRCP Amendment Rules
General Provisions Governing Discovery; Duty of Disclosure; Discovery Scope and Limits; Claims of
Privilege or Protection of Trial-Preparation Materials; Information Produced
26(b)(5)(B)
General Provisions Governing Discovery; Duty of Disclosure; Discovery Scope and Limits; Limitations
26(b)(2)(B)
General Provisions Governing Discovery; Duty of Disclosure; Required Disclosures; Methods to
Discover Additional Matter
26(a)
Pretrial Conference; Scheduling Management16(b)(5) & (6)
Description Rule
8
The Fundamentals of E-Discovery
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Notes/Comments/Questions
Relevant FRCP Amendment Rules
Subpoena; Form; Issuance 45
Failure to Make Disclosures or Cooperate in Discovery; Sanctions; Electronically Stored
Information
37(f)
Report of Parties’ Planning Meeting – Discovery Plan
Form 35
Production of Documents, Electronically Stored Information, and Things and Entry Upon Land for
Inspection and Other Purposes
34(a)&(b)
Interrogatories to Parties; Option to Produce Business Records
33(d)
General Provisions Governing Discovery; Duty of Disclosure; Conference of Parties; Planning for
Discovery
26(f)(3)&(4)
Description Rule
9
Highlights- Amendments to Federal Rules of Civil ProcedurePretrial conferences & early attention to e-discovery issues
• Emphasis on meet and confer and pretrial conferences
• Requires knowledge of what information is available & the format
• Parties must discuss preserving discoverable information & form of production
• Parties must discuss cost & delays of document production
• Assertion of privilege
• Judges have more active role
Duty to disclose & relevance of information
• Legal obligation to maintain & disclose relevant records
• Prior to parties meeting – Legal, HIM & IT should meet.
• Limits scope to information relevant to the claim or defense. 10
The Fundamentals of E-Discovery
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Notes/Comments/Questions
Highlights – Amendments to Federal Rules of Civil ProcedureInformation not reasonably accessible; balancing cost & benefit; two tiered discovery
• Provides that a party need not provide electronically stored information that is inaccessible because of undue burden of cost
• Party must quantify the burden & show court that sources are not reasonable accessible
• Court may still order discovery for good cause – judge to balance cost vs. benefit
Claims of privilege after inadvertent production
• A process to present to the court that information was inadvertently produced (info not requested or relevant to the request)
• Establish organizational policies outlining examples of privileged and protected work product
11
Production of documents & discovery
Highlights – Amendments to Federal Rules of Civil ProcedureInterrogatories to parties
• Provides a process to answer interrogatories
• Provides an option of answering interrogatories by providing electronically stored information
• HIM & IT may be required to attest authenticity of records/information & answer questions
• The opposing party must have opportunity to examine, audit or inspect the information
• Provides for discovery of electronically stored information including native file formats & metadata
• Provides that electronically stored information is equally as discoverable as paper
• Recognizes need to perform testing of documents & electronically stored information
12
The Fundamentals of E-Discovery
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Notes/Comments/Questions
Highlights – Amendments to Federal Rules of Civil ProcedureSanctions failure to disclose; Spoliation
• Establishes process to apply sanctions if agreed-upon documents/information are not produced (or cannot be produced) or are altered
Safe harbor provisions for loss of electronically stored info
• Provides that sanctions may not be imposed for failure to provide electronically stored information lost as a result of routine “good faith” operations
• Legal, HIM & IT collaboration on policies and procedures for retention and destruction of electronically stored information
• Legal hold & preservation obligations must be communicated
• Efficacy of HIM systems will be scrutinized –better HIM systems = better protection
13
Legal Holds
• Legal Hold – Generally issued by the court
• Should be initiated when a duty to preserve is clear
• Suspends the normal disposition, processing or paper and electronic records
• Organizational policy should dictate legal hold policies and procedures
• After implemented legal holds should be regularly monitored
• Failure to initiate a legal hold can lead to adverse inference instructions to jury and sanctions and penalties
14
The Fundamentals of E-Discovery
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Notes/Comments/Questions
General E-DiscoveryProcess Flow Legal HoldLegal Hold
Suspend Files
Search For Potentially
Relevant Data
Collect Preserve
LegalReview
Cull Process
Production
Collect & Preserve
• High Volume of Record Collection
• Time Sensitive Phase• Focus on Identification
of Relevant Data • Testing/Sampling
Could OccurLegal Review
• High Cost Phase • Time Consuming
• Focus on Productionof Relevant Data
• Sound Records MgmtProgram Will
Yield Better Results
©Kim Baldwin-Stried 15
Migrating from a Paper to e-HIM® Environment
InformationTechnology
Health Information Management
E-HIM® is e-evidence which must be authenticated and reviewed prior to submission into a court of law. Hence, the
legal process and the roles of Legal Counsel, HIM IT Professionals are changing.
Legal Risk Management
Compliance
©Kim Baldwin-Stried
Legal EHRDefined
For Disclosure
16
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Notes/Comments/Questions
Review
E-Discovery Operational Process FlowIdentification
Or Trigger
CommunicateApproach
Legal HoldEstablished?
