I never thought I’d would live long enough to convince myself to subscribe to a music streaming service like Spotify, Apple Music, Amazon Music Unlimited, etc. I am an old school tactile music collector. I like to own music, I like to read liner notes, and like to touch the CD, record, sleeves, and booklets. I have approximately 4000 CDs and a few hundred albums currently in my collection and I couldn’t imagine not having access to the physical media. A couple of things happened over the past year or so that changed my mind on all of that.
My 13 year old son, Caleb, discovered music and couldn’t get enough of it. His generation doesn’t care too much about owning or having the physicalness of the media. He took his own money and subscribed to the service. As we talked daily about music, artists, styles, and the many sub-genres of metal music his enthusiasm about Spotify shined through and the wide-variety and volume of music he had access to began to peak my interest a little. As he tried to convince me with the advantages of Spotify I challenged him to find some obscure stuff that I have in my collection, such as Tim Moore ‘High Contrast’, G.E. Smith ‘In the World’, and couple of other tests I threw at him. It passed my first set of tests. The second was usability. I experimented with the app on his devices and I was able to find, play, and playlist everything that was interesting for later listening. One of the areas that I thought might be missing was the ability just to “flip through” albums like I would in a record store for something that looked interesting. Caleb showed me how that would translate into Spotify language. It can be done easily, so now I have found things I never would have or hadn’t heard of until Spotify. If I love it, I go to Amazon, E-Bay, or the local record store and lay down some cash.
Another very unfortunate incident that I experienced (and still am experiencing as of April 2021) is that I used a streaming service that would stream my physically owned music to my devices. Murfie went out of business in November 2019 and I still am awaiting the return of my physical owned property (500 CDs). So much for having the best of both worlds. This will keep me away from companies that say they can stream, be a custodian of a collection, and operate a marketplace.
DO NOT EVER LET A SERVICE BE A CUSTODIAN OF YOUR PROPERTY
(it could be lost, damaged, and not cared for the way you would care for it)
There are now other ways to DIY stream your physical collection, such as with Apple’s iMatch (or whatever it goes by now) or by using a service like VOX Cloud.
I finally asked Caleb to fire up a Spotify Family Plan and get me setup. I am now a Spotify subscriber (via my son) and I absolutely love it.
I will still buy a lot of music at reputable shops and marketplaces (and store it in a place where I can easily get to it), but I will use Spotify as a way to discover more artists and buy those releases that need me to own them. In a way, I always felt like streaming was cheating a little bit. I know the artists are not paid what they should be paid, BUT I will not stop buying music just because I can stream music. In my case, more artists will get my money when I discover a new artists or releases I must own or when I come across something that belongs with its brothers and sisters in my collection.
Me being a Spotify customer is a WIN-WIN-WIN…a win for me as a gap filler, a win for the artists when I buy their releases at full price (that I would have done anyway and new ones that I end up loving), and for Spotify as a customer. If you were on the fence with regards to music streaming because you love to own music and actually have it to touch, I wouldn’t hesitate subscribing to a leading streaming service.
If you want some other options, check out these links…
YouTube video by Urban Knish regarding the comparison of Music Streaming Services:
I was a paying member/subscriber of Murfie, Inc. since since 2013 (Murfie was launched in 2011 by brilliant entrepreneurial spirit years before the onslaught of major streaming companies). Murfie was primarily a Compact Disc/music marketplace (buying, selling and trading music CDs) that offered music streaming services of this media and was headquartered in Madison, Wisconsin. Over the span of 6+ years I purchased 567 music CDs. That is a pretty significant purchase over six years. I am sure the legacy Murfie ownership and staff made money off of my purchases and membership fees during this time to put food on their table. I was a dedicated customer and huge fan of Murfie…and I believe it showed.
