Presented for the OKHIMSS Medical Technology Forum at InnoTech Oklahoma on November 3rd. All rights reserved.

1. E-Discover
The Path, The Perils, and
A Plan For Success
Kevin D. Gordon
Jonathan G. Rector

2. E-Discovery Topics
The Path
— Electronic Migration/Proliferation
The Perils
— Prepared for E-Discovery?
— E-Discovery Impact
A Plan For Success

3. Electronic Migration/Proliferation
Electronic World
97% of Business
Information Created
Electronically

4. Electronic Migration/Proliferation
Electronic Medical Records (EMR)/
Health Information Exchange (HIE)
Benefits
Funding
Oklahoma Efforts
Security Risks

5. Electronic Migration/Proliferation
EMR/HIE - Benefits
— Improved Quality of Care/Patient
Outcomes
— Cost Reductions

6. Electronic Migration/Proliferation
EMR/HIE - Funding
— CMS Demonstration Project
— American Reinvestment and Recovery
Act
• $19B
– $17B = CMS incentives
– $2B = ONCHIT grants

7. Electronic Migration/Proliferation
EMR/HIE – Oklahoma Efforts
— HISPC
• Oklahoma Health Information Exchange Act
• Executive Order 2008-4
• Executive Order 2011-10

8. Electronic Migration/Proliferation
OHIET
— $10 million in federal funding to support
exchange in Oklahoma
— 63 O.S. 1-132
— Help support and facilitate information
exchange

9. Electronic Migration/Proliferation
OHIET Updates
— Lab
— Pharmacy
— Voucher Program

10. Electronic Migration/Proliferation
EMR/HIE – Security Risks
— HIPAA
— HITECH ACT
— OIG Report

11. Electronic Migration/Proliferation
The “Legal EMR”
Subset of Electronically Stored Information (“ESI”)
Relied Upon to Make Clinical Care Decisions
Voicemail
Email Pagers
Legal
ESI EMR
PDAs Records
Digital
Images

12. The Perils:
Prepared for E-Discovery?
Health care industry “grossly unprepared”
for E-Discovery
32% - no definition of “Legal EMR”
25% - no policies for managing ESI from the
“Legal EMR”

13. The Perils:
Prepared for E-Discovery?
“Top Ten E-mail Don’ts”
E-Discovery Rules
Electronic Migration/Proliferation
Perils: Sanction, Exposure, Expense

14. “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?”

15. E-Discovery Rules
2006, 2007
— Federal Rules of Civil Procedure
amended.

16. 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.

17. 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.”

18. E-Discovery Rules
“May obtain discovery … [of] any
non-privileged matter … relevant
to … claim or defense.”
“Reasonably calculated to lead to
the discovery of admissible
evidence.”
“Limit … discovery … if … burden
or expense … outweighs its likely
benefit.”
“Need not provide discovery of ESI
from sources … not reasonably
accessible because of undue
burden or cost.”

19. The Perils:
Prepared for E-Discovery?
In 2010, less than half of all businesses – 46
percent – had a formal information retention
plan in place.

20. Electronic Migration/Proliferation
Traditional 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

21. Most Requested E-Discovery?

22. Most Requested E-Discovery?
It’s not just email you need to be concerned with…

23. E-Discovery Rules
Compressed Time Deadlines
Litigation Planner
Meet & Confer/ Initial Scheduling
Suit Filed Order
Litigation Hold, Discovery Plan Disclosures
Identification, Collection,
Production, Preservation,
Review, Analysis, Mapping,
Inventory
~ 45 days Discovery

24. Sanction, Exposure, Expense
Adverse Inference
Default Judgment
Monetary Fines
Re-produce Documents

25. Sanction, Exposure, Expense
According to a
2010 study in the
Duke Law Journal,
out of 97 total
cases in 2009, 63
resulted in
sanctions.

26. Adverse Inference
Adverse instruction for failing to
produce “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

27. Default Judgment
2/16/2011 – 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.

28. Monetary Fines
7/18/2011 – Genger v. TR Investors, LLC
— Court upholds $3.2 Million in sanctions for
intentional deletion of unallocated free space
7/7/2011 – PIC Grp., Inc. v. LandCoast
Insulation, Inc.
— Court orders Defendant to pay sanctions
without possibility of indemnification

29. Re-produce Documents
Vendor failure resulted in party having to
re-produce all emails and attachments at
own expense.
— PSEG v. Alberici, (N.D.N.Y. 2007).

30. A Plan for Success
E-Discovery Readiness:
ID, Inventory, Map
Retention, Destruction, Hold
Collect, Analyze and Review
Produce
Audit

31. A Plan for Success
Litigation Planner
(with E-Discovery Plan)
Identification Analysis
& Collection & Production
Preservation Review
Meet & Confer/ Initial Scheduling
Suit Filed
Discovery Plan Disclosures Order
~ 45 days Discovery

32. PRESENTED BY
Kevin D. Gordon
kevin.gordon@crowedunlevy.com
405-239-6619
Jonathan G. Rector
jonathan.rector@crowedunlevy.com
405-235-7702
The material presented in this forum is for informational purposes only and is not intended to be legal advice. If you have a specific question
regarding legal matters, please contact the attorney with whom you regularly work.
Copyright © 2011 Crowe & Dunlevy, P.C.