Communicate HoldAccording To
Organizational Policy
Identify FormsFormat Locations Of Relevant Data
EstablishLegal Hold
Advise Legal/Risk
Management
End Process.
Await LegalReview
Production
End LegalOversight
LegalPresentation
InternalOr ExternalE-Discovery
Vendor?
Collection
Preservation
Legal NoticeReceived?
No
Yes Processing
Analysis
©Kim Baldwin-Stried
Legal/Risk OversightProcess Begins
17
Admissibility of the EHR
• EHRs, like paper based medical records are considered to be hearsay in a court of law.
• Hearsay is generally inadmissible. Three (3) tests for admission of hearsay evidence into a court of law.
• Evidence is relevant to prove or disprove material facts of case
• Evidence is material if it is important to the issue(s) of the case
• Evidence is competent if it is fit and appropriate proof
18
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Notes/Comments/Questions
Admissibility of the EHRExceptions to Admissibility of Hearsay
1. “Business Records Rule Exception”• Federal and state rules allowing for admission of records made in the
regular course of business, recorded at or near the time of an event, under circumstances presumed to accurately reflect the event.
2. “Declarations”• Dying Declarations• Spontaneous exclamations• Admissions by a party• Declarations against interest
3. “Other Exceptions”• Public Records • Workman’s Compensation Records• Official Records
19
Authentication of e-HIM®
• Lorraine v. Markel American Ins. Co., 241 F.R.D. 534 (D. Md. 2007)Case involving lightning damage to a yacht
$14,000 above water damages $38,000 including damages to hull
• Judge Grimm
“We believe that e-mail messages and similar forms of electronic
communications can be properly authenticated within the existing
framework of the state rules of evidence.”
20
The Fundamentals of E-Discovery
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Notes/Comments/Questions
The E-Discovery Process Synopsis of Differences Between Paper and e-HIM®
© Kim Baldwin-Stried
Difference Description1. Volume & Reproducibility Issues
• e-HIM® Exists in Substantially Greater Volumes • Automated Replication of Electronic Information • Paper Does Not Need Device Such as Computer to be Read• e-HIM® HIPAA Standards for Transmission of PHI
2.Dynamic Content & Nature of Data
• e-HIM® Easier To Change Than Paper• Content of Electronic Information Can Change Without Human
Intervention• Transmission and Transfer of e-HIM® Not Fixed in Final Form
3. Metadata • e-HIM® Contains Metadata -- Paper Does Not • System, Application and/or User Metadata Not Readily Apparent• Metadata Adds New Set of Retention & Preservation Obligations
4. Lifespan/Persistence of Electronic Data
• e-HIM® Much Harder to Dispose of –- Paper Can be Shredded• Electronic Data Not Easily Deleted
5. e-HIM® Environment • e-HIM® May Be Incomprehensible When Separated From its Environment
• Legacy Systems and Migration of e-HIM® -- Differs Significantly From Imaging
6. Search and Retrieval of Electronic Data
• e-HIM® May Reside in Numerous Locations • Paper Documents Consolidated and Maintained in Single File Folder• e-HIM® Environment May Obscure Origin, Completeness or Accuracy of
Information
The Differences Between Paper Discovery and E-Discovery Process Require That HIM and IT Professionals Work with Legal Counsel Early in Litigation. 21
The Event
• Event Date: August 1, 2004• Discovery Date: April 1, 2007• Event: Patient received brain
damage from a respiratory event• Patient was on a Med-Surg unit• Patient had pain medications• Patient was a minor
22
The Fundamentals of E-Discovery
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Notes/Comments/Questions
The Allegation
• Your nurses were undertrained• Your MedSurg unit was understaffed• You did not follow your own policies
and protocols• You failed to notice a patient on pain
medications in a deteriorating condition
23
The Request for Production
• All training records for the nurses• All staffing records for the week before and
after the incident• All protocols for giving and monitoring pain
medications• All medical records for this patient• All e-mails of nurses, risk management,
quality management, treating doctors, concerning this patient and/or the use of pain medications
24
The Fundamentals of E-Discovery
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Notes/Comments/Questions
The Request for Production
• All documents generated by any root cause analysis committee or sentinel event committee (privilege may be claimed here)
• All billing records for the event and any subsequent care
• All credentialing files for the doctors involved in the care
• All employment files for the nurses and staff involved
25
The Request for Production
• All pharmacy records for this patient• All incident reports for this event• All protocols for reporting medication
errors or adverse reactions• All adverse reaction reports or medication
error reports or reports to the FDA for the medications utilized in similar manner as with this patient
• All records from any other cases similar to this case
26
The Fundamentals of E-Discovery
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Notes/Comments/Questions
Implications of the Duty to Preserve and Produce
• The duty applies to both hard copy and electronically stored information (ESI)
• There must be people who are knowledgeable about –• Retention requirements• Back ups, system authenticity, record
tracking, application of legal holds• Preservation Notice documentation
management
27
Implications of the Duty to Preserve and Produce
• What information is “reasonably accessible” and what is not and the cost implications of electronic record production
• The ability to produce information in the same form as it existed at the time the ESI was created
• The development and documentation of “good faith” practices including data aberrations or losses documentation
28
The Fundamentals of E-Discovery
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Notes/Comments/Questions
What is a successful Electronic Discovery Response Plan?
