• E-Discovery & Nursing Home Litigation: What You Need To Know
  • February 13, 2013 | Author: Rochelle J. Nunez
  • Law Firm: Cole, Scott & Kissane, P.A. - Miami Office
  • Electronic discovery, more commonly known as “e-discovery,” refers to the use and preservation of information that is created or maintained in electronic media. This type of data, referred to as electronically stored information (“ESI”), incorporates emails, voice mails, word processing documents, databases, digital images, audio recordings, telephone logs, and other compilations that are generated or stored electronically. E-discovery is said to be the modern-day equivalent of the paper trail.1 However, the complex nature of electronic data has brought about many changes in the gathering and preservation of evidence in legal proceedings.

    E-discovery has particularly impacted the healthcare industry as it transitions into a new era of electronic health records. Electronic documentation is said to improve the quality of care and facilitate communication among healthcare providers, ensuring the legibility of nursing notes and reducing the likelihood of charting errors. However, it has also raised various concerns regarding HIPAA compliance, preservation duties, scope of discovery, and form of production. Further, the constant changes in technology and the destructible nature of electronic data have given rise to the need for new policies and procedures to protect against the possible destruction or loss of evidence. However, the implementation of practical and effective e-discovery procedures is often difficult due to the lack of standardized guidelines.

    Rules Governing E-Discovery

    The Florida Rules of Civil Procedure do not explicitly reference the discovery of electronic data. However, Florida courts have held that the Rules of Civil Procedure are sufficiently broad to encompass electronic discovery.2 Additionally, the Florida Bar has recently approved proposed amendments to the Florida Rules of Civil Procedure which specifically reference the duty to produce electronic discovery. Presuming that the Florida Supreme Court also approves of the proposed amendments, there will likely be an upsurge in e-discovery. Nevertheless, like the references to e-discovery contained in the Federal Rules of Civil Procedure, the new rules will only provide limited guidance as to when the duty to preserve electronic data arises, what measures should be taken to preserve the data, and how to identify the type of data that needs to be preserved.

    Duty to Preserve Electronic Data

    The duty to preserve evidence is fundamental to the litigation process.3 Failure to do so can lead to the imposition of sanctions for spoliation of evidence.4 These sanctions can range from monetary fines to adverse inferences.5 They can also be imposed irrespective of a party’s willfulness in destroying evidence and can result from an inadvertent failure to preserve evidence.6 It is therefore critical to establish when a duty to preserve evidence is triggered.

    Generally, a duty to preserve evidence arises when a party reasonably anticipates litigation.7 In Florida, however, there is no common law duty to preserve evidence in anticipation of litigation.8 Absent a common law duty to preserve, the duty must originate either in contract, statute, or upon receipt of a properly served discovery request after a lawsuit has been filed.9 Nursing homes, for example, have a statutory and administrative duty to retain medical records, paper or electronic, for a period of five years from the date of a resident’s discharge.10 Contrary to Florida state courts, the United States district courts have recognized a duty to preserve evidence upon imminent or pending litigation.11 Similarly, Florida’s Fifth District Court of Appeal has held that a duty to preserve evidence commences upon a reasonable belief of an impending lawsuit.12 Based on these conflicting views, it is good practice to commence the preservation of evidence upon anticipation of litigation, as this would ensure compliance with both Florida state and federal district courts.

    Measures to Preserve Electronic Data

    The preservation of electronic data is a complex process that requires a good faith effort to avoid the destruction or loss of evidence. Once the duty to preserve is triggered, a party should issue a litigation hold and cease the deletion of electronic records to ensure the preservation of relevant documents.13 Courts have often refrained from the imposition of severe sanctions where parties have implemented reasonable measures and e-discovery practices.14 Conversely, severe sanctions have been issued when litigants failed to establish proper procedures to prevent the destruction of evidence.15 Accordingly, nursing home operators should establish policies and procedures for the proper imposition of litigation holds, as well as the retention and destruction of ESI.

