AHIMA Comments on Changes to Federal E-Discovery Rules
AHIMA has issued a comment letter on proposed changes to the federal rules that govern the way e-discovery can be used in court. The Federal Rules of Civil Procedure (FRCP) are currently under review by the US Civil Rules Advisory Committee. The committee is collecting public comments on the changes.
The rule changes, particularly related to e-discovery and litigation proceedings, will have an impact on HIM professionals and the way they handle legal proceedings and electronic health record (EHR) requests. E-discovery requests are expected to grow for HIM professionals in the near future due to the widespread adoption of EHR systems and advances in health information exchange, AHIMA’s letter stated.
AHIMA commented on three areas of the FRCP, including FRCP 37(e): Failure to Preserve Discoverable Information. Proposed amendments to Rule 37(e) will limit the imposition of sanctions for the spoliation of evidence to when a moving party can show that a responding party’s action of destroying evidence such as medical records “caused substantial prejudice in the litigation and were willful or in bad faith, or irreparably deprived a party of any meaningful opportunity to present or defend against the claims in the litigation.”
While AHIMA said it applauds the effort to establish uniform guidelines across the federal courts and apply them to all discoverable information, AHIMA is concerned that the proposed amendments to Rule 37(e) will not resolve issues surrounding divergent information preservation standards and the perceived need for “over preservation” of health information.
AHIMA suggests that definitions should be finalized on what constitutes “willful” and “bad faith” destruction of evidence, and that the rules should provide direction on what constitutes “substantial prejudice.” AHIMA also said the rule should move the burden of proof away from the moving party and onto the responding party.
“AHIMA is also concerned that the proposed amendments to Rule 37(e) shift the burden to prove the need for missing information to an innocent party, therefore begging the question, ‘How can (or should) a moving party prove the necessity of information that no longer exists?’”
View AHIMA’s full comments here.