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Litigation Holds in Healthcare Flipbook PDF
Litigation Holds in Healthcare Maintaining Patient Confidentiality and Complying With HIPAA's Privacy and Security R
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Presenting a live 90-minute webinar with interactive Q&A
Litigation Holds in Healthcare Maintaining Patient Confidentiality and Complying With HIPAA's Privacy and Security Requirements TUESDAY, NOVEMBER 19, 2013
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Today’s faculty features: Paul S. Davidson, Partner, Waller Lansden Dortch and Davis, Nashville, Tenn. Tera Rica Murdock, Waller Lansden Dortch & Davis, Nashville, Tenn.
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Litigation Holds in Healthcare Maintaining Patient Confidentiality and Complying with HIPAA’s Privacy and Security Requirements
© 2013 Waller Lansden Dortch & Davis, LLP. All Rights Reserved.
Faculty
Paul Davidson
Tera Rica Murdock
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Basics of a Litigation Hold
What is a litigation hold? Where do I look for the requirements? When do I implement a legal hold? Why should I implement a legal hold? Who should draft or implement the hold? How are the rules different for my healthcare company?
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What is a litigation hold?
The suspension of document destruction to ensure preservation of relevant documents
Usually an instruction to custodians of potentially relevant documents
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Where do I look for the requirements?
Stems from the common-law duty to avoid spoliation of relevant evidence for use at trial
Requires reasonable and good-faith actions to preserve potentially relevant information related to the threatened litigation
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When do I implement a legal hold?
A party’s duty to preserve evidence begins when the party is placed on notice that the evidence is relevant to litigation or when the party should know that the evidence may be relevant to future litigation – receipt of a subpoena, complaint, or demand letter; – pre-litigation discussion with opposing party or counsel; – inquiry from a state or federal government or regulatory agency; – receipt of a civil investigation demand; – federal investigation or inquiry is contemplated. 10
Why should I implement a legal hold?
Consequences of implementing an untimely or inadequate litigation hold are set out in Federal Rule of Civil Procedure 37 (and state equivalents), and include: – Payment of attorney’s fees – Adverse inference instruction; – Striking pleadings in whole or in part; – Dismissing the action or proceeding in whole or in part; – Rendering a default judgment; – Contempt of court. 11
Who should draft or implement the hold?
Coordination between outside counsel, inside counsel, IT, and regulatory compliance.
Litigation hold may be outlined in an e-mail, letter, or oral notice.
Some courts, including the U.S. District Court for the Southern District of New York, have held that ‘‘the failure to issue a written litigation hold constitutes gross negligence.”
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How are the rules different for my healthcare company?
Preservation requirements are the same.
If preserving data by collection, make sure that HIPAA Security Rule requirements are met.
When identifying documents to preserve, assess whether documents other than electronic health records contain personal health information, so that the company can asses HIPAA Privacy Rule compliance.
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Sample Hold
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Case Studies
Genova v. Banner Health – Sanction of adverse inference instruction for failing to preserve “Code Purple Evaluation Worksheets”
Managed Care Solutions, Inc. v. Essent Healthcare, Inc.
– Bad faith required for spoliation sanctions – But see Apple Inc. v. Samsung Electronics Co., Ltd.
U.S. v. Community Health Systems, Inc. – Healthcare company using compliance with litigation hold offensively
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Best Practices
Consider standardizing implementation of litigation holds within your organization
When implementing a litigation hold, consider
compliance with HIPAA Security Rule and Privacy Rule
Consider data management policies
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Questions? [email protected] [email protected]
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