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:
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