• It is built on the same foundation as a traditional discovery response• The same: analysis of the request,
gathering and processing the data, attorney review, and eventual production to the requesting party
• The difference: the technical expertise required to manage electronic discovery efficiently and effectively
• The need for a collaborative relationship on both legal and technical fronts
29
Electronic Discovery Response Plan
• The Scope of Electronic Discovery (Stage 1)• Who are the document/record owners and
likely key witnesses?• Who is knowledgeable about how and
where their electronic records are created, stored and destroyed?
• First Response: • Development of an organizational chart or
grid of all the people who may have created, received, or shared potentially relevant information on their computers
30
The Fundamentals of E-Discovery
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Notes/Comments/Questions
Electronic Discovery Response Plan
• The duty to interview, investigate and disclose potentially responsive electronic information
• The duty to act to preserve electronic information that may be subject to production• An analysis must be conducted to disclose to
opposing parties information including a description by category and location of documents and data compilations, i.e. a search must be conducted of electronic systems for relevant information (McPeek v. Ashcroft)
31
Electronic Discovery Response Plan
• The Gathering of Potentially Responsive Data (Stage 2)• The legal and technical teams must work
together to prepare a plan for efficient data gathering• When you know the “Who” in terms of data
ownership, you can use your technical team to map out the physical location of potentially responsive electronic documents
32
The Fundamentals of E-Discovery
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Notes/Comments/Questions
Electronic Discovery Response Plan
• When you know the data owners and the kind of data at issue, you will need to know:• Where does the data reside for what dates?
• Where is backup data stored? Where are documents saved on the network?
• Where are e-mail messages kept?• Is archive on local drives, removable media?• Must deleted files be recovered and
produced?• In what form must the data be produced?• Can existing IT staff handle the workload?
33
Electronic Discovery Response Plan
• Attorney review (Stage 3)• Enormous volume of data• How will it be sorted? Numbered?• What is privileged?• Is there an established review protocol
for electronic discovery?• How can we be certain nothing is
omitted or overlooked?• What will be the cost of production?
34
The Fundamentals of E-Discovery
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Notes/Comments/Questions
Challenge: Record Production with New Legal Requirements
• Subpoenas, search warrants, summons
• Class action suits that cross multiple organizational lines
• Requests for the content behind records: metadata, policies and procedures, process documentation
35
The Federal Rules of Civil Procedure: Security Implications
• Mapping of all known Data Sources for the Enterprise- “Where does all organizational content live?”
• Lifecycle record management - tying all content to a mandated organizational retention schedule
• Identification and affidavits regarding security & mapping of systems
36
The Fundamentals of E-Discovery
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Notes/Comments/Questions
The Federal Rules of Civil Procedure: Security Implications
• Software acquisition requirements• Decommissioning of systems -
“system retirement”• Where does the content live now?• On what media? Who manages it?
• Ability to apply “legal holds” on individual electronic records or groups of electronic records
37
The Federal Rules of Civil Procedure: Security Implications
• Record Production• The ability to supply the metadata for
records when record production is required• The ability to demonstrate “best practices”
in terms of data management and integrity• The ability to determine when electronic
records were destroyed compliant with a retention schedule
• If a failure to produce records is encountered, the organization must prove cost was prohibitive
38
The Fundamentals of E-Discovery
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Notes/Comments/Questions
The Federal Rules of Civil Procedure: Security Implications
• The ability to supply “good faith” process documentation -• Consistent measurements, practices and
expectations• How will the organization demonstrate that
the evidence from our computers has been properly preserved, authenticated and retrieved?
• How will the organization demonstrate that measures are taken to preserve documents/records when there is a duty to preserve? (Business Continuity, Disaster Preparedness)
39
The Management of Unconventional Records
• E-Mail• Categorization• Retention• Destruction• Documentation
• Capacity Management• Voice Management
40
The Fundamentals of E-Discovery
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Notes/Comments/Questions
Electronic records retention
• How long should e-mail be kept? What about e-mail server logs? Web server logs? Surveillance tapes? Voicemail messages? Etc. etc. etc.
• Consider how to keep data only as long as it is needed, and no longer, lest it become a liability
• How does this conflict with retention of electronic healthcare records for the life of the patient?
41
Records
• Electronic records must be seen in the context of all records (not just retention)• But records such as server logs often
flummox the traditional framework• Electronic records cannot be considered
independently as a paper chart was considered; they will be considered with all the processes and systems that participate in producing them
42
The Fundamentals of E-Discovery
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Notes/Comments/Questions
USA PATRIOT Act
• Amends more than fifteen statutes (including FERPA)
• Was intended in part to update wiretap and surveillance laws for the Internet era
43
Policy, procedures and practices
Do you know what to do if an FBIagent shows up with a search warrant
for a computer?
Does the HIM evening receptionist sitting at the front desk of the HIM department at 8PM on a Monday
evening know?
