Changes to the Federal e- Discovery Rules and Their Impact on HIM and the EHR Arthur J. Fried, Esq....
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Transcript of Changes to the Federal e- Discovery Rules and Their Impact on HIM and the EHR Arthur J. Fried, Esq....
Changes to the Federal e-Discovery Rules and Their Impact
on HIM and the EHRArthur J. Fried, Esq.
Epstein Becker & GreenDaniel Garrie, Esq.
Zeichner Ellman & Krause
CONTEXT• After years of discussion, sweeping
changes have been proposed to the Federal Rules of Civil Procedure
• The proposals are designed to accomplish three purposes:– Early, Active Judicial Case Management– Proportional Use of Procedural Tools in
Discovery– Increased Cooperation Among Litigants
Context• Recognition:– enormous expense potentially caused by
preservation and production requirements– the role discovery now plays as a strategic
maneuver– excessive discovery often occurs in
complex, high stakes cases, as well as those that generate contentious adversary behavior
Judicial Case Management• Early Stages of Litigation Take Too Long– Shorten time to serve summons and
complaint– Shorten time to issue scheduling order– Scheduling order/discovery plan may
include provisions for preservation of electronic information
– Pre-motion conferences required– Discovery requests allowed pre-conference
AHIMA Proposal• Require a qualified and credentialed
HIM professional to be actively involved to ensure “all forms, formats, and locations of information are preserved” in healthcare litigation or investigations– Is this consistent with the proportionality
principle? – Does all litigation require full preservation?– Do all litigants employ such professionals?
AHIMA Proposal• Rule 26(f) conference should involve a
qualified and credentialed HIM professional.– Is this consistent with the proportionality
principle? – Who would pay for such professionals?
Proportionality• Discovery must be proportional to the
needs of the case, considering:• Amount in controversy• Parties’ resources• Importance of the issues at stake• Importance of discovery in resolving the issues• Whether burden or expense outweighs likely
benefit
Allocation of Expenses• Authority to allocate expenses of
discovery made explicit
Failure to Preserve• Create single standard for preservation
sanctions – Allowed only where failure to preserve:– Was willful or in bad faith, and – Caused substantial prejudice in the
litigation, or– Irreparably deprived party of ability to
present or defend against claims
AHIMA Proposal• Terms should be defined or uniformity
will not be achieved– Willful– Bad faith– Substantial prejudice
• Burden of proof of the need for missing information is place on the innocent party
Curative Measures• Methods to reduce or cure
consequences of loss of information preferred over sanctions if litigation harm of failure to preserve can be substantially undone.
• Adverse inference jury instruction only on finding of willful destruction or bad faith
Questions?• Arthur J. Fried, Esq. Epstein Becker & Green 250 Park Avenue, New York, New York 10177 212 351-4710• Daniel Garrie, Esq. Zeichner Ellman & Krause 1211 Ave of Americas - 40th Floor New York, NY 10036 855 529-2466