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Alextronic Discovery
An Electronic Discovery Blog covering News, Articles
and Thoughts for the Legal and Corporate Community Author: Alexander H. Lubarsky, LL.M., Esq. - alubarsky@enterusa.com - Tel. (415) 533-4166 OR 800-375-4222 THIS BLAWG IS NOT AFFILIATED WITH THE WEB SITES WWW.DISCOVERYRESOURCES.ORG OR WWW.DISCOVERYRESOURCES.COM


Friday, June 25, 2004

With HIPPA - The Kids are Alright  

6.25.04

Sarbanes-Oxley is sort of like the Who while Hippa can be analogized to the Clash.

During my freshman year in high school, The Who embarked on its first of twenty or so "farewell" or "final" tours. Today, now that John Entwistle and Keith Moon have dearly departed, Roger and Pete still seem to sell to an increasingly gullible public the "final tour" concept. We did get fooled again... and again. When will we ever catch on? Perhaps we WANT to believe that the band will just fade away... Pete certainly has not lived up to his promise to die before he gets old.

Oh, so where was I? Yeah, freshman year - Who concert. My friends and I crammed in a Bart train to the Oakland Stadium and meandered through the mullet hairdo clad crowds amidst hip flasks and pot smoke to secretly revel in the opening act. In the eighties, no one admitted that they would go to a show for the opening act. Today, however, it seems to be that you are easily spotted for the nerd that you are if you reveal that you are interested in anything but an opening act. But then again, this was the eighties. Reagan was in office. We wanted the nuclear warheads, not the pea shooters. I'm just talkin' about my generation here...

So when the Clash took the stage and Joe Strummer (may he rest in peace) belted out his trademark bark during an opening rendition of London Calling, we were besides ourselves. By the time the Who came on, we were day dreaming about our high scores on Ms. Pac Man.

Sarb-Ox, as it has grown to be affectionately called these days, has captured the minds and hearts of the EDD heads out there. And for good reason, this legislation which exponentially steps up the need for financial and corporate compliance and accountability (and hence more extensive data retention and tracking and hence more e-discovery when litigation rears its perty lil' head) is no fluffy statutory subsection here. The audits, investigations, accountability and disciplinary "teeth" that Sarb-Ox brings to the table will forever change the way this nation churns and will hopefully reduce the chances of another Enron/WorldCom/Global Crossing/Orange County...(you can stop me any time there, fellas) debacle.

But lost in the frenzy of Sarb-Ox just as the semi-sober head bangers were hopelessly mesmerized by Pete's rotating, outstretched strumming arm is HIPPA (Health Insurance Portability and Accountability Act of 1996). HIPPA, like The Clash, deserve no less respect than does Sarb-Ox. HIPPA can really rock the Kasbah.

Like Sarb-Ox, HIPPA is all about accountability. It aims to promote privacy and responsibility in the health care arena. Sarb-Ox says no more swindling grandpa out of his pension and HIPPA slaps you upside your head if you go about broadcasting which denture cream grandma uses. Before HIPPA, doctors worked like lawyers. They used a system of stare decisis. When Aunt Martha in Arkansas needed hip replacement, the hospital went ahead and contacted Aunt Bertha's hospital in Oregon who just provided her with a snazzy joint replacement of her own to pull those records so that the wheel could be reinvented. The problem was, of course, Aunt Bertha didn't know nor would she have been ecstatic to learn that her hospital was sending her records all over to be used as templates. HIPPA ended this practice - a boon for patient's privacy rights and a blow to the laid back protocol of just working from blueprints.

Now, thanks to HIPPA constitutionally based invasion of privacy actions will be on the rise. As HIPPA requires extensive documentation of the steps that any health care provider takes to ensure compliance - this is a double whammy for the ED world.

Further, HIPPA also protects health insurance coverage for workers and their dependents. It provides for coverage of pre-existing conditions when changing medical plans or going to COBRA - another discovery treasure trove when the bad faith insurance actions hit.

Finally, HIPPA imposes civil and CRIMINAL penalties for privacy violations. This is forcing hospitals and insurance companies across the nation to finally get serious about compliance and electronic records management. I can see for miles and miles will be the tune that these entities must sing.... anything less may bring about a fate similar to that suffered by Boris the Spider (if you don't get it, Google it... trust me it fits).