    Once the duty to preserve discovery is triggered, the Nursing Home Administrator should issue a litigation hold and cease the deletion of all electronic records. A litigation hold is crucial for the preservation of electronic records, as failure to timely notify all key personnel and to suspend any routine deletion programs can lead to the destruction or loss of material evidence.16 Specific deadlines should also be established for the retention and destruction of data. Additionally, back-up tapes should be kept for disaster recovery purposes and electronic data should be screened for privilege to ensure than no unauthorized and protected health information is produced in discovery.

    Identifying Electronic Data for Preservation

    To identify which documents should be preserved for litigation, we have prepared a compilation of electronic data that has been reviewed by Florida courts for discovery purposes.

    Grievance Logs. Grievance logs of employee and consumer complaints filed in compliance with Fla. Stat. § 400.147(4) are discoverable, following an in camera inspection and upon a showing of need and the inability to obtain equivalent information without undue hardship. However, grievance logs prepared from quality assurance and risk management meetings are not discoverable, pursuant to Fla. Stat. § 400.119.17

    Nursing Home Director’s Notes. Nursing home director’s notes regarding a patient’s injury, which is taken during an internal investigation of the incident and as part of a risk management investigation, are not discoverable.18

    Nursing Home Personnel Records. Nursing home personnel records, including employee complaints, disciplinary records, and performance evaluations, are not subject to discovery on the bases of the quality assurance, risk management, self-critical analysis, or peer review privilege under Fla. Stat. § 766.101.19 However, personnel records for assisted living facilities are not protected from discovery under the constitutional right of privacy of the employees.20

    Internal Peer Review Evaluations. Nursing home internal peer review evaluations and other electronic materials containing internal review of the nursing staff’s performance are not discoverable, absent a showing of need and an inability to obtain equivalent documents without undue hardship, despite allegations of negligent care.21

    Incident Reports. Nursing home incident reports filed in compliance with Fla. Stat. § 400.147(4) are discoverable, following an in camera inspection and upon a showing of need and the inability to obtain equivalent information without undue hardship. However, incident reports prepared from quality assurance and risk management meetings are not discoverable, pursuant to Fla. Stat. § 400.119.22

    Former Nursing Home Resident’s Information. A nursing home was ordered to provide Plaintiff with the name, birth date, Social Security number, and forwarding address of a former nursing home resident, who was Plaintiff’s roommate and potential material witness, notwithstanding the nursing home’s duty of confidentiality to residents under Fla. Stat. § 400.022. The nursing home was required to redact any medical information pertaining to the resident prior to producing said records to Plaintiff.23

    Computer Source Code in its Binary Form. The computer source code can be produced in its native form if the data is deemed relevant and the necessary safeguards are in place to protect the patient’s privacy. However, an in camera review is required to identify the relevance of the computer source code prior to discovery.24

    Computer Hard Drive. A forensic evaluation of a computer hard drive is permissible if there is sufficient evidence to show that material data has been intentionally deleted or erased.25

    Computer Database. A computer database may undergo forensic review if: (1) there is proof that responsive data has been purged and could be retrieved; (2) there is no alternative source to obtain the requested data; and (3) there are safeguards in place to protect the patient’s records.26

    Financial Reports. Financial reports generated by a computer database were deemed discoverable based on relevance and absent any evidence of undue burden and expense to produce.27

    Emails. Emails are discoverable if the information contained therein is relevant and there is no undue burden or expense to produce. Florida courts have yet to rule on whether emails should be produced in its printed or native form. However, other courts have held that emails must be produced in its native form.28

    Information Contained in a Personal Data Assistant (PDA). Internal notes stored in a PDA are subject to discovery if the information is relevant and not privileged.29

    The Impact of E-Discovery on HIPAA

    A nursing home operator needs to establish a balance between a nursing home’s duty to furnish electronic data and its obligation to adhere to HIPAA requirements.30 Where privacy issues arise during the preservation or production of electronic records, federal courts have consistently found that strict compliance with HIPAA is required.31 Additionally, the Northern District of Florida has recently held that a nursing home was not obligated to produce medical records under Fla. Stat. § 400.145 because it was contrary to HIPAA and therefore preempted under the Supremacy Clause.32

