A Healthy Dose of E-Discovery:

1. A Healthy Dose of E-Discovery: A Review of Electronic Discovery Laws for theHealthcare Industry March 18, 2010 L. Cooper Harrell and Allyson Jones Labban Smith Moore Leatherwood LLP Greensboro, NC 336.378.5200 cooper.harrell@smithmoorelaw.com allyson.labban@smithmoorelaw.com To ask a question during the presentation, click the Q&A menu at the top of this window, type your question in the Q&A text box, and then click “Ask.” After you click Ask, the button name will change to “Edit.” Questions will be queued and most will be answered at the end of the meeting as time allows.

2. The emergence of e-discovery • Prevalence of e-discovery has increased in recent years • Pressure to “go green” • Advances in technology proliferate the use of electronic information and make it more accessible • Mindset of contemporary users • Cost savings

3. It’s not that bad • In many ways, not unlike traditional discovery • The keys: Knowing what to request as the requesting party Knowing what you are handing over as the producing party Adhering to preservation obligations

4. Documents Spreadsheets Slideshows Accounting data Calendars Emails What can you get (if you ask for it)?

5. What else can you get (if you ask for it)? • Just about anything (assuming it is reasonably accessible) • Avoid limiting discovery requests to specific file types • Request the information you typically would request, but make sure your requests encompass electronically stored information • Find out who the IT people are and depose them if necessary • Don’t be afraid to be proactive and raise the issue of e-discovery with opposing counsel

6. Considerations for Health Care • Electronic Health Records • Accurate copies/complete information • Mode of production • Handheld/kiosk entry systems • Pyxis

7. Considerations for Health Care • Record retention statutes • Thanks to e-discovery, “record” arguably has a much broader definition • Think outside the (clinical) box • Rules apply to all records (personnel, billing, financial), not just patient records

8. Advantages of e-discovery • Information can be very difficult to truly “delete,” making lots of information available for discovery that might not have been available prior to the dawn of e-discovery • The use of computer searches can, in some cases, make relevant information easier to find • Metadata

9. Disadvantages of e-discovery • Information can be very difficult to truly “delete,” making lots of information available for discovery that might not have been available prior to the dawn of e-discovery • The use of computer searches can, in some cases, make relevant information easier to find • Metadata

10. Off to federal court • Amendments to the Federal Rules of Civil Procedure to address e-discovery issues went into effect on December 1, 2006 • New enough that not all lawyers understand them yet • Just old enough that courts expect adherence

11. Off to federal court • Rule 26(f) – Requires litigants to: • Confer at the outset of litigation and discuss “any issues relating to preserving discoverable information” • “[D]evelop a proposed discovery plan” concerning “issues relating to disclosure or discovery of electronically stored information” • Discuss the form or forms in which electronically stored information will be produced

12. Off to federal court • Rule 16(b) – After reviewing the parties’ Rule 26(f) report, the court will enter a scheduling order that may, in appropriate cases, establish provisions for the disclosure or discovery of electronically stored information

13. Off to federal court • Rule 26(a)(1) – Requires the parties to make certain mandatory initial disclosures, even without a request from the other side • Includes electronically stored information that the disclosing part may use to support its claims or defenses (unless solely for impeachment)

14. Off to federal court • Rule 26(b)(2) – places some limits on the types of electronically stored information that must be produced: • “A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.” • “On motion . . . the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost.” • “If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause.”

15. Off to federal court • Rule 34 – Provides that any party may request e-discovery from any other party • The request may specify the form in which the electronically stored information should be produced • Unless the parties otherwise agree, or the court otherwise orders, if a request does not specify a form, electronically stored information must be produced as it ordinarily is maintained or in a form that is reasonably useable • A party is not required to produce the same electronically stored information in more than one form

16. Off to federal court • Rule 37 – Provides that “[a]bsent exceptional circumstances, a court may not impose sanctions . . . on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system”

17. Off to federal court • Rule 45 – Permits subpoenas to collect relevant electronically stored information from non-parties

18. Staying in state court … • Most states do not have formal e-discovery rules . . . yet • Discovery rules in state courts typically are broad enough to cover electronically stored information

19. 1. Definitions 2. Responsibility of counsel to be informed about client’s electronically-stored information 3. Agreements by counsel; pre-conference orders 4. Initial discovery hearing or conference 5. The scope of electronic discovery 6. Form of production Reallocation of discovery costs Inadvertent disclosure of privileged information Preservation orders 10. Sanctions Staying in state court … Guidelines of the Conference of Chief Justices

20. Hand it over … If you’re going to give a box of goodies to the other side, wouldn’t you want to know what’s inside of it? A Gift

21. Hand it over … • The menace of metadata … • But what is it, REALLY?

23. Hand it over … Types of metadata: • Substantive metadata • System metadata • Embedded metadata

24. Hand it over … IMAGE the computer IMAGE the computer IMAGE the computer

25. Hand it over … • The “deleted” files dilemma • Deleted during the normal course of business • Deleted under questionable circumstances • Reasonably accessible deleted files • Not reasonably accessible deleted files

26. The duty to preserve electronic information arises at least when a party “reasonably anticipates litigation.” Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003) (“Zubulake IV”). Become a packrat

27. Educate yourself • Find out as much as you can about your clients’ computer usage and the location and accessibility of electronically stored information • Talk to your clients • Meet with IT personnel • Be curious and ask lots of questions

28. STOP … in the name of litigation • Litigation hold letters are the ONLY way to go • Intended to supplant normal document destruction protocols to ensure that potentially discoverable information is preserved • Otherwise: • Spoliation • Sanctions

29. STOP … in the name of litigation • The Zubulake v. UBS Warburg LLC series of decisions is often recognized as providing standards for e-discovery obligations.

30. STOP … in the name of litigation • The duty to preserve is based on “what [the preserving party] knows or reasonably should know, is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery and/or is the subject of a pending discovery request.” • Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003) (“Zubulake IV”). • The litigation hold is not the end of a lawyer’s obligation but is rather “only the beginning.” • Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 432 (S.D.N.Y. 2004) (“Zubulake V”).

31. STOP … in the name of litigation Spell it out: • Emails, attachments to emails, instant messages; database files, calendars, billing information, activity logs, telephone logs, internet usage files, word processing files, files created by contact managers, financial or accounting files, etc., etc., etc.

32. STOP … in the name of litigation • “[C]ounsel should instruct all employees to produce electronic copies of their relevant active files.” • “Counsel must also make sure that all backup media [that] the party is required to retain is identified and stored in a safe place.” • Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 434 (S.D.N.Y. 2004) (“Zubulake V”).

33. STOP … in the name of litigation • The litigation hold “should be periodically re-issued” so that it remains “fresh” in the mind of all employees, including new employees. • Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 433 (S.D.N.Y. 2004) (“Zubulake V”).

34. STOP … in the name of litigation • These steps (modified for the specifics of each case), put the client on notice of its discovery obligations. • After that point, “[i]f a party acts contrary to counsel’s instructions or to a court’s order, it acts at its own peril.” • Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 436 (S.D.N.Y. 2004) (“Zubulake V”).

35. A Healthy Dose of E-Discovery: A Review of Electronic Discovery Laws for the Healthcare Industry March 18, 2010 L. Cooper Harrell and Allyson Jones Labban Smith Moore Leatherwood LLP Greensboro, NC 336.378.5200 cooper.harrell@smithmoorelaw.com allyson.labban@smithmoorelaw.com