Predictability is good for business entities—including healthcare providers and their business associates—especially when the consequence of unpredictability can be litigation. However, predictability is somewhat uncertain today in the area of electronic information, specifically, about whether a healthcare provider can be sued under the Americans with Disabilities Act (ADA) for having a website deemed to be inaccessible for a person with a disability.
The vast majority of civil litigation in the US takes place in state courts, and approaches to allegations of spoliation vary from one state to the next. While it is important to understand Rule 37(e) as it applies to litigation in federal court, few states have developed comparable standards to spoliation of electronically stored information (ESI) for litigation at the state level. A recent state court decision in New York gives an example of how states handle these motions.
Another State supreme court has weighed in on whether an individual may sue for damages based on a healthcare provider’s “unjustified disclosure to third persons of information obtained during treatment.”
A recent court case regarding loss of electronically stored information (ESI) offers a reminder of the importance of understanding the nature and location of ESI relevant to a particular litigation. In the case, an employment discrimination action, the plaintiffs sought sanctions against the defendant for its failure to preserve a computer one plaintiff had used in the course of her employment which had been supplied by the defendant.
A recent court decision points to a valuable lesson for HIM professionals working on discovery—your attorney might be able to argue that the cost of compiling significant volumes of electronically stored information should be shifted either completely or in part to the requesting party.
“Remedial measures,” also known as “sanctions,” can be imposed under Federal Rule of Civil Procedure 37(e) when electronically stored information is lost. The word “lost” has a specialized meaning in this context