Medical Records and the Law

Electronic Health Records as Evidence 489reproduced in full form when the records are printed. 164 In addition,some of the information may be incomprehensible when separatedfrom the information system that created it. All of these problemsmake it extremely difficult to obtain information relevant to a disputethat occurred at a specific time, especially when the rules of discoverywere designed for obtaining access to paper records, not electronicrecords. Failure to comply with e-discovery can lead to monetarypenalties, 165 loss of the ability to call witnesses, 166 adverse instructionsto the jury, 167 or a default judgment. 168In response to these problems, some federal courts and a few stateshave revised their discovery rules to address the unique characteristicsof electronic records. In addition, it is likely that the federal rules ofpractice will be revised to set a national standard for cases coming beforethe federal courts. 169 For example, one of the problems that electronicrecords create is the risk of destroying privileges that mayotherwise protect information from discovery.This may occur by inadvertentlyreleasing data in a large electronic record. Practice rules permitparties to release a large volume of data and later “take back”information that would have been privileged if not released. Such ruleshelp reduce the enormous cost in time and money of having attorneysreview every single bit of information in a discovery request before thedata are released, the purpose of the review being to make certain thatno privileged information is being released. Federal and state practicerules will continue to evolve to accommodate the use of electronicrecords, and healthcare organizations should keep abreast of these rulesas they apply to EHRs.164“Metadata is information about a particular data set which describes how, when and bywhom it was collected, created, accessed or modified and how it is formatted (includingdata demographics such as size, location, storage requirements and media information.”Sedona Guidelines (September 2004 Public Comment Draft), 81–82.165See, e.g.,Procter & Gamble v. Haugen, 179 F.R.D. 622 (D. Utah 1998); In re PrudentialInsurance Company of America Sales Practice Litigation, 169 F.R.D. 598 (D.N.J. 1997).166See, e.g., United States v. Philip Morris USA, Inc., 327 F. Supp. 2d 21 (D.D.C., July 21,2004).167See, e.g., Zubulake v. UBS Warburg LLC,No. 02 Civ. 1243, 2004 U.S. Dist. LEXIS 13574(S.D.N.Y., July 20, 2004).168See, e.g., Essex Group v. Express Wire Services, 578 S.E. 2d 705 (N.C. Ct. App. 2003).169See Committee on Rules of Practice and Procedure of the Judicial Conference of theUnited States, Report of the Civil Rules Advisory Committee (May 17, 2004; revised August3, 2004).