The universal implementation of electronic medical records (EMRs) has become the single most important piece of evidence used in medical malpractice litigation. In response to an EMR Discovery request, healthcare providers use various filters to create useless or hard to read data. Hire an expert to help you weed through the audit trail and to present Discovery requests relevant to the case.
Healthcare providers use filters to withhold electronic medical data when complying with a court order and producing EMR audit trails. During the discovery period, EMR audit trails are commonly used as the single most important piece of evidence in medical malpractice litigation. Knowing evidence is in the details, has led to a chess game of filters proving “Not all electronic medical records (EMRs) productions are created equal!” Figuring out how electronic medical records (EMRs) are filtered is a game changer!
Follow the filters!
When counsel requests a patient’s electronic medical records (EMRs) to review for evidence, the production is often delivered in non-electronic limited formats, such as; scan documents, PDF, or image files. Filters provide limited format productions of (EMRs) therefore it becomes extremely difficult to read and find evidence. Are hospitals and healthcare facilities doing this on purpose? Are they filtering their production to include irrelevant information with very little details about the event in question? They are not making it easy that’s for sure. In truth, they are complying with the court order and producing files that include the electronic health records of the plaintiff. They’re just not providing data information in its completeness. Using filters to produce audit trails is fairly common, but for the injured party and representing counsel these tactics are extremely excruciating. Requesting electronic medical records (EMR’s) is now a challenging game of filtering chess!
Forensic Experts know how to request data essential to your case.
It is quite common that hospitals and healthcare facilities use a variety of filters that will result in an incomplete production. When forensic experts study the production headers they uncover filters that were used to produce an incomplete EMR audit trail. Experts know how to ask for relevant data and dig deeper to find evidence.
Filters, Filters, and More Filters!
Date filters that are applied could exclude alteration of records after the event took place. We suggest the best practice is to use the earliest known date prior to the medical event as a starting point and place the end date the same as the current date of the request. Pushing the end date to reflect the current date will show who looked at the record post-event.
Department filters will only return records that are from one particular department, such as radiology or another department.
Employee filters include specific employees of the healthcare facility. If an EMR record only shows entries related to a physician’s user IDs this can be problematic. It’s important to know all of the names and user IDs of all healthcare providers that visited the patient.
Workstation filters are specific to desktops and/or workstations and could be the cause of incomplete production.
Location filters are used by healthcare providers to limit the full scope of production. It is not uncommon for physicians to access important medical records remotely. This could cause manipulation of data by remote access and filter out data after the event in question.
Enigma Forensics has years of experience developing requests for electronic medical records (EMRs). Our experts know how to ask the right question to retrieve the necessary data to be used as evidence. Save yourself time and expense and hire an expert! Our experts are CISSP certified (Certified Information Systems Security Professional) that provide testimony as a professional witness in a court of law.
Please call Enigma Forensics at 312-669-0333 for a complimentary consultation.
AI trends in the Legal Industry is revolutionizing data, and whittling down the amount of paperwork involved in legal practice. Lee Neubecker and DISCO’s Cat Casey discuss trends in the legal industry.
Paper death! Legal professionals get buried in a mountain of paperwork. Artificial Intelligence (AI) replaces that mountain of paper with cloud-based apps and whittles down costs. What’s new in Artificial Intelligence (AI) as it relates to the legal industry? Check out this video as Forensic Expert Lee Neubecker and DISCO’s Information Officer Catherine “Cat” Casey talk through AI trends in the legal industry.
View Part 2 of our 3 Part Series on Artificial Intelligence (AI) in the Legal Industry
The video transcript AI Trends in the Legal Industry follows:
Lee Neubecker: Hi, I’m back here again with Cat Casey from CS Disco. Thanks for coming back again.
Cat Casey: My total pleasure.
LN: We’re going to continue our conversation in this multipart series. This time, we’re talking about artificial intelligence and the trends impacting the legal industry and the whole eDiscovery industry as well.
CC: Absolutely, so in my role at Disco, I’m chief innovation officer, and one of the things I’m tasked with doing, both now and in my prior roles, is going out and figuring out what’s going on in the market, and what we’re seeing is AI written everywhere. Sometimes it’s true AI, sometimes it’s not, but what we are seeing is people want to find evidence faster. People want to eliminate those low-hanging tasks that aren’t the practice of law. And so, we’re seeing a lot of tools that are driving efficiency both in practice management and litigation management and in finding evidence.
