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+-----------------------------------------------------------------------+
| **The New Electronic Discovery Civil Rule**                           |
|                                                                       |
| As electronic health record (EHR) technology advances, sophisticated  |
| litigators are gaining a better understanding of the information they |
| can obtain from e-mail messages, databases, software applications,    |
| computer logs, and metadata. Electronic discovery (e-discovery) is    |
| becoming a critical part in gathering and using evidence in legal     |
| proceedings, complementing traditional methods such as photocopies,   |
| printouts, and digital images of patient medical records.             |
|                                                                       |
| New changes to the Federal Rules of Civil Procedure related to        |
| e-discovery will greatly affect how healthcare organizations manage   |
| their electronic records. This practice brief provides an overview of |
| pretrial requirements in the e-discovery civil rule and reviews the   |
| relevance and application of each section of the rule to healthcare   |
| organizations. Additionally, it identifies the steps HIM              |
| professionals can take to prepare their departments and organizations |
| for the challenges associated with e-discovery.                       |
|                                                                       |
| **E-Discovery**                                                       |
|                                                                       |
| Electronic discovery involves the access, use, and preservation of    |
| information, data, and records created or maintained in electronic    |
| media. E-discovery involves more than rephrasing discovery requests   |
| to include electronic records and data and simply printing out        |
| e-mail. It entails obtaining new information in new forms from new    |
| places and new sources and using it in a new manner. Its differing    |
| approaches and disciplines include:                                   |
|                                                                       |
| -   Computer forensics, where scientific methods are employed to      |
|     analyze sources of electronic data such as hard drives or servers |
|     to determine if evidence was accessed, destroyed, or fabricated   |
|     or to find computer-generated evidence of which laypeople are     |
|     unaware                                                           |
|                                                                       |
| -   Searching, gathering, reviewing, analyzing, producing, and using  |
|     large amounts of relevant information in routine litigation       |
|     (i.e., the equivalent to searching warehouses, waste baskets,     |
|     file cabinets, home offices, and personal notes, which is often   |
|     performed or facilitated by outside service providers)            |
|                                                                       |
| -   The focused search for electronically stored information          |
|     particularly relevant to the specific case such as cell phone     |
|     records and e-mail or instant messaging of key                    |
|                                                                       |
| participants[^[1]{.underline}^](http://library.ahima.org/xpedio/group |
| s/public/documents/ahima/bok1_031860.hcsp?dDocName=bok1_031860#notes) |
|                                                                       |
|     **The Federal Rules of Civil Procedure**                          |
|                                                                       |
| The Federal Rules of Civil Procedure govern procedure for all civil   |
| suits in US district courts. They are established by the United       |
| States Supreme Court and approved by the United States Congress.      |
|                                                                       |
| As a result of changing practices, the Supreme Court approved         |
| amendments to the Federal Rules of Civil Procedure on April 13, 2006, |
| to address the unique aspects of electronic discovery. The amendments |
| will take effect December 1, 2006, and begin to change HIM practices  |
| over time, specifically the management, retention, and disclosure of  |
| health information.                                                   |
|                                                                       |
| Although this rule applies to federal cases, it is expected to set    |
| the standard for e-discovery in state and local jurisdictions over    |
| time. The implications of these new rules will have far-reaching      |
| impact into how electronic records are managed within healthcare      |
| organizations.                                                        |
|                                                                       |
| The new rules present an opportunity for HIM professionals to         |
| collaborate with legal, information technology, and senior management |
| in the development of operating policies, procedures, practices, and  |
| systems that fully conform and comply to ever-changing rules, laws,   |
| and regulations governing electronic records management.              |
|                                                                       |
| Outlined in the following table is a summary of the relevant changes  |
| to the Federal Rules of Civil Procedure. HIM professionals should     |
| familiarize themselves with these rules and begin to prepare policies |
| and procedures to respond to e-discovery requests for information.    |
|                                                                       |
|   -------                                                             |
| ------ ----------------- --------------------- ---------------------- |
|   **Changes to                                                        |
|   the Federal                                                         |
|   Rules of                                                            |
|   Civil                                                               |
|   Procedure                                                           |
|   Relevant to                                                         |
|   HIM**                                                               |
|                                                                       |
|                                                                       |
|  **Federal     **Intent,         **Relevance**         **Professional |
|   Rules of      Description of                          Practice      |
|   C                                                                   |
| ivil         Rule**                                  Considerations** |
|   Procedure**                                                         |
|                                                                       |
|   16                                                                  |
|        Pretrial          Describes the process HIM professionals must |
|                                                                       |
|             conferences,      attorneys will follow be aware that the |
|                                                                       |
|           scheduling,       before litigation     attorneys (parties) |
|                                                                       |
|           management                              will meet and agree |
|                                                                       |
|                                                  upon matters related |
|                                                                       |
|                                                   to discovery before |
|                                                                       |
|                                                litigation. HIM and IT |
|                                                                       |
|                                                    must work with the |
|                                                                       |
|                                                        organization's |
|                                                                       |
|                                                   attorney prior to a |
|                                                                       |
|                                                pretrial conference to |
|                                                                       |
|                                                   discuss information |
|                                                         and record    |
|                                                         availability. |
|                                                                       |
|   16(b)                                                               |
|        Early attention   Presents a framework  HIM professionals will |
|                                                                       |
|         to electronic     for the parties and   need to be aware that |
|                                                                       |
|            discovery issues  the court to give     the rule gives the |
|                                                                       |
|                             early attention to    court discretion to |
|                                                                       |
|                                  issues relating to    enter an order |
|                                                                       |
|                             electronic discovery, adopting agreements |
|                                                                       |
|                           including the         the parties reach for |
|                                                                       |
|                             frequently recurring  asserting claims of |
|                                   problems of the       privilege or  |
|                                   preservation of       protection as |
|                                                                       |
|                               evidence and the      trial-preparation |
|                                                                       |
|                                  assertion of          material after |
|                                                                       |
|                          privilege and         inadvertent production |
|                                   work-product          in discovery. |
|                                                                       |
|                                  protection. It        Credibility is |
|                                                                       |
|                              inserts and creates a established at the |
|                                                                       |
|                                much stronger role    beginning of the |
|                                                                       |
|                             for the judge in the  process; therefore, |
|                                                                       |
|                                 discovery process.    HIM and IT must |
