Changes to the Federal e- Discovery Rules and Their Impact on HIM and the EHR Arthur J. Fried, Esq. Epstein Becker & Green Daniel Garrie, Esq. Zeichner Ellman & Krause

CONTEXT After years of discussion, sweeping changes have been proposed to the Federal Rules of Civil Procedure The proposals are designed to accomplish three purposes: – Early, Active Judicial Case Management – Proportional Use of Procedural Tools in Discovery – Increased Cooperation Among Litigants

Context Recognition: – enormous expense potentially caused by preservation and production requirements – the role discovery now plays as a strategic maneuver – excessive discovery often occurs in complex, high stakes cases, as well as those that generate contentious adversary behavior

Judicial Case Management Early Stages of Litigation Take Too Long – Shorten time to serve summons and complaint – Shorten time to issue scheduling order – Scheduling order/discovery plan may include provisions for preservation of electronic information – Pre-motion conferences required – Discovery requests allowed pre-conference

AHIMA Proposal Require a qualified and credentialed HIM professional to be actively involved to ensure “all forms, formats, and locations of information are preserved” in healthcare litigation or investigations – Is this consistent with the proportionality principle? – Does all litigation require full preservation? – Do all litigants employ such professionals?

AHIMA Proposal Rule 26(f) conference should involve a qualified and credentialed HIM professional. – Is this consistent with the proportionality principle? – Who would pay for such professionals?

Proportionality Discovery must be proportional to the needs of the case, considering: Amount in controversy Parties’ resources Importance of the issues at stake Importance of discovery in resolving the issues Whether burden or expense outweighs likely benefit

Allocation of Expenses Authority to allocate expenses of discovery made explicit

Failure to Preserve Create single standard for preservation sanctions – Allowed only where failure to preserve: – Was willful or in bad faith, and – Caused substantial prejudice in the litigation, or – Irreparably deprived party of ability to present or defend against claims

AHIMA Proposal Terms should be defined or uniformity will not be achieved – Willful – Bad faith – Substantial prejudice Burden of proof of the need for missing information is place on the innocent party

Curative Measures Methods to reduce or cure consequences of loss of information preferred over sanctions if litigation harm of failure to preserve can be substantially undone. Adverse inference jury instruction only on finding of willful destruction or bad faith

Questions? Arthur J. Fried, Esq. Epstein Becker & Green 250 Park Avenue, New York, New York Daniel Garrie, Esq. Zeichner Ellman & Krause 1211 Ave of Americas - 40th Floor New York, NY