44
The Fundamentals of E-Discovery
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Notes/Comments/Questions
One Organization’s Response
45
Our Project Plan
• Leverage Existing Initiatives (Step 1):• Enterprise Records Management Structure
• Enterprise Content Management Initiative
• Information Technology Infrastructure Library Initiative (ITIL)
• Policy Standards Committee Work
• HIPAA Security Work
• Legal Electronic Health Record Work
• Capacity Management Work
46
The Fundamentals of E-Discovery
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Notes/Comments/Questions
Legal SubcommitteeStrategies for Management of Electronic/Other Media Records
(Example: Litigation Hold on Records)
Policy SubcommitteePolicy Development for
Compliant RecordsManagement
(Example: Policy andProcedures for Litigation
Holds on Records)
Electronic RecordSubcommittee
Technical Solutions Developmentfor Electronic Records
Management and Retention(Example: Development of
Technical Support for LitigationHolds on Electronic Records)
CommunicationsSubcommittee
Dissemination of RecordsManagement Policy and
Procedures to the Organization(Example: Communication of
PHS Position, Policies andProcedures for Compliance
with a Litigation Hold)
Enterprise Records and RetentionManagement Committee Structure
Enterprise FormsCommittee
Strategies for Standardized FormsManagement
Clinical FormsManagement
Business FormsManagement
Electronic Health RecordPosition and Policy
Oversight Committee
EMPI PolicyDevelopment
StandardsDocumentation
Master DataManagement
Enterprise Data ModelCreation andManagement
FunctionalRedesign
Structured DataManagement
47
Enterprise Records Management Committee
• All records of any type on any media from anywhere in the organization• Establishment of enterprise records policy• Development of a comprehensive retention
schedule• Four subcommittees – Legal, Policy
Development and Management, Electronic (technical) Records, Communications
• Recent consideration of Enterprise Forms Management as reporting through this structure
48
The Fundamentals of E-Discovery
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Notes/Comments/Questions
Enterprise Records Management Committee
• Developing into a structure for electronic discovery and for policy development
• Changing the retention schedule to allow for links to data concerning the application, source, server, history, data ownership, etc.
• Development of Master Taxonomy • Development of an interface with
accreditation and reporting requirements• JCAHO, NCQA, FRCP, CMS, Baldrige,
HIPAA
49
Enterprise Records Management Committee
RECORD RECORD SUB RECORD TITLE PHS Record Source Legal Citation Reference
Notes
CATEGORY SUB CATEGORY TYPE Retention Period in
Years
CLINICAL HEALTH INFORMATION MANAGEMENT
PRIMARY MEDICAL RECORDS
Patient Charts 10/21 Links to the following systems:
NM 14-6-2 10 for adults; 21 years for minors from the last encounter
ADMINISTRATIVE PATIENT REGISTRATION
MANAGEMENT Policies and Procedures
ADMINISTRATIVE PATIENT REGISTRATION
MANAGEMENT Employee Records Active
ADMINISTRATIVE PATIENT REGISTRATION
LETTERS Medicare 7 These are copies of Patients’ Rights letters with notes. Originals are sent to the patients chart in Health Information Services.
ADMINISTRATIVE PATIENT REGISTRATION
PROFILES Insurance Verification 1 These records are kept on-site
50
The Fundamentals of E-Discovery
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Notes/Comments/Questions
Enterprise Records Management Committee
H o r iz o n C lin ic a lsa n d M e d M a n a g e r
Y e a rs : 2 0 0 5 & 2 0 0 6
S o ftM e d
Y e a rs : 2 0 0 5 - 2 0 0 6
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Y e a rs : 1 9 9 8 - 2 0 0 6
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Y e a rs : 1 9 9 9 - 2 0 0 6
M e d ip a c :
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S A M P L E
A rc h iv e = P a p e r
Y e a rs = 1 9 9 5 to2 0 0 5
A rc h iv e = O p t ic a lD is k
Y e a rs = 2 0 0 0 -2 0 0 5
A rc h iv e = C D
Y e a rs = 1 9 9 5 -1 9 9 8
A rc h iv e = T a p e
Y e a rs = 1 9 9 2 -1 9 9 9
A rc h iv e = T a p e
Y e a rs = 1 9 9 1 -1 9 9 5
A rc h iv e = M ic ro f ilm
Y e a rs = 1 9 8 5 - 1 9 9 4
51
ERMC Legal Subcommittee – the de facto E-Discovery Team
• This group comprising the Risk Management attorney, the Privacy Officer (attorney), the Compliance Analyst, the Security Manager, the Data Center Manager, the Enterprise HIM Director, a Clinical Informatics representative (development of the EHR), the health plan Policy & Procedure administrator, one of the contract administrators, the health plan Process Analyst and the Enterprise Records Manager has become the first attempt at establishment of an E-Discovery Team
52
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Notes/Comments/Questions
ERMC Legal Subcommittee – the de facto E-Discovery Team
• Initiatives:• Development of a policy and template for
decommissioning legacy systems while still accounting for the migration of data
• Development of an IT contract model for commissioning future applications with e-discovery in mind
• Development of recommendations for the retirement of failing hardware
• Development of definitions, policy and procedures for the accounting of damaged, inaccessible or lost records 53
Data Loss Definitions
Lost Record/Data: A “lost” record means any record or data set that cannot be located in the expected or anticipated data source or location (written or electronic) using the usual and customary search methods currently available in the organization and without utilizing any “forensic retrieval”. Currently Inaccessible Record/Data: A “currently inaccessible” record is any record or data set that cannot be restored to a readable format that is substantially the same as the format in which the data was originally recorded or where the unique data within the record cannot be extracted in any readable format using the usual and customary methods currently available in the organization, and without utilizing any “forensic retrieval”.
