David J. Kearney

February 11, 2014

Podcast: E-Discovery in Healthcare: What Legal and Healthcare Professionals Need to Know

Filed under: e-Discovery,Litigation Support,Management,Project Management,Technology — David J. Kearney @ 5:11 pm

Consider This – David Kearney – 11.06.13
“E-Discovery in Healthcare: What Legal and Healthcare Professionals Need to Know”
Host: Bridget Novak
Guests: David Kearney, Director of Technology Services, Cohen & Grigsby, P.C.
Topic: e-Discovery in Healthcare
Discussion: Requirements for managing health related documents and records; the need for healthcare workers need to become much more familiar with the litigation process and the role the legal industry plays within the process.

“Healthcare organizations should identify the components of their legal health records and how they will ensure the legal integrity of the health record and its various components are assembled and maintained.

It’s the organization providing the care that says for every patient we are capturing this information that makes up the legal health record for our organization, so there is a consistent record captured for that organization.

It serves as a method of communication among healthcare providers caring for a patient and it also provides supporting documentation for reimbursement of services provided to that patient.”
– David Kearney

Podcast:  https://app.box.com/s/pvsxu58myx2s3fem7btr

Consider This – David Kearney

This podcast was first published at The Organization of Legal Professionals and is available here with permission.  For more information about The Organization of Legal Professionals, visit their website at http://www.theolp.org and visit OLP’s “Consider This” Podcasts hosted by Bridgett Novak at http://www.theolp.org/Default.aspx?pageId=1701543


February 4, 2014

Cohen & Grigsby P.C. selects Kroll Ontrack as its ediscovery portfolio partner

Filed under: e-Discovery,Litigation Support,Management,Project Management,Technology — David J. Kearney @ 12:41 pm

Cohen & Grigsby P.C. selects Kroll Ontrack as its ediscovery portfolio partner  

Firm adopts repeatable ediscovery approach to give clients process consistency, cost predictability and better overall case outcomes

MINNEAPOLIS – Feb. 4, 2014Cohen & Grigsby, a law firm with headquarters in Pittsburgh, PA, and an office in Naples, FL, and Kroll Ontrack today announced Cohen & Grigsby selected Kroll Ontrack as its preferred ediscovery technology and services provider. Leveraging Kroll Ontrack for its portfolio of ediscovery matters provides Cohen & Grigsby’s litigation and labor and employment departments with the benefit of a repeatable approach to ediscovery, cost predictability and Kroll Ontrack’s latest ediscovery.com technology platform to both review and project manage its matters.

“With increasingly complex legal requirements and growing volumes of ESI, ediscovery stakes are high. A smart approach is required,” said Partner, Anthony Cillo, Chair of Cohen & Grigsby’s Litigation Department. “That smart approach includes Cohen & Grigsby focusing on advocacy and managing the merits of the case, while partnering with an industry leader such as Kroll Ontrack to minimize the ediscovery risks and costs for the corporations we represent. We are not only minimizing ediscovery risks, but providing our clients with world-class ediscovery solutions at predictable costs.”

In addition, Cohen & Grigsby Director of Technology Services David Kearney added, “Kroll Ontrack and its ediscovery.com platform rose to the top of our partner selection process because they offered a standardized approach to ediscovery coupled with industry-leading predictive coding technology at a predictable price.”

“Kroll Ontrack is excited to partner with progressive firms like Cohen & Grigsby that recognize the value of a repeatable approach to ediscovery,” said Dean Hager, president and CEO, Kroll Ontrack. “By selecting our portfolio solution, Cohen & Grigsby now has access to the industry’s most powerful processing and review technology, the industry’s first tool to manage ediscovery as a portfolio, a dedicated portfolio case management team, and a pricing approach that encompasses a breakthrough concept of reusable capacity such that as additional projects arise, ediscovery costs remain the same.”

