e-Discovery, e-Health and e-Law – No Part of the FRCP Amendments Enforceable December 1, 2006 Amended the Administrative Simplification subtitle of the Health Insurance Portability & Accountability Act of 1996
Who is Alan S. Goldberg?
JD Boston College Law School 1967
LLM (Taxation) Boston University 1978
LT JAGC prosecutor, US Navy, San Diego & Boston
Past Pres., Fellow, Amer. Health Lawyers As’n
Council, Virginia Bar As’n Health Law Section
39 yrs. Goulston & Storrs multi-state firm law firm
Solo in McLean, Admitted VA, NY, DC, FL & MA
Adjunct Professor of Health Law
George Mason University College of Health & Human Services
San Diego 1968
CDR Rabb JAGC
LT Goldberg JAGC
Boston Lawyer
Washington, DC Lawyer
www.virginiahealthlawyer.com
“On the Internet nobody knows you’re a dog”
eDiscovery from 40,000 ft.
Litigation Hold
Federal Laws
Obligations Begin
Professional Responsibility Rules of Professional Conduct
The Bates Manufacturing Company, Orange, NJ
Electronically Stored Information
eMails, files, backup, metadata, memory
Cellphone directory & text messages
Fax machine listing receipts & transmissions
Search engine cache of searches
Internet browser history cache
Word processing recent documents list
iPod photographs, contacts, directory
Deleted information on computer media
Telephone mail messages
Pre-Trial Discovery
Rule 16(a)(5) Methods to Discover Additional Matter
Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property under Rule 34 or 45(a)(1)(C), for inspection and other purposes; physical and mental examinations; and requests for admission
eDiscovery is about sleuthing
HIPAA Enforceability State Law Preemption
Administrative Simplification subtitle
Electronic Information
HIPAA electronic media means electronic storage media including memory devices in computers (hard drives) & any removable/transportable digital memory medium, such as magnetic tape or disk, optical disk, or digital memory card, or transmission media
eSign Law, SEC broker, FDA, NIST
HIPAA Disclosure Law Enforcement
To comply with a court order or court-ordered warrant, a subpoena or summons issued by a judicial officer, or a grand jury subpoena
The Rule recognizes that the legal process in obtaining a court order and the secrecy of the grand jury process provides protections for the individual’s private information
HIPAA Disclosures Law Enforcement
To respond to an administrative request, such as an administrative subpoena or investigative demand or other written request from a law enforcement official. Because an administrative request may be made without judicial involvement, the Rule requires all administrative requests to include or be accompanied by a written statement that the information requested is relevant and material, specific and limited in scope, and de-identified information cannot be used
Zubulake v UBS Warburg
Circa 2003 & 2004, Judge Shira A. Scheindlin USDC So. District NY issued 5 important ESI opinions
First definitive case in the United States on ESI
Scope of party's duty to preserve ESI during litigation
Attorney's duty to monitor clients' compliance with ESI preservation and production
Data sampling
Ability of disclosing party to move costs of restoring inaccessibleback up tapes to requesting party
Imposition of sanctions for spoliation or destruction
Addressing Electronic Document Production
Nonprofit, 501(c)(3) research and educational institute dedicated to the advanced study of law and policy in inter alia complex litigation
Pre-eDiscovery
Claw Back Agreement For Inadvertent Privilege Disclosure
Quick Peek Agreement
Rule 16. Pretrial Conferences; Scheduling; Management
Entry of a scheduling order that limits the time
The scheduling order also may include provisions for disclosure or discovery of electronically stored information
Rule 26(f) directs the parties to discuss discovery of electronically stored information if such discovery is contemplated in the Action
Form 35 calls for a report to the court about the results of this discussion
Rule 26. General Provisions Governing Discovery; Duty of Disclosure
Early attention to eDiscovery, required disclosures, methods to discover more ESI
Responding party need not provide ESI that is inaccessible because of undue burden of cost
ESI that is not reasonably accessible, balance costs and potential benefits of discovery
Procedure for assertion of privilege and work-product protection after inadvertent production
Rule 33. Interrogatories to Parties (d) Option to Produce Business Records
Provides for the procedure and process in which answers to interrogatories are provided for business records and ESI
The legal medical record
Rule 34. Production of Documents, Electronically Stored Information, and Things and Entry Upon Land for Inspection and Other Purposes
Must produce documents that are kept in the usual course of business or must organize and label them to correspond with categories in discovery request
Rule 37. Failure to Make Disclosures or Cooperate in Discovery; Sanctions (f) Electronically Stored Information.
