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Do you have the complete medical record? A discovery plan can help.

electronic discovery reference model

You practice healthcare law and just received a patient’s medical record. How can you be sure this is the complete medical record? Unless the proper steps have been taken, it is likely that both parties will not be able to answer this question. Prior to issuing the first request for discovery, the production of a data map is supported by the Federal Rules of Civil Procedure (FRCP) 26(f), and/or state-specific rules. Rule 26(f) requires the identification of electronically stored information (ESI) by category and location. The industry standard Electronic Discovery Reference Model by EDRM at Duke Law School explains the agile eDiscovery process that is meant to be a conceptual representation and not a linear framework. For the identification step, EDRM at Duke Law School offers a 7-phase identification guide including data mapping, responsible individuals (custodians), storage, retention, and legacy systems.

Planning for discovery with a conference between parties streamlines the discovery process by reducing disputes and misunderstandings about complex electronic discovery requests. Items to address include preservation, such as legal hold status and the scope of the request, whether suitable individuals are involved, or what ESI tools or methods are being utilized. Unique or outdated healthcare information systems may impact the format of discovery, such as DICOM imaging, electronic PDF, or excel files. The burden of producing native files, metadata, and audit trails can be resolved so that expectations are met. Privilege issues can be diffused including attorney-client or peer-review privilege. Employing a discovery plan and discussing the location and format of patient data is a pro-active approach to healthcare litigation. Interested in pursuing this strategy but unfamiliar with the process? Knowledgeable health information system and eDiscovery consultants can help.


EMR Discovery offers healthcare litigation support services for plaintiff medical malpractice firms. EMRD's expertise includes EMR/EHR, Audit Trails, healthcare information systems, eDiscovery support, and analytical document review solutions. EMRD delivers a customized approach to fit each unique case.

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