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Tip: Scheduling and planning production of electronically stored information

EHR Connection, August 25, 2008

The e-discovery amendments to the Federal Rules of Civil Procedure, which govern civil proceedings in federal courts, adapt existing rules and concepts to electronically stored information.
 
This is the sixth installment in a series that explains the so-called e-discovery rules.
 
Rule 16(b) permits a court to include the following in its scheduling order: 
  • Provisions for disclosure or discovery of electronically stored information
  • Any agreements between the parties pertaining to claims of privilege or protection as trial preparation after production 
A poorly negotiated scheduling order (as it pertains to electronically stored information) can significantly add to the burden and expense of litigation. Addressing these concerns early can help streamline a case. Helpful provisions, whether in the scheduling order or in a separate agreement by counsel, can include: 
  • Bifurcation of electronic and paper discovery issues
  • Negotiated lists of search terms (to narrow the universe of potential responsive electronic documents)
  • Claw back agreements to minimize the risk of waiver of privilege by inadvertent production of electronic documents 
This tip is from The Practical Guide to Release of Information published by HCPro, Inc. Check future issues of EHR Connection for more information about the e-discovery rules.

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