Hinshaw partner Steve Puiszis authors ediscovery chapter in healthcare risk management treatise

The American Health Lawyers Association has published the first edition of its Enterprise Risk Management Handbook for Healthcare Entities. The work is a comprehensive treatise to assist healthcare entities implement an enterprise risk management system.

There is no doubt that ediscovery readiness is a critical feature of any enterprise risk management plan. Hinshaw partner and Practical Ediscovery editor-in-chief Steve Puiszis has written a chapter on that topic which is included in the book. The chapter addresses the substance of the federal rules pertaining to ediscovery and also discusses particular steps that healthcare entities can take to make electronic discovery issues part of their overall risk management plan.

Click here for more information.

Requesting party permitted to see only metadata and not substance of documents

Kravetz v. Paul Revere Life Insurance Co., 2009 WL 1639736 (D.Ariz. June 11, 2009)

Plaintiff sought disability benefits from defendant insurance companies, but the insurance companies denied the claim. So plaintiff sued. The insurance companies sought discovery of the hard drives and storage media plaintiff had used for business purposes.

After plaintiff objected to this discovery, defendants moved to compel. The court granted the motion, but added an unusual twist — it allowed the defendants to see the metadata from documents the plaintiff had worked on but prohibited review of the documents themselves.

The court found that the insurance companies “need not and may not review the substance of documents on plaintiffs’ hard drives and media devices.” Accordingly, the order permitted a third party consultant “only [to] extract metadata and other necessary electronic information regarding the amount of time spent on documents.”

While metadata may often be irrelevant to the claims or defenses in a matter, the court in this case recognized a limited purpose for which it may properly be discovered. The insurance company sought the information merely to ascertain how much time the plaintiff spent working on the computer. The actual content of the documents was apparently unrelated to the disability claims.

The plaintiff had challenged the metadata’s ability to show the number of hours he worked on the computer. But siding with the notion of broad discovery, the court advised that the plaintiff would be free to challenge the weight the information should be given at trial.

Electronic discovery costs recoverable by a prevailing party under 28 U.S.C. §1920

Kellogg Brown & Root, Intern., Inc. v. Altanmia Commercial Mktg. Co. W.L.L., 2009 WL 1457632 (S.D. Tex. May 26, 2009)

In one of our prior posts, we discussed the types of ediscovery costs that a prevailing party can recover under Fed. R. Civ. P. 54. The Kellogg Brown & Root (“KBR”) decision addresses that issue. Much of the ediscovery costs which the prevailing party in KBR sought to recover were incurred either before the opposing party issued its discovery requests or after the court entered summary judgment for the prevailing party. Thus, Kellogg Brown, as the prevailing party, could not demonstrate that those ediscovery costs were “necessarily obtained for use in the case.”

The KBR decision was written by the highly respected Judge Lee Rosenthal, who chairs the Judicial Conference Committee on Rules of Practice and Procedure. In KBR, Judge Rosenthal comprehensively reviews the relevant decisions which have addressed the recovery of ediscovery costs under 28 U.S.C. §1920, and identifies a “circuit split” on one point directly relevant to the types of costs that may be recovered under §1920(4). Accordingly, KBR is a decision well worth your time to review when addressing the issue of recoverable ediscovery costs.

Read the rest of this entry »