Why, and what sanctions an organization will be subject to for failure to produce agreed ESI
Absent exceptional circumstances, court may not impose sanctions for failure to provide ESI lost because of routine good faith operation of an electronic system - “safe harbor”
Rule 45. Subpoena (a) Form; Issuance.
A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand
If a subpoena does not specify the form or forms for producing electronically stored information, a person responding to a subpoena must produce the information in a form or forms in which the person ordinarily maintains it or in a form or forms that are reasonably usable
A person responding to a subpoena need not produce the same electronically stored information in more than one form or provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible
Form 35. Report of Parties’ Planning Meeting
3. Discovery Plan. The parties jointly propose to the court the following discovery plan:
Disclosure or discovery of electronically stored information should be handled as follows:
Lorraine v. Markel American Insurance Company, 2007 WL 1300739 (DMd May 4, 2007) by United States Magistrate Judge Paul W. Grimm
http://www.mdd.uscourts.gov/Opinions152/Opinions/Lorraine%20v.%20Markel%20-%20ESIADMISSIBILITY%20OPINION.pdf
http://www.lexisnexis.com/applieddiscovery/lawlibrary/LorraineVMarkel_ESI_Opinion.pdf
Lorraine V. Markel alternative link
Be careful what you ask for, the saying goes, because you might actually get it. For the last several years there has been seemingly endless discussion of the rules regarding the discovery of electronically stored information (“ESI”). The adoption of a series of amendments to the Federal Rules of Civil Procedure relating to the discovery of ESI in December of 2006 has only heightened, not lessened, this discussion. Very little has been written, however, about what is required to insure that ESI obtained during discovery is admissible into evidence at trial, or whether it constitutes “such facts as would be admissible in evidence” for use in summary judgment practice.
Admissibility of ESI
Whether ESI is admissible into evidence is determined by a collection of evidence rules that present themselves like a series of hurdles to be cleared by the proponent of the evidence. Failure to clear any of these evidentiary hurdles means that the evidence will not be admissible. Whenever ESI is offered as evidence, either at trial or in summary judgment, the following evidence rules must be considered:
Admissibility of ESI
(1) is the ESI relevant as determined by Rule 401 (does it have any tendency to make some fact that is of consequence to the litigation more or less probable than it otherwise would be); (2) if relevant under 401, is it authentic as required by Rule 901(a) (can the proponent show that the ESI is what it purports to be); (3) if the ESI is offered for its substantive truth, is it hearsay as defined by Rule 801, and if so, is it covered by an applicable exception (Rules 803, 804 and 807);
Admissibility of ESI
(4) is the form of the ESI that is being offered as evidence original or duplicate under the original writing rule, or if not, is there admissible secondary evidence to prove the content of the ESI (Rules 1001-1008); and (5) is probative value of the ESI substantially outweighed by the danger of unfair prejudice or one of the other factors identified by Rule 403, such that it should be excluded despite its relevance
Proposed Rule 502 Federal Rules of Evidence
Pending proposal to address inadvertent disclosures & privilege waivers
HIPAA Security Rule For Management
Standard: Security awareness and training.
Implement a security awareness and training program for all members of its workforce including management
eDiscovery Compliance Issues
DOJ Sentencing Guidelines
Insurance defense & counsel fees
Indemnification agreements
Business association agreements
Intellectual property licenses
eDiscovery is not Mr. Roger’s Neighborhood
Beware of eDiscovery Bull
e-Discovery, e-Health and e-Law Checklist
How We See Ourselves Attorneys
What clients might look like to opposing counsel during eDiscovery
What you don’t want to look like to the Judge
eDiscovery in a box?
Which Way Is eDiscovery Going?
Learn eDiscovery
Professor Goldberg’s Y3K Year 3000 Readiness Disclosure
To the best of my knowledge, this presentation will not cause the interruption or cessation of, or other negative impact on, business or other operations, attributable directly or indirectly to the processing (including but not limited to calculating, comparing, sequencing, displaying, or storing), transmitting, or receiving of date data from, into, and between the 20th and 22nd centuries, and during the calendar year 1998 and thereafter (including but not limited to the calendar years 1999-3000), and leap year calculations, or give rise to the inability of one or more computer software or hardware programs, machines or devices accurately to receive, store, process or transmit data on account of calendar information applicable to such programs, machines or devices, including without limitation calendar information relating to dates from and after the daal Pute hereof.
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