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