LN: So where do you see we’ve gone in the last few years with AI in terms of advancements and providing products for the review process?
CC: When we first, I think, announced AI about 2006, seven, eight, nine, I was working as a channel partner with the company that patented the word predictive coding. That was the first AI model in eDiscovery and people liked it. They didn’t really want to use it. They were nervous. What I’ve seen is not only has the process improved instead of TAR 1.0, where you have a sample, you make decisions, and then, the algorithm might learn, we have continual models. So the tools got better, but the appetite to use them has increased dramatically, I think, in the last 18 months, because data’s getting very big, very complicated, and no amount of money or time is enough to actually get through it without using this sort of technology.
LN: So are you seeing that other messaging platforms are starting to become more a part of this process, like Slack?
CC: Oh, yeah.
LN: You’ve got all kinds of other messaging platforms, WhatsApp.
CC: Weird data is the new normal and I noticed it starting, I’ve been at Disco about a year, so starting my last 18 months at Gibson Dunn, where it used to be, okay, email, maybe text. That’s all I got to worry about. No, no, no, now I’m dealing with ephemeral messaging, which is self-destructing text messages. I’m dealing with collaboration tools like Slack and Messenger and Teams and each one of these tools has a challenge in terms of formatting the data, being able to review it, and relating it. Think of a given day. This morning, I was on Slack, then I was answering text messages, then I had a phone call, then I sent an email, then I went back to my Slack channel. That was before I got out of bed and if you want to recreate kind of this digital footprint of what people are doing, you need to have all of that info. And so, finding tools and partners that can deal with it is paramount.
LN: So does your platform at Disco, does it have APIs and import specs that match upon those alternate data streams?
CC: We do to a degree. We also do kind of a middleware layer of parsing and creating a new visualization, like say from a JSON file for Slack, we recreate that in our ecosystem and render it the way you would’ve seen it in the Slack dialogue box. And so, we’re developing more of those direct APIs of a 365 box, but we’ve worked on the visualization and ensuring that the data we receive is reviewable, usable, and easily rendered, so.
LN: Now, it’s interesting when we’ve collected cellphone data, we’ve used some of the popular tools on the market and the output of the data isn’t necessarily always easy for the attorneys to review. And what we’ve done is we’ve often taken the spreadsheet output of text.
CC: Oh yeah, yeah.
LN: So what are some of the challenges you see facing AI and its adoption over the next few years?
CC: Like with everything, it’s fear and desire. People desire the outcome of finding stuff faster, being able to practice law, but no attorney went to law school to play with relational databases and lambda calculus. I didn’t. And so, what ends up happening is there’s a fear of the unknown and a fear of explaining something to a judge who maybe didn’t even use a laptop when he was going to law school, probably didn’t. So there is a fear of using technology that folks don’t understand, a fear of explaining it, and that’s when having the right partner, the right person to testify, the right person to navigate you through this becomes so important.
LN: Have you seen much, part of my practice deals with patient electronic medical records?
CC: Oh yeah, yeah.
LN: And patient audit trails of EMR, electronic medical records.
CC: Oh, yeah.
LN: Usually, those records aren’t quite like an email thread. They’re more cryptic. They’re more accustomed to the specific platform the hospital’s use. Have you seen many of those cases come in where they’re pulling in the charts and various transcripts from the physicians and whatnot?
CC: I haven’t run into that as much at Disco, but when I was at PWC, we were doing very complex multilayer investigations, and so, we would have, sometimes, medical charts. Sometimes we would have trade databases and so, marrying and creating a story between that structured data and the unstructured data was always very challenging and very bespoke, and there’s some tech that’s beginning to create a unified place to do that. We’re looking in to do that as well, but it’s very hard to take that weirdly formatted data and render it in a way that then ties to what the humans are saying and then, help you get those facts to build your case.
LN: That’s great. Well, this has been great. In our next segment, we’ll be talking a little bit more about artificial intelligence and some of the potential challenges and impacts for organizations that don’t get on board. So thanks for coming on again.
CC: My pleasure.