Litigation being brought by patients recently has involved matters where a health care professional has breached HIPPA by failing to provide a privacy log indicating all steps covered t protect the medical privacy of the patient. As these records are invariably kept (or not kept) in electronic format, the ED vendors of the world now have a true role to play within the medical world when med-mal suits were previously the only vehicle that would bridge these two disparate planets.

The ED professional can now help Dr. Jimmy streamline his review of electronic privilege laws to stave off that nagging lawsuit and his patient can sleep well at night knowing her privacy is protected by HIPPA. Everyone wins. I call that a bargain... the best I've ever had.

posted by Alexander | 12:42 AM


Tuesday, June 22, 2004

Back in the Saddle  

6.22.2004

There is not much ED going on in the Dordogne Valley region of Southern France. The most electronic discovery that I experienced there was the tuning of the radio on my rented Peugeot van as I sailed through endless rows of bright green vineyards while chewing on brie and baguettes...

It's tough to be home.

So after I polished off the third bottle of Bordeaux that was supposed to be a gift for my assistant, Julia (sorry Julia, do you drink Perrier by chance?). I do what comes naturally under the euphoric spell of some red wine... I turned down the lights, lit some candles, sauntered to my bedroom and... surfed the web for ED resources.
What else would I possibly want to do?

I gravitated towards http://www.merresource.com/

The folks that run this site (Cohasset Associates out of Chicago) do a splendid job of providing useful information that extends far beyond traditional ED. The site is devoted to the art of managing electronic records both before, during and after litigation. It is an absolute bible for any records professional that needs to keep his or her enterprise compliant, efficient and at the same time with an eye on the minimilization of chaos when (notice that I didn't say "if") litigation rears its ugly head.

The site contains, among other resources:

. The laws from all 50 states relating to storing records on
magnetic media, optical disk and microfilm all in an easily
browsed and fully searchable format. Each listing includes a
legal analysis providing additional insight.

. A database of relevant case law organized into distinct
and easily navigable categories, and including relevant
passages highlighted by an expert attorney.

. Access to a library of hundreds of relevant articles,
reports and white papers on a variety of subjects, all
organized into logical topic-related categories.

. Post questions, receive answers, and help others in our discussion
forums – each monitored by an industry expert in the field – while
building your personal network of MER professionals.

. A subscription to Pike & Fischer’s Digital Discovery & e-Evidence
Newsletter (a $545 value in its own right) presented to
you in both html and PDF format.

. An online dictionary of over 15,000 IT-related technical
terms with over 2,500 pictures charts and diagrams to help
demystify communications with your IT department.

A collection of over 30 of the best of the best MER Conference
Presentations with the PowerPoint presentations linked
to the sound and presented to you in streaming format
over the web – no plug-in required. (Selfish note: I hear that Yours
Truly will soon boast his very own .ppt in this "best of the best" arena).

Now before you go goo-goo here, there is one caveat. This is NOT a free site. Not a surprise given the perks it boasts. But for $1,800 per year it truly is a bargain. Better yet, trial subscriptions can be negotiated before one takes the plunge. Also, even without a subscription, a tremendous wealth of very useful "teaser" materials are available at no cost. For example, Brad Hulbert, a trial attorney for McDonell, Hoehnen et al presents a terrific presentation entitled "As a Trial Attorney, How Would I Attack the Way You Manage Your Electronic Records Both Before and After the Trial?" The presentation boasts audio as well as excellent slides.


Case law is extensive and not only alphabetized by case name in a virtual rolodex, but the critical passages in opinions relating to ED and electronic records management standards are conveniently highlighted for the reader. This is not a freebie and only available to subscribers.

Of course, the most beneficial free site in the ED realm is www.discoveryresources.org as evidenced by its ranking just behind Lexis/Nexis and Findlaw in the recent TechnoLawyer awards last month. Discoveryresources.org is optimal for the litigation professional in the throws of discovery. Merresource.com, on the other hand, is ideal as a supplement to discoveryresources.org in that it provides the knowledge and guidance needed to help the records professional gear up for litigation and then wind back down upon its conclusion.

Discussion boards and educational forums are available at the site and archives of the well received Digital Discovery and E-evidence Newsletter (to which I have contributed)in the past are made available for users.

Of course, the site links to other excellent resources such as the Sedona Principles site.

This resource has me so excited, that lately my yearnings for duck pate, red wines and croissants have been fading as they are slowly being replaced with records management surveys and visions of redundant backup servers... Get me back to Europe.


posted by Alexander | 11:43 PM

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