Electronic Migration/Proliferation The “Legal EMR” Subset of Electronically Stored Information (“ESI”) Relied Upon to Make Clinical Care Decisions Voicemail Email Pagers LegalESI EMR PDAs Records Digital Images
The Perils: Prepared for E-Discovery?Health care industry “grossly unprepared”for E-Discovery32% - no definition of “Legal EMR”25% - no policies for managing ESI from the“Legal EMR”
The Perils:Prepared for E-Discovery?“Top Ten E-mail Don’ts”E-Discovery RulesElectronic Migration/ProliferationPerils: Sanction, Exposure, Expense
“Top Ten E-mail Don’ts”10. “I could get into trouble for telling you this, but…”9. “Delete this e-mail immediately”8. “I really shouldn’t put this in writing.”7. “Don’t tell So-and-So.” Or, “Don’t send this to So-and-So.”6. “She/He/They will never find out.”5. “We’re going to do this differently than normal.”4. “I don’t think I am supposed to know this, but…”3. “I don’t want to discuss this in an e-mail. Please give me a call.”2. “Don’t ask. You don’t want to know.”1. “Is this actually legal?”
E-Discovery Rules2006, 2007— Federal Rules of Civil Procedure amended.
E-Discovery Rules These expansive e-discovery rules are no longer limited to federal court. The Oklahoma Legislature made changes to the discovery code to bring it more in line with the federal rules. Those changes took effect in 2010.
E-Discovery Rules ESI is “expansive and includes any type of information that is stored electronically.” “Intended to be broad enough to cover all types of computer- based information, and flexible enough to encompass future changes and developments.”
E-Discovery Rules“May obtain discovery … [of] anynon-privileged matter … relevantto … claim or defense.”“Reasonably calculated to lead tothe discovery of admissibleevidence.”“Limit … discovery … if … burdenor expense … outweighs its likelybenefit.”“Need not provide discovery of ESIfrom sources … not reasonablyaccessible because of undueburden or cost.”
The Perils: Prepared for E-Discovery?In 2010, less than half of all businesses – 46percent – had a formal information retention plan in place.
Electronic Migration/ProliferationTraditional ESI Sources Proliferating ESI Sources Office desktops Facebook, MySpace, Office laptops Twitter Business e-mail Instant Messaging Business voicemail Text Messages PDA’s, Cell phones Yahoo Mail!, Gmail Blogs Metadata
Sanction, Exposure, Expense According to a 2010 study in the Duke Law Journal, out of 97 total cases in 2009, 63 resulted in sanctions.
Adverse InferenceAdverse instruction for failing toproduce “corrupted” or “lost”documents.9/14/2011- E.I. du Pont de Nemours v.Kolon Industries— Adverse jury instruction for spoliation leads to $919 million dollar verdict
Default Judgment2/16/2011 – Philips Elecs. N. Am.Corp. v. BC Tech— Default judgment, attorney fees and referral to U.S. Attorney’s Office for criminal prosecution even though the e- discovery abuse was cured.
Monetary Fines7/18/2011 – Genger v. TR Investors, LLC— Court upholds $3.2 Million in sanctions for intentional deletion of unallocated free space7/7/2011 – PIC Grp., Inc. v. LandCoastInsulation, Inc.— Court orders Defendant to pay sanctions without possibility of indemnification
Re-produce DocumentsVendor failure resulted in party having tore-produce all emails and attachments atown expense. — PSEG v. Alberici, (N.D.N.Y. 2007).
A Plan for SuccessE-Discovery Readiness: ID, Inventory, Map Retention, Destruction, Hold Collect, Analyze and Review Produce Audit
A Plan for Success Litigation Planner (with E-Discovery Plan)Identification Analysis & Collection & ProductionPreservation Review Meet & Confer/ Initial Scheduling Suit Filed Discovery Plan Disclosures Order ~ 45 days Discovery