    To ensure compliance with HIPAA when producing electronic records, the Health Information Technology for Economic and Clinical Health (HITECH) Act requires an accounting of certain protected electronic health records. Also, a pending proposal to amend HIPAA’s Privacy Rule would require health care providers to submit, upon request, an accounting for disclosure of electronic health records used for treatment, payment, and health care operations in the past three years.33 The HIPAA amendment would also require production of an “access report” for disclosure of specific names and times when a patient’s electronic protected health information is accessed.34

    Conclusion

    The rules governing electronic data are constantly changing due to the rapid advancement in technology. This has given rise to a complex e-discovery process that requires compliance with both federal and state laws to avoid any potential sanctions. The need to preserve electronic records requires a re-evaluation of one’s internal policies and procedures, which should provide for the proper imposition of litigation holds, specific timelines for the retention and destruction of evidence, and a full-proof disaster recovery plan. Additionally, healthcare providers should adopt affirmative measures to avoid HIPAA violations and to educate their staff on the anticipated challenges that this new era of electronic health records will bring.

    (Endnotes)

    1 Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., No. 502003CA005045XXOCAI, 2005 WL 4947328, at *6 (Fla. 15th Cir. Ct. Mar. 1, 2005).

    2 Strasser v. Yalamanchi, 669 So. 2d 1142, 1143-44 (Fla. 4th DCA 1996) (Florida Rules are broad enough to encompass electronic discovery); Fla. R. Civ. P. 1.280, (parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action ... including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things).

    3 Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., 685 F.Supp. 2d 456, 462 (S.D.N.Y. 2010) (a duty to preserve means what it says and that a failure to preserve records, paper or electronic, will inevitably result in the spoliation of evidence).

    4 Martino v. Wal-Mart Stores, Inc., 835 So. 2d 1251, 1256 (Fla. 4th DCA 2003) (any number of sanctions and negative consequences are available against parties in litigation who destroy, conceal, or alter evidence).

    5 Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., No. 502003CA005045XXOCAI, 2005 WL 4947328, at *6 (Fla. 15th Cir. Ct. Mar. 1, 2005) (the court sanctioned Morgan Stanley for failing to preserve electronically stored information and back-up tapes); Public Health Trust of Dade County v. Valcin, 507 So. 2d 596, 601 (Fla. 1987) (failure to preserve evidence may lead to a rebuttable presumption of negligence for the underlying tort).

    6 Nationwide Lift Trucks, Inc. v. Smith, 832 So. 2d 824, 826 (Fla. 4th DCA 2002) (sanctions are appropriate when evidence has been destroyed intentionally or inadvertently); Martino, 835 So. 2d at 1254 (an adverse inference is not based on a strict legal duty to preserve evidence; rather, an adverse inference may arise in any situation where potentially self-damaging evidence is in the possession of a party and that party either loses or destroys the evidence).

    7 Univ. of Montreal Pension Plan, 685 F.Supp. 2d at 466 (acknowledging that it is well-established that the duty to preserve evidence arises when a party reasonably anticipates litigation).

    8 Gayer v. Fine Line Const. & Elec., Inc., 970 So. 2d 424, 426 (Fla. 4th DCA 2007) (noting that a duty to preserve evidence did not exist at common law); Royal & Sunalliance v. Lauderdale Marine Ctr., 877 So. 2d 843, 846 (Fla. 4th DCA 2004).

    9 Id.., at 426 (a duty to preserve evidence must originate either in a contract, a statute, or a discovery request); Strasser, 783 So. 2d at 1093 (noting that there is an affirmative duty to preserve evidence upon a duly served discovery request).

    10 Fla. Stat. § 400.145; Fla. Admin. Code § 59A-4.118.

    11 Banco Latino, S.A.C.A. v. Gomez Lopez, 53 F.Supp. 2d 1273, 1277 (S.D. Fla. 1999) (a litigant is under a duty to preserve evidence which it knows, or reasonably should know, is relevant in an action); Floeter v. City of Orlando, No. 6:05-cv-400-Orl-22-KRS, 2007 WL 486633, at *5 (M.D. Fla. Feb. 9, 2007) (noting that there may be additional circumstances from which a duty may arise if a party is on notice that documents or tangible items may be relevant or discoverable in pending or imminent litigation).