54
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Notes/Comments/Questions
Data Loss Definitions• Forensic Retrieval:
“Forensic retrieval” is the use of specialized resources, outside the usual and customary methods currently available, either internal or external,to retrieve or restore otherwise “lost” or “currently inaccessible”records/data for the purpose of locating, extracting or recreating a record or data to a format that is either readable or substantially similar to the format in which the record or data was originally recorded.
• Irrecoverable Record/Data:An “irrecoverable” record or data set is a record that is believed to have existed but that cannot be located or restored to a format substantially similar to the format in which the record or data set was originally collected, or any record or data set where the unique data within the record cannot be extracted or located through any means, including through the use of “forensic retrieval”.
• Data:Data are the collection of elements on a given subject; the raw facts and figures expressed in text, numbers symbols, and images; facts, ideas, or concepts that can be captured, communicated, and processed either manually or electronically. The word data is plural and is used whenever more than one data element is described. Datum appropriately describes a single data element. Records and non-records are considered to be subsets of data.
55
ERMC Policy Subcommittee
• Chaired by the Compliance Analyst who also chairs the organization’s Policy Standards Committee• Policy development required by
electronic discovery• Policy standardization system-wide
56
The Fundamentals of E-Discovery
AHIMA 2008 HIM Webinar Series 29
Notes/Comments/Questions
ERMC Policy Subcommittee
57
ERMC Electronic Record Subcommittee
• EMPI and EMMI coordination• Capacity Management
• Images• Voice Messaging• E-Mail Management
58
The Fundamentals of E-Discovery
AHIMA 2008 HIM Webinar Series 30
Notes/Comments/Questions
ERMC Communications Subcommittee
• Development of the RAT• Records Awareness Tutorial
• Management of the Enterprise Records Management Website
• Publication in the Pulse electronic newsletter of updates to retention practices, training sessions, etc.
59
Enterprise Content Management Initiative
Structured Content
UnstructuredInformation
ECM Repository
RecordsManagement:Create, Use,
Maintain,Preserve, Destroy
RecordsProduction:
Search, Hold,Preserve
e-MailManageme
nt:Intercept,Classify,
Store,Retrieve
Business ProcessManagement:
Imaging, eForms,Workflow
Content Management:Unstructured Web &
Document Management
Performance Monitoring:Risk & Controls Monitoring
EnterpriseReport
Management:Classify, Store
& Retrieve
DigitalRightsMgmt:Digital
Signature& Access
Rights
StorageManagement:
SingleInstance Store,Non-erasable
Media
Collaboration:Work Group and
KnowledgeSharing
Adapted from a slide presented by KPMG for a Stellent Records Management audio seminar 60
The Fundamentals of E-Discovery
AHIMA 2008 HIM Webinar Series 31
Notes/Comments/Questions
Master Taxonomy
• Naming convention• Retention Schedule• Enterprise Content
• Creation of the Electronic Library for unstructured content
• Development of the ability to version• Development of workflows to manage
things like versions of Order Sets• Introduction of mass scanning projects
whose content will be auto indexed
61
Content Management Taxonomy
62
The Fundamentals of E-Discovery
AHIMA 2008 HIM Webinar Series 32
Notes/Comments/Questions
Content Management Taxonomy
63
Content types
64
The Fundamentals of E-Discovery
AHIMA 2008 HIM Webinar Series 33
Notes/Comments/Questions
Information Technology Infrastructure Library
65
Information Technology Infrastructure Library
• Development of a permanent Systems Inventory database • Application List completed – 447• Next steps
• Documentation of the records in each application, the server(s) on which the applications reside
• Documentation of retired applications and systems and the media on which they reside
• Documentation of the data/record business owner• Documentation of the application IT support • Documentation filed in the Content Management
system66
The Fundamentals of E-Discovery
AHIMA 2008 HIM Webinar Series 34
Notes/Comments/Questions
HIPAA Security Expansion
• Extension of the Security Incident Response Team’s role• Documentation of data incidents and losses• Audit trail management• Development of the ability to “hold” data in
each system in the Systems Inventory database (Configuration Management system)
• Management of the decommissioning of systems
67
HIPAA Security Expansion: Incident Response
• “When computer security problems occur, it is critical for the affected organization to have a fast and effective means of responding.”• “incident analysis and response, vulnerability
handling, intrusion detection, risk assessments, security consulting, and penetration testing.”
• Organizational Models for Computer Security Incident Response Teamswww.sei.cmu.edu/publications/documents/03.reports/03hb001.html
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The Fundamentals of E-Discovery
AHIMA 2008 HIM Webinar Series 35
Notes/Comments/Questions
LEHR Defined: The Model
• Hybrid record definition • Definition of each source system• Definition of all the metadata in the
systems• Definition of the native formats of all
data/records in the LEHR• Disclosure Data Set – Clinical• Grid of Data Owners defined
69
Controlling the Cost of Electronic Discovery
• Implementation of Retention Management
• Develop early access/understanding of the possible scope of evidence
• Decrease storage costs through retention and capacity management
• Increase knowledge through the ability to find information more easily
70
The Fundamentals of E-Discovery
AHIMA 2008 HIM Webinar Series 36
Notes/Comments/Questions
e-HIM
Information Technology
Health InformationManagement
e-HIM
Records Management Records Management ProgramProgram
Information Management PlanInformation Management Plan
Regulatory ComplianceHIPAA
Financial JCAHO
Improves Safety & Quality
Healthcare
Reduces RecordsStorage & Management
Costs
PurchasersPayers
ConsumersPatientsFamilies
ProvidersRegulators
Improves Productivity&
Efficiency
Preserves Health and Business
Records Legal EHR Defined
Establishes Controls For Creation, Formats,
VolumeLocation of Information
InformationAccessible,
Timely & Relevant
© KimBaldwinStried
The Management of e-HIM®
71
A bigger picture
• Can’t look at this piecemeal – will overwhelm you
72
The Fundamentals of E-Discovery
AHIMA 2008 HIM Webinar Series 37
Notes/Comments/Questions
Collaboration will be the key to success
Legal
Risk Management
InformationTechnology
Health InformationManagement
Effective E-Discovery Involves An Integrated & Collaborative Approach To The Management of E-HIM®
EDiscovery
©KimBaldwin-Stried 73
Contact Information
Kim Baldwin-Stried ReichHealthcare E-Discovery & Compliance Consultant KBS Consulting3431 Buena RoadHighland Park, IL 60035847-477-5011 (Mobile)847-360-2883 (Office) [email protected]
Sandra NunnEnterprise Content & Information ManagerPresbyterian Healthcare ServicesAlbuquerque, NM505-923-5117 (Office) [email protected]@phs.org
74
The Fundamentals of E-Discovery
AHIMA 2008 HIM Webinar Series 38
Notes/Comments/Questions
Audience Questions
HIM, IT, Legal and Risk Management ProfessionalsNow Have A Unique Opportunity To Define and Shape
E-Discovery Processes Within Their States and Organizations
AHIMA ResourcesAHIMA Practice Briefs
• Defining and Disclosing the Designated Record Set and the Legal Health Record • April 2008 Practice Brief –Journal of AHIMA (www.Ahima.org)
• Litigation Response Planning and Policies for E-Discovery• February 2008 Practice Brief -Journal of AHIMA (www.Ahima.org)
• Developing a Legal Health Record Policy • October 2007 Practice Brief – Journal of AHIMA (www.Ahima.org)
• Guidelines for EHR Documentation to Prevent Fraud • January 2007 Practice Brief – Journal of AHIMA (www.Ahima.org)• The New Electronic Discovery Civil Rule
• September, 2006 Practice Brief – Journal of AHIMA (www.Ahima.org)AHIMA Publications
• How to Evaluate Electronic Health Record (EHR) Systems • The Legal Health Record • Health Information Management Compliance
• AHIMA Articles• Litigation Response Planning
• October 2007, Journal of AHIMA• E-Discovery and HIM: How Amendments to the Federal Rules of Civil
Procedure Will Affect HIM Professionals - October, 2006 – Journal of AHIMA
The Fundamentals of E-Discovery
AHIMA 2008 HIM Webinar Series 39
Notes/Comments/Questions
Other Resources• American National Standards Institute (ANSI)
• http://www.ansi.org/• Department of Health and Human Services (HHS)
Health Information Technology/Office of National Coordinator • http://www.hhs.gov/healthit/
• Centers for Medicare and Medicaid (CMS)HIPAA General Information • http://www.cms.hhs.gov/HIPAAGenInfo/
• International Organization for Standardization (ISO Standards) • http://www.iso.org/iso/about.htm
• HL7 – Electronic Health Record • http://www.hl7.org/ehr/HL7 – EHR-S Registry
http://xreg2.nist.gov:8080/ehrsRegistry/• Certification Commission for Healthcare Information Technology (CCHIT)
• http://www.cchit.org/ambulatory/criteria/• The Sedona Conference®
• http://www.thesedonaconference.org/
Audio Seminar Discussion
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www.AHIMA.orgClick on Communities of Practice (CoP) – icon on top right
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Join the e-HIM Community from your Personal Page under Community Discussions, choose the Audio Seminar Forum
You will be able to:• Discuss seminar topics • Network with other AHIMA members • Enhance your learning experience
The Fundamentals of E-Discovery
AHIMA 2008 HIM Webinar Series 40
Notes/Comments/Questions
AHIMA Audio Seminars/Webinars
Visit our Web site http://campus.AHIMA.orgfor information on the 2008 seminar schedule. While online, you can also register for seminars or order CDs and pre-recorded Webcasts of past seminars.