|                                                                       |
|                                                communicate with their |
|                                                                       |
|                                                    attorneys before a |
|                                                                       |
|                                                      meeting with the |
|                                                         judge. HIM    |
|                                                                       |
|                                                  professionals should |
|                                                                       |
|                                                work with legal and IT |
|                                                                       |
|                                                       to ensure added |
|                                                                       |
|                                                 privilege protections |
|                                                                       |
|                                                       for HIV, mental |
|                                                                       |
|                                                     health, substance |
|                                                                       |
|                                                   abuse, and employee |
|                                                                       |
|                                                 records. In addition, |
|                                                                       |
|                                                  HIM must be prepared |
|                                                                       |
|                                                 to answer or research |
|                                                                       |
|                                                  questions pertaining |
|                                                                       |
|                                                 to the organization's |
|                                                                       |
|                                                       systems such as |
|                                                                       |
|                                                  location, retention, |
|                                                                       |
|                                                  and accessibility of |
|                                                                       |
|                                                     electronic health |
|                                                         information.  |
|                                                                       |
|   26                                                                  |
|         General           Describes legal       Organizations and HIM |
|                                                                       |
|         provisions        obligation to         professionals need to |
|                                                                       |
|              governing         maintain and disclose be aware of this |
|                                                                       |
|          discovery, duty   relevant records An   obligation, which is |
|                                                                       |
|        of disclosure     organization has      the same as the duties |
|                                   roughly 90 days after surrounding   |
|                                                                       |
|                            the complaint is      maintenance of paper |
|                                   answered to make the  records.      |
|                                   initial disclosure.                 |
|                                                                       |
|   26(a)         Early attention   Describes             HIM and IT    |
|                                                                       |
|         to electronic     responsibilities of   professionals must be |
|                                                                       |
|            discovery,        parties in initial    aware that parties |
|                                                                       |
|        required          disclosure and        involved in litigation |
|                                                                       |
|          disclosures,      clarifies the party's are required to meet |
|                                                                       |
|              methods to        duty to include       ahead of time to |
|                                                                       |
|            discover          initial disclosures   review and discuss |
|                                                                       |
|            additional matter of electronically     matters related to |
|                                                                       |
|                           stored information    electronic discovery. |
|                                                                       |
|                           for data compilations Communication between |
|                                                                       |
|                                                    HIM, IT, and legal |
|                                                                       |
|                                                   should be conducted |
|                                                                       |
|                                                  prior to the parties |
|                                                         meeting.      |
|                                                                       |
|   26(b)                                                               |
| (1)      Early attention   Limits the scope of   HIM and IT must work |
|                                                                       |
|          to electronic     party-controlled      carefully with legal |
|                                                                       |
|        discovery,        discovery matters     and have communication |
|                                                                       |
|          required          "relevant to the      channels established |
|                                                                       |
|            disclosures,      claim or defense of   ahead of time. HIM |
|                                                                       |
|            relevance of      any party," allowing  professionals must |
|                                                                       |
|             information       discovery into "the   know the specific |
|                                                                       |
|               produced          subject matter        documents being |
|                                                                       |
|                             involved in the       requested and their |
|                                                                       |
|                                action." The content  relevance to the |
|                                                                       |
|                                of the medical record claim. Take, for |
|                                                                       |
|                           will be an extremely  example, a party with |
|                                                                       |
|                               important factor in   a cause of action |
|                                                                       |
|                             e-discovery.          related to a broken |
|                                                                       |
|                                                arm in the ER. Records |
|                                                                       |
|                                                relating to an earlier |
|                                                                       |
|                                                  OB delivery probably |
|                                                                       |
|                                                 will not be relevant, |
|                                                                       |
|                                                despite a request that |
|                                                                       |
|                                                    specifies "any/all |
|                                                         records."     |
|                                                                       |
|   26(b)(2)      Information that  Provides that a       "Reasonable"  |
|                                                                       |
|         is not reasonably responding party need accessibility will be |
|                                                                       |
|          accessible        not provide           more of an issue for |
|                                                                       |
|                            electronically stored IT professionals and |
|                                                                       |
|                               information that is   HIM professionals |
|                                                                       |
|                               inaccessible because  practicing in IT. |
|                                                                       |
|                              of undue burden of    Organizations will |
|                                                                       |
|                               cost. The responding  need to establish |
|                                   party has the burden  mechanisms to |
|                                                                       |
|                              to show that the      determine the true |
|                                                                       |
|                           sources are not       costs and burdens for |
|                                                                       |
|                             reasonably            producing data that |
|                                                                       |
|                             accessible. Even when they determine "not |
|                                   such showing is made, reasonably    |
|                                                                       |
|                            a court can still     accessible." HIM and |
|                                                                       |
|                            order discovery of    attorneys never want |
|                                                                       |
|                          those materials for   to be in a position of |
|                                                                       |
|                             good cause shown and  not knowing what is |
