An Overview of Discovery of Electronic Information

Legal consequences abound at every corner in healthcare. Each month this blog discusses examples of what those consequences can be.


I’m going to take the opportunity this month to discuss a new publication which I, along with two others, wrote for the Federal Judicial Center (Center). Managing Discovery of Electronic Information, Third Edition is part of the “Pocket Guide Series” published by the FJC for the benefit of all federal judges.

According to the Center website, “The Federal Judicial Center is the research and education agency of the judicial branch of the United States Government. The Center supports the efficient, effective administration of justice and judicial independence.”

Among other things, the Center “educates federal circuit, district, bankruptcy, and magistrate judges and court staff, including attorneys employed by the courts, federal defenders, personnel in court clerks’ offices, probation and pretrial services officers, and others. Subject areas include law, case management, the judicial role, leadership, ethics, and court management.”

Earlier editions of Managing Discovery of Electronic Information were published in 2007 and 2012. The impetus for the third edition was, among other things, the December 1, 2015 amendments to the Federal Rules of Civil Procedure and the “rise of new devices on which ESI [electronically stored information] is created and stored, such as smartphones, and new sources of ESI, such as social media.” Organized in a question-and-answer format, the publication is intended as a guide for federal judges as they address the challenges presented by ESI and actively manage the civil actions that come before them.

The questions posed include:

  • What is ESI and how does it differ from conventional paper-based information?
  • What is the judge’s role in the discovery of ESI?
  • How does a judge promote early consideration of ESI discovery issues?
  • What matters should be discussed at the Rule 26(f) conference?
  • What preparations for the Rule 26(f) conference should be required?
  • What continuing consultation between parties should be required?
  • What matters should be covered during the Rule 16 conference and included in the initial scheduling order?
  • How should a judge manage ESI in a small case?
  • What disclosures of ESI are required under Rule 26(a)(1)?
  • How does a judge limit the scope of ESI discovery to that proportional to the needs of the case?
  • How may Rule 26(g) sanctions should be used to promote cooperation and proportionality in ESI discovery?
  • What type of information is “not reasonably accessible”?
  • When does good cause exist to allow the discovery of “not reasonably accessible” information?
  • What factors are relevant to allocating costs?
  • What principles apply to discovery from nonparties under Rule 45?
  • In what form or forms should ESI be produced?
  • How might data be searched to respond to discovery requests or subpoenas?
  • How should privilege and waiver issues be handled?
  • What are “clawback” and “quick peek” agreements?
  • How can a court shield parties from waiving a privilege through inadvertent disclosure?
  • How should a court test assertions of privilege?
  • How is Federal Rule of Evidence 502 used to reduce cost and delay?
  • Litigation holds: How can the court promote the parties’ reasonable efforts to preserve ESI?
  • What are the standards for finding spoliation and the criteria for imposing sanctions?
  • Where can a judge find additional information and guidance?

All civil litigation is, in a sense, sui generis. Each presents unique sets of facts and disputes that federal judges must address and resolve on a case-by-case basis. Nevertheless, there is commonality in principles that can guide judges in managing ESI-related disputes. Managing Discovery of Electronic Information is intended to assist federal judges in applying those common principles to resolve the particular dispute or disputes before them.

This publication can also assist healthcare providers as they implement or manage the information governance principles and processes discussed in AHIMA’s Information Governance Basics web resource. Managing Discovery of Electronic Information offers a window of sorts into the thinking processes of federal judges as they make decisions about the management of the electronic health record and other electronic information created, collected, searched, and produced by providers. Perhaps that “window” might inform information governance-related decisions about those processes.

Managing Discovery of Electronic Information, Third Edition, by Ronald J. Hedges, Barbara J. Rothstein, and Elizabeth C. Wiggins was published in September 2017 and is available without cost at https://www.fjc.gov/content/323370/managing-discovery-electronic-information-third-edition-2017.

 

**Editor’s Note: The views expressed in this column are those of the author alone and should not be interpreted otherwise or as legal advice.

Ron Hedges, JD, is a former US Magistrate Judge in the District of New Jersey and is a writer, lecturer, and consultant on topics related to, among other things, electronic information. He is a Senior Counsel with Dentons US LLP.

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