E-Discovery Beat

Live Blogging at LTNY 2013 – Interview with Joshua Cohen

The E-Discovery Beat caught up with Joshua Cohen, Senior Partner at DeCarto Cohen Sheehan & Federico. Here is an excerpt of the interview:

E-Discovery Beat: Josh, you have taken a leadership role in e-discovery healthcare litigation, what complications does the healthcare industry cause for e-discovery?

Cohen: There are two main things. The first are the additional privacy issues that are required within the healthcare industry based on HIPAA and other state laws. Legal teams must be very careful. For example, when there is a HIPAA breach, a clawback agreement with opposing counsel does not afford you the same protections it may outside the healthcare industry because healthcare legal practitioners still will have to report the HIPAA breach. So you have to be very, very careful when disclosing data to make sure it only pertains to that patient or the patient set that’s at issue for which there is authorization or court order for disclosure.

The second thing is unstructured data. As we know with electronic medical records the data is structured so we know where it is. The unstructured data within healthcare systems is what legal teams must be beware of. When unstructured data is created by doctors via email or outside the office, it leaves IT people in charge of collecting the data, unaware that this data has been created in the first place. This means we need more conversations and interactions between the people that are responsible for preserving and collecting the data with the people that are actually creating the data that could be in unstructured areas.

E-Discovery Beat: So we have heard a lot about Big Data and predictive technologies at LegalTech this year, but from your perspective what themes do you think have been missed?

Cohen: Certainly those are hot topics and they will continue to be in 2013, but I do think we are going to see the emergence of e-discovery coming into the state court systems, in smaller, less complex litigation. Lawyers who handle those cases will still have the same e-discovery obligations that the larger corporations do, but we need to help educate these lawyers and create solutions to deal with e-discovery for less complex cases which have a proportional response in terms of handling the e-discovery preservation and production requirements. One thing that I notice when I lecture to state court attorneys is that they don’t know what a litigation hold is or often times they don’t understand e-discovery obligations in general. So really it’s about educating the practitioners at the state court level that e-discovery is here and it’s in the state courts.

E-Discovery Beat: We are hearing so much about Big Data at this year’s conference, what does Big Data mean to you and what impacts are you seeing it having on e-discovery practices?

Cohen: For me, fortunately in the healthcare sector we are already under a duty to preserve most of the data anyway, such as electronic medical records, which have statutes that require these records must be kept for years. It is the unstructured data or the emails that are not tied to electronic medical records which can cause major problems. So, it’s not so much big data because most of the big data we control is already preserved, backed up and stored, making it less of an e-discovery issue.