Preserving e-mail applies to whole range of litigation
Litigation regarding e-mail in health care already has reached the trial level, says Edward C. Mintzer Jr., a partner with the law firm of Rawle & Henderson in Philadelphia.
"This is not a theoretical risk," he says. "It’s in the court system."
For risk managers, one big concern should be how e-mail can become discoverable evidence in malpractice cases or other litigation, Mintzer says. Courts are ruling that health care providers have a duty to preserve e-mail as part of a litigation hold in the same way you would preserve paper documents. The need to preserve e-mail applies to the entire range of litigation that could face a health care risk manager — everything from malpractice to wrongful termination, slip and fall, and sexual discrimination.
However, you don’t necessarily have to preserve all electronic data related to the case because that could be crippling to a large organization. A federal court in New York recently determined that employers, including health care providers, have a duty to preserve "accessible data," which it defined as "active on-line data, near-line data that is readily accessible, and off-line storage and archive that is readily accessible."1
The court’s ruling was important in helping define what "readily accessible" data is, Mintzer says. It said that backup tapes might not be readily accessible, and erased, fragmented, or damaged data might not be either.
The ruling says the duty extends to "key players involved in the litigation," including supervisors and managers. Trial attorneys will not only look at the printed e-mail copies you provide but will want to investigate earlier permutations in the computer system to see if anything was changed before printing them for discovery. (Don’t ever do that, Mintzer warns. Not only is it dishonest and possibly criminal, but you will look like a guilty fool when the plaintiff’s techie expert shows how he found earlier versions in the computer system, he says.)
"Risk managers now have to preserve and protect, if not collect, any and all e-mail once they know that that type of electronic communication is necessary for the litigation," he says. "It’s very onerous for a risk manager."
Risk managers must take the lead on preserving e-mail because they are often among the first to know that an organization is facing a lawsuit, Mintzer says. Once you are on notice of a potential claim, someone in the organization must monitor compliance with the litigation hold and electronic document preservation.
Mintzer advises taking these three steps to ensure compliance with e-mail preservation:
- Implement a litigation hold immediately.
- Communicate with the key players involved with the case.
- Preserve, protect, and produce the electronic copies of the information. Make sure it is stored in a safe place.
1. Laura Zubulake v. UBS Warburg, LLC, No. 02 Civ. 1243 (SAS) U.S. District Court, Southern District of New York (July 20, 2004).