Upcoming Seminars/Webinars
Release of Information: The Nuts and BoltsJune 24, 2008
The Legal Health Record: The Legal Hold ProcessAugust 12, 2008
Defining TPO: Are You Stretching the Privacy Rule Limits? September 23, 2008
The Fundamentals of E-Discovery
AHIMA 2008 HIM Webinar Series 41
Notes/Comments/Questions
Thank you for joining us today!Remember − sign on to the
AHIMA Audio Seminars Web site to complete your evaluation form
and receive your CE Certificate online at:
http://campus.ahima.org/audio/2008seminars.html
Each person seeking CE credit must complete the sign-in form and evaluation in order to view and
print their CE certificate
Certificates will be awarded forAHIMA Continuing Education Credit
Appendix
AHIMA 2008 HIM Webinar Series 42
FRCP Amendments ..........................................................................................43-53 CE Certificate Instructions
Rule Title Legal Process HIM & IT
16(b)(5)&(6)
Pretrial Conference; Scheduling
Management
Parties must meet and confer regarding matters related to discovery of electronically stored information (ESI) The intent of 16(b) is to alert the court to possible need to address the handling of the discovery of ESI
HIM and IT Professionals may be called upon by legal
counsel to help prepare for or attend a pre-trial meet and
confer session to advise on matters
related to the retention, storage
and location of potentially responsive and/or relevant data.
FRCP Amendments
Federal Rules of Civil Procedure – US District Courts
Rule Title Legal Process HIM & IT26(a) General
Provisions Governing
Discovery; Duty of Disclosure;
Required Disclosures; Methods to Discover
Additional Matter
ESI has same broad meaning in 26(a)(1) as in Rule 34(a).
Rule 26(a)(1)(B) was amended to parallel Rule
34(a) by recognizing that a party must disclose ESI as well as documents that it
may use to support its claims and defenses
Any/all relevant ESI is discoverable and must
be preserved and disclosed in the face of
impending or threatened litigation.
In the HIM Department Release of
Information (ROI) function a distinction
must be made between the
"disclosure" of e-HIM®
vs. the "discovery" of
e-HIM®.
FRCP Amendments
Federal Rules of Civil Procedure – US District Courts
Rule Title Legal Process HIM & IT
26(b)(2)
(B)
General Provisions Governing Discovery;
Duty of Disclosure; Discovery Scope and
Limits; Limitations
If a party can sufficiently demonstrate that certain electronically stored information is “not reasonably
accessible” because of undue burden or cost, that party may not be required to produce that information. Court may
order discovery from that party if, after considering the limitations of Rule
26(b)(2)(C) (the burden of production outweighs the benefit) it determines that the requesting party has shown good cause. Rule 26 also contains
provisions for cost-shifting, also that responding party must also identify with sufficient detail the sources of potentially responsive information that it is neither
searching or producing.
HIM and IT Professionals should identify the locations and sources of ESI
within the organization, including and
assessment of the forms and format in
which e-HIM® is maintained and what legacy systems are in place. An analysis of
the of the true costs to access, search and
retrieve ESI within the organization should be
undertaken.
FRCP Amendments
Federal Rules of Civil Procedure – US District Courts
Rule Title Legal Process HIM & IT
26(b)(5)
(B)
General Provisions Governing Discovery;
Duty of Disclosure; Discovery Scope and
Limits; Claims of
Privilege or Protection of
Trial-Preparation Materials;
Information Produced.
Protection of privileged information or protection as trial preparation material. This rule provides for
“claw back” agreements over production of ESI. If receiving party discloses the privileged information
prior to being notified of the claim, it must take reasonable steps to
retrieve it. The producing party is also required to preserve the
information until the claim is resolved. This rule works together with
amended Rule 26(f) which now directs parties to discuss privilege
issues when preparing their discovery plans. Any such agreements could be
made part of a court order via amended Rule 16(b).
HIM and IT should establish internal
procedures, controls & filters to assist legal counsel in its review and screening of information of privileged information. HIPAA privacy and security and attorney client privilege should be
discussed early on in litigation and agreements
reached between the parties should be
documented and made part of a discovery plan.
Federal Rules of Civil Procedure – US District Courts
FRCP Amendments
Rule Title Legal Process HIM & IT
26(f)(3)&(4)
General Provisions Governing Discovery; Duty of Disclosure; Conference of Parties; Planning for Discovery
Meet and Confer Conference Rule which provides that during pretrial conferences, parties shall discuss case-specific issues including the preservation of discoverable information and the disclosure or discovery of ESI. Discussions must include the form ESI should be produced as well as any issues relating to the claims of privilege or of protection as trial-preparation material. Rule provides for parties to enter into "quick peek" agreements to minimize risk of waiver of privilege. A requesting party may designate the specific evidence it wishes to have produced pursuant to Rule 34.
HIM and IT professionals should meet and discuss with legal counsel early in
litigation to plan for e-discovery. HIM and IT
should advise legal counsel as to the forms, formats and locations of any/all
potentially relevant and/or responsive information.
HIM & IT should also seek guidance from legal about preservation obligations,
and establishing legal holds over potentially responsive
information.