|                                                                       |
|                          could specify         reasonably accessible. |
|                                                                       |
|                           conditions for that   Organizations must be |
|                                                                       |
|                          discovery, including  proactive and identify |
|                                                                       |
|                              a reallocation of the ahead of time what |
|                                                                       |
|                                  costs of the          information is |
|                                                                       |
|                            discovery.            available and how it |
|                                                                       |
|                                                     will be accessed. |
|                                                                       |
|   26(b)(                                                              |
| 2)(C)   Information that  Sets up factors for   HIM professionals may |
|                                                                       |
|        is not reasonably the judge to          need to be apprised of |
|                                                                       |
|         accessible,       consider. Provides    whether a court order |
|                                                                       |
|          balancing the     whether the           was issued requiring |
|                                                                       |
|           costs and         responding party is   the organization to |
|                                                                       |
|           potential         required to search    produce information |
|                                                                       |
|                benefits of       and produce           not reasonably |
|                                                                       |
|        discovery         information not       accessible in response |
|                                                                       |
|                            reasonably accessible to rule 26(b)(2)(C). |
|                                                                       |
|                          depending on whether  HIM and IT may need to |
|                                                                       |
|                           the costs and burdens assist in preparing a |
|                                                                       |
|                              are justified         summary evaluation |
|                                                                       |
|                                                      supporting legal |
|                                                                       |
|                                                  counsel's definition |
|                                                                       |
|                                                        of "reasonably |
|                                                                       |
|                                                  accessible." HIM and |
|                                                                       |
|                                                IT should already know |
|                                                                       |
|                                                  what is relevant and |
|                                                                       |
|                                                 what is not, and what |
|                                                                       |
|                                                      is burdensome to |
|                                                                       |
|                                                   produce and what is |
|                                                                       |
|                                                  not. An organization |
|                                                                       |
|                                                    must determine the |
|                                                                       |
|                                                costs of producing and |
|                                                                       |
|                                                  the privacy concerns |
|                                                                       |
|                                                        ahead of time. |
|                                                                       |
|   26(                                                                 |
| b)(5)      Procedure for     Established to        This may become an |
|                                                                       |
|         assertion of      present to the court  issue for legal, risk |
|                                                                       |
|        claims of         claims that parties   management, HIM, or IT |
|                                                                       |
|         privilege and     inadvertently         professionals if they |
|                                                                       |
|            work-product      produced information  produce electronic |
|                                                                       |
|           protection after  protected by          health records that |
|                                                                       |
|          inadvertent       attorney-client       are not requested or |
|                                                                       |
|               production        privilege or          relevant to the |
|                                                                       |
|                                  work-product          request (e.g., |
|                                                                       |
|                          doctrine. It provides inadvertent production |
|                                                                       |
|                               that if a party       of electronically |
|                                                                       |
|                                 discovers information stored incident |
|                                                                       |
|                          inadvertently         reports or peer review |
|                                                                       |
|                                 produced, protected,  records). Also, |
|                                                                       |
|                            or privileged as work provisions should be |
|                                                                       |
|                              product, it must      made regarding the |
|                                                                       |
|                          notify the receiving  inadvertent production |
|                                                                       |
|                          party and set forth   of HIV, mental health, |
|                                                                       |
|                             in writing the basis  and substance abuse |
|                                   by which the party    records.      |
|                                   believes the                        |
|                                   information is                      |
|                                   privileged.                         |
|                                                                       |
|   26(f)         Early attention - Directs parties to    HIM and IT    |
|                                                                       |
|        discussion        discuss "any issues   professionals may need |
|                                                                       |
|           between parties,  relating to           to be made aware of |
|                                                                       |
|             preserving        preserving            issues related to |
|                 discoverable      discoverable          discovery of  |
|                                                                       |
|         information       information"          electronically stored |
|                                                         information.  |
|                                                                       |
|   26(f)(3                                                             |
| ) and  Early attention - Directs parties to    HIM professionals will |
|   Form 35                                                             |
|        discussion        discuss "any issues   need to be apprised of |
|                                                                       |
|               between parties,  relating to           Form 35 and the |
|                                                                       |
|             issues relating   disclosure or         parties' proposed |
|                                                                       |
|           to disclosure,    discovery of          discovery plan. HIM |
|                                                                       |
|         discovery of      electronically stored professionals will be |
|                                                                       |
|               electronically    information,          responsible for |
|                                                                       |
|               stored            including the form or producing those |
|                                                                       |
|          information, and  forms in which it     electronic documents |
|                                                                       |
|           forms of document should be produced."  agreed upon between |
|                                                                       |
|           production        Form 35 enables the   the parties. Issues |
|                                                                       |
|                          parties to report to  such as the formats in |
|                                                                       |
|                           the court their       which the data are to |
|                                                                       |
|                          proposed discovery    be produced, how much, |
|                                                                       |
|                            plan and their        and what is relevant |
|                                                                       |
|                                 proposals for         will need to be |
|                                                                       |
|                                disclosure or         provided to HIM. |
|                                   discovery of                        |
|                                   electronically stored               |