In November 2019 Murfie ceased operations. Once Murfie ceased operations a small group of people were hired to return CDs from the climate controlled warehouse in Wisconsin to their rightful owner, for a fee. This group was called MCRS (Murfie Customer Return Services, LLC). During this time, I indicated immediately to MCRS that I wanted my collection returned (packed and shipped) to my home. Upon the request of MCRS, I paid $300.00 for this service on December 13, 2019. “The MCRS Team” stated to me “you must have been active in the Marketplace” when engaging to have my property returned. I was told my collection of CDs would be packed and shipped to me soon and I was in the queue. During this time, many other customers received their property via MCRS. Before I could receive my collection (from MCRS) Murfie ownership changed hands in late January 2020 (on or about January 27). Murfie was acquired (by a company also doing business as ‘Crossies’). The current business address for Murfie is 2622 West 17 Street, Pine Bluff AR 71603.
I did not wish to continue with Murfie under new ownership realizing this type of service was less enticing for me in 2019 as it was in 2013. It was a good enough reason to get my property into my possession. I didn’t want to pay for the service/solution that would stream and house a music collection when there were other options available in 2019. There was nothing personal against anyone in this decision.
During this transition period to the new ownership of Murfie I inquired numerous times about my collection and was given many reasons why it was so difficult to get my collection returned to me in a timely fashion.
New Murfie Ownership was planning to move Murfie to Arkansas to their owned warehouse, but an **E-Mail dated 1/29/2020** from MCRS, that included New Murfie Ownership/John Fenley, stated the following:
“Crossies, LLC has just signed a deal with Murfie to acquire substantially all the assets of Murfie. [ Note: MCRS is not a party to that deal other than as a conduit to hand over the efforts it undertook to represent customer interests] Essentially Crossies has independently built a Murfie-like business. They operate a music locker for customers who want their collection safely stored but they also stream music from customer collections and they operate a buy/sell marketplace. All this is pretty much what Murfie did. For Crossies, Murfie as a major customer acquisition project and they very much want all former Murfie customers to become Crossies customers. As part of the deal Crossies has committed to re-enabling Murfie’s storage/hosting/ marketplace functions for all who become Crossies customers by transferring their collections to Crossies. Crossies will incorporate customer collections, history, credit balances and unused portions of customer subscriptions from the date Murfie shut down. Most significantly, Crossies is also committed to finish the job we started at MCRS.They will return collections to any customers who elect to receive returns under the same terms offered through MCRS. They will eventually move customer collections to their own secure facility but until the returns are completed for those so desiring, the discs will remain where they are here in Madison.”This is not what happened. Someone didn’t tell the truth here.
As stated above, “They [New Murfie Ownership/John Fenley] will eventually move customer collections to their own secure facility [Pine Bluff, Arkansas] but until the returns are completed for those so desiring, the discs will remain where they are here in Madison [Wisconsin].” This. did. not. happen.
On March 21, 2020 (prior to the Murfie move to Pine Bluff), I received 69 disks from my collection of 567 disks and was told the rest would need to occur after Murfie was moved. New Murfie Ownership/John Fenley was packing all of the Murfie compact discs into metal shipping containers and planning to leave Madison in April and move to Pine Bluff. I remained as patient as I could with my property in possession of New Murfie Ownership/John Fenley and the money spent to have my discs returned to me before the move from Madison to Pine Bluff. I made an assumption that once the discs arrived in Pine Bluff that my collection would be on its way in a short time frame. I understand that the Murfie collection of customer-owned and Murfie-owned compact discs was somewhere in the range of 500,000 – 1,000,000. These disks were moved in metal shipping containers from Madison, Wisconsin to Pine Bluff, Arkansas. Due to Covid-19, I understand that the moving of these shipping containers from Madison to Pine Bluff was delayed a month or so, which is very understandable and no big deal due to the pandemic. During this delay the CDs were housed outside of the Madison warehouse in metal shipping containers until businesses were allowed to resume operations to get these containers to Pine Bluff.
At some point in the May/June 2020 timeframe my compact disc collection (the remaining 498) was on the way from Madison, Wisconsin to Pine Bluff, Arkansas. A YouTube video on July 4, 2020 by New Murfie Ownership/John Fenley stated that the shipping containers arrived at the new Murfie owned location at 2622 West 17 Street, Pine Bluff AR 71603. At this time I believed that my compact disc collection would be unloaded, along with all of the others, and my discs would be returned to me within a reasonable timeframe (a month or so). Unfortunately, as of today (January 2021) to the best of my knowledge, the shipping containers that house the Compact Discs are still outside of the building at 2622 West 17 Street, Pine Bluff AR 71603. These containers have been pretty much sitting in the direct sunlight and climate for over six months at 2622 West 17 Street, Pine Bluff AR 71603.
