(L to R) Michael Barrett, Terrance R. DeAngelo, and Joseph DeAngelo, of Barrett DeAngelo.

With the advent and transition of records into the electronic realm, metadata has become an increasingly integral aspect of personal injury litigation. Specifically, in medical malpractice litigation, electronic discovery (e-discovery) of the electronic medical record (EMR) and the analysis of metadata offers valuable information. While electronically recording patient information generally encourages complete documentation and results in the streamlining of patient care, frequently issue arise as to the integrity of the EMR. Unlike paper charts, an EMR is able to track and store information regarding access to and manipulation of the patient's record. This information, referred to as metadata, provides insight as it pertains to a health care provider's code of conduct or the manner in which he or she delivered medical or nursing care. In this sense, metadata has the potential for exposing wrongdoings and brings into question the credibility of the defendant health care provider.

Metadata is ubiquitous to all EMR systems and, most often, is an automatically generated computer record detailing audit trails including user access and activities while in the EMR. Most importantly, metadata certifies how, when, where, and by whom electronic documents and files have been authored, viewed, altered, printed, or otherwise accessed. By using experts to analyze said metadata, critical alterations in the EMR may be identified. In medical malpractice, metadata is increasingly driving case theories and generating case value through the identification of post-injury alterations to the medical record. The universe of data that is unveiled by peering behind the final electronic medical chart is a fertile ground for the identification of "smoking guns."

Metadata should be requested and produced with plaintiff's initial request for the production of documents and things. Tailoring that request is essential to avoiding defense objections or, alternatively, litigating against same. Most oft, defense objections come on the grounds that the request for metadata is "overbroad, unduly burdensome, ambiguous, irrelevant, imposes a burden not provided for by the rules of civil procedure, and not reasonably calculated to lead to the discovery of admissible evidence." It is vital that plaintiff's request define the breadth of information sought while ensuring that the request is reasonably calculated to lead to the discovery of admissible evidence but not overbroad or unduly burdensome under the law. Best practice has demonstrated that this is accomplished by providing a definition for that sought and by narrowly tailoring the request for metadata. As technology has evolved, more and more courts are recognizing the evidentiary value that metadata provides and have become increasingly more likely to grant requests for metadata discovery.

A definition of metadata sought might include the following:

"Metadata" is defined as follows: Metadata, commonly described as "data about data," is an automatically generated computer record, including but not limited to audit trails of user accesses and activities, order and results "detail" sheets showing further details on individual audit trail line items, and other data that certify how, when, where and by whom electronic documents (e-documents) and other computer-based information have been authored, viewed, manipulated, or otherwise accessed. There are three types: substantive metadata (e.g. data reflecting modifications to a document, such as prior edits or editorial comments, and data that instructs the computer how to displace the fonts and spacing in a document); system metadata (e.g. "the author, date and time of creation, and the date a document was modified); and, embedded metadata (e.g. spreadsheet formulas, hidden columns, externally or internally linked files (such as sound filed), hyperlinks, references and fields, and database information).

More importantly, however, is that plaintiff's request be sufficiently specific and particular so as to avoid objection. Through experience, this is best accomplished by ensuring that the request is limited to the specific dates of service at issue in the litigation. A request for production of metadata might include the following:

"Please produce all data and all metadata from the defendants' electronic medical record system during all of the clinical encounters of the plaintiff with the defendants from [insert dates limited to alleged negligence at issue]

Produce all metadata reflecting any post-treatment/visit/encounter system access, data creation, alteration or other activity regarding the plaintiff's electronic chart that originated by Defendants from [insert dates limited to alleged negligence at issue]. This production shall include:

• The time that each and every access to the electronic medical record was initiated and terminated;
• The identity of each person that initiated and/or terminated the Electronic Medical Record access;
• A description of every transaction (event detail), if any, that occurred during each and every access to the plaintiff's electronic medical record."

Even where the plaintiff has narrowly tailored the request for the production of metadata, defense may still object. Given this, the importance of specificity and particularity in the plaintiff's request may be the difference between not being permitted to obtain metadata and obtaining said metadata through a successful motion to compel.

Other than an objection on the basis previously stated, it is possible that a health care provider object on the basis that the information sought is no longer available. While vast amounts of data are attainable, some EMR storage systems are deficient in that they do not have the capability or storage capacity to hold onto it indefinitely. That said, health care providers often institute data retention policies which are required to comply with federal and state regulations. Generally, federal law (i.e., HIPPA) requires that health care providers retain a patient's medical record for six years. In Pennsylvania, a patient's medical record is required, by law, to be retained for seven years. The applicability of metadata's inclusion as to data retention policies varies state to state. Generally, however, the duty to preserve electronically stored information extends to metadata. It is important to explore the loss of said metadata as it pertains intention of loss and the applicability of adverse inference and the imposition of sanctions against the offending party. Plaintiffs should not be dissuaded by initial objections; oftentimes there is a required back and forth process which results in agreement to the specific terms and language for the data being sought.

 Where a plaintiff has successfully obtained metadata, the question becomes what to do with it. The form in which metadata is produced varies and is based upon a multitude of factors including the EMR software which maintains the data. Moreover, the metadata itself is comprised of numerous pages, often containing symbols and designations that the average person is not be able to discern. In order to efficiently process and understand metadata, an information technology (IT) or computer forensics expert is often warranted to identify alterations in the medical record and substantiate the validity and materiality of those alterations. Additionally, where the request for production of metadata results in large-volume production, sorting through endless pages of metadata is time consuming and costly. Commercial software vendors are available to expedite this process, utilizing search features, and disregarding documents that contain no pertinent information.

Utilizing EMR metadata has and will continue to become a conventional practice in medical litigation. The breadth of available information can be overwhelming. As such, a precise understanding of the types of metadata as well as variabilities in EMR capabilities is necessary to make this advantageous to your practice. Effectively employing the aforementioned strategies may be the defining factor with regards to case theory, as it calls into question the integrity of statements presented by the defense.

Michael F. Barrett is the co-founder of Barrett DeAngelo, a personal injury boutique with a focus in medical malpractice.

Joseph G. DeAngelo is the co-founder of the firm, is a registered nurse and accomplished litigator with over a decade of experience handling catastrophic and complex litigation matters.

Terrance R. DeAngelo is an attorney with the firm. In addition to being an attorney, he is a registered nurse and former military combat veteran.