View Part 1 of our 3 Part Series on Artificial Intelligence (AI) in the Legal Industry
View Other related blogs from Enigma Forensics.com
Artificial Intelligence (AI) can be used to vastly improve the eDiscovery document review process. Zylab is one of several eDiscovery vendors offering solutions utilizing AI. Lee Neubecker, Computer Forensic Expert, and President & CEO of Enigma Forensics met with Jeffrey Wolff, Director of eDiscovery Solutions at ZyLAB during his visit to the Legal Tech Conference 2020 in New York. Lee and Jeffrey discuss how AI can be used to conduct more effective eDiscovery.
Artificial Intelligence (AI) technology is everywhere. It’s hard to imagine how it’s being used in the legal industry where legal libraries filled with law books and courts filled with black-robed judges reign. In this formal traditional world, AI is now providing smart solutions for today’s electronically stored information or ESI and is streamlining the way the Legal Industry works.
In this video, Lee Neubecker, Computer Forensic Expert, and President & CEO of Enigma Forensics met with Jeffrey Wolff, Director of eDiscovery Solutions at ZyLAB during his visit to the Legal Tech Conference in New York. Lee and Jeffrey analyze how Artificial Intelligence (AI) develops smarter solutions in the eDiscovery process. Jeffrey shares with Lee that ZyLAB’s mission is to provide automated full-text retrieval using AI, for both on-premise or cloud-based solutions.
Watch Part 1 of a Three-Part Series on Artificial Intelligence (AI) and eDiscovery.
The video transcript of AI Smarter Solutions: eDiscovery follows.
Lee Neubecker: Hi, I have Jeff Wolff, back on the show from ZyLAB. Jeff, thanks for coming back on.
Jeff Wolff: Thank you.
LN: He’s their Director of eDiscovery, and I wanted to ask him some questions as it related to what differentiates ZyLAB from other products out on the market. Some of my clients may want to use this type of artificial intelligence program to help get through their review and see what the results are of using AI verse the traditional e-discovery review process, so.
LN: Jeff, could you tell us what sets ZyLAB apart from other competitors in the marketplace.
JW: Sure, sure, so first, I think ZyLAB is uniquely positioned in the fact we understand the corporate space quite well, as well as the law firm space, but we got our start incorporate, or start in information governance. So we are very vested in search and data science, and that’s really where we’ve put a lot of our focus. We have both on-premise solutions, as well as cloud-based, SaaS solutions like every other next-gen provider. But we really push our interface, our user interface and our user experience, as one of the most unique selling points. And that is, that it is not difficult to start using. Anyone, any legal professional can pick up our product in an hour, from start to finish, and understand really how you utilize it. Drag and drop interfaces for getting data into the system, and immediate color-coding and tagging, easy search, and the ability to really visualize your data and understand what’s in the dataset.
LN: Okay. So, what would you say for a company that has to deal with multiple jurisdictions, they’re in Europe, they’re in the US. JW: Sure. LN: There are some unique challenges posed by all the various regulations out there, like GDPR.
LN: Maybe the have operations in China. How could you help a company that has to deal with various regulatory authorities spanning the globe?
JW: Sure, and that’s another advantage that ZyLAB has, actually, we’re actually a global company, so we’re dual-headquartered in Washington, D.C., here in the US, as well as Amsterdam in the Netherlands, in the EU. And as a result, we have cloud operations in both jurisdictions. So our global customers can actually keep US data in the US, and they can keep the European Union in the EU, and not worry about that issue. But we also have the expertise, consulting expertise, in both environments, both geographic locations. For example, I’m doing a lot of work now with corporations, not so much focused on directly just on e-discovery, because e-discovery is a bit reactive, you know? Or corporations go through peaks and valleys with e-discovery, the litigation, something they have it, sometimes they don’t. What they constantly have though, are internal investigations, regulatory responses, in the highly regulated corporations. And more and more now, data privacy concerns. So, my European colleagues have been dealing with GDPR for a while, we’re now starting to feel it here in the US, with CCPA, the California Consumer Privacy Act. And there are a number of states on the horizon that are going to California’s examples, so corporations need to be able to find, and classify all the data that they have in their organization that has customer information because if those customers request it and they can’t provide it, they’re financially in a lot of trouble.