If you are unaware, compact discs are very sensitive to heat over an extended period of time and I believe that my property (along with everyone else’s) has been degraded or worse, physically damaged, by remaining in metal shipping containers that were exposed to direct sunlight all summer long (roughly a couple of months in Madison and now over six months in Pine Bluff). Also, the liner notes/CD booklets are also vulnerable to the heat and moisture that would be in and around the shipping containers they have been stored in. Shipping containers have a tendency to sweat inside in high heat and humidity, unless they are well ventilated and maintain some sort of climate control (which I do not believe to be the case). This combination could potentially lead to the growth of mold spores on the organic/paper surfaces/CD booklets (to which I am also very sensitive). Mold/mold spores can also be very damaging to one’s health and damage the layers of the compact discs.
I estimate the 498 CDs to have an average replacement value of $5.00 each, which I would expect to pay on Amazon or at a local music store (the few that remain). This reimbursement/replacement value for my personal property would total $2,490.00 plus the $300.00 (from my family’s emergency fund) I paid in December 2019 to have my collection returned to me for a grand total of $2,790.00.
“I am not wealthy, so my Murfie story exacerbates the impact for me and my family.” – David Kearney
I was told on multiple occasions when I would be getting/or could expect my collection back since December 2019. The list of times I was told by MCRS and New Murfie Ownership/John Fenley is as follows:
December 22, 2019 From The MCRS (legacy Murfie related) Team – “Hi David, Thank for your patience. We know that your collection is on the current pick list but we have to check with the team to see how far along they are. We will get back to you”. “… a deal is in the works…”, “… Since we are well along the way with picking your collection I would guess that you will have your collection before any deal is struck [with new ownership].” – This is not what happened
January 30, 2020 From New Murfie Ownership/John Fenley – “We will do everything we possible to get you your CDs as quickly as we can”. “I am working as quickly as I can, and I will make sure you get what you need.” “If you need your discs back, we’ll get them back to you. I’m working with the landlord to restore access [to the Madison warehouse], then I’ll have the time I need to return discs for anyone that still wants them back. I understand that you are still anxious to have your discs back, and so far there is only one other customer that has been adamant about wanting their discs back, so you’ll either be first or second in line depending on what happens.” – This is not what happened
February 17, 2020 From New Murfie Ownership/John Fenley – “You’re still first or second in line, as I have not processed any returns yet. I have to figure out how things are organized here in order to even start.”
February 20, 2020 From New Murfie Ownership/John Fenley – “All your discs will be marked as return only, at my cost, before the move, but on my timeline.” “Your user will be deleted from the site, and you will receive a full refund.” This is not what happened
Finally, during an E-Mail exchange on February 25, 2020, New Murfie Ownership/John Fenley and I both agreed that New Murfie Ownership/John Fenley could pull all of my disks out of the boxes as New Murfie Ownership/John Fenley was staging them for the move to Arkansas. At this point, once again, I thought my entire collection would be on the way (How exciting is that!). – This is not what happened
March 21, 2020 – From me to New Murfie Ownership/John Fenley – “First 71 [ended up being 69] discs of my collection received today (just now).”
March 21, 2020 – From New Murfie Ownership/John Fenley – “The rest will have to be after the move, I’m sorry.”
Six Months Later with no E-Mail or other shipments or direct correspondence to me from New Murfie Ownership/John Fenley…
September 21, 2020 – From me to New Murfie Ownership/John Fenley – “It has been six months since I have received any more of my collection from you, so I thought I would check in. Please let me know when I can expect to receive the remainder of my collection (498 discs).”
September 21, 2020 – From New Murfie Ownership/John Fenley to me – “It’s been much more of a challenge here in Arkansas than I thought it would be. I still haven’t been able to break through a bunch of red tape from the city here. The CDs are here, but I can’t unload them to begin processing them. These problems also mean I can’t get the power turned on here. I regret this more than you know.”
