Tara Emory, PMP

The risk of liability just went way up for mishandling sensitive health information, and perhaps also other types of private information protected by federal statutes. On November 11, 2014, the Connecticut Supreme Court determined that HIPAA can created a standard for a private right of action under state law for a victim who had her protected health information wrongfully disclosed to a third party during discovery. Byrne v. Avery Center for Obstetrics and Gynecology, P.C.[1] holds that the state court may look to HIPAA standards to determine the “standard of care” that should be applied in determining a state law negligence claim.

Anyone who has ever worked on a privilege log has probably suspected that there must be a better way to deal with privilege. There is … and it is finally gaining traction. Privilege logs may be one of the most wasteful parts of discovery. Costs are often high, as attorneys carefully consider for each privileged document what is the “right” description that is detailed enough to avoid challenge and yet does not betray the privileged information itself.

It would be inefficient if inside or outside counsel attempted to do all discovery tasks themselves. Yet, if something goes wrong, all counsel may be held accountable. As described in Bad Habit #4: Not Documenting the Whole Process, the standard for counsel’s own conduct and supervision of others is whether counsel made a reasonable inquiry into circumstances and reasonable efforts to comply with obligations. In other words, you must be able to show that you’ve kicked the tires.