DISCOVERY OF ELECTRONIC MEDICAL RECORDS, METADATA, AND AUDIT TRIALS
Estate of Lasiw v. Pereira, __ N.J. Super. __ (App. Div. 2023)
In a medical malpractice case, the Appellate Division addressed the scope of discovery of an electronic medical record (EMR) and corresponding metadata and access audit trails. Plaintiffs sought inspection of all electronically stored information and the EMR for plaintiffs’ decedent including discovery of all audit trail data for the EMR and for the systems used by the defendant hospital.
On appeal by the defendant hospital contesting a court-ordered inspection of the EMR and production of audit trials, the Appellate Division made general observations informing its consideration of the order requiring the hospital to permit an inspection of the EMR and production of certain metadate.
-
Rule 4:10-2(f) permits discovery of “metadata” in electronic documents subject to the parties meeting and conferring on the scope and format of what is to be produced before any motion to compel or motion for protective order can be filed.
- The Court Rules require the party resisting discovery of metadata demonstrate undue burden or costs.
- There is no burden on the requesting party to prove an initial “need” for metadata, so such an objection is improper “unless and until the[ resisting party] demonstrate[s] the requested information is privileged or otherwise is not subject to disclosure or its production in the format requested poses an undue or excessive burden.”
- Requiring production of metadata for every entry in the 2,250 page EMR “would be particularly burdensome”, so a process where plaintiff’s expert reviewed the EMR on a screen under the supervision and control of the defendant for the plaintiff/plaintiff’s expert to select what metadata was to be copied and produced was “eminently reasonable”.
- Risk of improper disclosure of confidential information was “unlikely” if the plaintiff and plaintiff’s expert inspected the EMR on a screen controlled by the defendant hospital’s employee.
- Defendants retained the right to object to any metadata being produced on the basis of privilege.
- Parties in these scenarios should enter into a confidentiality agreement to address the potential for inadvertent disclosure of information as part of the process.
As to inspection of the EMR and production of metadata specific to this case, the Court found:
- Plaintiff's expert stated that she could conduct the inspection in "a few hours" so the court limited the inspection to four hours.
- The inspection was to be on-site with the defendant’s personnel in control of the system and the mouse.
- The inspection could be attended by counsel for both parties.
- Plaintiff's counsel could “request specific metadata be copied and produced in ‘reasonably usable form.’ R. 4:18-1(a).”
- Defense counsel may raise “objections to particular metadata that appears on the screen or is copied for production.”
- “[A]ny objections shall be preserved and considered by the court at a later time.”
- The process shall not be recorded.
As to the discovery of an access audit trail, the Court noted the hospital had already produced an access audit trail for the entirety of the decedent’s stay at the hospital. Defendant objected to the trial court ordering production of an access audit trail of decedent's EMR for almost a full year post-discharge. The Court determined the defendant should review the record and file a certification from one of defendants' designees, not from its counsel, asserting there were no entries in the decedent’s chart post-discharge or otherwise list the dates of any post-discharge entries and produce the metadata for any such additional entries in advance of the onsite inspection.
The Court closed by noting the parties retained their rights to seek further relief from the trial court based upon the results of the EMR inspection and audit trial production.
ARBITRATION COMPELLED IN DENTAL PRODUCTS LIABILITY CASE
Santana v. SmileDirectClub, LLC, __ N.J. Super. __ (App. Div. 2023)
Plaintiff filed a products liability action against defendant, alleging personal injuries resulting from the use of defendant’s clear dental aligners. Defendant moved to dismiss the complaint, arguing plaintiff was subject to the mandatory arbitration agreement within the Informed Consent and Terms & Conditions plaintiff had assented to upon the creation of his online profile.
The trial court found the arbitration clause was not enforceable as it was not clearly or conspicuously presented to plaintiff and plaintiff could agree to the terms without ever viewing the documents. On appeal, the Appellate Division reversed, the arbitration agreement was located with a clear and conspicuous hyperlink and plaintiff was required to affirmatively check the “I Agree” box next to the link, so the Appellate Division found the document put plaintiff on reasonable notice to read the terms of the contract.
FAA LIMITS SCOPE OF JUDICIAL REVIEW
Strickland et al. v. Foulke Management Corp., __ N.J. Super. __ (App. Div. 2023)
Plaintiffs had purchased a car at which time they signed an arbitration agreement. A dispute arose when the car was repossessed for failing to make payments. Following a hearing, the arbitrator dismissed plaintiffs’ claims. Plaintiffs moved for an order to show cause to vacate the arbitration award.
On appeal, the Appellate Division noted that while the Federal Arbitration Act provides certain instances when a court may vacate an arbitration agreement, the FAA does not allow the parties to contractually agree to expand the basis of review of an arbitration award. The arbitration agreement at issue did not reference the New Jersey Arbitration Act and did not state an intent to opt out of FAA’s statutory framework. Thus, a provision of the parties’ agreement that purportedly expanded the scope of judicial review was preempted by federal law and there were no grounds on which the award could be vacated.
EXPUNGEMENT STATUTE PROTECTIONS NOT EXTENDED TO THIRD PARTIES
Y.H. et al. v. T.C. et al., __ N.J. Super. __ (App. Div. 2023)
The Appellate Division recently addressed the collision of the Expungement of Records statute, N.J.S.A. 2C:52-1 to -31.1, with the statutory provisions regulating Transportation Network Companies Statute (TNC), N.J.S.A. 39:5H-1 to -27. The TNC statute prohibits rideshare services from employing someone with a conviction for aggravated assault and requires TNCs to run criminal background checks on potential drivers. The expungement statute is intended to eliminate collateral consequences, such as barriers to employment, imposed upon otherwise law-abiding citizens.
After a physical confrontation with defendant rendered plaintiff a quadriplegic, plaintiff sued defendant and Uber. Plaintiff asserted Uber was liable under a theory of negligent hiring. The record indicates Uber had knowledge of defendant’s prior conviction for aggravated assault prior to the expungement order. An issue arose as to whether plaintiff should be able to introduce information within an expunged record to support the claim against Uber.
The Appellate Division determined the statute prevents using evidence of an expunged record against the recipient of the expungement but does not extend to third parties. Thus, as long as the party seeking to introduce the evidence demonstrates good cause and a compelling need, the Appellate Division held a court cannot categorically bar admission of expungement when offered to prove a third-party’s knowledge of the underlying facts.