September 21, 2020 – From me to New Murfie Ownership/John Fenley- “That doesn’t sound encouraging. I figured once you packed up in Madison and got to Pine Bluff that you would be golden with the warehouse you purchased. Unless you are getting close to a resolution with the city to begin processing the CDs I am open to other options, such as a reimbursement cost for the 498 discs and a refund of the shipping/CD return costs I paid in December so I can go re-buy these discs at another outlet. I don’t think this is an unreasonable request. Think about it.”
September 21, 2020 – From New Murfie Ownership/John Fenley to me – “I am getting close I hope.”
“I never asked for or wanted any of this.” – David Kearney
I have made numerous additional attempts to be made whole and have had E-Mail exchanges with New Murfie Ownership/John Fenley and other third-parties about the return of my property since Murfie was acquired. Although New Murfie Ownership/John Fenley did send me 69 discs (12% of the entire collection) prior to the move in March, the remainder of my CD collection that I own has been in shipping containers in Pine Bluff, Arkansas since at least July 4, 2020. From December 13, 2019, when I made my payment in full to have my collection returned, until present there seems to have always been some type of reason or excuse or whatever other more self-justifying term that is preferred as to why the delivery of service I paid for in 2019 could not be accomplished. It has now been 12 months and I still don’t have my property in my possession.
This debacle, for me, has now spanned across three years…2019, 2020, and 2021, when it should have been a month or two…maybe three months at the most. My property should have been returned no later than March 2020.
Not only that, I was insulted by New Murfie Ownership/John Fenley for only wanting what I was told and paid for…
“You are currently the most toxic customer I have.”** – New Murfie Ownership/John Fenley to David Kearney
“You are not worth my time.”** – New Murfie Ownership/John Fenley to David Kearney
Not a professional way to treat a paying customer. When a customer pays for a product or service that is agreed to by both parties it is expected that the product or service be delivered as agreed OR another solution to make the customer satisfied, at a minimum, is delivered. I never agreed to anything else other than what I paid for (I did not pay for endless delays and endless excuses) nor was a satisfactory alternative solution ever proposed by New Murfie Ownership/John Fenley.
**I NEVER insulted or verbally attacked anyone at Murfie (legacy or new) I only presented facts. Also, I have never told anyone at Murfie (legacy or new) one thing and then did another.
<As David Kearney shakes his head> “I cannot believe I am in this position.” – David Kearney
Had I known in 2013 what I know now, I would have never have joined Murfie. The money and time I have invested was not worth it and the way I have been treated over the past 18 months was definitely not worth it.
The Ending of Part I
Will David Kearney ever be made whole?
Will the saga end as promised?
Will a fair and equitable solution be spread across the land?
Will companies and owners of companies ever do what they say they will do when they say they will do it?
Find out in…
PART II: THE CONCLUSION OF THE MURFIE SAGA
STAY TUNED FOR THE CONCLUSION OF…
THE MURFIE SAGA
COMING SOON!
But still nothing as of…
January 1 – 2021
February 1 – 2021
March 1 – 2021
April 1 – 2021
May 1, 2021
June 1, 2021
July 1, 2021
August 1, 2021
September 1, 2021
October 1, 2021
November 1, 2021
December 1, 2021
January 1, 2022
February 1, 2022
March 1, 2022
April 1, 2022
May 1, 2022
June 1, 2022
July 1, 2022
August 1, 2022
September 1, 2022
October 1, 2022
November 1, 2022
December 1, 2022
January 1, 2023
February 1, 2023
March 1, 2023
April 1, 2023
May 1, 2023
June 1, 2023
July 1, 2023
August 1, 2023
September 1, 2023
October 1, 2023
November 1, 2023
December 1, 2023
January 1, 2024
February 1, 2024
March 1, 2024
April 1, 2024
May 1, 2024
**1601 days since I paid to get all of my property returned…still not all returned**
What a complete disappointment.