|                                   information.                        |
|                                                                       |
|   26(                                                                 |
| f)(4)      Early attention - Provides for parties  Organizations will |
|                                                                       |
|             discussion        to ameliorate costs   need to establish |
|                                                                       |
|         between parties,  and delays of         specific policies and |
|                                                                       |
|          issues relating   document production   procedures outlining |
|                                                                       |
|              to privilege and  created by steps      examples of what |
|                                                                       |
|                work-product      necessary to avoid    privileged and |
|                                                                       |
|                production        waiving privilege or  protected work |
|                                                                       |
|                               work-product          products include. |
|                                                                       |
|                           production during     Legal, IT, and senior |
|                                                                       |
|                            discovery through     management will need |
|                                   agreements that allow to establish  |
|                                   for the assertion of  mechanisms to |
|                                                                       |
|                           privilege or          determine exact costs |
|                                                                       |
|                                  work-product          and burdens of |
|                                   production after      producing     |
|                                                                       |
|                           documents of          electronically stored |
|                                                                       |
|                                electronically stored information. The |
|                                                                       |
|                           information are       policy should include |
|                                                                       |
|                            produced              provisions outlining |
|                                                                       |
|                                                   how an organization |
|                                                                       |
|                                                       will respond to |
|                                                                       |
|                                                  requests for records |
|                                                                       |
|                                                      subject to added |
|                                                                       |
|                                                   protections such as |
|                                                                       |
|                                                   HIV, mental health, |
|                                                                       |
|                                                   and substance abuse |
|                                                         records.      |
|                                                                       |
|   33            Interrogatories   Provides for the      HIM and IT    |
|                                                                       |
|          to parties        procedure and process professionals may be |
|                                                                       |
|                           in which answers to   required to attest to |
|                                                                       |
|                                 interrogatories are   authenticity of |
|                                                                       |
|                           provided and covers   electronically stored |
|                                                                       |
|                            both business records information produced |
|                                                                       |
|                                 and electronically    in answer to an |
|                                                                       |
|                              stored information    interrogatory. HIM |
|                                                                       |
|                                                    professionals must |
|                                                                       |
|                                                   therefore be deeply |
|                                                                       |
|                                                     familiar with the |
|                                                                       |
|                                                 operations of the EHR |
|                                                                       |
|                                                  system, particularly |
|                                                                       |
|                                                       the vital legal |
|                                                                       |
|                                                        functionality. |
|                                                                       |
|   33(d)                                                               |
|        Interrogatories   Allows responding     When HIM professionals |
|                                                                       |
|            to parties,       party to respond to   provide answers to |
|                                                                       |
|            option to produce an interrogatory by   interrogatories by |
|                                                                       |
|          business records  providing             providing electronic |
|                                                                       |
|                             electronically stored documents, they are |
|                                                                       |
|                                 information           responsible for |
|                                                                       |
|                                                  ensuring information |
|                                                                       |
|                                                    can be located and |
|                                                                       |
|                                                     identified by the |
|                                                                       |
|                                                  interrogating party. |
|                                                                       |
|                                                   They must also give |
|                                                                       |
|                                                     the interrogating |
|                                                                       |
|                                                   party a "reasonable |
|                                                                       |
|                                                        opportunity to |
|                                                                       |
|                                                     examine, audit or |
|                                                         inspect" the  |
|                                                         information.  |
|                                                                       |
|   34            Production of     Provides for          Discovery of  |
|                                                                       |
|         documents,        discovery of the      electronically stored |
|                                                                       |
|              electronically    electronic health     information will |
|                 stored            record and recognizes require new   |
|                 information, and  that on occasion the  collaborative |
|                                                                       |
|         things and entry  opportunity to        processes between HIM |
|                 upon land for     perform testing of    and other     |
|                                                                       |
|          inspection and    documents and         professionals (e.g., |
|                                                                       |
|         other purposes    electronically stored IT, legal) within the |
|                                   information           organization. |
|                                                                       |
|   34                                                                  |
| (a)         Discovery of      Provides that         HIM professionals |
|                 electronically    electronically stored working in    |
|                                                                       |
|            stored            documents are equally organizations with |
|                                                                       |
|                information       as discoverable as    both paper and |
|                                                                       |
|            (stands on equal  paper documents and   electronic records |
|                                                                       |
|           footing with      are normally required need to be aware of |
|                                                                       |
|          discovery of      to be produced unless this rule and ensure |
|                                                                       |
|        paper documents)  the request clearly   polices and procedures |
|                                                                       |
|                          indicates the party   are in place to access |
|                                   is seeking only       and produce   |
|                                                                       |
|                           traditional documents electronically stored |
|                                                                       |
|                                                     health records in |
|                                                                       |
|                                                   response to a legal |
|                                                                       |
|                                                  request (including a |
|                                                         legal hold,   |