LN: Do you think that the regulations coming down on companies are going to fundamentally change how companies chose to communicate with their vendors, suppliers, and own employees?
JW: Absolutely. If you look at all the recent data breach situations, it’s typically not the organization that has the problem, and I won’t mention any of the large companies that have recently had data breaches, but it’s typically not the original company that had the issue, it’s one of their suppliers, or one of their vendors that had accesses to the database, and wasn’t protecting it properly, and that’s how the trouble began.
JW: Same thing with data privacy.
LN: The supply chain certainly is a huge point of vulnerability for all types of organizations. The governments, the military,
LN: and even corporations.
LN: So what do you see happening over the next few years with the adoption of AI platforms?
JW: I think the e-discovery market is going to fundamentally change. There’s still always going to be a need for discovery within corporations and law firms, but what you do you with the data is going to become much more important, so it’s going to be about how you can extract value from the data, not just metadata, which we’ve always been able to do for years now, but now more about looking for entity information. People, places, organizations that are mentioned in documents and emails, and collaborative environments, and being able to visualize those, and quickly drill down to what was going on in your organization. You know, if you got people that are going to the dentist three times a week, they’re not doing to the dentist, they’re doing something else, They’re just writing about going to the dentist.
JW: Software like ours that can identify those references in documents are going to be crucial to the success of organizations.
LN: That’s great. So it seems that there’s continued e-discovery service provider consolidation out there.
LN: The companies that are using tools that are more of a channel partner tool to resell.
LN: But as those companies consolidate, do you think that there’s going to be a movement away from those providers where, the company, the firms, directly do their own e-discovery?
JW: Oh, yes. Yeah, very much so. We’ve been seeing that over the last few years. A lot of companies, even small companies that tend to have, in the past, just used outside vendors for e-discovery, are now deciding that they prefer to control, not just the cost, but also their data. They don’t want their data outside of the organization for reasons we’ve already talked about. So they’re purchasing in-house tools that they can use themselves, and then they can invite outside counsel in to make use of, that way they control their costs, they control the efficiency, and they control the data.
LN: Well, this has been great. Thanks a bunch for being on the show.
Lee Neubecker: Thank you again.
LN: Take care.
JW: Bye bye.
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View ZyLAB’s for more information on (AI) Smart Solutions: eDiscovery
Data Diva Debbie Reynolds and Enigma Forensics’ CEO Lee Neubecker discuss what to look for in selecting a computer forensics expert to assist with preservation, litigation and eDiscovery.
The transcript of the video follows
Lee Neubecker: Debbie, thanks for being on the show again today. I’m here with Debbie Reynolds, she is Eimer Stahl’s data protection officer and she also is the director of their eDiscovery subsidiary. Thank you for coming in and being on the show.
Debbie Reynolds: Thank you, it’s always a pleasure, Lee.
Lee Neubecker: So, today we’re going to talk a little bit about the differences between eDiscovery and computer forensics and when it’s necessary to bring in an expert to actually be the testifying expert or to handle more sensitive issues, and what you look for when you’re pulling in a computer forensic expert to assist one of your projects?
Debbie Reynolds: Well, it’s never not a good idea to bring in a forensic person, so I try to get someone who’s a professional in forensics on every case that we have, so, just depends. Some big corporations, they actually have people, ’cause they do so much litigation, they have people who are captive to their organization that do it. More times than not, they either farm out that work, to a company like Lee’s company, or they come to me, they ask me for recommendations. Just depends on where they are, what their ability, who’s available. For me, it’s really important that I work with people that I trust, smart people like Lee, who knows what they’re doing. Me, I tell people, I don’t chase company names, I chase the talent, so, I’ve had situations where I’ve had an investigator or forensic person go from one company to the next, and as a stipulation of us working with them, that case went with them ’cause they had the knowledge, so for me, the thing that I look for is a company, again, people that I know and trust, people that I know are smart that know what they’re doing, people who can really present themselves, ’cause a lot of times you’re going into a situation, you’ve not met these people, you’re going in there, touching their data, people are very sensitive about it, IT people can be very territorial, so having someone who can really put people at ease and be very professional in a situation where it’s semi-hostile, where you know that the IT guy takes pride in what he’s doing, thinks he’s the expert, so you have to kind of disarm that person.