**With a very, very “Special Thanks” to Allen Dines (legacy Murfie), Cheryl Connor (MCRS), and ‘The New’ Mr. Murfie (new Murfie ownership/John Fenley) himself for making this all possible. None of what they told me was true. Is it the people? Is it the Company? Both?
Just a friendly reminder…
When a company tells YOU that YOU are not worth their time…BELIEVE IT!
If you want your property taken care of as you would take care it…this is not the company for you…move on.
If you want a company to take care of you as they promised they would…this is not the company for you…move on.
If you are at all questioning doing business with this company…go with your gut…move on.
However, if you like excuses, being belittled for insisting on what was told to you, enjoy being lied to, told that everything is always someone else’s fault, and generally like to gamble with your money and property…this is the company for you. Good Luck.
This article was published in the January/February 2018 edition of Project Manager Today. The article was authored by Carl Pritchard with contributions by David Kearney (me), Steven Levy, and Becky Winston. Project Management applied to the practice of law…Legal Project Management.
At the end of every year I look for opportunities to invest in myself to enhance my professional skills and increase my potential. It is said that the best investment that you can make is in yourself and I have lived by that mantra for most of my professional life. Over the years I have taken courses, studied for and earned technical and non-technical certifications, and joined a public speaking and leadership organization to become more valuable to my employer. I believe that it is important to constantly learn, regardless of whether or not your employer fully assists, partially supports, or doesn’t contribute at all to your professional improvement. Although it certainly helps if your employer provides financial support, time off, or some other form of return on investment, it shouldn’t be the single motivating factor for improving yourself with updated or new skills.
As 2015 winds down, I was evaluating educational opportunities for 2016, including a return to a traditional college setting, on-line college courses, and possibly attending a technical school to enhance my technical chops. I have recently been very interested in accounting and marketing topics (which I really haven’t seen since my traditional college days many years ago), so I was considering taking local accounting and marketing workshops and classes as they became available. With the high expense of college and not being settled on pursuing a PhD (I have played with this idea for many, many years), another Master’s Degree, and not necessarily set on which technical skills I wanted to chase, I came across Lynda.com in my research.
Lynda.com is an award-winning provider of educational materials, including the Lynda.com library with over 4,050 online courses (more than 301,000 video tutorials): An online education company offering thousands of video courses in software, creative, and business skills.
During my research I found that Lynda.com could help me pursue most of my educational goals, until I decide to pursue that PhD or second M.S. degree, for a price that was affordable and a resource I could take advantage of in my schedule. After hemming and hawing over this decision for a couple of weeks and trying, but unable, to find someone that utilized Lynda.com to help me make a decision, I received a promotional E-Mail to subscribe for a year to Lynda.com for $287.00 (regularly $359.88). This price certainly helped in my decision making process. I signed up. Within a few days I had taken a couple of courses, including accounting and marketing related courses. Additionally, I took a course on utilizing Garage Band (I am a wanna-be songwriter, rock star, musician). All of the courses I took, so far, were high quality, very useful, and I could apply something I learned in every course to my day-to-day professional life. If I would have purchased books or took a course/series of classes on these topics I would have certainly exceeded the $287.00 I spent on the annual Lynda.com membership…and I am only 8 classes and 2 weeks into my membership. In my case, Lynda.com is less than a dollar a day and as long as I regularly attend courses, Lynda.com will certainly pay for itself with my enhanced and new skills. If you are considering enhancing your current skills or learning new ones, I would encourage you to look at Lynda.com…it’s affordable, available online and offline, and can be utilized on your schedule and on your device. Additionally, at least half of the sessions included downloadable “hand-outs” and one included testing during the course sections to reinforce the topics covered. One cool feature that I really like, but is outside of the educational courses, is that it can be linked to your LinkedIn account and will display your course completions on your profile in the Certifications area…a great way to keep track of and show your accomplishments.
If nothing else, be sure to constantly invest in yourself to help you and your employer. You now know someone that has taken advantage of Lynda.com, so don’t feel as skeptical as I was initially by not knowing the quality of sessions available or not knowing anyone that utilized Lynda.com.