|                                                                       |
|                                                   preservation order, |
|                                                                       |
|                                                    and subpoena). HIM |
|                                                                       |
|                                                  professionals should |
|                                                         implement EHR |
|                                                                       |
|                                                  management processes |
|                                                                       |
|                                                 that include periodic |
|                                                                       |
|                                                    review of existing |
|                                                         policies and  |
|                                                                       |
|                                                        procedures and |
|                                                                       |
|                                                technical capabilities |
|                                                                       |
|                                                     in support of the |
|                                                                       |
|                                                    discovery process. |
|                                                                       |
|   34(b)         Production of     Provides that a party HIM and IT    |
|                                                                       |
|         documents, forms  must produce          professionals need to |
|                                                                       |
|        in which          documents that are    be aware of requesting |
|                                                                       |
|         documents are to  kept in the usual     parties' requirements |
|                                                                       |
|          be produced       course of business or relative to document |
|                                                                       |
|                          must organize and     production. HIM and IT |
|                                                                       |
|                          label them to         will need to establish |
|                                                                       |
|                                  correspond with the   organizational |
|                                   categories in the     policies and  |
|                                                                       |
|                                  discovery request.    procedures for |
|                                                                       |
|                             The production of     retention, storage, |
|                                                                       |
|                               electronically stored and production of |
|                                                                       |
|                          information is        data, including native |
|                                                                       |
|                                 subject to comparable file format and |
|                                                                       |
|                           requirements to       metadata maintenance. |
|                                                                       |
|                             protect against       Information that is |
|                                                                       |
|                           inadvertent or        retained for business |
|                                                                       |
|                          deliberate production reasons must include a |
|                                                                       |
|                            that raise            plan for how it will |
|                                                                       |
|                              unnecessary obstacles be disclosed (in a |
|                                                                       |
|                          for the requesting    reasonable format). If |
|                                                                       |
|                              party.                information is not |
|                                                                       |
|                                                   needed for business |
|                                                                       |
|                                                purposes it should not |
|                                                         be retained.  |
|                                                                       |
|   37                                                                  |
|         Failure to make   Describes if, why,    Organizations as well |
|                 disclosures in    and what sanctions an as HIM and IT |
|                                                                       |
|         discovery,        organization will be  professionals must be |
|                                                                       |
|        sanctions         subject to if it      aware of Federal Rules |
|                                                                       |
|                              fails to produce      of Civil Procedure |
|                                                                       |
|                             agreed-upon documents regarding sanctions |
|                                                                       |
|                                                      for inability to |
|                                                                       |
|                                                  produce (absent good |
|                                                                       |
|                                                     faith activities) |
|                                                                       |
|                                                 electronically stored |
|                                                         information.  |
|                                                                       |
|   37(f)                                                               |
|        Sanctions and     Provides that absent  Organizations with the |
|                                                                       |
|        safe harbors for  exceptional           input of legal counsel |
|                                                                       |
|                certain types of  circumstances, a      and HIM and IT |
|                                                                       |
|            loss of           court may not impose  professionals must |
|                                                                       |
|        electronically    sanctions for failure establish policies and |
|                                                                       |
|          stored            to provide            procedures regarding |
|                 information       electronically stored retention and |
|                                                                       |
|                                  information lost as a destruction of |
|                                                                       |
|                           result of the routine electronically stored |
|                                                                       |
|                          good faith operation  information, including |
|                                   of an electronic      metadata.     |
|                                                                       |
|                               system. Good faith    Additionally, HIM |
|                                                                       |
|                           may require that a    professionals need to |
|                                                                       |
|                                 party impose a        be aware of new |
|                                                                       |
|                          litigation hold, that requirements that will |
|                                                                       |
|                             it complies with      be placed upon them |
|                                                                       |
|                             agreements it reaches such as legal holds |
|                                                                       |
|                                between parties on    and preservation |
|                                   preservation, and     obligations.  |
|                                                                       |
|                            that it complies with Procedures will need |
|                                                                       |
|                               any court orders      to be established |
|                                                                       |
|                            entered addressing    defining who will be |
|                                                                       |
|                                  preservation.         the designated |
|                                                                       |
|                                                  recipient of a legal |
|                                                                       |
|                                                hold notice and who is |
|                                                                       |
|                                                notified. The efficacy |
|                                                                       |
|                                                    of the HIM program |
|                                                                       |
|                                                  will be an issue for |
|                                                                       |
|                                                the judge to consider. |
|                                                                       |
|                                                    The better the HIM |
|                                                                       |
|                                                   systems, the better |
|                                                                       |
|                                                    protection for the |
|                                                                       |
|                                                 organization. Include |
|                                                                       |
|                                                        e-discovery in |
|                                                                       |
|                                                   periodic compliance |
