Update on E-Discovery and the Electronic Medical Record

A recent amendment to Pennsylvania Rule of Civil Procedure 4009.1 provides that "any party may serve a request upon a party…to produce and permit the requesting party… to inspect and copy any designated documents (including…electronically created data…and electronically stored information), or to inspect, copy, test or sample any tangible things or electronically stored information,…which are in the possession, custody or control of the party or person upon whom the request or subpoena is served and may do so one or more times." Further, "a party requesting electronically stored information may specify the format in which it is to be produced and a responding party or person not a party may object. If no format is specified by the requesting party, electronically stored information may be produced in the form in which it is ordinarily maintained or in a reasonably usable form." Pa.R.C.P. 4009.1. The amendments were effective as of August 1, 2012. The Notes to the Rule indicate that the request should be as specific as possible and limitations as to time and scope are favored, as are agreements on production formats and other issues.

Even before the amendment, we felt the effects of the electronic storage of information on the production of the official medical record, otherwise known as the EMR. In medical malpractice claims, one of the biggest challenges in producing the EMR has been the translation of an interactive live documentation system into a static document. What used to be a simple request for a complete copy of the medical record has become, in some cases, a document production nightmare. There is no such thing as a "user friendly" printed version of the EMR. We quickly learned that the printed record looks nothing like the "live" system, and the paper documents are notoriously more burdensome to navigate for the attorneys and the parties.

As the legal profession has become more familiar with the EMR, discovery requests have expanded. In many cases, a copy of the "official" medical record is no longer a sufficient response to the request for records. What the amendments to the Rules mean in terms of the production of the electronic medical record, and who will bear the expense of production, remains to be seen. Arguably, producing electronic information in the form in which it is "ordinarily maintained" contemplates access to the live EMR. This not only creates HIPAA and security issues, but it can be problematic if there have been system upgrades.

Practitioners may also expect to see requests for "metadata" related to the EMR. "Metadata" may be more significant to a medical malpractice claim or defense than the actual documentation. In cases involving allegations of record alteration, the "metadata" and audit trails can provide tangible electronic evidence of changes, additions and deletions. Allegations of record alteration, once debated by forensic experts who poked holes in the chart to obtain ink samples for dating or analyzed impressions and indentations to prove a late entry, now will become fodder for forensic computer experts.

Pennsylvania specifically did not intend to incorporate the federal jurisprudence surrounding the discovery of electronically stored information. Pennsylvania instead opted for a "proportionality standard," which requires the courts to consider the nature and scope of the litigation, the importance and complexity of the issues and the amounts at stake, the relevance of the electronically stored information and its importance to the court's adjudication in the given case, the cost, burden and delay that may be imposed upon the parties to deal with electronically stored information, the ease of producing the electronically stored information, whether substantially similar, more easily obtainable information is available, and any other factors relevant under the circumstances. The discovery objective is the just, speedy and inexpensive determination and resolution of litigation disputes. This standard also contemplates cost sharing to ease the burden. In the absence of an agreement, the parties will be at the mercy of the trial courts.

Despite the amendments, there is little guidance from Pennsylvania courts regarding the scope of discovery of electronically stored information. Parties should be prepared to address the production of electronic information and work out agreements that include the specifics of the production and associated cost sharing. Opposition to the production of electronically stored information will require a careful analysis of its relevance to the litigation and the burden and expense involved. In the absence of an agreement, the only protection from potentially onerous discovery requests remains Pennsylvania Rule of Civil Procedure 4011(b), which provides that no discovery, including discovery of electronically stored information, shall be sought in bad faith or would cause unreasonable burden or expense to any person or party. In the case of the EMR, it will be up to health care professionals to establish the unreasonable nature of the request and the prohibitive time and expense involved.

Electronic information may become the most sought after and disputed discovery in a medical malpractice case. At present, the production of the EMR and other electronically stored information under the Pennsylvania Rules of Civil Procedure must be proportional and must not be burdensome. The contours of future production will depend upon the case law that develops. Until e-discovery issues are litigated in Pennsylvania courts and case law established, these are uncharted waters.

*Joan, a shareholder in our King of Prussia, Pennsylvania, office, can be reached at 610.354.8468 or joford@mdwcg.com.

Defense Digest, Vol. 18, No. 4, December 2012