Listen to Karl Schieneman, Founder and President of Review Less, a predictive coding consultancy and document review company talk with Dave Kearney from Cohen and Grigsby and Nick Reizen from Xact Data Discovery about how law firms view outsourcing eDiscovery tasks like collection, processing, hosting and reviewing data to technology oriented vendors. It is definitely a growth trend and there are lots of views on this topic depending on which lawyer you talk to. Some firms want to own the EDRM model. Others want to outsource. And others consider eDiscovery a distraction to the practice of law so they ignore it.
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
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
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, 2014 – Cohen & 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.
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.
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
e-Discovery IN, e-Discovery OUT, or Somewhere IN-BETWEEN…
With the exponential increase in ESI collection sizes, the rapid changes in technology, the high expense of qualified personnel, and smaller firms with very conservative case budgets and perhaps limited resources in the area of e-Discovery, all but the largest of firms need to seriously consider a myriad of options when bringing e-Discovery processes in-house or outsourcing the function or designing a hybrid model. There is plenty of banter between highly regarded e-Discovery practitioners, including those from law firms as well as those within service providers arguing which approach is best. There is no one-size-fits-all approach. Firms need to take an individualized approach when designing e-Discovery processes, workflow, and technology solutions
Organizations need to face the possibility that they will be more closely examined & scrutinized on how their data management practices and e-Discovery processes and procedures are designed and followed. With many options available, now is the time to examine or re-examine how things are currently being done.
Most of us have seen either fits and starts, or the back-and-forth between outsourcing certain services and business processes within law firms, however, deciding on an e-Discovery model is not an easy one to make. Many factors need to be considered and areas understood before committing to any one departmental business model. You must understand where you are and what make sense for you and your firm.
Thinking along the lines of a business plan may be a very good starting point that includes projections, expectations, risk management, profit/loss/break-even, scheduling, capacity handling, workflow, and personnel. E-Discovery and aspects of Litigation Support is a business process and should be managed, operated, and supported as one.
Culture
Culture has a lot to do with how a firm operates…from a management, to a support, to an operational perspective, to what the firm decides to focus its resources on, such as technology spend, people spend, and other investments. Any kind of organizational change will bring some levels of discomfort, so knowing the culture will help determine the direction and who in the firm’s leadership might provide internal guidance and support.
Regardless of approach, firms need to establish or re-establish a foundation as to how they will handle and manage e-Discovery and, to a greater extent, support litigation. Litigation Support/e-Discovery needs are not “run of the mill”…the technology is different, the requirements are non-standard, and the urgency is heightened over most other practices. As you proceed with an analysis of e-Discovery models, you may want to include the following questions:
Will the firm culture support the commitment needed to build, run, and manage an e-Discovery/Litigation Support organization in-house?
Is the firm in a position to invest significantly in an area that is not a core competency?
How will the firm tolerate the learning curve and operational shift that will inevitably be encountered when building an internal department or outsourcing the function?
Is there commitment from firm management, practice groups, and information technology (especially when building the technology infrastructure in-house)?
Organizational Maturity
If the firm is mature, there is probably a well-defined understanding of technology, people, and overall processes related to the aspects of supporting litigation. If not, the process to determine a more focused strategy might help, including how services are delivered and sustained.
An example to consider when evaluating an e-Discovery strategy is that there are times when additional help is needed by using additional technology, more personnel, or outsourcing the entire project to a 3rd party that has the bandwidth to handle the complexities. Sometimes due to a lack of understanding projects must be or are forced to be managed in-house with limited resources to the detriment of the client, firm, and case. Consider the following questions when analyzing the overall firm’s maturity regarding e-Discovery:
Are there documented intake procedures?
Is there a size limit, monetary value, or deadline threshold that dictates when and how an e-Discovery project is handled?
Is data chain of custody documented?
Is evidence physically secured?
Is having an in-house e-Discovery service a strategic advantage to the firm or section?
Are the services provided value added, break-even, or profit driven?
Value added e-Discovery services may not be sustainable in the long term due to the internal costs that are absorbed. A profit driven model may become a detriment because a firm may not be able to be truly competitive with service providers.