    12 Torres v. Matsushita Elec. Corp., 762 So. 2d 1014, 1019 (Fla. 5th DCA 2000) (stating that if one knows that he, she, or it is about to become involved in a civil action, this alone should be sufficient to impose a duty to preserve evidence that a reasonable person would foresee as material to the potential action).

    13 Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003) (stating that once a party reasonably anticipates litigation, it must suspend its routine document retention and destruction policy and must put in place a “litigation hold” to ensure the preservation of relevant documents).

    14 Gaalla v. Citizens Med. Ctr., 2011 U.S. Dist., LEXIS 57317, at *4-5 (S.D. Tex. May 27, 2011) (holding that failure to preserve back-up tapes did not result in sanctions where the court found that defendant had taken “reasonable preservation” steps and enacted a litigation hold).

    15 Univ. of Montreal Pension Plan, 685 F.Supp. 2d at 465 (holding that the failure to issue a written litigation hold constitutes gross negligence because that failure is likely to result in the destruction of relevant information).

    16 In re Intel Corp. Microprocessor Antitrust Litig., 258 F.R.D. 280, 283 (D. Del. 2008) (Intel made several critical errors in implementing a litigation hold; it sent notices to a target group instead of all personnel four days after litigation had commenced and it failed to suspend it automatic email deletion program that would purge email communications every 35 days).

    17 Mariner Health Care of Metrowest, Inc. v. Best, 879 So .2d 65, 66-67 (Fla. 5th DCA 2004).

    18 Beverly Enters-Fla., Inc. v. Olvera, 734 So. 2d 589, 590 (Fla. 5th DCA 1999).

    19 Mugridge v. Tandem Health Care of St. Petersburg, Inc., No. 04-000205-CI-20, 2005 WL 6400749 *1 (Fla. 6th Cir. Ct. Mar. 4, 2005).

    20 Alterra Healthcare Corp. v. Estate of Shelley, 827 So. 2d 936, 942 (Fla. 2002).

    21 Beverly Enters-FL, Inc. v. Ives, 832 So. 2d 161, 162-63 (Fla. 5th DCA 2002).

    22 1620 Health Partners, L.C. v. Fluitt, 830 So. 2d 935, 938 (Fla. 4th DCA 2002); Paradise Pines Health Care Associates, LLC v. Bruce, 27 So. 3d 83, 84 (Fla. 1st DCA 2009).

    23 Delta Health Group, Inc. v. Estate of Collins, 36 So. 3d 711, 712 (Fla. 1st DCA 2010).

    24 Beck v. Dumas, 709 So. 2d 601, 603 (Fla. 4th DCA 1998).

    25 Holland v. Bartfield, 35 So. 3d 953, 955-956 (Fla. 5th DCA 2010) (in a wrongful death case, the personal representative of the deceased’s estate could not require the defendant to produce her computer’s hard drive and mobile phone’s SIM card absent no evidence of any destruction of information); Menke v. Broward County School Board, 916 So. 2d 8, 12 (Fla. 4th DCA 2005).

    26 Strasser, 669 So. 2d at 1145.

    27 Kyker v. Lopez, 718 So. 2d 957, 959 (Fla. 5th DCA 1998).

    28 In re PriceLine.com Inc. Securities Litigation, 233 F.R.D. 88, 89-90 (D. Conn. 2005).

    29 Allstate Indemnity Co. v. Ruiz, 899 So. 2d 1121, 1130 (Fla. 2005).

    30 Health Insurance Portability and Accountability Act of 1996.

    31 Law v. Zuckerman, 307 F.Supp. 2d 705, 707 (D. Md. 2004); Opis Mgmt. Res., LLC v. Dudek, 4:11-CV-400/RS-WCS, 2011 WL 6024092, at *2 (N.D. Fla. Dec. 2, 2011).

    32 Dudek, 2011 WL 6024092, at *2-4 (Fla. Stat. § 400.145 requires nursing homes to furnish a copy of resident’s records to “the spouse, guardian, surrogate, proxy, or attorney in fact”; HIPAA allows production of protected health information only to the resident himself or his personal representative who has legal authority to act on behalf of resident).

    33 HIPAA Privacy Rule Accounting of Disclosures, 76 Fed. Reg. 31426 (proposed May 31, 2011) (to be codified at 45 C.F.R. pt. 164).

    34 Id.