|                                                                       |
|                                                reviews and activities |
|                                                                       |
|                                                     to ensure ongoing |
|                                                                       |
|                                                        monitoring and |
|                                                         evaluation.   |
|   -------                                                             |
| ------ ----------------- --------------------- ---------------------- |
|                                                                       |
| **Key HIM Issues**                                                    |
|                                                                       |
| The table identifies a number of relevant HIM issues. This section    |
| highlights key concepts and further explores the impact on disclosure |
| processes, retention and destruction, spoliation, and business        |
| continuity planning. Although not specifically highlighed, it is      |
| important to remember the importance of security practices in         |
| maintaining the integrity and value of the health information for     |
| evidentiary purposes.                                                 |
|                                                                       |
| **Discovery and Disclosure**                                          |
|                                                                       |
| Discovery is the pretrial phase of the legal process designed to      |
| compel the exchange of information between parties. HIM professionals |
| are most familiar with discovery in the form of a subpoena and        |
| deposition, but under the new federal civil procedures organizations  |
| will need to establish processes to address pretrial conferences and  |
| the agreements reached between the parties for the preservation,      |
| disclosure, and format of information.                                |
|                                                                       |
| Any information relevant to the case that the organization possesses, |
| whether in paper or electronic format, will potentially be subject to |
| discovery. If discovery of electronic information is necessary it     |
| should be identified early in the litigation process. HIM             |
| professionals must be familiar with the formally defined records      |
| since they help establish relevancy to the litigation (e.g., legal    |
| medical record, business record, designated record set---see the      |
| definitions                                                           |
| [[below]{.underline}](http://library.ahima.org/xpedio/groups/pu       |
| blic/documents/ahima/bok1_031860.hcsp?dDocName=bok1_031860#sidebar)). |
| They must also be familiar with the location and types of health      |
| information stored within the various source systems and databases.   |
| Recent court decisions have established precedence where discovery    |
| orders can require the production of documents in native file format, |
| including metadata, a rich source of information about the content,   |
| context, location, and other characteristics of data.                 |
|                                                                       |
| Because technology now allows us to create and store a vast magnitude |
| of information in a variety of formats, more information may be       |
| provided now than was customary prior to the e-discovery rules.       |
| However, requests for "any and all records" will be difficult to      |
| respond to and should result in a request to limit the scope based on |
| relevance to the legal claim. Depending on the circumstances,         |
| requests for electronic discovery in addition to the legal health     |
| record may present a substantial challenge for organizations as they  |
| prepare to provide access to electronically stored information.       |
|                                                                       |
| +------------------------------------------------------------------+  |
| | Records Definitions                                              |  |
| |                                                                  |  |
| | The **legal health record** is a formally defined legal business |  |
| | record for a healthcare organization. It includes documentation  |  |
| | of healthcare services provided to an individual in any aspect   |  |
| | of healthcare delivery by a healthcare provider                  |  |
| | organization.[^[1,2]{.unde                                       |  |
| | rline}^](http://library.ahima.org/xpedio/groups/public/documents |  |
| | /ahima/bok1_031860.hcsp?dDocName=bok1_031860#sidebar_references) |  |
| | The health record is individually identifiable data in any       |  |
| | medium, collected and directly used in documenting healthcare or |  |
| | health status. The term also includes records of care in any     |  |
| | health-related setting used by healthcare professionals while    |  |
| | providing patient care services, reviewing patient data, or      |  |
| | documenting observations, actions, or                            |  |
| | instructions.[^[3]{.unde                                         |  |
| | rline}^](http://library.ahima.org/xpedio/groups/public/documents |  |
| | /ahima/bok1_031860.hcsp?dDocName=bok1_031860#sidebar_references) |  |
| |                                                                  |  |
| | A **business record** is a recording/record made or received in  |  |
| | conjunction with a business purpose and preserved as evidence or |  |
| | because the information has value. Because this information is   |  |
| | created, received, and maintained as evidence and information by |  |
| | an organization or person, in pursuance of legal obligations or  |  |
| | in the transaction of business, it must consistently deliver a   |  |
| | full and accurate record with no gaps or additions.              |  |
| |                                                                  |  |
| | HIPAA calls for healthcare organizations to define what          |  |
| | information would be included as their **designated record       |  |
| | set**. According to the privacy rule (section 164.501), a        |  |
| | designated record set is \"a group of records maintained by or   |  |
| | for a covered entity that is: 1) the medical and billing records |  |
| | about individuals maintained by or for a covered healthcare      |  |
| | provider; 2) the enrollment, payment, claims adjudication, and   |  |
| | case or medical management record systems maintained by or for a |  |
| | health plan; or 3) information used in whole or in part by or    |  |
| | for the covered entity to make decisions about                   |  |
| | individuals.\"[^[4]{.unde                                        |  |
| | rline}^](http://library.ahima.org/xpedio/groups/public/documents |  |
| | /ahima/bok1_031860.hcsp?dDocName=bok1_031860#sidebar_references) |  |
| |                                                                  |  |
| | **Notes**                                                        |  |
| |                                                                  |  |
| | 1.  Amatayakul, Margret, et al. \"Definition of the Health       |  |
| |     Record for Legal Purposes.\" Journal of AHIMA 72, no. 9,     |  |
| |     (2001): 88A-H.                                               |  |
| |                                                                  |  |
| | 2.  AHIMA e-HIM Work Group on the Legal Health Record. \"Update: |  |
| |     Guidelines for Defining the Legal Health Record for          |  |
| |     Disclosure Purposes.\" Journal of AHIMA 76, no. 8 (2005):    |  |
| |     64A-G.                                                       |  |
| |                                                                  |  |
| | 3.  Ibid.                                                        |  |
| |                                                                  |  |
| | 4.  Federal Judiciary. \"Summary of the Report of the Judicial   |  |
| |     Conference Committee on Rules of Practice and Procedure.\"   |  |
| |     Available online at [[www.uscourts.gov/rules/                |  |
| |     Reports/ST09-2005.pdf#page=177]{.underline}                  |  |
| | ](http://www.uscourts.gov/rules/Reports/ST09-2005.pdf#page=177). |  |
| +------------------------------------------------------------------+  |
|                                                                       |
| **Retention and Destruction**                                         |
|                                                                       |
| The principles of retention and destruction are critical to           |
| e-discovery. Organizations must know where all of their information   |
| is housed and establish routine practices for retention and           |
| destruction. Information management plans can provide a useful        |
| baseline, but HIM must also work with IT and other departments to     |
| identify where relevant information may be hidden, such as old        |
| back-up tapes, instant messages, voice mail, word processing drafts,  |
| and shadow records. It is important to identify when the              |
| information's useful life is over, resulting in data destruction.     |
| This is particularly important for information outside of the legal   |
| health record that is governed by retention guidelines.               |
|                                                                       |
| The new rule under the Federal Rules of Civil Procedure provides a    |
| safe harbor for organizations that cannot provide information because |
| it was destroyed as a result of routine practices. Sanctions may be   |
| imposed for improper destruction. HIM in collaboration with IT must   |
| create policies and procedures for retention and destruction of       |
| electronic records, which may include native file format for the      |
| legal health record, metadata, e-mail, audit trails, and business     |
| records. Any vendors and contractors possessing organizational        |
| records must be aware of the discovery rules and have the ability to  |
| administer their principles. At the time of replacement or upgrade of |
| an information system, the information's accessibility, retention,    |
| and destruction must be considered. In determining retention and      |
| destruction practices, the organization will need to balance legal    |
| requirements, costs, and reasonableness.                              |
|                                                                       |
| **Legal Hold (Preservation Order)**                                   |
|                                                                       |
| A legal hold (also known as a litigation hold) in e-discovery is the  |
| same concept as that applied to a paper-based medical record. It is   |
| generally issued by the court as a result of current or anticipated   |
| litigation, audit, government investigation, or other such matters if |
| the court believes that relevant information could be destroyed. A    |
| legal hold or preservation order suspends the normal disposition,     |
| including destruction or processing, of paper and electronic records. |
| Organizations must establish policies and procedures that provide for |
| the suspension of normal retention and destruction of data and        |
