Updating digital discovery: It's all on record

The shift from storing information on paper to electronic form has prompted major changes in court rules for legal discovery. Doctors must be prepared to meet the digital demand.

By Amy Lynn Sorrel, AMNews staff. July 2, 2007.

Digging up old e-mails and business records from a computer, backup server or PDA isn't likely to be at the top of most doctors' to-do lists. But if they are whisked into a lawsuit, that's exactly what physicians must be prepared to do under new federal rules that address the discovery of electronically stored information.

Physician practices, like other businesses, are going from paper piles to digital files, and courts are catching up, experts say. Gone are the days when parties in a lawsuit could say they deleted e-mails or that electronic data are too difficult to find without facing severe penalties.

As of Dec. 1, 2006, the new Federal Rules of Civil Procedure approved by the U.S. Supreme Court prescribe what to produce, when and how in regard to e-discovery. The rules apply to federal lawsuits, from antitrust cases to employment disputes to physician class actions against HMOs.

Experts say state courts are not far behind, since they typically follow federal guidelines in developing their own rules. This means that eventually the procedures will apply to state actions, such as medical liability cases.

Though e-data were discoverable before, the new rules "create a framework and process for getting or not getting at that data," said Gregory D. Frost, a health information lawyer and partner with Louisiana-based Adams & Reese LLP. "But it can create problems for doctors if they aren't properly managing it."

The discovery process involves wrangling over what documents each side has to provide to each other. Before the rules changed, that typically meant paper records. Attorneys could request electronic information but might end up with a paper printout of an e-mail or PDF. This meant they couldn't search within the document or see the metadata, or background information, such as when it was created or where it was sent.