Forensic Update

Reflections on information management within the legal and regulatory arena

Posts Tagged ‘electronic medical records’

Must Transactional Attorneys Preserve Evidence?

Posted by Johnny Lee on June 5, 2012

Shred-DocumentIt is almost axiomatic in American jurisprudence that the duty to preserve arises for a party when that party “knows or reasonably should know” that litigation is foreseeable.  That said, a recent matter out of the federal courts in New York has raised a very interesting question about evidence preservation duties, as well as when and how they extend to certain parties — including their counsel.

Corporate and litigation counsel alike recognize their (somewhat nebulous) triggering event as the “reasonable anticipation” of a dispute arising, and they respond by issuing data preservation instructions to custodians to ensure that all potentially relevant information is retained for possible review and use in such a matter.  However, federal magistrate judge Joan Azrack has indicated that counsel for a party that destroys evidence might be sanctioned for failing to preserve — independent of a litigation hold — certain documents (including emails) that relate to “the lawyer’s negotiation and documentation of a loan agreement.”

What’s novel in this matter is not that this duty arises for counsel, but when and why.  The case (FDIC v. Malik) involves a suit brought by the FDIC, in its role as the receiver for a mortgage company, against the mortgage company’s attorneys (et alia) relating to a series of loan transactions.

It is important to note that this case is still in process, so its implications (both for litigation- and for records-management) will be watched closely.  Of particular note here is the implication that document retention regulations (in this case, arising out of the attorney’s professional responsibility rules) can establish evidence-preservation obligations where the affected party is “a member of the general class of persons that the regulatory agency sought to protect in promulgating the rule.”  If we were to extrapolate this to organizations across the legal spectrum, this could represent a precedent of staggering influence to corporate America and the way it manages information.

 

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ForensicUpdate Editor to present on two CyberSecurity Panels…

Posted by Johnny Lee on May 7, 2012

This year’s AccessData User’s Conference will be help in Las Vegas. This conference brings together world-class instruction from real-world industry practitioners, and it provides a wealth of information related to cybersecurity, forensics, and eDiscovery.

This three-day conference will include luminaries from around the world, leading sessions and delving into the complexities related to acquiring, analyzing, and managing data in fast-paced environments and situations. There is a variety of break-out sessions and hands-on laboratories designed to improve the participants’ skills and to apply what they have learned.

ForensicUpdate editor, Johnny Lee, will participate in two panel discussions: “Data Governance and eDiscovery” and “Data Breaches.”  Click here for more details.

Posted in Computer Forensics, Data Governance, eDiscovery, Information Security, Investigations, Privacy, Records Retention, Social Networking | Tagged: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , | Comments Off on ForensicUpdate Editor to present on two CyberSecurity Panels…

DLA Piper publishes global handbook on Data Privacy Laws…

Posted by Johnny Lee on April 23, 2012

The safeguarding of personal information by organizations has never been more difficult or more necessary.  This is true not merely because of the relatively unchecked trends of data proliferation and data portability but also because of the increasingly complicated legal and regulatory landscape.

Organizations of all sizes are struggling with this, but multi-national companies have a unique set of challenges in trying to identify —much less reconcile — the myriad of rules, regulations, and laws related to the protection of personal data.  This is what makes DLA Piper’s subject contribution such a welcome addition to the compliance literature.

The DLA Piper Information Law Team have published a handbook with “an overview of the applicable privacy and data protection laws and regulations across 58 different jurisdictions, including a section on enforcement.  Edited by Cameron Craig, Paul McCormack, Jim Halpert, Kate Lucente, and Arthur Cheuk, the DLA Piper 2011/2012 Data Protection Laws of the World Handbook is available here.”

Posted in Data Governance, ECM, Information Security, Privacy, Records Retention | Tagged: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , | Comments Off on DLA Piper publishes global handbook on Data Privacy Laws…

“Controlling your Data Avalanche” Webinar…

Posted by Johnny Lee on October 27, 2011

 

I am pleased to announce that I will join luminaries from Vedder Price, a prominent U.S. law firm, in a discussion on “Managing your Data Avalanche” on November 16, 2011.  This webinar will delve into strategies for satisfying an organization’s legal obligations associated with Records Retention, eDiscovery, Litigation Holds, and Data Privacy.

