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Litigation Holds in Healthcare Maintaining Patient Confidentiality and Complying With HIPAA's Privacy and Security Requirements
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THURSDAY, FEBRUARY 19, 2015
Presenting a live 90-minute webinar with interactive Q&A
Paul S. Davidson, Partner, Waller Lansden Dortch & Davis, Nashville, Tenn.
Tera Rica Murdock, Waller Lansden Dortch & Davis, Nashville, Tenn.
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© 2015 Waller Lansden Dortch & Davis, LLP. All Rights Reserved.
Litigation Holds in Healthcare
Maintaining Patient Confidentiality and Complying with HIPAA’s Privacy and Security Requirements
Faculty
Paul Davidson paul.davidson@wallerlaw.com
Tera Rica Murdock trmurdock@wallerlaw.com
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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.
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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.
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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”
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Case Studies
Managed Care Solutions, Inc. v. Essent Healthcare, Inc.
– Bad faith required for spoliation sanctions
– But see Apple Inc. v. Samsung Electronics Co., Ltd.
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Case Studies
U.S. v. Halifax Hospital Medical Center
– Hospital destroyed three years worth of medical records despite instituting a litigation hold
– Court called the conduct “reprehensible”
– Sanctions recommended; case settled thereafter
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Case Studies
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?
paul.davidson@wallerlaw.com
trmurdock@wallerlaw.com
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