Federal Rules of Civil Procedure – US District Courts
FRCP Amendments
Rule Title Legal Process HIM & IT33(d) Inter-
rogatoriesto Parties; Option to Produce Business Records
This rule was amended and allows a party responding to an
interrogatory to specify the electronic records from which the
answer may be derived, if the burden of deriving the answer is substantially the same for the responding party as for the
requesting party. The responding party to an interrogatory must
also provide the requesting party with a reasonable opportunity to
examine, copy, audit, test or inspect such records.
HIM and IT professionals should seek direction from
legal as to organizational policy
and practice as to how to document and
describe in writing the answers which
specify the electronic records in which the
answer is based.
Federal Rules of Civil Procedure – US District Courts
FRCP Amendments
Rule Title Legal Process HIM & IT34(a)&
(b)Production of Documents, Electronic-ally Stored Information, & Things and Entry Upon Land for Inspection and Other Purposes.
Provision permits party requesting production of documents including ESI to also inspect, copy, test or sample such information. The responding party must translate the information, if necessary, into reasonably usable form. Production requests should specify the form in which the ESI is to be produced. Producing party may object to the requested form for production if it provides the reason for the objection and the form it intends to use instead. If a request does not specify the form for ESI -- it is incumbent upon the responding party to produce the information in a form or forms which are “reasonably usable” or in which the information is “ordinarily maintained.” A party need not produce the same electronically stored information in more than one form.
ESI placed on equal footing as paper.
Rule allows for the inspection, copying,
testing and/or sampling of ESI.
Provisions should be in place for ESI to be
converted into reasonably usable form/format. ESI
does not to be produced in more than one form.
FRCP Amendments
Federal Rules of Civil Procedure – US District Courts
Rule Title Legal Process HIM & IT
37 (f) Failure to Make
Disclosures or Cooperate in Discovery;
Sanctions; ESI
“Safe Harbor” rule. Absent exceptional circumstances, the court is restricted from
imposing sanctions under these rules on a party for the non-culpable act of failing to provide
electronically stored information that was lost as a result of the “routine, good faith operation of an
electronic information system” -- i.e. the information system operated in the ways in which
the system was designed, programmed and implemented to meet the party’s technical and business needs. The court will examine party’s compliance with litigation holds and preservation
orders. The court will also analyze steps the party took to comply with a court order or party agreement requiring preservation. The court will
consider whether the party reasonably believed the information available on these electronic sources was likely to be discoverable and not otherwise
reasonably available.
If called upon to testify as a
30(b)(6) witness - HIM
and IT professionals,
must be able to describe the "good faith
operations" of the
organization's information systems.
Federal Rules of Civil Procedure – US District Courts
FRCP Amendments
Rule Title Legal Process HIM & IT
45 Subpoena; Form;
Issuance
Permits inspection, copying, testing or sampling of things such as ESI and may specify the form or forms or
production of ESI. As in Rule 26(b)(2)(B), if a party sufficiently demonstrates that certain ESI is not
reasonably accessible because of undue burden or cost, the party may not be required to produce that
information. A court may order discovery from that party if, after considering the limitations of Rule 26(b)(2)(C)
(burden of production outweighs benefit) and good cause is shown. The court may add conditions to a discovery
order. Like Rule 26(b)(5)(B), if information is produced in response to subpoena, is later subject to a claim of
privilege or protection as trial preparation material, party receiving this information must promptly return, sequester or destroy the specified information and must not use or disclose the information until the claim is resolved. As in Rule 34, if a subpoena does not specify the form or forms for producing ESI, the responding party will be required to
produce the information in a form or forms which are “reasonably usable” or in which the person “ordinarily
maintains it.” A party need not produce the same ESI in more than one form.
Objections to Rule 45 subpoenas must be
occur within 14 days of
receipt. HIM, IT and legal should establish a process to assess the true costs
and burdens to search,
retrieve, cull and produce
ESI from current and
legacy systems
Federal Rules of Civil Procedure – US District Courts
FRCP Amendments
Subpoenas – Federal RulesFRCP Rule 45 – Subpoena
Every federal subpoena must:(i) State the court from which it issued; (ii) State the title of the action, the court in which it is pending, and its civil-action number; (iii) command each person to whom it is directed to do the following at a specified time and place: attend and testify; produce designated documents, electronically stored information, or tangible things in that person's possession, custody, or control; or permit the inspection of premises; and (iv) (D) Command to Produce; Included Obligations.A command in a subpoena to produce documents, electronically stored information, or tangible things requires the responding party to permit inspection, copying, testing, or sampling of the materials.Notice must be issued to non-parties too.
Rule Title Legal Process HIM & ITForm 35
Report of Parties’Planning Meeting; Discovery
Plan
A legal form to be completed post the parties pre-trial meet and confer session and includes the requirement for a brief description of the
parties' proposals on handling the disclosure or discovery of electronically stored information,
as well as the provisions of any proposed order reflecting the agreement of the parties on post-production claims or waivers of privilege or of
protection as trial-preparation material.
Legal Counsel should seek input from HIM and IT
professionals about the availability and accessibility of ESI prior to a discovery planning meeting.. The discovery plan (Form 35) should
be shared and discussed with HIM
and IT by legal counsel. The Release of
Information (ROI) within HIM is projected to
change.
Federal Rules of Civil Procedure – US District Courts
FRCP Amendments
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You will be automatically linked to the
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