Health Law Alert: Take Steps to Prevent Spoliation When Using Electronic Records

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Q. I am the local manager of a national laboratory. We just received a subpoena from the U.S. Department of Health and Human Services Office of the Inspector General seeking requisition forms, billing policies, and chargemaster information from the lab. What do we do? What is spoliation, and how do we prevent a charge of spoliation from being lodged against our company or practice?

A. Spoliation is the destruction or alteration of evidence or failure to preserve property for another’s use in litigation.1 In the aftermath of Enron and the Arthur Andersen document destruction scandal, many judges view spoliation akin to contempt and will punish offenders accordingly. For example, Magistrate Judge Paul W. Grimm recently imposed damages and costs of over $1 million on the defendants in a case in the District of Maryland.2 Judge Grimm even threatened to throw one of the defendants in jail for what he called a “truly extraordinary level of [spoliation].”

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