Just Because A Document is in the Cloud Doesn't Make it Accessible in Discovery

In the case of Edenfield v. ECM Energy Services, Inc., No. 999 MDA 2022 (Pa. Super. Aug. 1, 2023 Bowes, J., Lazarus, J., and Stevens, P.J.E.) (Op. by Bowes, J.), the Pennsylvania Superior Court reviewed a notable discovery issue and concluded that, despite the accessibility of electronic records stored by a party on the so-called cloud, state courts cannot order companies to compel documents stored on the cloud unless those companies have a sufficient link to Pennsylvania.

In this Opinion, the Pennsylvania Superior Court was presented with the question of whether electronic records stored in the cloud, without an established physical location in Pennsylvania, were located within Pennsylvania for purposes of Title 15 solely by virtue of being theoretically accessible from Pennsylvania.

In ruling that the documents did not have to be produced, the Pennsylvania Superior Court upheld a decision out of the Lycoming County Court of Common Pleas in which that court had denied a Petition to Compel Inspection of Corporate Books and Records of a Party. 

The Superior Court noted that, to rule otherwise, would permit the courts to compel any business utilizing Quick Books or similar services to have to produce records in Pennsylvania despite the fact that there was no other connection to the Commonwealth of Pennsylvania. The Superior Court stated that such a result was not contemplated by the law at issue.

Anyone wishing to review a copy of this decision may click this LINK.


Source: Article: “Despite Accessibility, Storing Corporate Records in the Cloud Does not Create Pa. Jurisdiction, Superior Court Rules.” By: Riley Brennan. Pennsylvania Law Weekly (Aug. 2, 2023).

Source of image:  Photo by Miguel Pedroso on www.pexels.com.

Discovery of Different Versions of Electronic Medical Records Allowed Where Plaintiff Alleges Doctor Altered the Records

In the case of DelGuercio v. Tio, No. 19-CV-3604 (C.P. Lacka. Co. Nov. 16, 2020 Nealon, J.), the court addressed a motion filed by the Plaintiff in a medical malpractice case seeking to compel the production of the “templates and macros” used by the Defendant doctor in creating the electronic medical record (“EMR”) at issue in this case.

According to the Opinion, this case arose out of allegations of an incorrect diagnosis following emergency room treatment that allegedly resulted in the Plaintiff being released and subsequently developing a stroke.

The Plaintiff alleged that, after the Defendant doctor had treated the Plaintiff in the emergency room and later learned what happened to the Plaintiff, the doctor allegedly made several additions and edits to the patient’s electronic medical record regarding his care of the Plaintiff during the relevant time.

The Plaintiff alleged that discovery revealed four (4) different versions of the doctor’s emergency room note that were captured by the electronic medical record system of the hospital.

During his discovery deposition, the Defendant doctor testified that he created his own “macros” that he would use when making entries into a patient’s EMR. The doctor described his macro as a template within a template. The doctor noted that he had chosen a couple of phrases within a drop-down menu and had saved them as a macro which he would then tailor to the specifics of each patient thereafter. The Plaintiff asserted that the Defendant doctor used these macros as an excuse at his deposition to explain several of his additions and deletions from the Plaintiff’s medical records.

In his decision, Judge Nealon noted that the Pennsylvania Rules of Civil Procedure pertaining to discovery are designed to advance the truth-seeking process of a jury trial and to prevent any unfair surprise at trial.

The court reiterated the rule under Pa. R.C.P. 4003.1 that discovery is to be liberally allowed with respect to any matter that is relevant and not privileged. The court emphasized that the relevancy standard applicable to discovery is necessarily broader than the standards used at trial for the admission of evidence.

After also reviewing the more specific pertinent rule of Pa. R.C.P. 4009.1 regarding the discovery of electronically stored information (“ESI”), the court noted that the discovery at issue in this matter would be discoverable as relevant to the questions presented. The court granted the Plaintiff’s Motion to Compel in part and denied it in part based upon different aspects of the discovery at issue.

Anyone wishing to review a copy of this decision may click this LINK.

Notable Medical Malpractice Discovery Decision by Judge Terrence R. Nealon of Lackawanna County

In the recent Lackawanna County Court of Common Pleas decision in the case of Baker v. Geisinger Community Medical Center, No. 2016-CV-2946 (C.P. Lacka. Co. April 7, 2017 Nealon, J.), Judge Terrence R. Nealon addressed a Plaintiff’s Motion to Compel a hospital in a medical malpractice action to produce the “audit trail” for her electronic medical records from the date of the Plaintiff’s admission to the hospital up to the present.  

Judge Terrence R. Nealon
Lackawanna County

Judge Nealon noted that the audit trail documents every occasion that an electronic medical record is accessed, what specific information is reviewed, who entered or altered any information in the chart, what information was entered or later changed, who accessed, reviewed or added information to the chart, and when and where the activity occurred. 

The court noted that the Plaintiff produced deposition testimony reflecting disparities between the testimonial recollections of the healthcare providers and the entries contained in the hospital chart.   The court noted that the audit trail will reveal which healthcare providers reviewed what information, when they acquired that knowledge, where and when they made their respective entries, and whether those entries had ever been edited or altered.  

Judge Nealon noted that electronically stored information is discoverable if it is relevant and can be produced without undue cost, burden, or delay, and where substantially similar information is not available or readily accessible by less burdensome means. 

The court in Baker held that, since the audit trail is relevant to the claims at issue and may be secured and produced without significant cost or hardship, Plaintiff’s Motion to Compel was granted under the proportionality standard governing discovery requests for electronically stored information.  

Anyone wishing to review a copy of this decision may click this LINK

Anyone wishing to read this decision by Judge Nealon in the Baker case may click HERE.

Judge Nealon of Lackawanna County Addresses Discovery of Electronically Stored Information (ESI)

In a recent decision, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the parameters of permissible discovery of electronically stored information (ESI) in the title insurance dispute case of Brogan v. Rosenn, Jenkins & Greenwald, No. 08 - CV - 6048 (C.P. Lacka. Co. July 5, 2013).

In Brogan, the Plaintiffs were seeking the discovery of electronically stored information (ESI)from the title insurance company.  The Plaintiffs, in part, questioned whether the carrier had produced all relevant documentation from its files.  Also at issue, among other areas of dispute, was the Plaintiff's request to secure ESI pertaining to certain other documents believed to be in existence by the Plaintiffs that had not been produced by the defendant.  The Plaintiff also had requests out to secure ESI on certain materials as opposed to a request for the paper form of such information.  The case came before the court by way of a motion to compel filed by the Plaintiffs.

After reviewing the prerequisites for discovery of electronically stored information set forth under Pa.R.C.P. 4009.1, the court ultimately ruled that the Plaintiff's had not established an entitlement to discovery of ESI under the facts presented as applied to the proportionality standards set forth under the Rule.  As such, the motion to compel was denied.

Anyone wishing to review this detailed Opinion in Brogan by Judge Nealon may click this LINK.