As part of the portfolio solution, Cohen & Grigsby will be taking advantage of Kroll Ontrack’s ediscovery.com platform, which was announced in October 2013. Ediscovery.com encompasses several products, including ediscovery.com Manage, which is the industry’s first solution for collaboratively managing ediscovery as a portfolio from any device, and ediscovery.com Review, which is a single tool that delivers unprecedented control of data volume and costs across early data assessment, analysis, review and production.

For more information on these products, visit: www.ediscovery.com.

About Kroll Ontrack Inc.
Kroll Ontrack provides technology-driven services and software to help legal, corporate and government entities as well as consumers manage, recover, search, analyze, and produce data efficiently and cost-effectively. In addition to its award-winning suite of software, Kroll Ontrack provides data recovery, data destruction, electronic discovery and document review. For more information about Kroll Ontrack and its offerings please visit: www.ediscovery.com or follow @KrollOntrack on Twitter.

About Cohen & Grigsby P.C.
Cohen & Grigsby represents clients across the spectrum of commercial and business disputes, including: business breakups, insurance coverage disputes, antitrust claims, theft of trade secret and non-compete agreements, securities law violations, accounting firm defense and shareholder issues.  Cohen & Grigsby results-oriented litigators have years of hands-on experience trying cases in the courtroom and before administrative bodies and arbitration panels. Our labor & employment attorneys defend employers in all types of cases, including discrimination, retaliation, harassment, wrongful discharge, wage and hour violations, defamation and breach of contract. Please visit www.cohenlaw.com.


Media Contact: Kaitlin Shinkle, 952-516-3581, kshinkle@krollontrack.com


February 1, 2014

How to Prepare the Record for an E-Discovery Request

Filed under: e-Discovery,Litigation Support,Management,Project Management,Technology — David J. Kearney @ 9:13 pm

Journal of AHIMA February 14

How to Prepare the Record for an E-Discovery Request
By David Kearney

AT A MINIMUM healthcare organizations should identify the components of their legal health record. The legal health record is a consistent declaration of what patient care information is maintained within an organization and what information would be released during a legal or investigatory event. It is the key to the consistency of patient health information across a healthcare organization. Consistent patient care information is the cornerstone of being able to produce this information completely and accurately upon request during an event without prejudice for business or evidentiary purposes.

Health information management (HIM) professionals are typically the custodians of health records and are responsible for the care, custody, and control of the records. HIM serves as a key component in knowing how health records are created, maintained, and used in the day-to-day care setting. It is vital that HIM professionals have a complete understanding of the official health record and its potential requirements. As more providers use electronic health records and manage health information electronically, HIM professionals must become familiar with e-discovery processes and requirements.

The Role of the HIM Professional
A recent requirement for health records that health information managers need to be well versed on is how these records are compiled and controlled as it relates to the litigation lifecycle or an investigation. HIM professionals need to be able to communicate with in-house attorneys, outside counsel, and even perhaps opposing counsel regarding the legal health record contents and the attestation of patient records for evidentiary purposes during a litigation or investigatory event.

Since most health records are now electronic, it is important that HIM professionals be aware of how electronic records are preserved, collected, processed, and presented during a lawsuit.  Electronic evidence has dictated guidelines that must be followed during the discovery process as prescribed by the Federal Rules of Civil Procedures—procedures that govern civil procedures in the US federal courts—and it is equally important to expect at least the same amount of rigor to be applied to electronic
evidence at the state or jurisdictional level.

The Federal Rules of Civil Procedure, specifically rules 26–37, provide guidelines to the discovery process of evidence, including duties of disclosure, topics of discussion between the parties involved, and how documents are to be produced.

Another great tool, while not mandated by court rules, is the Electronic Discovery Reference Model, also known as the EDRM (available at http://www.edrm.net). The EDRM depicts the flow and series of phases that electronic evidence traverses during the litigation process, including how the information is identified, preserved, collected, processed, reviewed, and produced.

First and foremost, data governance is addressed at the far left side of the EDRM workflow, as information management, which underscores the importance of properly managing data for the litigation/e-discovery process. This is the starting point where healthcare organizations have an opportunity to get it right and to be in an ideal position for any anticipated events.  This is also the initial phase where many issues can arise during discovery proceedings, positioning an organization at a disadvantage from the onset of any data retrieval exercise.