| information upon receipt of such communication.                       |
|                                                                       |
| When developing policies and procedures it is important to realize    |
| that a legal hold or preservation order can occur at any time in the  |
| legal process. Therefore, when litigation is threatened or internally |
| identified through risk management, steps must be taken immediately   |
| to suspend destruction of records relevant to the potential claim.    |
|                                                                       |
| A policy should identify who has the authority to suspend             |
| destruction, who is responsible for communicating the legal hold or   |
| preservation order requirements, who is responsible for implementing  |
| the legal hold, and who has the authority to determine when the need  |
| for a legal hold no longer exists. An organization's procedures for   |
| suspension should be adapted to the circumstances of the litigation,  |
| investigation, audit, or other matters.                               |
|                                                                       |
| **Spoliation**                                                        |
|                                                                       |
| Spoliation is the intentional destruction, mutilation, alteration, or |
| concealment of evidence. An organization's legal health records must  |
| be reasonably protected from spoliation in any form. Although the     |
| e-discovery rule provides some legal shelter, the burden rests on the |
| organization to show that information lost was a result of a good     |
| faith operation of the electronic system (i.e., proof retention and   |
| destruction policies and documented business procedures). Equally     |
| important are the interventions that were implemented to preserve     |
| information once a legal hold or preservation order was in place.     |
| Even if the party does not have direct control over the computer      |
| system, such as a system operated by another vendor, the obligation   |
| still exists to preserve or retrieve as much information as possible. |
| A strong definition for a legal health record and sound record        |
| retention, destruction, and legal hold processes can help an          |
| organization avoid sanctions for spoliation; however, they may not    |
| completely absolve an institution. A judge may decide to impose       |
| sanctions or require the organization to reconstruct the information  |
| even if it has been destroyed.                                        |
|                                                                       |
| **Disaster Recovery, Business Continuity**                            |
|                                                                       |
| Disaster recovery and business continuity planning go hand in hand    |
| with records retention and management. Plans must include two key     |
| goals. First is the preservation of patient records in the event of a |
| disaster. Second is the return of the healthcare facility to normal   |
| operations as quickly as possible with minimal impact on business     |
| functions. Thorough planning for disasters such as fire, terrorism,   |
| or any host of natural disasters focuses on prevention of loss,       |
| restoration of access to electronic records, and resumption of        |
| business process. Legal health records must be reasonably protected   |
| against spoliation in any form.                                       |
|                                                                       |
| Legal health records in electronic media shall be made accessible,    |
| according to established policy, for resumption of normal business    |
| including legal discovery within specified reasonable timeframes. An  |
| effective disaster recovery or business continuity plan will ensure   |
| that the facility has taken the proper steps to minimize delays and   |
| return the organization to routine operational capacity. Back-up      |
| processes are important to getting an organization up and running     |
| after a disaster; however, retaining old back-up tapes can also be a  |
| legal liability. Retention and destruction plans must address         |
| destruction of back-up tapes once their useful life is over.          |
|                                                                       |
| **Tips for Implementing the e-Discovery Rule**                        |
|                                                                       |
| Furnishing evidence related to e-discovery in legal proceedings       |
| presents new challenges to organizations that are accustomed to       |
| providing evidence based solely on paper records. HIM professionals   |
| must play a key role in helping their organizations recognize the     |
| different requirements and implement key policies and new business    |
| practices. Establishing procedures prior to a lawsuit enables an      |
| organization to respond in an appropriate and cost-effective manner.  |
|                                                                       |
| **Getting Started---Preparing to Take a Lead Role**                   |
|                                                                       |
| HIM professionals are expected to assume a lead role in preparing     |
| their organizations to respond to requests for information of         |
| electronic records for the legal discovery process. Before beginning  |
| the process of writing new or updating existing policies and          |
| procedures, HIM professionals must be familiar with the issues        |
| related to electronic discovery. At a minimum, HIM professionals      |
| should:                                                               |
|                                                                       |
| -   Read the Federal Rules of Civil Procedure                         |
|                                                                       |
| -   Research state and local laws and regulations for requirements    |
|     regarding e-discovery and retention of information in electronic  |
|     formats                                                           |
|                                                                       |
| -   Review AHIMA e-HIM® practice briefs on the legal health record    |
|     (see                                                              |
|     "[[                                                               |
| References]{.underline}](http://library.ahima.org/xpedio/groups/publi |
| c/documents/ahima/bok1_031860.hcsp?dDocName=bok1_031860#references)") |
|                                                                       |
| -   Review the AHIMA e-HIM practice brief on electronic health record |
|     management (see                                                   |
|     "[[                                                               |
| References]{.underline}](http://library.ahima.org/xpedio/groups/publi |
| c/documents/ahima/bok1_031860.hcsp?dDocName=bok1_031860#references)") |
|                                                                       |
|     **Building Support**                                              |
|                                                                       |
| After reviewing the rules and requirements HIM professionals will     |
| recognize the need for new procedures. Inform and educate management  |
| of the issues and the risks the organization will face if it fails to |
| take steps to prepare. Because these policies and procedures will     |
| affect the entire organization, it is essential that senior           |
| management is fully committed and allocates resources to prepare the  |
| organization to respond to e-discovery requests. It may be helpful to |
| enlist the aid of the organization's legal counsel and risk manager   |
| to inform senior management of the need to prepare and to obtain a    |
| commitment for a project to revise the policies and procedures.       |
|                                                                       |
| **Developing Policies and Procedures**                                |
|                                                                       |
| Once you possess an understanding of the requirements and have        |
| obtained management support, the following guidelines will be helpful |
| in developing or revising procedures to provide evidence related to   |
| discovery in legal proceedings.                                       |
|                                                                       |
| **Establish a formal project or task to create or review the          |
| organization's procedures** for providing evidence related to         |
| discovery in legal proceedings. The project should be recognized by   |
| the organization's management as an effort that will require          |
| resources, has a procedure document as a deliverable, and has an      |
| estimated completion date. Select project team members with the       |
| following roles or expertise:                                         |
|                                                                       |
| -   HIM                                                               |
|                                                                       |
| -   Privacy officer                                                   |
|                                                                       |
| -   Information security officer                                      |
|                                                                       |
| -   Risk management                                                   |
|                                                                       |
| -   Information technology                                            |
|                                                                       |
| -   Patient relations                                                 |
|                                                                       |
| -   Legal counsel                                                     |
|                                                                       |
| -   Leadership sponsor                                                |
|                                                                       |
| Initially, a large group may be needed to evaluate and develop new    |
| procedures. Only a few key people (i.e., legal and HIM) should have   |
| responsibility for overseeing e-discovery processes on an ongoing     |
| basis.                                                                |
|                                                                       |
| **Prepare an education session** for the team covering the Federal    |
| Rules of Civil Procedure with respect to electronic discovery and the |
| results of your research of state laws and AHIMA resources.           |
|                                                                       |
| **Locate existing policies and procedures** for the definition of the |
| legal health record, retention, destruction, and electronic records   |
| management. Review existing policies and procedures for adequacy and  |
| identify gaps and issues that should be addressed in the new or       |
| revised policies and procedures.                                      |
|                                                                       |
| **Locate any existing procedures for providing material** in response |
