Opinion: Are you prepared for e-disclosure?
Whether known as disclosure in the UK and Australia or discovery in the US, the process is identical, referring to a situation where evidence is shared between parties to a lawsuit before the actual trial begins.
In an internet age, a new process is necessary to perform disclosure tasks for digital information that is stored in many locations (back-ups or on the cloud, for example) or involve multiple formats or recipients.
Cue the rise of e-disclosure into a billion-dollar industry, where digital information such as emails, chat messages, medical records and other documents are presented for review in a human-readable format.
Why should we care? Unfortunately, if a practice is requested to provide data relevant to a court case, even if not directly involved, it must be produced. In such a case, the costs involved in mining data are often substantial, sometimes in the region of hundreds of thousands of dollars for complex requests.
Luckily, unlike the US, Australians have the opportunity to estimate the costs for recovering data and can avoid data forensics if the costs outweigh the benefits to the case. The Federal Court of Australia also explains the use of electronic technology in litigation according to Australian law and is a useful reference.
While there is no mandatory requirement for data retention in Australia, many of us are reluctant to discard data that may be useful in the future and most clinics have an archiving or back-up process in place. Some allow employee access on portable devices such as smartphones and laptops.
(Whilst the Privacy Act does not specify a mandatory requirement for data retention but rather focuses on the security and protection of data, health organisations and clinics must not confuse this with the Health Records & Information Privacy Act, where there is a requirement for the retention of health records for a set period of time.)
It is worth noting that under e-disclosure, each instance of a document is required, regardless of location, and reasonable steps are taken to ensure all copies are available. Failure to do so can result in substantial damages that can bankrupt an organisation if the costs to recover data are seen as ‘reasonable’ by the court.
But what makes the process so expensive? Surely, retrieving records or documents is an easy task in this day and age?
The reason is that specific information is necessary and data retrieval is carried out by data forensics specialists, in a manner that retrieves the document with all metadata (hidden data that shows additional information such as the date the document was created, document owner and more). Specific requirements for data retrieval are defined in the pre-trial stage and will determine the actual costs involved.
Clinics and medical practices can protect themselves and reduce the time taken to produce data by taking an approach to data management that satisfies all requirements, whether legislative compliance, security of information or production of records for litigation purposes. The IT cost of data retention can escalate if not managed correctly.
In a traditional situation, businesses deal with:
- Active data – working content and live applications
- Recovery copies – generally stored on back-ups in the cloud or local network
- Archives – where older versions are stored
- Compliance copies – required for legislative or standard compliance – a separate archive.
The primary problem is that businesses often fail to link these disparate copies correctly and additional copies are often created inadvertently, as different revisions are created or email updates are sent. Information lifecycle management (ILM) is the ultimate aim, where each document is tracked from initial conception, through multiple revisions and to eventual purge and deletion.
Happily, there are software solutions that will handle these issues and ensure that compliance, e-disclosure and other data tasks are handled in the background without manual intervention. These solutions are customised to suit the activities of the practice.
Making the transition to electronic document management sooner rather than later is recommended, as it is much easier to work with electronic originals rather than handle conversions from paper-based records. Integrating radiology media and other image-based data is an added advantage.
It is also worthwhile reducing data volumes by purging unnecessary data in a secure manner. Staff training is essential and original data should be accessed from a single central location, without sending copies by email or other method, instead sending links that allow authorised users to view the data.
The fact remains that every business, regardless of size, faces a risk of exposure to such a situation. Preparation is key. Effective data management and careful control of data access will substantially reduce the costs associated with unexpected litigation or demands for data.
This can be achieved by use of cloud-based solutions, for example, as data is stored in a single location and accessed remotely by employees with the correct user credentials. This is an important consideration when sensitive information such as health records is involved.
Rob Khamas is an eHealth solutions strategist with REND Tech Associates.
Posted in Australian eHealth