Know the What and Where of Your Data

Healthcare organizations must know what information they have, where data is located, the duration data must be retained, and what information is needed to respond to a legal, investigatory, or other event. Managing organizational information with sound policy and processes reduces costs, mitigates risk, and protects the organization’s personnel, patients, and revenue.

A second component to a litigation or investigatory event, once sound data governance strategies have been implemented, is the ability of health information management professionals to respond to an event or an anticipated event. It is vital that HIM professionals have a well-developed readiness plan to respond to a legal hold or preservation order of relevant information that is specific to a matter.

To avoid a claim of spoliation— the intentional or negligent hiding, changing, or destruction of relevant materials—healthcare organizations should have a strategy that facilitates preservation of potential evidence once relevant data has been identified. Depending on how information is stored and collected within the healthcare setting and how this information is managed and maintained, it will be necessary to plan on this information being used as evidence.

As such, health information managers must not only be intimately familiar with their organization’s electronic health record (EHR) systems, but how these systems can produce the
information in a legally sound manner. Preserving the data as it is maintained in the normal course of business, along with all of the detailed metadata contained within the EHR, is a must to ensure complete and accurate information. Doing this is a much more intricate process than typical metadata one finds in word processing, spreadsheet, and e-mail documents.

EHR systems were not necessarily designed with litigation in mind, so it is critical that HIM professionals become familiar with how data can and cannot be provided during an event and how that data is managed throughout the lifecycle of litigation or an investigation.

One of the other critical components necessary during an event is a data source map, or an information management plan, that for litigation purposes identifies expert users or custodians of the data, who knows what about the data, how it is maintained, and any associated data retention policies.

The process of event preparedness happens long before the triggers that may lead to a litigation or investigatory event. It requires organizations to have an understanding of responsibilities and to define policies for regulation and business needs. Policies and procedures that help actively manage data are not just an IT or HIM “problem” but a collaborative business initiative where organizations must develop a well-defined structure and process to understand, manage, and prepare for litigation.

Legal counsel, HIM professionals, clinicians, information technology professionals, and C-suite professionals should work together to successfully manage information for the ediscovery process, implement a litigation response plan, and develop or update organizational policies.

Technology alone cannot replace the joint effort needed to develop sound processes. The process and technology needs to be defined, adopted, and audited. Collaboration and coordination must exist to tell the story of the data from all stakeholder perspectives to define the policies, procedures, and practices, including regular auditing of such routines. People, processes, and technology are key to information management and event preparedness.

Credit Given for Showing Your Work

The courts are not out to get anyone, but rather look for a reasonable, well documented, thought out, and consistent approach to information governance. It is very similar to math
class in grade school where the teacher always wanted to see one’s work demonstrated, or at least have an idea of the level of logic a student used to answer a question. This can help justify when questioned whether an approach to legal compliance was at least reasonable. Credit may be given even though the resulting answer may have been unsatisfactory, or if a good faith effort was used to manage and produce data.

Conversely, if an organization doesn’t have policies and plans in place it risks exorbitant costs associated with additional technology and personnel needed to store unmanaged data, as well as heightened risks of compliance and regulatory violations and court-imposed sanctions.

Planning and readiness for litigation or investigation is another piece of the information governance puzzle, which is much like any business continuity and disaster recovery plans, with an understanding of data, where it is located, how data is managed, event response, and regular testing of processes and procedures for when an event occurs. Health information managers carry the responsibility to ensure that the data being managed maintains its integrity during a litigation or investigatory event.

David Kearney (DKearney@cohenlaw.com) is director of technology services at Cohen & Grigsby, based in Pittsburgh, PA.

This article was first published in the Journal of AHIMA February 2014 issue and is reprinted here with permission.  For more information about the Journal of AHIMA, visit their website at http://journal.ahima.org/ and the AHIMA website at http://www.ahima.org

Copyright © 2014 American Health Information Management Association


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