Technology
Providing e-Discovery/Litigation Support services typically requires a significant investment over and above typical technology infrastructure. Often times, bandwidth, desktop PCs, servers, and processing devices have greater specifications than might be typical for an organization’s IT department & user-base. Frequently, software needs include review, processing, and culling tools. Litigation discovery data can increase exponentially, without too much advanced warning, so scalability also needs to be part of the infrastructure plan
Many technology departments are already operating lean, so having a technology team/I.T. Department responsible for handling the demands of litigation and all of the moving parts may be very difficult. Analyze the technology aspects of an e-Discovery model by asking the following:
What kind of technical infrastructure will the firm support?
Is the current network bandwidth sufficient to handle the network traffic between locations?
Is the solution scalable?
How scalable is the software?
What software application(s) will the firm support?
Is the software under regular development to include the latest bug fixes and technological advancements?
Does the software developer have the infrastructure to handle support requests, code changes/feature requests, and consulting?
Data sizes explode without warning, so is there a plan to expeditiously handle the needs?
What tools are needed for the firm’s common cases, such as processing, culling, clustering, and technology assisted review?
Disk space, servers, backup technology, disaster recovery locations also need to support the amount of data that you may house.The technology infrastructure costs to support a robust application suite and usage demands requires a significant monetary investment.
Data Security
If non-firm personnel need access to the case data (co-counsel, experts, contract attorneys), you can certainly export the data, databases, images, etc. for the 3rd parties to import into their platform, but in this instance, there would be various versions of the data making it nearly impossible to keep the various versions of the data synchronized. So, it certainly makes sense (assuming this is agreed to by all parties) to give outside organizations access to the same data. Many applications do have the ability to granularly assign levels of security so only data that you want certain parties to view or edit can be assigned.
If data is hosted in-house on a platform that can be accessed by external sources:
Does your firm have sufficient security protocols in place to ensure that data is secure?
Is the data secured among other different case related data?
Is the security protocol documented? Can it withstand an audit? Can it withstand an attempted security event?
People
As it has been said, good people are the heart of any great organization. If a firm is considering building some level of expertise in-house, the following questions need to thoroughly vetted with regards to the proper needs assessment, acquisition, selection, on-boarding, and retention of personnel.
What positions within the firm will be designated for Litigation Support/e Discovery?
What department will the position(s) report? IT, Litigation, Practice Support, KM, etc.?
How many personnel are needed?
What is the skill set, education, & experience required?
What is the compensation of the position(s)?
Does the environment support the salaries needed to keep qualified personnel interested, engaged, and dedicated?
Does anyone currently on staff, such as paralegals, have the required skills to transition to an e-Discovery, more technical, role?
Will the position(s) have a backup to accommodate vacations and peak workloads?
Will the position(s) be able to manage the workflow with vendors due to technical complexity, volume, or extremely tight deadlines?
Is there anyone willing at the senior management level to support the e- Discovery position(s)?
How will non-business hours support be addressed?
How will PTO/vacation coverage be addressed?
How will quality control be handled (1 person can’t effectively Q.C. their own work)?
Is there a defined Service Level Agreement?
Workflow and Process:
The following are workflow components that need to be thought through and decided upon:
Intake – Does the litigation and litigation support team know the details of an incoming case? New matter tracking and alerts based on certain thresholds can be very helpful, such as value of case, amount of discovery anticipated, type of case, what attorneys/partners have been assigned to the case…originating attorney, etc.
Consulting – What consulting is available, internal or external, with regards to best practices & approaches to preservation, collection, pre-culling, processing, review and production? Who it is done by?
Solution Evaluation & Implementation – How are various solutions evaluated for each matter/case? How are they weighted? Is it the vendor that brings you candy bars?
Project Management – Are there standard PM practices in place? How are projects initiated, planned, executed, monitored & controlled, and finally closed. Is all project knowledge managed in a silo? Is this knowledge/lessons learned held tightly with one individual? Using only one common project management framework isn’t necessarily the answer, but adopting a project management toolkit that captures the project life cycle is always a good approach
Tracking of Requests – Are requests tracked to import data, produce documents, burn CDs, alter the database schema, endorse discovery data? Or, is it just walking down the hall and giving a disk to an individual and saying “deal with this”. Tracking of requests are also a very good way to document Chain of Custody.
