Discovery of Metadata

Estate of Lasiw v. Pereira, 475 N.J. Super. 378 (App. Div. 2023). Judge Messano’s opinion in this medical malpractice case today is a relatively rare example of a published appellate opinion regarding discovery issues. The Law Division granted a motion by plaintiff to allow an expert to review the decedent’s electronic medical records (“EMR”) at Hackensack University Medical Center. The Medical Center obtained leave to appeal, but the Appellate Division upheld the Law Division’s decision, though with certain modifications.

Judge Messano observed that “appellate courts generally defer to a trial judge’s discovery rulings absent an abuse of discretion or a judge’s misunderstanding or misapplication of the law,” and that the “discovery rules are to be construed liberally in favor of broad pretrial discovery.” Those standards of review benefited plaintiff here.

Judge Messano provided an encyclopedic discussion about metadata and the history of the Court Rules relating to metadata. He first concluded that defendants erroneously argued that plaintiff had “some initial burden to prove she ‘needs’ the metadata.” Neither the history of the Court Rules nor any authority cited by defendants supported that contention.

Defendants pitched their argument on the idea that plaintiff sought access to defendant’s computer system. But that was not strictly true. Judge Messano explained that plaintiff did not seek direct access to the system, but “sought only to inspect decedent’s EMR on a screen controlled by defendants’ employees.” Thus, it “seem[ed] unlikely” that there would be any “revelation of trade secrets or confidential information, endangerment of the stability of the computer system, a data security breach, or an unreasonable disruption of ongoing business,” since defendants themselves, not plaintiff, would control access to the system.

Defendants relied heavily on Lipsky v. N.J. Ass’n of Health Plans, Inc., 474 N.J. Super. 447 (App. Div. 2023). But Judge Messano found that case, which involved the very different “novel issue of whether a party to a pending litigation may compel a non-party State agency to turn over its employees’ State-issued and personal cell phones to that party’s expert for forensic examination, even when the agency has already produced the relevant records,” was distinguishable. The cases cited by Lipsky likewise were unpersuasive “because they addressed requests for direct access to a responding party’s electronic data and did not involve a focused request to a single patient’s EMR,” as Judge Messano explained in detail as to each such case.

Besides, because defendants had produced some metadata behind decedent’s EMR, “defendants want plaintiff to identify which metadata she wishes to see from the EMR already copied and produced in traditional format. As the motion judge noted, defendants expect plaintiff to do so without having had any access to, or ability to access, the metadata, or knowing whether metadata even exists as to a particular entry in the EMR. Our Court Rules do not require plaintiff to bear that burden.”

The Appellate Division did agree with defendants in one respect, which led to a modification of the Law Division’s order. That order “failed to set forth any real guidance or protocol to govern the scope and manner of the inspection or to set any time limits on the inspection.” The panel imposed a four-hour time limit for the inspection, which plaintiff’s expert had said could be done in “a few hours.” Judge Messano also said that “[p]laintiff’s expert may conduct the inspection of decedent’s EMR, on site, with defendants’ personnel in control of the [computer] system and the mouse. Plaintiff’s counsel may be present and may request specific metadata be copied and produced in ‘reasonably usable form.’ R. 4:18-1(a). Defense counsel also may be present to lodge any objections to particular metadata that appears on the screen or is copied for production, but any objections shall be preserved and considered by the court at a later time. The process shall not be recorded, and plaintiff’s expert and counsel shall comply with any reasonable COVID-19 protocols defendants may require.”

There was another issue regarding the extent to which an “audit trail,” which “shows the sequence of events related to the use of and access to an individual patient’s [EMR],” including who accessed that information, where, and when, had to be produced by defendants. The Appellate Division found that, on that issue, the Law Division’s opinion was not adequate to support the production of the audit trail for the period after decedent had been discharged, as the Law Division had ordered.