Medical malpractice counsel are seeking more sophisticated e-discovery, with plaintiffs, as in Vargas v. Lee,¹ 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.² On the defense side, in Angel v. Rubin,³ 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.

Electronic Medical Records

In Vargas, a medical malpractice action concerning post-surgical complications, at issue was the production of the “audit trail” of the hospital's EMRs. Plaintiff asserted that the “audit trail” would provide material and necessary information regarding the timing and substance of plaintiff's post-surgical care. The motion court noted that the “issue of metadata production is at the forefront of present day e-discovery disputes.” Nevertheless, the court held that “plaintiff has not distinguished the audit trail's utility from that of its corresponding EMR” where plaintiff could presumably obtain the patient's treatment details from the already produced EMRs. The court noted:

In some instances, system metadata production has been considered relevant when the process by which a document is created is in issue or there are questions concerning a document's authenticity. While not a prerequisite to meta-data production, such authenticity issues speak to the utility and necessity of such production. Here, plaintiff does not articulate any analogous or salient consideration. General comments that the audit trial may provide discovery on the “timing and substance of plaintiff's care” are insufficient.

As such, the motion court held that “plaintiff has not satisfied his burden of establishing the necessity and utility of audit trail production.” Accordingly, the motion to compel was denied without prejudice to renewal upon a proper showing.

Patient Emails and Text Messages

In Angel, a medical malpractice action, defendant physician moved for an order compelling discovery of “non-privileged communications, including phone records (home and cell), emails, and text messages limited to the 14 or 16 hour period after the decedent was seen by” defendant. The physician asserted that his notes indicated that he advised plaintiff to go to the hospital, but that plaintiff refused, and that plaintiff's communications from that visit to his death would shed light on this contention and refute decedent's wife's testimony that the physician not only did not tell him to go to the hospital, but actively dissuaded him from doing so. The motion court granted the motion where decedent was unavailable to testify on this “critical” issue.

ESI Cloud Preservation

In S.R.E.B., a wife contended that her husband had been video recording in the home and that he records continuously with two permanently affixed “DropCam” cameras that are equipped with motion detectors, night vision, and high audio capture ability, which transmit and store recordings on an online cloud for seven to 30 days. The husband contended that he had produced video files stored on an Internet cloud (to which his wife did not have access) to the extent that they were under his “custody and control.” However, the husband failed to address “whether or not he retained the audio and video [files] after the subpoenas were served upon him” and “whether or not he allowed the audio and video files to lapse and automatically be deleted from the cloud each period so as to purposefully relinquish control over the material.” The motion court noted that the husband's claim that he was unable to obtain certain records is “unconvincing in a day and age where cloud storage allows for convenient and extensive access” and that “[e]ven if the files were not under the husband's custody or control, he was bound to take the steps necessary to assure their preservation” given the notice provided to him in the Preliminary Conference Order. The motion court found that the husband's claim that he was “unable to obtain the requested audio and video files [was] completely unavailing [based] upon the fact that he [was] able to store files from the cloud, make the files independent from the cloud, and thereby [had] access to them after the cloud access period has lapsed.” Finally, the above demonstrated to the court that “there were steps available to the husband to assure the preservation of the material.”

Privilege Logs and Preservation

In Herman, 10 months after the action was commenced, the parties agreed to a preservation stipulation which provided: