ARCHIVED CONTENT
You are viewing ARCHIVED CONTENT released online between 1 April 2010 and 24 August 2018 or content that has been selectively archived and is no longer active. Content in this archive is NOT UPDATED, and links may not function.By Mark A. Berman
Medical malpractice counsel are seeking more sophisticated e-discovery, with plaintiffs, as in Vargas v. Lee, wanting to discover physicians and hospitals’ electronic medical records (EMR) along with their attendant electronic “audit trails.” This is a relatively nascent area of e-discovery with few decisions issued on it. On the defense side, in Angel v. Rubin, a physician’s counsel also became more sophisticated and sought patient emails and text messages attempting to refute claims of alleged deficient medical care. Electronically stored information (ESI) court stipulations are now de rigueur in commercial cases and compliance with them, and the proper submission of a privilege log identifying emails allegedly protected from disclosure by privilege or the work product doctrine, are required as noted in Herman v. Herman.4 Storage of ESI in the “cloud” may not serve as a basis to assert lack of “possession, custody or control” over ESI, even if the vendor agreement governing “cloud” storage ended as in S.R.E.B. v. E.K.E.B.5 Finally, in Baron v. Black,6 no spoliation sanction was issued where the deletion of emails by plaintiff allegedly occurred only because Google notified him that emails needed to be deleted to free up space in his company’s Gmail account.
Read the complete article at: Medical Malpractice E-Discovery, Preservation and Privilege Logs