The Legal Hold Policy And Procedure Discussion Paper
Legal Hold Policy and Procedure Purpose: To prevent spoliation of evidence in the event or anticipation of litigation, this policy addresses the process for retention and preservation of health records. The Legal Hold Policy And Procedure Discussion Paper
Policy: It is the policy of Community Hospital to preserve all forms of health information (paper or electronic) when litigation is anticipated and to initiate a legal hold process that prevents destruction of said information until the legal hold is lifted to prevent spoliation.
Procedure: Legal hold is issued Appropriate data stewards are notified of legal hold Preservation process initiated Review and update legal hold notices as appropriate Assign responsibility for oversight of legal hold notices Audit and track compliance with legal holds Release legal hold when no longer needed Review other legal holds to ensure no overlap Via written notice alert data stewards of lifting of the legal hold Commence normal retention and destruction schedule If information on hold would have been destroyed during the legal hold process, proceed with destruction.
Please address modifications that could help prevent future issues. Support your response with specific guidelines, regulations/laws, or best practices. Thank you!
- Clarify when legal holds should be initiated: In the current policy, it is not clear when a legal hold should be initiated. The policy should be revised to include specific guidelines on when legal holds should be initiated, such as when a charge nurse receives notice of potential litigation or when the organization’s legal department receives notice of a subpoena or complaint. This would help ensure that all relevant information is preserved and prevent the destruction of potentially relevant information.
- Expand the scope of the legal hold: The current policy only mentions health records, but it should be expanded to cover all potentially relevant information, such as emails, voicemails, and other electronic communications. This is important because electronic communications can contain relevant information that may not be found in health records.
- Develop a training program for staff: The policy should be accompanied by a training program for all staff members to ensure that they understand their responsibilities and obligations related to legal holds. The training program should cover topics such as when to initiate a legal hold, what information should be preserved, and the consequences of failing to comply with a legal hold.
- Establish a centralized system for managing legal holds: The policy should establish a centralized system for managing legal holds. This system should include a process for tracking legal holds, assigning responsibility for oversight of legal hold notices, and auditing compliance with legal holds.
- Consult relevant regulations and best practices: The policy should be reviewed and updated regularly to ensure that it is in compliance with relevant regulations and best practices. For example, the policy should be reviewed to ensure compliance with the Federal Rules of Civil Procedure, which provide guidelines for electronic discovery. Additionally, best practices from organizations such as the Sedona Conference and the Electronic Discovery Reference Model (EDRM) should be consulted. The Legal Hold Policy And Procedure Discussion Paper
- Clarifying the definition of “litigation anticipated” to ensure that all relevant situations are covered, including instances where a charge nurse has been informed of a potential lawsuit.
- Providing clear guidance on the responsibilities of data stewards and how to identify and preserve all relevant information, both paper and electronic.
- Establishing a process for ongoing monitoring and auditing of compliance with legal holds to ensure that they are being followed and updated as needed.
- Incorporating best practices and guidelines from relevant regulations and laws, such as the Federal Rules of Civil Procedure and the Health Insurance Portability and Accountability Act (HIPAA), to ensure that the policy and procedure are comprehensive and up-to-date.