“All too often, companies approach their data management obligations reactively and in a piecemeal fashion. This need not be the case; in fact, companies can satisfy their legal obligations with greater certainty — and more economically — through comprehensive data management strategies.”

This Webinar will be of interest to General Counsel, Chief Compliance and Information Officers, and those with a key role in managing eDiscovery or litigation within an organization.  This Webinar will provide an overview of legal trends in data management, with a specific focus on social media, cloud computing, eDiscovery, litigation holds, and data breach preparedness and response.  We will discuss ways in which companies can better manage their data through proactive data-management strategies.

To register for this webinar, please click here.  (Login information and presentation materials will be sent to registrants prior to the webinar.)

Click to learn more about Grant Thornton’s Forensics, Investigations and Litigation practice.   Click to learn more about Vedder Price’s Records Management, eDiscovery and Data Privacy practice.

Posted in Announcement, Computer Forensics, Data Governance, ECM, eDiscovery, Forensic Accounting, Information Security, Investigations, Litigation Hold, Privacy, Records Retention, Social Networking | Tagged: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , | Comments Off on “Controlling your Data Avalanche” Webinar…

Forensic Update editor presenting at North American ISACA conference…

Posted by Johnny Lee on May 17, 2011

The world’s leading conference for IT audit, control, security and governance professionals holds its 2011 annual conference in Las Vegas. ForensicUpdate editor, Johnny Lee, will present on the topic of “Data Governance and eDiscovery: Good Faith, Bad Actors, and Questionable Data.”  Click here for more details.

Posted in Announcement, Computer Forensics, Data Governance, ECM, eDiscovery, Information Security, Investigations, Litigation Hold, Privacy, Records Retention, Social Networking | Tagged: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , | Comments Off on Forensic Update editor presenting at North American ISACA conference…

Move to e-Records could increase claims and costs for Healthcare…

Posted by Johnny Lee on January 10, 2011

Electronic medical records have received a great deal of scrutiny in recent months, especially in light of sweeping changes from Washington coupled with mandates at the state level to automate healthcare delivery.  While the premise (and promise) of automation tends to focus on increased efficiencies and cost savings, the irony is that the implementation of electronic medical records (“EMR”) might actually cost providers (i.e., hospitals and medical practices) a lot more in litigation costs and liability insuranceat least in the short term.

According to a new report from Hartford-based Conning Research, underwriters are concerned that there will be a non-trivial increase in medical errors when EMRs are implemented.  This, in turn, will drive up both the number of claims and the related cost of defending same.

The report, entitled Medical Professional Liability in a Changing Health Care Environment, indicates that over 90% of providers have yet to implement EMRs (at least to the extent that would satisfy the federal “meaningful use” standards).   This statistic will change drastically in the coming years, given that ObamaCare intends to add over 30 million individuals to the “new insureds” ranks by 2014.  Providers will rush to adopt this new technology not because of the on-boarding of new insureds so much as the significant federal financial incentives that accrue to those adopting EMRs.

While the report indicates that errors are likely to trend downward over time, it is quite likely that claims could increase substantially as patients find fewer barriers to accessing their own health information and the treatments they receive.  This, combined with the fact that EMRs tend to have more information than their paper-based counterparts, will create a virtual bonanza for plaintiffs’ counsel that specialize in medical malpractice claims, as it will be that much easier to identify when treatments provided depart from recommended treatment protocols.

The ease of access to these eDiscovery “haystacks” (as well as the increased number of potential needles within them) might prove to be an ominous litigation trend facing providers for many years to come.  At a bare minimum, it certainly explains why insurers are twitchy with regard to the adoption of this technology.

 

See also: Electronic Records Don’t Improve Outpatient Care, Stanford Study Indicates

Posted in ECM, eDiscovery, Information Security, Privacy, Records Retention | Tagged: , , , , , , , , , , , , , , , , | Comments Off on Move to e-Records could increase claims and costs for Healthcare…

 
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