| to a subpoena, court order, or request from an attorney. Review       |
| existing procedures for adequacy and identify gaps and issues that    |
| should be addressed in the new or revised policies and procedures.    |
| Develop procedures to cover three primary situations:                 |
|                                                                       |
| -   Furnishing patient medical records for a legal discovery process  |
|     that does not involve your organization.                          |
|                                                                       |
| -   Furnishing patient records, business records, and other           |
|     information for a discovery process in which your organization or |
|     a member of your staff is being sued. The procedures must provide |
|     for measures to protect the information from modification or      |
|     destruction by the employees or staff members involved and the    |
|     information requested must be reviewed to ensure that privileged  |
|     information is not being furnished.                               |
|                                                                       |
| -   Furnishing patient records, business records, and other           |
|     information for a discovery process in which your organization or |
|     a member of your staff is being sued and the HIM department or IT |
|     department is involved. Alternate custodians of the information   |
|     must be assigned to ensure that measures to protect the           |
|     information from modification or destruction by the employees or  |
|     staff members involved are implemented and the information        |
|     requested must be reviewed to ensure that privileged information  |
|     is not being furnished.                                           |
|                                                                       |
| **Prepare drafts of the policies and procedures for review** by the   |
| team, senior management, and legal counsel. Revise the drafts based   |
| on comments and submit for further review as needed until senior      |
| management approves the procedures. Before rolling out the changes to |
| the organization, purchase and install any additional software or     |
| equipment needed to implement the policies and procedures.            |
|                                                                       |
| **Develop a comprehensive communication and education program** to    |
| inform all members of your organization about the existence of the    |
| procedures and their responsibilities with respect to electronic      |
| discovery. Publish the approved policies and procedures.              |
|                                                                       |
| **The Time for Demonstration, Collaboration**                         |
|                                                                       |
| Implementation of the amendments to the Federal Rules of Civil        |
| Procedure presents new opportunities and challenges for all involved  |
| in the management of electronic information. The legal process        |
| surrounding electronic storage, maintenance, and production will      |
| change dramatically. Legal concepts such as legal holds and           |
| spoliation will present new demands upon healthcare organizations.    |
|                                                                       |
| Now more than ever, HIM professionals are being called upon to ensure |
| a systemized approach to electronic record management that conforms   |
| to state and federal legal requirements. HIM professionals must       |
| demonstrate their knowledge and work collaboratively with legal, IT,  |
| and senior management to develop policies, procedures, and            |
| appropriate mechanisms that guarantee not only data integrity, but    |
| also compliance with state and federal mandates.                      |
|                                                                       |
| **Note**                                                              |
|                                                                       |
| 1.  California Civil Discovery Law. Available online at               |
|     [[http://californiadiscovery.find                                 |
|     law.com/index                                                     |
| .htm]{.underline}](http://californiadiscovery.findlaw.com/index.htm). |
|                                                                       |
|     **References**                                                    |
|                                                                       |
| AHIMA e-HIM Work Group on Defining the Legal Health Record. "The      |
| Legal Process and Electronic Health Records." Journal of AHIMA 76,    |
| no. 9 (2005): 96A--D.                                                 |
|                                                                       |
| AHIMA e-HIM Work Group on Maintaining the Legal EHR. "Update:         |
| Maintaining a Legally Sound Health Record---Paper and Electronic."    |
| Journal of AHIMA 76, no. 10 (2005): 64A--L.                           |
|                                                                       |
| AHIMA Work Group on Electronic Health Records Management. "The        |
| Strategic Importance of Electronic Health Records Management.         |
| Appendix A: Issues in Electronic Health Records Management." 2004.    |
| Available online in the FORE Library: HIM Body of Knowledge,          |
| [[www.ahima.org]{.underline}](http://www.ahima.org/).                 |
|                                                                       |
| Black's Law Dictionary (8th ed. 2004). See Hannah v. Heeter, 213      |
| W.Va. 704,\                                                           |
| 584 S.E.2d 560 (W.Va. 2003).                                          |
|                                                                       |
| Kohn, Deborah. "When the Writ Hits the Fan." Journal of AHIMA 75, no. |
| 8\                                                                    |
| (2004): 40--44.                                                       |
|                                                                       |
| Patzakis, John. "How the New Federal Rules Will Likely Change         |
| eDiscovery\                                                           |
| Practice." The Metropolitan Corporate Counsel. June 2006.             |
|                                                                       |
| The Sedona Conference Working Group Series. "Best Practices for the   |
| Selection\                                                            |
| of E-Discovery Vendors." July 2005.                                   |
|                                                                       |
| The Sedona Conference Working Group Series. "The Sedona Conference    |
| Glossary for E-Discovery of Digital Information Management." May      |
| 2005.                                                                 |
|                                                                       |
| The Sedona Conference Working Group Series. "The Sedona Guidelines    |
| for\                                                                  |
| Managing Information and Records in the Electronic Age." September    |
| 2005.                                                                 |
|                                                                       |
| The Sedona Conference Working Group Series. "The Sedona Principles    |
| Addressing Electronic Document Production." July 2005.                |
|                                                                       |
| Tomes, Jonathan P. "Spoliation of Medical Evidence." Journal of AHIMA |
| 76, no.\                                                              |
| 9 (2005): 68--72.                                                     |
|                                                                       |
| University of Sydney. "Records Management Services." Available online |
| at\                                                                   |
| [[www.usyd.edu.au/arms/                                               |
| rms/body.htm]{.underline}](http://www.usyd.edu.au/arms/rms/body.htm). |
|                                                                       |
| Withers, Kenneth, J. Esquire Federal Judicial Center and Sedona       |
| Conference Observer, MER Conference, Chicago, IL May 24, 2006.        |
|                                                                       |
|   ------------------------------------------------------------------  |
|   **Coming Next Issue**\                                              |
|   The roles of HIM professionals will clearly change with the         |
|   implementation of the e-discovery amendments. A discussion of the   |
|   coming changes, and a further description of the structure and      |
|   content of the Federal Rule of Civil Procedure, will be featured    |
|   in the October issue of the *Journal*.                              |
|                                                                       |
|   ------------------------------------------------------------------  |
|                                                                       |
| **Acknowledgments**                                                   |
|                                                                       |
| AHIMA's e-Discovery e-HIM Work Group:\                                |
| Brian Anderson, RHIA\                                                 |
| Ashley Austin, RHIT\                                                  |
| Linda Baker, RHIT\                                                    |
| Kim Baldwin-Stried (Reich), MBA, MJ, RHIA, CPHQ\                      |
| Carrie Bauman, MSA, PMC\                                              |
| Jill Burrington-Brown, MS, RHIA, FAHIMA\                              |
| Stacy Carlson, RHIT\                                                  |
| Debbie Case, RHIT\                                                    |
| Beth Danielczyk, MHA, RHIA\                                           |
| Michelle Dougherty, RHIA, CHP\                                        |
| Nate Dudley, JD\                                                      |
| Carrie Dugic, RHIA\                                                   |
| Bev Fincher\                                                          |
| Elisa Gorton, MA, RHIA\                                               |
| Chrisann Lemery, MS, RHIA\                                            |
| Susan Lucci, CMT, RHIT, FAAMT\                                        |
| Stephanie McKay, MBA, RHIA\                                           |
| Dale Miller, CHP\                                                     |
| Keith Olenik, MA, RHIA, CHP\                                          |
| Monica Baggio Tormey, RHIA, CHP\                                      |
| Patricia Trites, MPA, CHBC, CPC, EMS, CHCC, CHCO, CHP\                |
| Kathy Westhafer, RHIA, CPS                                            |
|                                                                       |
|   ------------------------------------------------------------------  |
|   **Article citation**:\                                              |
|   AHIMA e-HIM Work Group on e-Discovery. \"New Electronic Discovery   |
|   Civil Rule.\" *Journal of AHIMA* 77, no.8 (September 2006): 68A-H.  |
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