Lee Neubecker: How often are IT people hostile?
Debbie Reynolds: Oh, 1000% of the time. They’re always hostile in some way, some are more passive aggressive than others, but you know, this is their baby, you have to work with them to get access to the data, and a lot of times they feel like, well why can I do this?
Lee Neubecker: And part of the problem, when I’ve worked with the IT people, usually they’re defensive because they’re having extra work to do.
Debbie Reynolds: Oh, absolutely.
Lee Neubecker: And they’re involved in litigation, so what I try to do is I try to sit down with them and say, “hey look, “this is my role, I need to understand enough of your stuff “so that you don’t have to talk to the attorneys, “and then I can buffer you from that so that you can “do your daily work,” and when they hear that, it helps them to understand, okay, you’re here to save me from a deposition.
Debbie Reynolds: Oh, absolutely.
Lee Neubecker: Then they’re more relieved, more willing to work with you.
Debbie Reynolds: Absolutely. I think the challenge is to get, when you start a litigation, companies, in order to try to save money, that’s where they want to save money. They don’t want to spend money on a forensic person, but if I compare cases against one another, two cases are very similar, one they had a forensic person, one who doesn’t, the one that has a forensic person, down the line, their case is more smooth, ’cause we don’t have a lot of questions about who did what, what is where, we don’t have a question about who needs to sign affidavits, who needs to go to court, all that stuff, so all that headache down the line is eliminated when we bring in someone. And I’ve had people on our cases tell me, who’ve decided that they didn’t want to bring in someone, they said no, but bad decision, we should have really brought in someone.
Lee Neubecker: In my opinion, I think it’s important to know who the person to be responsible for that data, if they’d never testified in court before, that’s a potential problem, and a lot of times people don’t ask those questions. Other things like, do they have some type of certification that shows that they mastered the field of computer forensics? And did they have to take a exam that was proctored by some independent party to assess that so that you know that your person truly has the knowledge, they didn’t just attend a class and got a certificate, because that’s a little bit of a difference, and there are many people, though, that I’ve encountered, that haven’t had the formal certifications, and they’re very bright, but when you’re putting the people up, they’ve got to survive a challenge against their admissibilities expert, if they don’t have cases of record, if none of the judges know who the person is, those things are definitely problems.
Oftentimes, I’ve seen new experts get up and make basic beginner mistakes where they let the attorney override what their report is, they let the attorney write the affidavit for them, and then it gets stretched too far, and then there might have been many good things that they had to say, but all of it goes out the window because they didn’t know how to manage the hard, nose-driven litigator that wants that report to be aggressive, so you have to listen and understand those driven litigators, but you also have to protect them from killing the case, and they assume that whatever expert you put there has those skills and a lot of them don’t know when they’re getting into trouble, and they need to be able to stand up for themselves, and do it professionally, and objectively.
Debbie Reynolds: Absolutely, absolutely. A lot of times, they don’t know what they don’t know. We had a person that actually went out and got a cell phone for a case, and we were like, we don’t want anyone to touch it, we want the forensic people to look at it, or whatever, he thought, oh well you know, I’m smart, I know how to do this stuff. Not that he wasn’t smart, but this was not his area of expertise, and he turned this phone on, and basically, the person who had the data on the phone, had sent a command to the phone to be erased, so when they turned it on, it wiped out all the stuff.
Lee Neubecker: So they didn’t put it in a Faraday bag?
Debbie Reynolds: No, they didn’t put it in a Faraday bag, they didn’t put it in airplane mode, they went to Walgreens, got cords, stuck the cord in the thing and turned it on, and that was it.
Lee Neubecker: So then that becomes some spoliation claim against–
Debbie Reynolds: It was spoliation, yeah. Everyone thinks, oh I have a cell phone, so I can do this, and it’s like no. I think people need to understand that what you guys do is very different than what we do in eDiscovery and what a normal person who’s doing IT can do, ’cause you have a different aim in my mind, and you understand spoliation of evidence, and how to get data in the right formats, where another person would not know that ’cause that’s not their background, that’s not their training and that’s not the purpose of what they’re handling data for.
Lee Neubecker: Well I really thank you for being on the show, again, to talk about this, it’s great. I look forward to seeing you again soon.