Tracking of Discovery – Is there a protocol as to what happens with discovery when received and when it is handled? Where does it go?
Quality Control – Are there Quality Control practices in place and a way to address any errors, whether it be for image conversion or inaccessible documents (legacy, password protected, proprietary), etc.
Productions – Although litigation sometimes happens quicker than the speed of light, does your organization have the manpower and production capabilities to handle aggressive deadlines?
Archival, Closure, Destruction – Is there a closure process implemented when a case settles, a practice to archival case data for future use, a practice to destroy or return data to the client? If you are a law firm are you following the data remediation/retention policies of you client with regards to the discovery in your possession?
Ultimately, the firm needs to be protected by implementing repeatable and sound processes. Firms may not be equipped, or even interested, in designing and supporting a robust platform that is needed for maintaining internal resources for parts or all of the components of the e-Discovery process.
In some instances it may make a lot of sense to outsource the entire technology infrastructure and services needed to support applications, servers, backups, software and hardware upgrades, storage space management, processing and hosting data, case consulting, and 24 X 7 X 365 availability and support. In other instances it may make sense to only outsource some components of the e-Discovery process.
All firms that practice litigation must have some sort of organization around handling e-Discovery. Software alone or a reactive plan will not position the firm to respond rapidly, consistently, or effectively to firm and case needs.
There is no perfect solution, either internally or outsourced, so keep in mind that no one solution is going to be a panacea over the other, but it is how the design of the solution is modeled and maintained that will make or break the initiative.
Cohen & Grigsby E-Discovery Professional is Awarded CEDS Certification After Passing Rigorous Examination
David Kearney of Cohen & Grigsby based in Pittsburgh, Pennsylvania is among the select maiden group of e-discovery professionals to pass the rigorous Certified E-Discovery Specialists certification examination. David has now earned the right to use the prestigious designation, CEDS, as a Certified E-Discovery Specialist.
The CEDS credential is earned by individuals who pass the rigorous four-hour examination that provides a tough and objective measure of mastery of the challenging field of e-discovery. The certification program is administered by the Association of Certified E-Discovery Specialists (ACEDS), the premier membership organization of professionals in the field worldwide. Since the exam was first offered in November 2010, professionals in the United States, Canada, the UK, South Korea, Germany and China have earned the CEDS certification.
The CEDS certification is compelling evidence that designees are competent and knowledgeable in e-discovery regardless of their professional specialization—whether they are lawyers, litigation support staff, records managers, information technology (IT) specialists, technology officials, court personnel, paralegals or consultants. The credential is an assurance to employers, colleagues and clients that the CEDS-certified professional is serious about efficiency, cost-effectiveness, and risk reduction in all phases of e-discovery.
CEDS designation is powerful evidence of specialized expertise
“I don’t know what took so long for a certification like CEDS to come along. There needed to be a strong standard of competence. The exam was rigorous and thorough. You don’t just pay money and pass the test. This helps solve my hiring problems.” said Alvin Lindsay, a partner at the international law firm, Hogan Lovells, in Miami, who chairs the ACEDS Advisory Board and is often quoted in the media in matters regarding technology and litigation and electronic evidence…
CEDS exam is offered at 560 worldwide secure testing centers
The proctored CEDS certification exam is offered at 560 secure ACEDS-Kryterion Testing Centers worldwide, including 350 in the United States and 40 in Canada. The exam was assembled over eight months by a team of 40 leading e-discovery professionals under the guidance of the ACEDS management and an independent psychometric firm, Kryterion, to ensure the CEDS exam was technically sound and legally defensible. The computer-based examination has 145 items, and CEDS candidates receive results upon completion.
In April 2011 ACEDS began offering an online, on-demand CEDS Examination Preparation Seminar at its website at ACEDS.org.
For more information on CEDS certification, including how to apply and register for the exam, contact Member Services by email at memberservices@ACEDS.org or by telephone at 786-517-2701.
David J. Kearney 